Constitutional Law—Fourth Amendment—Interception of Oral Communications—Legality of Television Surveillance in Government Offices
| Decision Date | 02 February 1979 |
| Docket Number | 79-10 |
| Citation | 3 Op. O.L.C. 64 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Constitutional Law—Fourth Amendment—Interception of Oral Communications—Legality of Television Surveillance in Government Offices |
John M. Harmon, Assistant Attorney General Office of Legal Counsel
Constitutional Law—Fourth Amendment— Interception of Oral Communications—Legality of Television Surveillance in Government Offices
This responds to your request for our opinion concerning the legality of using concealed television cameras for surveillance in buildings owned by or leased to the Government, where the Government officer occupying the particular space has consented to the surveillance.
While existing statutes govern certain aspects of television surveillance, no statute specifically regulates the surveillance for law enforcement purposes. The requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., would apply if a television device intercepts an oral communication "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." 18 U.S.C. § 2510(2). In the area of foreign intelligence and foreign counterintelligence, the recently enacted Foreign Intelligence Surveillance Act of 1978 specifically encompasses television surveillance "under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes." 50 U.S.C. § 1801(b)(4). That Act generally requires that any such surveillance undertaken for foreign intelligence purposes be authorized by judicial order.
Since the existing statutes do not cover much of this area [1] the Fourth Amendment is the only existing check on governmental action in similar situations. The relevant statutes are themselves predicated on the Fourth Amendment, and are framed in terms of that Amendment's test of "reasonable expectation of privacy." Our discussion will focus on the requirements of the Fourth Amendment. [ 65]
We have identified only a few cases dealing with the Fourth Amendment aspects of surreptitious television surveillance.[2] While these cases apply generally to surveillance conducted in Government buildings, we do not believe that the case law in this area has been developed sufficiently to provide authoritative guidance. The following discussion will therefore be drawn from the general principles of Fourth Amendment law and its application in analogous contexts.
The starting point in our analysis is the Supreme Court's decision in Katz v. United States, 389 U.S. 347 (1967), holding that the Government may not, without warrant or in the absence of exigent circumstances, violate "the privacy upon which [an individual] justifiably relied." Id. at 353. In delineating the circumstances in which one may have a justifiable expectation of privacy, the Court stated:
What a person knowingly exposes to the public even in his own home or office, is not a subject of Fourth Amendment protection * * *. But what he seeks to preserve as private even in an area accessible to the public, may be constitutionally protected. [389 U.S. at 351-52.]
Justice Harlan, in elaborating on this concept, stated that whether what one seeks to preserve as private will, in fact, be constitutionally protected depends on whether that expectation of privacy is "one that society is prepared to recognize as 'reasonable.' " Id. at 361. See also, United States v. White, 401 U.S. 745 752 (1971).
Under these principles, the installation and maintenance of video surveillance in a private office would constitute, in our opinion, an invasion of one's reasonable expectation of privacy and would thus be a search and seizure within the Fourth Amendment. See, United States v. Humphrey supra, 451 F.Supp. at 60; People v. Teicher, supra at 590. The next [ 66] question is whether the situation differs when the surveillance is conducted in Government buildings or offices. For the following reasons we believe that the situation is not any different in Government offices and that persons within Government offices also have a reasonable expectation of privacy.
Surveillance in a Government office still constitutes a search within the Fourth Amendment. In United States v. Hagarty, 388 F. (2d) 713 (7th Cir. 1968), the only Court of Appeals decision to date applying Katz analysis to the question of a warrantless continuous electronic surveillance in a Government office, the court held that evidence obtained by such a surveillance violated the Fourth Amendment. The court stated that the key question under Katz was whether the defendant sought to exclude "the uninvited ear" and that, under this standard, it was "immaterial that the overheard conversation took place in an IRS office." Id. at 716. The same rationale would apply to a visual surveillance by electronic means.
