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CAVEAT:
This web page is not
intended to be a definitive statement regarding surveillance.
Covert Police Surveillance - Colorado Springs Criminal Defense Lawyer - surreptitious surveillance by police or law enforcement covert operations, including but not limited to communications to confidential informant - aka narc, electronic eavesdropping, wearing a wire - aka a bug, electronic bugging, parabolic microphones, tape recordings, wiretapping, telephone pen registers, electronic tracking devices - aka beepers, artificial light or infrared to illuminate, binoculars, telescopes, telescopic lenses, photo enlargement or image enhancement, video surveillance, aerial surveillance and thermal imaging.
With advances in technology, law enforcement has more tools in the arsenal to run surveillance and potentially invade the privacy of citizens. There are "bugs" (electronic listening devices) which can be placed in a room or location, "beepers" (electronic tracking devices), "wires" (electronic transmitters worn by a person), pen registers (transcribe and record the number dialed), wiretaps of telephones, electronic signal cell phones, cordless phones, binoculars, telescopes, cameras and video equipment with telescopic lenses, aerial surveillance (Colorado Springs is the proud owner of a helicopter), "mail covers" (postal employees or police monitoring identity and addresses of persons with whom we communicate by U.S. Mail), interception of email, as well as the traditional surveillance with a cop sitting in a car eating donuts. As the old saying goes, "Live better electronically." Police may go so far as to conduct a search of garbage upon the theory of abandonment. "Live better electronically - own a shredder."
If loss of civil liberties under the guise
of homeland security doesn't scare the hell out of you, it should.
It is commonly held that merely looking at that which is open to view is not a search. C.J.S. Searches and Seizure §1 (1952). The United States Supreme Court has held that "the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers and effects, is not extended to the open fields," and thus held that revenue officers made no search when, while trespassing on defendant's land, they observed his incriminating conduct. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). What the Supreme Court decisions added up to was that for there to be a Fourth Amendment search the police must have physically intruded into a constitutionally protected area. These were those enumerated in the Fourth Amendment itself: "persons," including the bodies ~ and clothing of individuals, houses, including apartments, hotel rooms, garages, business offices, stores, and warehouses, papers, such as letters, and effects, such as automobiles. That pretty much meant unless there was an unauthorized physical penetration into the premises occupied" by the defendant, the Fourth Amendment (search and seizure) was not violated. Then the Supreme Court announced the landmark decision Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Katz was convicted in federal court on a charge of transmitting wagering information by telephone across the country in violation of federal law. At trial the government was permitted to introduce, over defendant's objection, evidence of his end of telephone conversations, overheard by FBI agents who had attached an electronic listening and recording device to the exterior of a public telephone booth from which Katz habitually placed long-distance calls. The listening device did not penetrate to the interior of the phone booth. The booth was glass - Katz was visible. But it had a door which he shut - manifesting an expectation of privacy from listening ears. Summarizing the ruling in Katz, the Fourth Amendment protects people, not places. If one has an expectation of privacy, and if that expectation is reasonable, a search warrant is required. Naturally that decision has spawned a plethora of subsequent case law. Later Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, and Colorado has passed legislation regarding eavesdropping and wiretapping. Relevant statutes:
CRS 16-15-103 Order may direct others to furnish assistance. (e.g.. phone company) The court acknowledged all forms of technological surveillance, it stated few threats to liberty exist which are greater than that posed by the use of eavesdropping devices. Berger v. New York, 388 U.S. 41, 63 (1967)
Hoffa v. United States, 385 U.S. 293 (1966), which was left undisturbed by Katz, held that however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) Statements made by juvenile not protected oral communications under this act and fail the test established in Katz where one who is speaking in the actual presence of a police officer has neither a subjectively nor an objectively reasonable expectation of privacy. People in Interest of A.W., 982 P.2d 842 (Colo. 1999). Consensually overheard conversation not "eavesdropping". By the terms of CRS 18-9-304 (1)(a), a consensually overheard conversation is not eavesdropping. People v. Palmer, 652 P.2d 1092 (Colo. App. 1982) (Conversation between the informant and defendant was overheard by police officers via a transmitting device which the informant had consented to wearing.)
