Covert Video Surveillance

An investigative tool which causes a great deal of discomfort for agency employees is the use of covert surveillance equipment.  Investigators should consider the ramifications that may result from the use of covert video cameras before employing them.  These ramifications sometimes go far beyond legal ramifications due to societal thoughts that covert video is one of the most invasive techniques of investigation available.  The legality of covert video surveillance rests largely in the nature of the area under surveillance.  Is the area one where a person would have an expectation of privacy and if so, is that expectation of privacy one that society is willing to accept as reasonable.

A recent case from the Supreme Court of Alaska is instructive as to the analysis when dealing with an employee’s right to privacy from covert video surveillance.ⁱ  In Cowles, University of Alaska Police officers received information that the University’s box office manager was stealing money from ticket sales.  The police, without obtaining a search warrant, installed a hidden camera in an effort to catch Lindalee Cowles in the act of stealing money.  Prior to installing the camera an audit was done which verified a substantial cash shortage from the box office.   The video surveillance lasted for two and a half hours on a Monday morning and was successful at catching Cowles in the act.  The court made note of the fact that Cowles’ desk, which the camera monitored, could be seen through the ticket window as well as from an open interior door to the office.  The court further noted that there was a constant flow of employee traffic around Cowles’ desk throughout the surveillance.

In its review of the surveillance the court pointed out that the test used to determine whether a particular technological monitoring is a search is the “expectation of privacy test.”  Specifically, did the person have an actual expectation of privacy and is that expectation one that society is willing to accept as reasonable.   The court concluded that Cowles did not expect her activities to be monitored therefore she had a (subjective) actual expectation of privacy in her office.  The court then focused on the public nature of Cowles’ office in concluding that Cowles’ expectation of privacy was not an expectation that society would be willing to accept as reasonable.  The court noted that activities that are open to public observation are generally not protected by the Fourth Amendment.  Similarly, “what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”

In analyzing whether Cowles’ expectation of privacy was one that society would be willing to accept as reasonable, the court noted the visibility of Cowles’ desk from both the ticket window and interior of the office.  The court further noted the constant traffic of employees around Cowles’ desk.  The court also pointed out that “when an individual enters into an employment situation with high security requirements, it becomes less reasonable for her to assume that her conduct on the job will be treated as private.”  The court found that since Cowles’ job involved the fiduciary responsibility of exchanging tickets for cash, she sat in a high security position with a diminished expectation of privacy.

A case from the Court of Appeals of Ohio is also instructive.ⁱⁱ Brannen v. Board of Education involved a covert camera placed in an employee break room.  A supervisor, suspecting custodians were loafing in the break room for a large portion of their shift, received permission to install the covert camera.  The camera was successful in catching the employees taking unauthorized breaks.  After accepting discipline the employees filed suit for, among other things, a violation of their Fourth Amendment rights.

In analyzing the case, the court asserted: “An employee’s expectation of privacy in the workplace must be assessed in the context of the employment relation on a case-by-case basis.  The operational realities of the workplace may make some employees’ expectation of privacy unreasonable.  A public employee’s expectation of privacy in the workplace may be reduced by virtue of the actual office practices, work procedures or regulation.  Some government offices may be so open to fellow employees or the public that no expectation of privacy may be reasonable.”ⁱⁱⁱ

In reviewing the circumstances of this case, the court concluded that since other employees had free access to the break room at all times, no employee could claim an expectation of privacy in the area.

The court determined that even if the custodians had been able to establish an expectation of privacy, the search would have been reasonable.  The search was justified at its inception since the purpose of the camera was to confirm or deny suspicions that the custodians were taking the extended breaks. The court pointed out: “The mere fact that the observation is accomplished by a video camera rather than the naked eye, and recorded on film rather than in a supervisor’s memory, does not transmogrify a constitutionally innocent act into a constitutionally forbidden one.”

A covert surveillance case from the 9th Circuit Court of Appeals establishes the important distinction between administrative and criminal investigations.  In Taketa, a DEA agent reported to her supervisor that another agent, Taketa, had shown her how to turn an authorized pen register into an unauthorized wiretap to record conversations.  Agent Taketa shared an office at McCarran Airport in Las Vegas with Thomas O’Brien of the Nevada Bureau of Investigation.  O’Brien was also involved in the illegal wiretapping.  The DEA began an internal investigation and entered the airport office using a key from headquarters.  The investigators examined the feasibility of putting in a covert camera the next time the Taketa sought authorization for a pen-register.  In its review of this first entry, the court applied the standards announced in O’Connor v, Ortega in holding that the first entry was reasonable.

In May, Taketa sought such an authorization and the investigators returned to the airport office.  Unable to find the recording equipment, the investigators had to force open O’Brien’s door with a plastic card to gain entry.  The investigators found the recording device. They then placed a covert camera in the office.  This investigation led to the arrests of Taketa and O’Brien.  In its review of the covert surveillance, the court held that the video evidence had to be suppressed.  In so holding, the court determined that since O’Brien’s office had been locked, investigators should have obtained a warrant before entering.  In addition the court concluded that once the investigation changed from an internal investigation to a criminal investigation, the standards from O’Connor v. Ortega no longer applied, rather the more stringent standards of probable cause and a search warrant were required.

CITATIONS: