Technologically-Assisted Physical Surveillance

In August 1998, the ABA House of Delegates approved these “black letter” standards that have been published with commentary in ABA Standards for Criminal Justice: Electronic Surveillance: Section B: Technologically-Assisted Physical Surveillance, 3d ed., © 1999 American Bar Association. For the text of the publication, click HERE .

Electronic Surveillance:
Part B: Technologically-Assisted Physical Surveillance

Standard 2-9.1. General principles

(a) Need for Surveillance. Technologically-assisted physical surveillance can be an important law enforcement tool. It can facilitate the detection, investigation, prevention and deterrence of crime, the safety of citizens and officers, the apprehension and prosecution of criminals, and the protection of the innocent.

(b) Need for Regulation. Law enforcement use of technologically-assisted physical surveillance can also diminish privacy, freedom of speech, association and travel, and the openness of society. It thus may need to be regulated.

(c) Factors Relevant to Regulating Use of Surveillance. Whether technologically-assisted physical surveillance should be regulated and, if so, to what extent should be determined by the following factors:

(i) The law enforcement interests implicated by the surveillance, including:

(A) The nature of the law enforcement objective or objectives sought to be achieved;

(B) The extent to which the surveillance will achieve the law enforcement objective or objectives; and

(ii) The extent to which the surveillance technique invades privacy, which should include consideration of:

(A) The nature of the place, activity, condition, or location to be surveilled;

(B) The care that has been taken to enhance the privacy of such place, activity, condition, or location;

(C) The lawfulness of the vantage point, including whether either the surveillance or installation of surveillance equipment requires a physical intrusion;

(D) The availability and sophistication of the surveillance technology;

(E) The extent to which the surveillance technology enhances the law enforcement officer's natural senses;

(F) The extent to which the surveillance of subjects is minimized in time and space;

(G) The extent to which the surveillance of non-subjects is likewise minimized;

(H) Whether the surveillance is covert or overt;

(iii) The extent to which the surveillance diminishes or enhances the exercise of First Amendment freedoms and related values;

(iv) The extent to which the surveillance technique is less intrusive than other available effective and efficient alternatives.

(d) Implementation of the Surveillance. Officers conducting regulated technologically-assisted physical surveillance should be governed by the following considerations:

(i) The subjects of the surveillance should not be selected in an arbitrary or discriminatory manner.

(ii) The scope of the surveillance should be limited to its authorized objectives and be terminated when those objectives are achieved.

(iii) When a particular surveillance device makes use of more than one regulated technology and the technologies are governed by differing rules, the more restrictive rules should apply.

(iv) The particular surveillance technique should be capable of doing what it purports to do and be used solely for that purpose by officers trained in its use.

(v) Notice of the surveillance should be given when appropriate.

(A) Pre-surveillance notice should be given by the appropriate authority when deterrence is the primary objective of the surveillance (as with some types of checkpoints) or when those potentially subject to the surveillance should be given the option of avoiding it.

(B) When a court order has authorized the surveillance, post-surveillance notice should be given by the appropriate authority to those listed in the order, but can be delayed for good cause shown. Post-surveillance notice to the principal target(s) of the surveillance may also be appropriate for other surveillance requiring probable cause.

(vi) Disclosure and use by law enforcement officers of information obtained by the surveillance should be permitted only for designated lawful purposes.

(vii) Protocols should be developed for the maintenance and disposition of surveillance records not required to be maintained by law.

(e) Rule-making and Decision-making Entities. A variety of entities, including the courts, legislatures, executive officials, prosecutors, the defense bar, law enforcement agencies, and the public, have a responsibility in assessing how best to regulate the use of technologically-assisted physical surveillance. The role that each should play in making this assessment depends on such factors as the:

(i) Legal basis for the rule;

(ii) Invasiveness of the surveillance;

(iii) Need for deference to expertise in law enforcement;

(iv) Value of sharing decisionmaking; and

(v) Number of people and size of the geographic area affected by the surveillance.

(f) Accountability and Control. Government officials should be held accountable for use of regulated technologically-assisted physical surveillance technology by means of:

(i) Administrative rules which ensure that the information necessary for such accountability exists;

(ii) The exclusionary sanction when, and only when, it is mandated by federal or state constitutions or legislation.;

(iii) Internal regulations promulgated pursuant to Standard 2-9.l(g).

(iv) Periodic review by law enforcement agencies of the scope and effectiveness of technologically-assisted physical surveillance; and

(v) Maintaining and making available to the public general information about the type or types of surveillance being used and the frequency of their use. Sensitive law enforcement information need not be disclosed.

(g) Written Guidance to Law Enforcement Officers. Each law enforcement agency should develop written instructions regarding resort to regulated technologically-assisted physical surveillance and should mandate that officers of that agency comply with those instructions. These instructions should include:

(i) The requirements as to specific types of surveillance, as set out in Standards 2-9.3 through 2-9.6;

(ii) The rules developed by other agencies pursuant to Standard 2-9.1(e); and

(iii) Such other rules as are necessary to implement these general principles in specific contexts.

(h) Non-binding Effect of Standards. Nothing in these standards is intended to create rights, privileges or benefits not otherwise recognized by law. Rather, they are meant to ensure that surveillance decisions are based on all relevant considerations and information.

Standard 2-9.2. Definitions

The following definitions apply to Standards 2-9.3 through 2-9.6.

(a) Covert surveillance. Surveillance intended to be concealed from any subject of the surveillance.

(b) Detection devices. Devices used to detect the presence of a particular object (e.g., explosives, drugs, weapons, or certain chemicals) or characteristic (e.g., shape, size, density, hardness, material, texture, temperature, scent) that is concealed behind opaque inanimate barriers. Such a device is contraband-specific if it can only reveal the presence of an object that is always or virtually always criminal to possess or use in the existing circumstances. Such a device is weapon-specific if it can only reveal the presence of a weapon.

(c) Illumination devices. Devices that make visible details not visible to the naked eye because of poor lighting conditions.

(d) Legitimate law enforcement objective. Detection, investigation, deterrence or prevention of crime, or apprehension and prosecution of a suspected criminal. An action by a law enforcement officer is "reasonably likely to achieve a legitimate law enforcement objective" if there are articulatable reasons for concluding that one of these objectives may be met by taking the action.

(e) Overt surveillance. Surveillance of which a reasonable person would be aware.

(f) Private. An activity, condition or location is private when the area where it occurs or exists and other relevant considerations afford it a constitutionally protected reasonable expectation of privacy. A place is private if physical entry therein would be an intrusion upon a constitutionally protected reasonable expectation of privacy.

(g) Reviewing law enforcement official. A law enforcement officer other than the person who will implement the surveillance. Such an officer may be supervisory (e.g., a sergeant, lieutenant or commander of a district or unit), or politically accountable (e.g., a department head or a prosecutor). A supervisory officer should have participated in specialized training on surveillance techniques and applicable legal guidelines.

(h) Telescopic devices. Devices that make visible details not visible to the naked eye because of distance.

(i) Tracking devices. Devices used to track movement of persons, effects, or vehicles such as beepers, over-the-horizon radar, and Intelligent Transportation Systems.

(j) Video surveillance. Use of a lawfully positioned camera as a means of viewing or recording activities or conditions other than those occurring within the sight or immediate vicinity of a law enforcement official (or agent thereof) who is aware of such use.

Standard 2-9.3. Video surveillance

* (a) Video surveillance of a private activity or condition is permissible when it complies with provisions applicable to electronic interception of communications [see Standards 2-1.1 et seq. of this Chapter], as modified for video surveillance.

(b) Overt video surveillance for a protracted period not governed by Standard 2-9.3(a) is permissible when:

(i) politically accountable law enforcement official or the relevant politically accountable governmental authority concludes that the surveillance

(A) will not view a private activity or condition; and

(B) will be reasonably likely to achieve a legitimate law enforcement objective; and

(ii) in cases where deterrence rather than investigation is the primary objective, the public to be affected by the surveillance:

(A) is notified of the intended location and general capability of the camera; and

(B) has the opportunity, both prior to the initiation of the surveillance and periodically during it, to express its views of the surveillance and propose changes in its execution, through a hearing or some other appropriate means.

(c) All video surveillance not governed by Standard 2-9.3(a) or (b) is permissible when a supervisory law enforcement official, or the surveilling officer when there are exigent circumstances, concludes that the surveillance:

(i) Will not view a private activity or condition; and

(ii) Will be reasonably likely to achieve a legitimate law enforcement objective.

Standard 2-9.4. Tracking devices

(a) Installation pursuant to paragraph (b)(i) and monitoring pursuant to paragraph (c)(i) shall be permitted only on written authorization by a judicial officer, except when obtaining the required court order is not feasible due to exigent circumstances, in which case it should be obtained as soon as practicable. The court order should authorize surveillance for as long as necessary to achieve the authorized objective(s) of the surveillance, limited to a maximum of 60 days absent articulatable facts demonstrating a need for longer surveillance. Extensions of 60 days should be permitted on reauthorization by a judge under the appropriate standard.

