CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE,
FOURTEENTH EDITION
BY JACQUELINE R. KANOVITZ
INSTRUCTOR’S GUIDE
Note: Cases that appear in Part II of the textbook are noted in boldface.
Chapter 5
Laws Governing Police Surveillance
Objectives
Chapter 5 covers Fourth Amendment and federal statutory regulation of police surveillance. The student
should leave this chapter with an understanding of:
1. Fourth Amendment restrictions on non-assisted surveillance.
Discussion Outline
[PowerPoint Slides 1 and 2 contain book and chapter title information.]
PowerPoint Slide 3. Threshold Question in Police Surveillance Law
Does the activity in question constitute a search?
• If yes, then it will require a:
§ 5.1 Introduction to the Laws Governing Police Surveillance
In modern times, it is not usual for police to use a host of surveillance techniques in a single investigation,
such as wiretapping, interception of e-mail, video surveillance, and use of electronic tracking devices. This
chapter discusses the constitutional and statutory rules that apply to police surveillance. It builds on the
search and seizure principles developed in Chapter 4.
PowerPoint Slide 4. History
• Olmstead v. United States (1928)
o A search requires a physical trespass into constitutionally
protected location.
o Wiretapping does not violate the Fourth Amendment
§ 5.2 Fourth Amendment Foundation of Police Surveillance Law
A. Olmstead v. United States was the Supreme Court’s first attempt to reconcile the government’s use of
B. In Katz v. United States, the Supreme Court announced the reasonable expectation of privacy test.
▪ Katz v. United States (Part II). The evidence used to convict Katz was obtained by attaching an
electronic listening and recording device to the outside of a public telephone booth Katz used in
C. Shortly after Katz, Congress enacted the federal Wiretap Act, which requires law enforcement officials
to obtain a wiretap order (i.e., a specialized search warrant) to engage in wiretapping and electronic
surveillance.
D. Recent Court decisions make it clear that the “reasonable expectation of privacy” test did not replace
the original definition of a search. The original definition was adequate to protect privacy for the first
PowerPoint Slide 5. Non-Assisted Surveillance
How the Fourth Amendment Applies
• Matters exposed to public view
o Not protected
o Police, where lawfully present, may use natural senses
• Home
§ 5.3 Application of the Fourth Amendment to Non-Assisted Surveillance
Most of the rules that govern technologically assisted surveillance evolved from principles developed
earlier in cases involving non-assisted surveillance. The three principles described below are of central
importance in police surveillance law and continuously reemerge in slightly changed forms throughout the
entire field
A. Police surveillance of matters exposed to public view is not a search. Police are free to investigate
heard, or otherwise detected by members of the public.
B. Homes carry heightened protection under the Fourth Amendment.
1. The home is a privacy zone that police are not allowed to enter without a search warrant. Protection
for the home extends to the curtilage. Surveillance of the suspect’s home may not be conducted
from a vantage point inside the curtilage without a search warrant.
2. The area that lies beyond the boundary of the curtilage is called an “open field.” Police do not need
C. Information voluntarily disclosed to a third party carries no Fourth Amendment protection.
1. Conversations between the suspect and a police informant. Nothing a suspect voluntarily reveals
to a police undercover agent or informant is protected by the Fourth Amendment. This principle
was established in Hoffa v. United States, where the Supreme Court ruled that the Fourth
Amendment does not protect a wrongdoer’s misplaced belief that the person to whom he confides
his wrongdoing will not pass the information on to the authorities. Once information has been
voluntarily revealed, the suspect lacks any further constitutionally protected privacy interest in it.
2. Information contained in records and files in the hands of a third party. The same principle applies
PowerPoint Slide 6. Technologically Assisted Surveillance: An Overview
How the Fourth Amendment Applies:
• Use of publicly available sense-enhancing devices to
observe matters exposed to public view is not a search.
§ 5.4 Application of the Fourth Amendment to Technologically Assisted Surveillance:
An Overview
A. Technologically assisted surveillance of matters exposed to public view. The Fourth Amendment does
not restrict use of surveillance devices that enable police to observe more efficiently, cost-effectively,
or at a greater distance matters in open view. Police are free to use publicly available surveillance
B. Use of advanced technologies to spy on activities inside a home or other protected locations
Because of the heightened protection for the home, police are not allowed to employ sensory-enhancing
C. Wiretapping, bugging, and interception of electronic transmissions are now regulated by the Wiretap
Act, which is covered in §§5.8–5.15 of this outline.
