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.
2. Fourth Amendment restrictions on use of police surveillance technologies, such as electronic
4. Communications surveillance that is not regulated by the Wiretap Act, namely: (1) listening
with the unaided ear, (2) interceptions of oral communication where the target lacks a
reasonable expectation of freedom for interception, and (3) interceptions conducted by or
with the consent of a party.
Discussion Outline
§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
§5.2 Fourth Amendment Foundation of Police Surveillance Law: The Katz Standard
A. Historical development -invasive police
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1. Olmstead v. United States (Part II). Olmstead was convicted of conspiring to violate
the National Prohibition Act based on evidence obtained through a wiretap placed on his
telephone line from a junction box located on a public street. The wiretap was conducted
without probable cause or a search warrant, and continued over several months. The
B. The Katz standard. Forty years later, in United States v. Katz, the Supreme Court discarded
the Olmstead definition of a search and adopted the contemporary definition. A search occurs
when police intrud reasonable expectation of privacy, whether the intrusion
is physical or technological.
1. 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 from which Katz, a bookie, regularly placed his business calls. The
device did not penetrate the walls of the booth, the area protected under the Olmstead
2. Shortly after Katz, Congress enacted the federal Wiretap Act, which requires law
§5.3 Application of the Katz Standard to Conventional 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
B. Homes carry heightened protection under the Fourth Amendment.
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1. The home is a privacy zone that police are not allowed to enter without a search warrant.
2. open field
do not need any Fourth Amendment justification to enter an open field, although their
presence constitutes a trespass under property law. In United States v. Dunn (Part II,
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
2. Information contained in records and files in the hands of a third party. The same
principle applies to records and files in the hands of a third party. Nothing a suspect
§5.4 Application of the Katz Standard to Technologically Assisted Surveillance: An
Overview
Fourth Amendment restrictions on use of police surveillance devices depend on the nature of
information obtained whether it is in open view or hidden not the type of device used to obtain
it.
A. Technologically assisted surveillance of matters exposed to public view. The Fourth
McIver Part II)
B. Technologically assisted surveillance of matters hidden from public view. Use of police
surveillance technologies to uncover activities hidden from public view that a suspect
reasonably expects are private results in a search and requires a search warrant.
1. Because of the heightened protection for the home, police are not allowed to employ
sensory-enhancing technologies, not in general public use, to acquire information about
activities inside the home that are not visible from outside unless they have a search
2. 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.
C. Technologically assisted surveillance with the consent of a cooperating informant. Because
of this outline.
§5.5 Electronic Tracking
A. Beeper tracking of public movements. Attachment of an electronic beeper to the
B. GPS tracking.
1. Beepers are used as an aid to physical surveillance. GPS (global position system)
memory tracking systems, in contrast, completely eliminate the need for physical
2. Lower federal courts generally treat GPS tracking devices the same as beepers.
However, the Supreme Court recently agreed to hear a case (United States v. Maynard,
615 F.3d 544 (D.C. Cir. 2010)) raising the question whether prolonged GPS surveillance
constitutes a search subject to the warrant requirements of the Fourth Amendment The
court in that case ruled that the warrantless use of a GPS device
C. Electronic Tracking of Objects Inside Homes and Other Protected Premises. Electronic
beepers and GPS devices are sometimes attached to articles other than vehicles. Once a
beeper- or GPS-infected article is withdrawn from public view and taken inside a particular
residence, continued monitoring of its location requires a search warrant.
D. tracking device
tracked through their cell phone, using a method known as triangulation, which involves
§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 in full
2. United States v. McIver Part II. The court held that the warrantless placement of
unmanned surveillance cameras in a remote area of a national forest land where United
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
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
favorabl
government informant and allow his meeting with Lee to be audio– and videotaped. The
D. Video surveillance that produces a soundtrack.
1. If the government uses video equipment that produces a soundtrack, the video portion
2. Unless the suspect lacks a reasonable expectation of freedom from monitoring as, for
example, where the conversation takes place in the visitors room of a jail, or a party to
E. Mass surveillance as a tool of social control.
§5.7 Detection Devices
Detection devices that disclose things that are incapable of being detected by the ordinary senses.