(b) Installation of a tracking device other than as part of a systemwide program authorized by the legislature is permissible:

(i) if installation involves entering a private place without consent, only when there is probable cause to believe that:

(A) the object to be tracked is at the location to be entered, and

(B) subsequent monitoring of the device will reveal evidence of crime, and

(ii) in all other cases, when subsequent monitoring of the device is reasonably likely to achieve a legitimate law enforcement objective.

(i) to determine whether or where the device is located within a particular private location, only when there is a sufficient basis under applicable constitutional principles to believe that such monitoring will reveal evidence of crime, provided that, if one or more of the subjects of the monitoring consents to have the tracking device accompany their person, the monitoring need only be reasonably likely to achieve a legitimate law enforcement objective, and

(ii) In all other cases, only as long as there continues to be a reasonable likelihood that such monitoring will achieve a legitimate law enforcement objective.

Standard 2-9.5. Illumination and Telescopic Devices

(a) Use of an illumination or telescopic device to observe a private activity or condition is permissible when:

(i) a judicial officer has issued a warrant on probable cause to believe evidence of crime will thereby be discovered; or

(ii) obtaining a warrant is not feasible due to exigent circumstances, and the surveilling officer has probable cause to believe evidence of crime will thereby be discovered.

(b) Use of an illumination or telescopic device that is not governed by Standard 2-9.5(a) is permissible when:

(i) The use is overt and not prolonged with respect to any given area; or

(ii) It is reasonably likely to achieve a legitimate law enforcement objective.

Standard 2-9.6. Detection Devices

(a) Use of a detection device to search a private place (whether associated with a person, premises, or effect) is permissible when:

(i) the search is on probable cause:

(A) pursuant to a search warrant issued by a judicial officer; or

(B) without a search warrant when obtaining such a warrant:

(1) would not be feasible due to exigent circumstances; or

(2) is unnecessary because of conditions creating the lesser expectation of privacy associated with the private place;

(ii) the device is directed only at places the police are authorized to search:

(A) incident to a lawful custodial arrest;

(B) with the consent of a person with real or apparent authority to give such consent; or

(iii) upon grounds for such protective action, the device is directed only at places the police are authorized to:

(A) subject to a protective frisk;

(B) otherwise enter without notice in the interest of self-protection; or

(iv) the device is directed only at persons or effects passing a checkpoint, if:

(A) The checkpoint is fixed and has been established to serve a compelling government interest that no contraband pass by that checkpoint, as determined by an appropriate politically accountable law enforcement official or governmental authority;

(B) the checkpoint is fixed and has been established to serve a compelling government interest that no weapons pass by that checkpoint into a place where the presence of weapons would be extraordinarily hazardous, as determined by an appropriate politically accountable law enforcement official or governmental authority; or

(C) the checkpoint is temporary and has been established in response to a substantial risk of death or serious bodily harm, upon a finding made of record by a supervisory law enforcement official that

(1) there is a reasonable suspicion that the instrumentality threatening such harm or the person or persons threatened will thereby be discovered; and

(2) the anticipated size of the group of persons involved is reasonable in light of the purpose for which the device is to be used.

(D) with respect to the checkpoints in (A) and (B), the public to be affected by the checkpoint:

(1) is notified of the intended location of the checkpoint; and

(2) has the opportunity, both prior to the initiation of the surveillance and periodically during it, to express its views about the checkpoint and propose changes in its execution through a hearing or some other appropriate means.

(b) Use of a contraband-specific detection device to search a private place in circumstances other than those authorized by Standard 2-9.6(a) is permissible if it does not involve search of a place of residence or of a person and:

(i) such use is reasonably likely to achieve a legitimate law enforcement objective, and

(ii) if a seizure is made to facilitate such use, there are grounds for the seizure.

(c) Use of a weapon-specific detection device is permissible in the circumstances specified in Standard 2-9.6(a)(iii), even absent any individualized suspicion of danger that otherwise would be required.

(d) Law enforcement agencies using detection devices should adopt procedures:

(i) to avoid disclosure of gender-specific anatomical features to officers of the opposite gender; and

(ii) to ensure that no physical harm is caused by such devices.

*This provision is subject to change, depending upon the Third Edition recommendations on communications surveillance.

American Bar Association TM American Bar Association

Standard 2-9.1. General principles

Standard 2-9.2. Definitions

Standard 2-9.3. Video surveillance

Standard 2-9.4. Tracking devices

Standard 2-9.6. Detection Devices