D. Technologically assisted surveillance with the consent of a cooperating informant. Because
PowerPoint Slide 7. Tracking Movements with Beepers, GPS Devices, or Cell Phones
How the Fourth Amendment applies
• A search warrant is necessary to:
1. Attach a tracking device to the suspect’s property
2. Track a suspect’s movements 24/7 for an extended
period
3. Track objects inside a home or other protected location
• A search warrant is not necessary to track suspect’s
movements in public unless 1 or 2 apply
§ 5.5 Beeper, GPS, and Cell Phone Tracking
A. Much has changed in the law of electronic tracking since the last edition of this textbook. A search
warrant is now required to: (1) attach a tracking device to the suspect’s property, (2) engage in long-
term electronic surveillance, and (3) track the location of objects inside homes and other private
locations. The first two restrictions are new.
1. United States v. Jones (Part II). Federal agents, acting on an expired warrant, attached a GPS
device to the defendant’s vehicle and used it to track his travels for 28 consecutive days. The Court
held that the defendant’s rights were violated. Although the result was unanimous, the justices
differed in their reasoning. The majority opinion focused on the installation of device. Attaching
2. Tracking devices are occasionally installed in objects other than vehicles. Once a beeper- or GPS-
infected object is withdrawn from public view and taken inside a residence, continued monitoring
of its location requires a search warrant.
3. In Knotts v. United States, a tracking device was installed in a container of chemicals before it was
sold to the defendant. The device was used to track the movements of the suspect’s vehicle over
B. Use of the suspect’s cell phone as a tracking device. Law enforcement agencies are increasingly turning
to cell phones as a means of locating suspects and tracking their movements. A person’s present
location can be tracked through their cell phone, using a method known as triangulation, which
involves estimating the caller’s location based on the relative positions of the different cellular
receiving towers that carried the signals from his phone.
1. The law in this area is still developing, but a majority of courts hold that short-term cell phone
location tracking does not implicate the Fourth Amendment. The rationale is based on the Hoffa
principle that information voluntarily disclosed to a third party carries no Fourth Amendment
protection. Since cell phone users voluntarily disclose their location to their service provider when
2. The fact that the Fourth Amendment is not implicated by cell phone location tracking still leaves
police with the problem of gaining access to the tracking information from the defendant’s service
provider if the provider is unwilling to turn it over voluntarily. The Stored Wire and Electronic
Communications and Transactional Records Act provides a simple mechanism for obtaining past
PowerPoint Slide 8. Video Surveillance
How the Fourth Amendment Applies
• Activities on exposed to public view
§ 5.6 Video Surveillance
A. Video surveillance of activities in open view
1. Police do not need a search warrant to use video cameras to monitor activities exposed to public
view. Surveillance cameras may be used without a warrant in any location where an officer could
lawfully make the observation in person.
a. The curtilage of the suspect’s home is an exception to this rule. Police may not conduct long–
term video surveillance of activities inside the curtilage of a suspect’s home without a search
warrant.
b. United States v. Anderson–Bagshaw (Part II). Bagshaw was under investigation for making
fraudulent statements to obtain disability payments. Government agents, with the consent of
B. Video surveillance of activities inside private homes and offices.
1. A search warrant is necessary to install and use video surveillance equipment inside private homes,
offices, and other locations protected by the Fourth Amendment.
2. An ordinary search warrant does not suffice to authorize video surveillance. Because of the hyper-
C. Video surveillance of interactions between the target and a cooperating informant.
1. Police do not need a search warrant to conduct secret video surveillance of contacts between a
suspect and a cooperating informant. Because the informant could have reported everything said
2. United States v. Lee (Part II). The FBI was investigating Lee, the President of the International
Boxing Foundation, for accepting bribes in exchange for giving boxers favorable ratings. FBI
D. Video surveillance that produces a soundtrack.
1. If the government uses video equipment that produces a soundtrack, the video portion must satisfy
the Fourth Amendment, while the audio portion must satisfy the Wiretap Act.
be necessary to use video equipment that produces a sound track.
PowerPoint Slide 9. Detection Devices
How the Fourth Amendment applies:
• Devices capable of revealing only the presence of contraband
o No protection
• Metal detectors and X-ray scanning machines
§ 5.7 Detection Devices
Detection devices that disclose things that are incapable of being detected by the ordinary senses. This
section explores Fourth Amendment restrictions on four widely used police detection devices—drug- and
bomb-sniffing dogs, magnetometers, X-rays, and thermal detectors.