A. Canine examinations
1. The Supreme Court regards use of trained narcotics- sui generis
because they disclose only the presence of narcotics, a contraband item, without
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2. Dog sniffs may be performed, with no suspicion at all, in any location where the officer
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, the search is valid without a warrant under the administrative search
2. United State v. Hartwell Part II. Crack cocaine was discovered on Harwell during a
pat-down search after he set off a metal detector at an airport security checkpoint. He
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
2. In Kyllo v. United State (Part II), the police aimed a thermal-imaging device at the
house suggested the presence of high-intensity lamps used in marijuana growth. The
§5.8 The Wiretap Act
A. Since 1968, interception of communications has been regulated a federal statute known as
§5.9 Scope of the Wiretap
A. Meaning of interception
a device is used (2) to acquire access to the contents
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(3) of a protected communication during the course of its transmission. These requirement
are discussed in reverse order for clarity of presentation.
1. Protected communication. The 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 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
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.
§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.
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.
§5.11 Communication Surveillance Not Regulated by the Wiretap Act
A wiretap order in not required to listen to the conversations of others when: (1) the conversation
§ 5.12 Listening With the Unaided Ear
A. When government agents listen with their naked ear, the only requirements are those
imposed by the Fourth Amendment. If the listening occurs in a place where the officer is
§ 5.13 Interception of Communications Where the Target Lacks a Reasonable Expectation of
Freedom From Interception
A.
exhibiting an expectation that such communication is not subject to interception under
1. 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 him and another officer by placing a microphone and transmitter in a briefcase
in his office. After 45 minutes, they removed the briefcase, ending the surveillance.
They were subsequently prosecuted under the Wiretap Act for intercepting an oral
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B. No reasonable expectation exists that a conversation will not be intercepted 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 In neither situation is a wiretap order necessary to
intercept the conversation.
1. United States v. Turner Part II. Turner and Grooms carried on an incriminating
conversation while they were s
§ 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
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.
1. 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
conversation was recorded and both were indicted for obstruction of justice. The court
§ 5.15 Access to E-mail, Voice Mail, and Text Messages
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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.
§ 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 telephone office, that identify the source and destination of all calls made to (pen
registers) or from (trap-and-trace devices) a particular telephone. Their use is not regulated
§ 5.17 Foreign Intelligence Surveillance Act
The Foreign Intelligence Surveillance Act (FISA) regulates domestic surveillance conducted for
national security purposes.
A. FISA electronic surveillance authority may be sought only when the target of the
surveillance is a foreign power or an agent of a foreign power, terms that include
international terrorist organizations and their members.
Review Questions
1. In Olmstead v. United States, the Supreme Court ruled that wiretapping did not violate the
Fourth Amendment. How did the Co
2. What impact did Katz v. United States have on Olmstead? How did the Katz court define the
5. e 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) Yes, special protection exists for the home
and the surrounding buffer zone known as the curtilage
6.
7.
her conversations but this time the walls are too thick for them to hear. They pay a motel
8. The overview of technologically assisted surveillance developed in §5.4 builds on the three
principles that were introduced in §5.3. Make sure you recognize and understand the
parallelism. (§5.4)
9. A new police surveillance device has recently come on the market. Super-Spy X-Ray
Binoculars are a surveillance device that enables police to look through walls from a distance
10. Suppose police, while standing on a public street, use ordinary binoculars to looked through
Fourth Amendment? Which of the principles introduced in §5.3 and elaborated upon in §5.4
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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
12. When is electronic beeper surveillance not regulated by the Fourth Amendment? When is it
regulated? Why has the line been drawn where it has? (§5.5)
13. When is video surveillance not regulated by the Fourth Amendment? When is it regulated?
When is a wiretap order required for video surveillance? (§5.6)
14. 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
15. What is a detection device? Give at least three examples. (§ 5.7)
16. 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)
17. Does requiring airline passengers to undergo magnetometer screening and have their carry–
on luggage x-rayed before boarding a plane involve a search? Why are individualized
suspicion and a search warrant not required? Explain both answers. (§ 5.7)
21.
secretary. Officers Harris s office and asked to speak with her.