In United States v. Humphrey, supra, the court indicated that while one's reasonable expectation of privacy is less in an office than at home, the television surveillance of the Government office involved was subject to the Fourth Amendment. 451 F.Supp. at 60.[3]
Several arguments, predicated on the Government's authority over its buildings, may be advanced contrary to this result. First, it is a familiar canon that one with joint access or control over property may permit it to be searched, United States v. Matlock, 415 U.S. 164, 171 note 7 (1974), and the Government's control over its buildings may be a basis for allowing the appropriate officials to "consent" to the search. However, the courts have not taken such a broad view of the Government's authority. The cases generally utilize the traditional test whether the property has in a practical sense been devoted to the exclusive use of the employee. See, United States v. Blok, 188 F. (2d) 1019 (D.C. Cir. 1951) (); United States v. Kahan, 350 F.Supp. 784 (S.D.N.Y. 1972), aff'd on other issues, 415 U.S. 239 (1974) (). Cf., United States v. Millen, 338 F.Supp. 747, 753 (E.D. Wis. 1972). Under this test, if the property has been devoted to the exclusive use of a person, he has a justifiable expectation of privacy in it sufficient to insulate the property from search even though the search is [ 67] consented to by the owner of the property (or his agent) who for certain purposes at least has authorized access to the property. See, Stoner v. California, 376 U.S. 483 (1964); Chapman v. United States, 365 U.S. 610 (1961).
More importantly, it is doubtful whether the Government's "consent" has any validity with respect to surveillance of an individual, as opposed to discrete physical searches. Under Title III of the Omnibus Crime Control Act electronic monitoring of telephonic and oral communications requires a warrant even though the owner of the property or the subscriber to the telephone has consented; only the consent of a party to a communication suffices to dispense with the warrant requirement. See 18 U.S.C. § 2511 (2)(c). The same was true prior to Title III under § 605 of the Communications Act of 1934, 47 U.S.C. § 605, with respect to telephone communications. See, Rathbun v. United States, 355 U.S. 107 (1957).
These statutory restrictions have a constitutional foundation. The cases upholding the doctrine of consent to surveillance under the Fourth Amendment are not predicated on the consent of the owner of the pertinent property, but rather on the consent of the person to whom the targeted individual reveals his communications or activities. United States v. White, supra. The underlying rationale seems to require that the doctrine be kept within these limits. The courts reason that there can be no justifiable expectation of privacy regarding information voluntarily revealed to another; one's confidant may later reveal the disclosures to the Government. Hoffa v. United States, 385 U.S. 293 (1966). The use of electronic equipment, with the confidant's consent, to record these disclosures simultaneously is then regarded as much the same as a subsequent disclosure to the Government. Lopez v. United States, 373 U.S. 427 (1963). The "consent" necessary for the surveillance is thus that of the confidant, whose ability to report to the police is equated with the electronic surveillance—i.e., the one to whom the disclosures are made.
The Government's authority over its buildings may raise another question. It is a generally accepted principle of Fourth Amendment law that no "search" occurs when an officer observes objects or activities from a location where he has a right to be. Harris v. United States, 390 U.S. 234, 236 (1968). See also, McDonald v. United States, 335 U.S. 451, 458 (1948) (Jackson, J., concurring). Under this rationale, courts have upheld searches of areas that are usually deemed quite private—e.g., looking into bedrooms, United States v. Johnson, 561 F. (2d) 832 (D.C. Cir. 1977) (en banc); Nordskog v. Wainwright, 546 F. (2d) 69 (5th Cir. 1977); or bathrooms, Ponce v. Craven, 409 F. (2d) 621 (9th Cir. 1969), cf. Smayda v. United States, 352 F. (2d) 251 (9th Cir. 1965).
Even searches when the police went to great lengths to secure a view from a position where they were authorized to be were upheld by the courts: for example, searches through only a narrow opening, see, United States v. Wright, 449 F (2d) 1355 (D.C. Cir. 1971) (); United States v. Vilhotti, 323 F.Supp. 425, 431-32 (S.D.N.Y. 1971) [ 68] (gaps between boards covering window), [4] or where the officers had to go through various machinations to conduct their "search, " see, e.g., James v....
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