A. Canine examinations
1. The Supreme Court regards use of trained narcotics-detection dogs as “sui generis” because they
disclose only the presence of narcotics, a contraband item, without providing information about
3. Canine sniffs may not be performed, without a search warrant, inside the curtilage of the suspect’s
home because police have no right to enter the curtilage in search of evidence without a search
warrant.
▪ Florida v. Jardines (Part II). Police took a drug-sniffing dog onto the defendant’s front porch.
The canine gave a positive alert at his front door. Justice Scalia relied on the original definition
B. X-ray and magnetometer searches
1. Use of X-rays and magnetometers in airports, courthouses, jails, and other places with special
security needs does not violate the Fourth Amendment. Although their use constitutes a search,
▪ United State v. Hartwell (Part II). Crack cocaine was discovered on Hartwell during a
patdown search after he set off a metal detector at an airport security checkpoint. He sought
C. Heat Sensors (Thermal-Imaging Devices)
1. Indoor marijuana gardens require heat lamps that produce substantial amounts of heat. Thermal
imagers (heat sensors) create a picture based on heat emissions. When directed at a building
suspected of being used to grow marijuana, the device can confirm those suspicions by detecting
an abnormal heating pattern suggestive of a marijuana growing operation.
2. In Kyllo v. United States (Part II), the police aimed a thermal-imaging device at the defendant’s
home from a public street to detect whether the heat emanating from his house suggested the
§ 5.8 The Wiretap Act
A. Since 1968, interception of communications has been regulated by a federal statute known as the
Wiretap Act. Enactment of the statute was made necessary by the Supreme Court’s holding in Katz v.
United States that a search warrant is required to secretly monitor telephone conversations.
PowerPoint Slide 10. Wiretap Act
• An interception occurs:
§ 5.9 Scope of the Wiretap
A. Meaning of interception. An “interception” is necessary to trigger application of the Wiretap Act. An
“interception” occurs when: (1) a device is used (2) to acquire access to the contents (3) of a protected
communication (4) during the course of its transmission. These requirements are discussed in reverse
order for clarity of presentation.
PowerPoint Slide 11. Wiretap Act Protects Three Kinds of Communications
a. Wire (i.e., communications containing the human voice that travel through wires at some
point in their transmission);
2. To acquire access to the contents.
a. For an interception to occur, the device used must provide access to the contents of a protected
communication. Devices that provide access to other information, such as the telephone
numbers dialed to or from a particular phone, are beyond the scope of the Wiretap Act.
b. Furthermore, the access must be acquired while the message is being transmitted. The Wiretap
3. Use of a device. The Wiretap Act regulates use of any device, mechanical, electronic, or otherwise
that facilitates access to the contents of a protected communication in the course of transmission.
The type of device does not matter.
PowerPoint Slide 12. Procedural Requirements for a Wiretap Order
The Wiretap Act
• Limits crimes for which wiretap orders may be obtained.
§ 5.10 Procedural Requirements for Intercepting Protected Communications
The procedural requirements for obtaining and executing a wiretap order exceed Fourth Amendment
requirements for a conventional search warrant. The Wiretap Act:
A. Limits the crimes for which wiretap orders may be issued to serious crimes.
B. Requires approval by a high-ranking official within the Justice Department before the application may
be submitted to the court.
E. Limits the duration of wiretap orders to a maximum of 30 days or attainment of the authorized
objective, whichever occurs first. A fresh application is required for an extension.
F. Requires that wiretap orders be executed so as to minimize intrusions into communications not related
to the investigation.
G Limits disclosure and use of communications intercepted under a wiretap order to: (1) furtherance of
the investigation, (2) national defense and security, and (3) giving testimony in court.
PowerPoint Slide 13. Wiretap Act Does Not Protect
§ 5.11 Communication Surveillance Not Regulated by the Wiretap Act
A wiretap order is not required to listen to the conversations of others when: (1) the conversation is
overheard naturally (i.e., without the aid of a device), (2) the target of the surveillance lacks a justifiable
expectation of freedom from interception, or (3) the interception is conducted by or with the consent of a
party. These situations are explored in the next three sections.
§ 5.12 Listening With the Unaided Ear
A. When government agents listen with their naked ear, the only requirements are those imposed by the
§ 5.13 Interception of Communications Where the Target Lacks a Reasonable Expectation of
Freedom from Interception
A. The Wiretap Act only protects oral communications when they are “uttered by a person exhibiting an
expectation that such communication is not subject to interception under circumstances justifying such
expectation.” Whether a person has a reasonable expectation of freedom from interception depends on
a number of factors, the most important of which are the nature of the location, the presence and
proximity of others, and how loudly the person speaks.