ELECTRONIC
EAVESDROPPING
See Katz above. In determining whether the Fourth Amendment warrant requirement applies, the threshold issue is whether a particular governmental activity is a "search" within the meaning of the Fourth Amendment. The applicability of the Fourth Amendment depends on "whether the person invoking its protection can claim a `justifiable,' a `reasonable,' or a `legitimate expectation of privacy' that has been invaded by governmental action." Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). When a police officer overhears a conversation without the aid of any listening device, from a vantage point at which he is legally present, the officer's use of his sense of hearing does not constitute a Fourth Amendment search. There is no reasonable expectation of privacy in a conversation that can be heard without the assistance of an artificial device. People v. Hart, 787 P.2d 186, 188 (Colo. App. 1989) (conversation overheard through adjoining door between motel rooms); United States v. Hessling, 845 F.2d 617 (6th Cir. 1988). See United States v. Agapito, 620 F.2d 324 (2d Cir. 1980), cert. denied, 449 U.S. 834, 101 S.Ct. 107, 66 L.Ed.2d 40 (1980). Eavesdropping statutes require use of subjective and objective tests (privacy expectation and the reasonableness thereof) to determine whether a person's conversation qualifies as protected oral communications. People v. Hart, 787 P.2d 186 (Colo. App. 1989).
Tape recordings of the respondent's conversations which were made in each instance with the consent of the other parties to the conversations (informant and the undercover agents) were not procured by any unconstitutional invasion of the respondent's privacy. People v. Morley, 725 P.2d 510 (Colo. 1986). (soliciting for prostitution) E.g., United States v. White, 401 U.S. 745 (1971); People v. Velasquez, 641 P.2d 943 (Colo. 1982), cert. denied, 459 U.S. 805 (1982). A police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights . . . . For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with the defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person . . . . (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. . .United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); cited in People v. Velasquez, 641 P.2d 943 (1982) and People v. Palmer, 652 P.2d 1092 (Colo. App. 1982).
Consensual eavesdropping not an "unlawful interception". Since CRS 18-9-303 and CRS 18-9-304 do not prohibit or make unlawful consensual recorded eavesdropping, where one party to the conversation agrees to the recording, there is no "unlawful interception" within the meaning of subsection CRS 16-13-102 and evidence should not be suppressed. People v. Morton, 189 Colo. 198, 539 P.2d 1255 (1975), cert. denied, 423 U.S. 1053, 96 S. Ct. 783, 46 L. Ed.2d 642 (1976). (tape recorder hidden under informant's driver's seat). Tape recording of defendant's conversation with accomplice made without his knowledge in the back of police car could properly be considered since, irrespective of defendant's subjective belief that his conversation while in the police vehicle was private, such belief was unreasonable and unjustified. People v. Palmer, 888 P.2d 348 (Colo. App. 1994). When a defendant meets with a police informant, whose role as such is concealed, in the informant's motel room for the purpose of selling him illegal drugs, such defendant has no legitimate expectation that his encounter and conversation with the informant may not later be used as evidence against him. If the law affords the defendant no legitimate expectation of privacy under these circumstances, neither should it protect him when the same informant permits the electronic recording and transmission of the same conversation taking place in the informant's room. People v. Palmer, 652 P.2d 1092 (Colo. App. 1982) When one engages in an illegal drug transaction with another person, he assumes the risk that his conversation with that person is being overheard by police officers, and such police officers may later use this conversation as evidence against him whether or not the conversation was recorded. id. at page 1094. 1991 amendment to CRS 16-13-102(1) did not change holding in Morton, supra that consensual eavesdropping is not an unlawful interception that must be suppressed under CRS 16-13-102(10). People v. Watson, 53 P.3d 707 (Colo. App. 2001). Eavesdropping becomes an "unlawful interception" when consent is secured by fraudulent inducement. People v. Rivera, 765 P.2d 624 (Colo. App. 1988) (informant's consent obtained upon detective's deceitful promise to seek leniency from DA for charges he knew DA Office had declined to prosecute) The Supreme Court entered a lengthy opinion regarding the "consent requirement" and overturned the Court of Appeals. People v. Rivera, 792 P.2d 786 (Colo. 1990)
Monitoring conversations between husband and wife in visiting room of jail is not wiretapping or eavesdropping because such conversations are not within the statutory definitions of "wire communication" and "oral communication". People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).