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22. The Wiretap Act provides strong protection for the privacy of communications. The
23. What three areas of communications surveillance fall outside the scope of the Wiretap Act?
(§§5.11-5.14)
24. Police officers rent a motel room a oom to conduct communication
surveillance. Mary is cautious and speaks only in a whisper. Frustrated at not being able to
25. The backseats of all Whosville Police Department squad cars are equipped with
26. 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) Information disclosed to a third
nt.
27. Which of the following examples fall within the consent exception to the Wiretap Act? (§
5.14) All four.
a. Judy Judas, a police informant, engages Mary Wanna in an incriminating conversation
while wearing a concealed radio transmitter and tape recorder.
28. When are email, 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 email during the first 180 days of storage? After 180 days? (§ 5.15)
Examination Questions (* indicates the correct response)
(§§5.4, 5.5, 5.6, 5.7)
1. In which of the following situations is a search warrant necessary?
(§§ 5.4, 5.5, 5.6, 5.7)
(§§ 5.3, 5.4, 5.5, 5.6, 5.7)
3. In which of the following situations is a search warrant required?
4. The Supreme Court has given the following reason for holding that a dog sniff is not a search
under the Fourth Amendment:
5. The Wiretap Act requires proof that the target of the surveillance had a reasonable
expectation of freedom from interception for protection of which of the following types of
communications?
6. In which of the following situations is a wiretap order necessary?
7. In which of these situations is a wiretap order required?
8. A wiretap is not required to secretly tape-record a conversation when:
9. A wiretap order is not required when:
10. A wiretap order is not required to monitor a telephone call when:
(§§5.6, 5.9, 5.15. 5.16)
11. The Wiretap Act does not cover:
12. Which of following requires a wiretap order?
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13. FBI agents have good reason to believe that Sam and his sister Mary Wanna were involved
in the theft of an important work of art that was being shipped from one museum to another. The
theft occurred yesterday. Sam and Mary live in different cities and communicate primarily by e-
mail. FBI agents want access to the e-mail exchanged between them over the last 30 days. They
will need a:
(§ 5.16)
14. Installation and use of a pen/trap device requires:
15. A FISA electronic surveillance order may be obtained only when:
Multiple Choice Questions (*indicates correct answer)
1. In this decision, the Supreme Court overruled Olmstead v. United States:
2. The Hoffa doctrine asserts the following:
3. Video surveillance that produces a soundtrack requires:
4. The Wiretap Act protects the following type of communications:
5. All of the following are procedural requirements for a wiretap order except for:
6. A wiretap order is a specialized form of a:
7. Stored e-mail, voice mail, and text messages are covered under the:
8. A pen register is used to:
9. The Foreign Intelligence Surveillance Act (FISA) establishes statutory guidelines to conduct
electronic surveillance:
10. The following Bush Administration policy sparked controversy and led to the revision of
FISA:
True/False Questions (*indicates correct answer)
1. In Olmstead v. United States, the Supreme Court ruled that wiretapping was considered a
search.
2. After Katz v. United States, the Fourth Amendment has been understood to protect people, not
places.
3. Even if
considered a search.
4. In United States v. Place, the Supreme Court ruled that suspects have no legitimate expectation
of privacy in contraband and have no right to object to the use of devices that expose only its
presence.
False
5. Police may use thermal image devices to search for marijuana growing operations in private
homes without a warrant.
6. The secret recording of a conversation that a government agent is close enough to hear does not
violate the Wiretap Act.
7. Stored e-mail messages are entitled to less protection than e-mail messages in the process of
being transmitted.
8. In Hoffa v. United States, the Supreme Court ruled that the Fourth Amendment can protect a
wrongdoer’s misplaced belief that the person to whom he confides his wrongdoing will not pass
the information on to the authorities.
9. Wiretapping is different from other searches because it is ongoing and unavoidably intrudes
.
10. It does not matter if a beeper is installed in a manner that violates the Fourth Amendment.