▪ United States v. McIntyre (Part II). Suspecting McGann, a police officer, of illegal narcotics
trafficking, the chief of police and a lieutenant monitored a conversation between McGann and
B. No reasonable expectation that a conversation will not be intercepted exists where the conversation is
carried on: (1) in a public place while third parties are within normal hearing range (bugged funeral
urn case), or (2) in highly controlled police environments, such as police stations, jails, prisons, and
patrol cars because surreptitious monitoring is so common in these locations that it’s almost expected.
In neither situation is a wiretap order necessary to intercept the conversation.
▪ United States v. Turner (Part II). Turner and Grooms carried on an incriminating
§ 5.14 Interception with the Consent of a Party
A. A wiretap order is not required to intercept wire, oral, or electronic communication when the
interceptor is a party to the communication or one of the parties to the communication has given prior
consent to the interception.
B. Consent may be implied, as well as expressed. Consent will be implied when a person places a
telephone call with notice that calls may be monitored. Implied consent is regularly used to justify the
warrantless monitoring of prisoner phone calls.
▪ United States v. Willoughby (Part II). Quintin, a prisoner, called Willoughby at his home, using
a correctional facility telephone, during which the two discussed hiring a hit man to kill a certain
PowerPoint Slide 14. E-mail, Voice, and Text Messages
• Wiretap Act
o Protects interception of e-mail during the transmission stage
only
§ 5.15 Access to E-mail, Voice Mail, and Text Messages
A. The Wiretap Act protects e-mail, voice mail, and text messages during the brief period of transmission.
A wiretap order is necessary to intercept them while they are being transmitted.
B. Once messages reach their destination, the strong legal protection under the Wiretap Act ends. They
become stored communications, and access is controlled by the Stored Wire and Electronic
Communications and Transactional Records Act.
C. Protection for stored communications weakens as time passes. For communications that have been in
storage for more than 180 days, for example, access can often be obtained without notice to the
§ 5.16 Pen Registers and Trap-and-Trace Devices
A. Pen registers and trap-and-traces are recording devices attached to a telephone line, usually at a central
B. The Electronic Communications Privacy Act makes it illegal to install pen/traps without a court order.
Orders are readily obtainable. The only thing necessary is an application made under oath stating that
the information likely to be obtained is relevant to an ongoing criminal investigation.
PowerPoint Slide 16. FISA (Foreign Intelligence Surveillance Act)
• The government is required to obtain a surveillance order
§ 5.17 Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act (FISA) regulates domestic surveillance conducted for national
security purposes.
A. FISA electronic surveillance orders may be obtained to conduct domestic surveillance only when the
target is a foreign power or an agent of a foreign power, terms that include international terrorist
organizations and their members.
B. Applications for FISA surveillance orders must be approved by the Attorney General, state the facts
warranting a belief that the target of the surveillance is a foreign power or agent of a foreign power,
C. Judicial oversight is minimal. The judge is required to approve the application if the information
D. A surveillance order is not required to conduct electronic surveillance of international communications
Student Review Questions (Answers are provided at the end for questions that have asterisks beside them.)
1. How was the term “search” defined prior to Katz v. Ohio? (§5.2)
2. How did the Supreme Court define this term in Katz v. United States? What impact did the Katz
definition have on the pre-Katz approach? (§5.2)
3. Congress responded to the Katz decision by enacting the Wiretap Act. What did the Supreme Court
say in Katz that made enactment necessary? (§§ 5.2, 5.8)
*5. A police officer crawls over Mary Wanna’s fence and listens under her window as she conducts a series
of drug transactions. Mary speaks in a tone loud enough to be heard only by someone standing under
her window. Does this violate the Fourth Amendment? Which of the three principles discussed in §5.3
applies? (§5.3)
*6. Police officers rent a motel room adjoining Mary Wanna’s room and conduct surveillance of her
conversations by pressing their ears against the common wall. The walls are thin and they are able to
hear everything Mary says. Does this violate the Fourth Amendment? Which of the three principles
discussed in §5.3 applies? (§5.3)
*7. Police officers rent a motel room adjoining Mary Wanna’s room to conduct surveillance of her
*10.Suppose police, while standing on a public street, use ordinary binoculars to look through an open
window in Mary Wanna’s house and see the very same thing. Does this violate the Fourth Amendment?