Eavesdropping by law enforcement officers in Colorado is governed and comprehensively regulated by the Wiretapping and Eavesdropping Act, CRS 16-15-101 through CRS 16-15-104 (hereinafter "the Act"). See also People v. Rivera, 792 P.2d 786, 788 (Colo. 1990). This statutory scheme requires law enforcement officers to obtain ex parte orders of authorization before intercepting certain wire and oral communications. See CRS 16-15-101(1) to -101(7). The Act also limits the particular offenses for which such orders may be issued. See CRS 16-15-102(1)(a).[fn3] Absent emergency circumstances delineated in section 16-15-102(19), the People may not introduce the contents of protected "oral communications" into evidence at trial unless their interception of same was authorized by a court order. People v. Interest of A.W., 982 P.2d 842 (Colo. June 14, 1999)
The court in People v. Interest of A.W., supra, applied the Katz test. The court found defendant exhibited a privacy expectation, and the circumstances justified his expectation of privacy. The evidence was suppressed. A search on 9/30/03 of all states and all feds caselaw databases failed to produce a single case wherein a parabolic microphone was in issue. Many cases made reference to the device which can pick up sound from a significant distance, but a parabolic listening device was not directly utilized in any of the factual circumstances surrounding the opinions. All referencing cases involved eavesdropping by other means.
Unlawfully intercepted communications may not be received into evidence for any reason, including for impeachment purposes. People in Interest of A.W., 982 P.2d 842 (Colo. 1999). Deputy sheriff who unlawfully placed an electronic eavesdropping device in the bathroom of a local bar was charged with and convicted of conspiracy to commit eavesdropping, a class 6 felony. People v. Lesslie, 24 P.3d 22 (Colo. App. 2000)
Whether warrantless police eavesdropping violates the fourth amendment depends on whether the defendant had a justified expectation of privacy at the time and place of the communication. People v. Palmer, 888 P.2d 348 (Colo. App. 1994). CRS 16-15-102 allows law enforcement officers to intercept telephone communications after having obtained judicial authorization upon a showing of probable cause. Affidavits in support of a request for an ex parte wiretap order must establish that there is probable cause to believe that evidence of specific enumerated crimes will be obtained through the substantial intrusion upon the individual's privacy. Identity of person allegedly committing offense must be included in application or affidavit. People v. Montoya, 44 Colo. App. 234, 616 P.2d 156 (1980); People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971). The statute has been held constitutional. id., and not an unconstitutional invasion of privacy. People v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974). Under the Aguilar-Spinelli test, the affidavit must provide sufficient underlying circumstances to enable the magistrate to determine independently whether there is probable cause to believe that illegal activity is being carried on in the place to be searched and must set forth sufficient facts to allow the magistrate to determine independently that the informant is credible or his information reliable. People v. Montoya, 44 Colo. App. 234, 616 P.2d 156 (1980). Probable cause ceases to exist when it is no longer reasonable to presume that the criminal activities are still being carried on in the place to be searched, and a warrant based on dated, or "stale", evidence is invalid. id. Wiretapping is subject to pervasive federal and state regulation. See 18 U.S.C. §§ 2510-2520 (1970 & 1985 Supp.); CRS §§ 16-15-101 to -104, 8. CRS 16-15-102(1)(a) provides that an ex parte order for wiretapping may be issued upon application by the attorney general or a district attorney, who establishes by affidavit that evidence will be obtained of a crime specified in section 16-15-102(1)(a). Detailed requirements for the application are set forth in CRS 16-15-102(2). The supporting affidavit serves the same function as an affidavit used to establish probable cause for a search warrant. People v. Corr, 682 P.2d 20 (Colo.), cert. denied, 105 S. Ct. 181 (1984). See CRS 16-3-303, -304; C.R.Crim.P. 41. The district court may enter an ex parte order authorizing wiretapping if it determines that there is probable cause to support the order. CRS 16-15-102(4).[fn4] The order must be specific as to the identity of the person whose communications are to be intercepted; the nature and location of the line to be monitored; the type of communication sought to be intercepted and the particular offense to which it relates; the agency authorized to intercept the communications; and the period of time during which interceptions are authorized. CRS 16-15-102(5). People v. Watson, 53 P.3d 707 (Colo. App. 2001) CRS 16-15-102(2)(c) does not require that wiretapping be used only as a last resort and does not forbid the interception of all non-relevant conversations, but rather instructs the agents to conduct surveillance in such a manner as to "minimize" the interception of such conversations. People v. Gable, 647 P.2d 246 (Colo. App. 1982). Factors to consider in determining whether the agents have acted reasonably to minimize the interception of non-relevant conversations include: The nature and scope of the alleged criminal enterprise; the government's reasonable expectations as to the contents of, and parties to, the conversations; the degree of judicial supervision of the wiretap; the length of the conversations; the phase of the investigation; whether the parties used coded language; and the percentage of calls intercepted which are incriminating. Id. The statutory requirements may be satisfied if the application informs the judge of the difficulties encountered and the lack of success or danger in using conventional investigatory methods. People v. Vazquez, 768 P.2d 721 (Colo. App. 1988), cert. denied, 787 P.2d 174 (Colo. 1990). The eavesdropping statute requires a case-by-case analysis as to whether the participants in the intercepted conversations have a justifiable expectation of privacy and, in turn, whether they believe that their conversation is subject to interception. People v. Lesslie, 24 P.3d 22 (Colo.App. 2000) The necessity of concealing the electronic listening device obviously leads to the conclusion that the participants to the conversations in the bathroom had an expectation of privacy, as well as a justifiable belief that their conversations were not subject to electronic interception. Simply because a person allows one conversation to be overheard by nearby individuals does not mean that the expectation of freedom from electronic reception by any individual is objectively unreasonable. id. at 28. The wiretap statute authorizes the judge to issue an order for interception of communications if he determines from the facts submitted that normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous. People v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974). An order may not continue longer than necessary to achieve the objective of the authorization and is limited to 30 days, unless extended for an additional 30 days should the judge make new findings sufficient to uphold an original authorization. People v. Vazquez, 768 P.2d 721 (Colo. App. 1988), cert. denied, 787 P.2d 174 (Colo. 1990); People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971). Where the target of the wiretap is a large scale conspiracy, courts must be given more latitude to formulate a sufficiently broad wiretap order, such as duration. People v. Gable, 647 P.2d 246 (Colo. App. 1982). This section extends to offenses different from those named within the authorization order; it does not extend to persons other than those named. People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971): People v. Milnes, 186 Colo. 409, 527 P.2d 1163 (1974). Colorado wiretap statutes does not violate Fourth Amendment notwithstanding the fact that it permits unanticipated interception of conversations relating to crimes other than those anticipated in the authorization order. Martin, supra. But courts should not hesitate to suppress evidence obtained where the investigation of designated offenses is used as a subterfuge to obtain evidence not otherwise available. Good faith requirements, as well as the statutory requirements of probable cause, are sufficient safeguards of the defendants' rights in this regard. Milnes, supra. Sexual assault is not included in the list of crimes for which an eavesdropping authorization order is available and no implied exception can be read into the statute. People in Interest of A.W., 982 P.2d 842 (Colo. 1999). A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. United States v. New York Telephone Co., 434 U.S. 159 (1977); People v. Sporleder, 666 P.2d at 135. A pen register records the date and time of the calls but does not monitor or record the contents of conversations. It does not indicate whether calls are actually completed and cannot determine the telephone numbers from which incoming calls were made. People v. Watson, 53 P.3d 707 (Colo. App. 2001) By contrast, a wiretap records the contents of telephone communications. It also records the sound of electrical impulses created when a number is dialed on the monitored line. Expert analysis of the recorded sound can reveal the dialed numbers. A pen register, when used in conjunction with a wiretap, eliminates the need for analysis of the sound. The pen register is thus a technological refinement which merely expedites the determination of information already accessible to investigating officers by means of the wiretap. United States v. Kail, 612 F.2d 443 (9th Cir. 1979), cert. denied, 446 U.S. 912 (1980); United States v. Falcone, 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S. 955 (1975). The use of pen registers is not governed by the wiretapping statute. People v. Wahl, 716 P.2d 123 (Colo. 1986). In United States v. New York Telephone Co., 434 U.S. at 159, the Supreme Court held that the use of pen registers is not subject to the restrictions of the federal wiretapping statute. The Court reasoned that the wiretapping statute is concerned only with the "interception" of the "contents" of communications, as those terms are defined in 18 U.S.C. §§ 2510(4) and (8).[fn5] Pen registers, the Court stated, do not "intercept" because they do not acquire the "contents" of communications. A pen register discloses only the telephone numbers that have been dialed on the monitored line. The Court noted that its conclusion was supported by the legislative history of the wiretapping statute.[fn6] Colorado's statute governing electronic surveillance is closely patterned after and designed to implement the policies of the federal act. Federal authorities explaining the federal act should thus be accorded great weight in interpreting the Colorado statute. The definitions of "intercept" and "contents" contained in the Colorado statute are identical to those in the federal act. Compare 18 U.S.C. § 2510(4), (8) with CRS 16-15-101(3), (5). We have no reason on this issue to construe our statute in a manner contrary to the Supreme Court's interpretation of the federal act in United States v. New York Telephone Co., 434 U.S. at 159. Therefore, we hold that the use of pen registers is not governed by the wiretapping statute. Consequently, no separate order authorizing the installation of a pen register on the Ingram/Hinshaw line was required under the wiretapping statute. People v. Watson, 53 P.3d 707 (Colo. App. 2001) However, use of a pen register is a search and seizure under article II, section 7 of the Colorado Constitution, and that the installation of a pen register therefore must be preceded by the issuance of a search warrant. People v. Timmons, 690 P.2d 213 (Colo. 1984); People v. Sporleder, 666 P.2d 135 (Colo. 1983) Not being subject to the wiretap statute, law enforcement may seek a warrant for a pen register in cases of prostitution, pimping, solicitation, pandering and the like.
ELECTRONIC TRACKING DEVICE OR
"BEEPER"
The inquiry is two prong. 1.) whether placement of the beeper is an invasion, and 2.) whether the monitoring is an invasion. The Supreme Court upheld the use of a beeper to monitor movements outside a home. United States v. Knotts, 460 U.S. 276 (1983) United States v. Karo, 468 U.S. 705 (1984) distinguished Knotts, supra, and held it inappropriate within the home. The individual's expectation in the privacy of a residence] is plainly one that society is prepared to recognize as reasonable. Electronic beeper had been placed inside a can of ether; the government used the beeper to track the movements of the can over the course of several months. The defendants in Karo were eventually followed to a private residence suspected (correctly, as it turned out) of concealing a drug lab. Activation of the beeper revealed that the can of ether had been stored in the suspect home. At trial the defendants contended that the warrantless use of the beeper impermissibly intruded into the privacy of the home. The Supreme Court, distinguishing United States v. Knotts, 460 U.S. 276 (1983), agreed:
ARTIFICIAL LIGHT TO ILLUMINATE
Use of a flashlight to illuminate a vehicle lawfully stopped or parked on a
public roadway does not constitute an illegal search. United States v.
Lara, 512 F.2d 209 (5th Cir. 1975); United States v. Lee, 274 U.S.
559, 71 L.Ed. 1202 (1927). Diminished expectation of privacy surrounds the
automobile because its contents are in plain view. United States v.
Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 537 (1977). Flashlight
used to illuminate contents of a trunk through an opening the width of a penny
held to be a search. Berryhill v. State, 372 So.2d 355 (Ala.Civ.App.
1979).
Use of a bifocals, binoculars, field glass telescope or a similar device to magnify does not constitute an illegal search. United States v. Lee, 274 U.S. 559, 71 L.Ed. 1202 (1927). Under Katz, the focus will be whether one has an expectation of privacy, and if that expectation is reasonable. See:
Use of illumination or binoculars to improve the visibility of an object already in plain view has been held constitutional. See Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality opinion); Fullbright v. United States, 392 F.2d 432, 434-45 (10th Cir.), cert. denied, 393 U.S. 830 (1968). But see United States v. Taborda, 635 F.2d 131, 137-39 (2d Cir. 1980) (holding that telescopic observation of the home "impairs a legitimate expectation of privacy") Held in Sundheim v. Board of Cty. Comm'rs, 904 P.2d 1337 (Colo. App. 1995): It is undisputed that some of the investigator's observations were made from a public road outside plaintiffs' property. Because there is no invasion of privacy involved in observing that which is plainly visible to the public, a person's real property is not protected from observations lawfully made from outside its perimeter. Hoffman v. People, 780 P.2d 471 (Colo. 1989). Neither are we persuaded that the use of a camera with a telescopic lens transforms this lawful observation into an unreasonable search. See United States v. Rucinski, 658 F.2d 741 (10th Cir. 1981); cf. United States v. Bassford, 601 F. Supp. 1324 (D. Me. 1985), aff'd, 812 F.2d 16 (1st Cir. 1987) (use of binoculars to enhance view of readily visible marijuana plants did not constitute unreasonable search); State v. Rogers, 100 N.M. 517, 673 P.2d 142 (N.M.App. 1983) (use of binoculars does not render aerial surveillance unconstitutionally intrusive). See:
A dissenting judge in United States v. Cusumano, 83 F.3d 1247 (10th Cir. 1996) stated: I recognize that the use of illumination or binoculars to improve the visibility of an object already in plain view has been held constitutional. See Texas v. Brown, 460 U.S. 730, 740 (1983) (plurality opinion); United States v. Lee, 274 U.S. 559, 563 (1927); Fullbright v. United States, 392 F.2d 432, 434-45 (10th Cir.), cert. denied, 393 U.S. 830 (1968). But see United States v. Taborda, 635 F.2d 131, 137-39 (2d Cir. 1980) (holding that telescopic observation of the home "impair[s] a legitimate expectation of privacy"). Whether the search with visual aid is lawful without a warrant will depend upon the facts and circumstances
VIDEO SURVEILLANCE
What has been said with respect to the use of eavesdropping - wiretapping
equipment is generally true as well as to electronic visual surveillance.
It is no search to videotape what a police officer is observing in plain view,
nor is any justified expectation of privacy violated by videotaping of activity
occurring in full public view. Sponick v. City of Detroit Police Dept.
49 Mich. App. 162, 211 N.W.2d 674 (1973). As a general proposition, when a
police officer sees something in plain view from a vantage point at which he is
lawfully present, the officer's observations do not constitute a
"search" within the purview of the Fourth Amendment. 1 W. LaFave, Search
and Seizures: A Treatise on the Fourth Amendment § 2.2 (2d ed. 1987). See People
v. Donald, 637 P.2d 392 (Colo. 1981); People v. Gomez, 632 P.2d 586 (Colo.
1981).
Closed circuit television along a public sidewalk or public park upheld.
See U.Mich.J.L.Ref. 571 (1980)
Surreptitious placement of video camera in a place where defendant has a
justified expectation of privacy is a search. People v. Dezek, 107
Mich.App. 78, 308 N.W.2d 652 (1981) (stalls of public restroom); People v.
Teicher, 52 N.Y.2d 638, 439 Y.Y.S.2d 846, 422 N.E.2d 506 (1980 (dentist's
office).