Which of the principles introduced in §5.3 and elaborated upon in §5.4 applies? What if the officer was
standing on Mary’s property in an open field outside the curtilage when he used binoculars to view the
interior of her home? Would this change anything? (§5.4)
*11.Suppose Judy Judas agrees to wear a concealed radio transmitter when she makes her next drug
purchase from Mary Wanna. Mary speaks freely, unaware that Judy is wired for sound and that the
police are listening. Does this violate the Fourth Amendment? Which of the principles introduced in
§5.3 and elaborated upon in §5.4 applies? (§5.4)
*12.Is a search warrant necessary to: (a) attach a tracking device to the suspect’s vehicle? (b) monitor the
movements of the suspect’s vehicle on public roads during a single trip? (c) monitor the movement of
a suspect’s vehicle on public roads for a period of four weeks? (d) monitor whether a beeper-infected
can of chemicals remains in the suspect’s home? (e) track a suspect using the location information and
signals given off by his cell phone? (§5.5)
*13.The Whosville Police Department received a report from a highly reliable informant that Mary Wanna
is a drug dealer who traffics in narcotics out of her home located at 1420 Fifth Avenue. Police would
like to conduct electronic video surveillance to identify the people who regularly come and go and
would also like to install silent video surveillance cameras inside her home? (a) Would installing a
concealed video surveillance camera on the telephone pole across the street from Mary’s home violate
her rights under the Fourth Amendment? (b) Would sneaking into Mary’s home while she is away and
installing a concealed video surveillance camera inside her home violate Mary’s rights under the Fourth
Amendment? (c) Is there any way the Whosville Police Department may legitimately install a
concealed video surveillance camera inside Mary’s home? (§5.7)
14. What is a detection device? Give at least three examples. (§5.7)
15. What reason has the Supreme Court given for holding that a sniff performed by a trained narcotics
detection dog does not involve a search? (§5.7)
*20.Mary Wanna’s business has prospered and she now has an office with a waiting room and secretary.
Officers Harris and West went to Mary’s office and asked to speak with her. Mary’s secretary
announced their presence and returned, telling them they would have to wait a few minutes. She then
departed for lunch. While sitting in Mary’s waiting room, the officers notice that a light on the
secretary’s extension phone is blinking. They pick up the extension phone and listen to Mary’s
telephone conversation. Did they violate the Wiretap Act? (§5.9)
21. The Wiretap Act contains procedural safeguards that go beyond Fourth Amendment requirements for
an ordinary search warrant in at least five different ways. Identify them. (§5.10)
22. What three areas of communications surveillance fall outside the scope of the Wiretap Act? (§§5.11–
5.14)
*23.Police officers rent a motel room adjoining Mary Wanna’s room to conduct communication
*24.The backseats of all Whosville Police Department squad cars are equipped with concealed microphones
and tape recorders. Police arrested Mary Wanna and one of her associates during a drug bust, placed
them in the backseat of a squad car, and took the long route to the police station. By the time the patrol
car arrived at the police station, there was no need for a custodial interrogation. Mary had said it all.
Did the Whosville Police Department violate Wiretap Act? (§5.13)
*25.In §5.14, you learned that a wiretap order is not required when the interception is conducted by or with
the consent of a party to the conversation. Which of the three principles discussed in §5.3 forms the
basis for this exception. (§§5.3, 5.14).
*26. Which of the following examples fall within the consent exception to the Wiretap Act? (§5.14)
a. Judy Judas, a police informant, engages Mary Wanna in an incriminating conversation while
wearing a concealed radio transmitter and tape recorder.
b. Judy Judas consents to allow the police to place a tap on her own telephone line so that they can
27. When are e-mail, voice mail, and text messages protected by the Wiretap Act? The Stored Wire and
Electronic Communications and Transactional Records Act? What is necessary to obtain access to e–
mail during the first 180 days of storage? After 180 days? (§5.15)
28. What is a pen register device? A trap-and-trace device? What legal steps are required before installing
and using them? (§5.16)
ANSWERS:
12. (a) Yes. (Jones v. United States (Part II)) (b) A warrant is not required to monitor a vehicle’s travels
13. (a) Installing a concealed video surveillance camera on the telephone pole across the street from Mary’s
home would not violate her rights under the Fourth Amendment because police surveillance of matters
18. In Olmstead, the intercepted communication was a wire communication; in Katz, the intercepted