AERIAL SURVEILLANCE
See
Riley, 488 U.S. at 451 ("Any member of the public could legally have
been flying over Riley's property in a helicopter . . . and could have observed
Riley's greenhouse."); id. at 454-55 (O'Connor, J., concurring); Ciraolo,
476 U.S. at 213-14 ("The officers were able to observe plants readily
discernible to the naked eye. . . . Any member of the public flying in this
airspace who glanced down could have seen everything that these officers
observed."); id. at 214-15 ("Justice Harlan's observations about
future electronic developments . . . were plainly not aimed at simple visual
observations from a public place." (emphasis added)); Dow Chem., 476
U.S. at 229, 231 ("Any person with an airplane and an aerial camera could
readily duplicate them."); id. at 238 ("Although [the photographs]
undoubtedly give EPA more detailed information than naked-eye views, they remain
limited to an outline of the facility's buildings and equipment.").
State
v. Rogers, 100 N.M. 517, 673 P.2d 142 (N.M.App. 1983) (use of binoculars
does not render aerial surveillance unconstitutionally intrusive) - cited in Sundheim
v. Board of Cty. Comm'rs, 904 P.2d 1337 (Colo. App. 1995).
Trial court ruled
observation of the defendant's property from an airplane did not violate any
reasonable expectation of privacy of the defendant. In so ruling, the court
relied on California v. Ciraolo, 476 U.S. 207 (1986). Colorado Supreme
Court dodged the issue, finding that information gleaned from the aerial survey
is not necessary to the validity of the warrant. Bartley v. People,
817 P.2d 1029 (Colo. 1991) People v. Pollock, 796 P.2d 63 (Colo. App. 1990)
Bottom line - CSPD has a chopper, they fly regularly (budget permitting) and what they can see is fair game.
Thermal imager detects and records infrared radiation emitted from heat sources. Issue: Does warrantless use of the thermal imager to detect heat emissions from a residence violate the Fourth Amendment's proscription against unreasonable searches? Where the government, without seeking or obtaining a warrant, used a thermal imager to monitor the exterior of the Defendants' home and attached garage not subject to view by ordinary mean, the imager revealed multiple "hot spots" and that fact was included in an affidavit in support of a search warrant, the 10th Circuit Court of Appeals (Colorado) had the opportunity to address the above issue, but ruled that even in the absence of such information, the affidavit in support of a search warrant established probable cause. The Court declined to rule on thermal imaging. United States v. Cusumano, 83 F.3d 1247 (10th Cir. 1996).
Other courts that have analyzed this question have split. The Seventh and Eighth Circuits recently embraced the analysis set forth in United States v. Penny-Feeney, 773 F. Supp. 220 (D. Haw. 1991), aff'd on other grounds, 984 F.2d 1053 (9th Cir. 1993), holding that the use of an imager is not a search within the meaning of the Fourth Amendment. See United States v. Myers, 46 F.3d 668 (7th Cir. 1995); United States v. Pinson, 24 F.3d 1056 (8th Cir.), cert. denied, 115 S.Ct. 664 (1994). The Eleventh Circuit, in United States v. Ford, 34 F.3d 992 (11th Cir. 1994), reached the same conclusion, albeit for slightly different reasons. The Fifth Circuit has rejected aspects of the Penny-Feeney and Ford frameworks, but, drawing upon the "open fields" doctrine, nonetheless has held that a thermal scan of a building outside the curtilage does not qualify as a Fourth Amendment search. See United States v. Ishmael, 48 F.3d 850 (5th Cir. 1995). The Supreme Court of Washington, interpreting both the Fourth Amendment and the relevant sections of the Washington Constitution, has determined that the warrantless use of a thermal imager runs afoul of both constitutions. State v. Young, 867 P.2d 593 (Wash. 1994). A thermal imager operates by observing and recording the differential heat patterns radiating through the surface of a structure. Focusing upon this most basic aspect of the imager's operation, the circuits have reduced the Fourth Amendment inquiry to an analysis of the reasonable expectations of privacy residing in this "waste heat." See Ishmael, 48 F.3d at 853-57; Ford, 34 F.3d at 995-97; Pinson, 24 F.3d at 1058-59; Penny-Feeney, 773 F. Supp. at 225-28. A number of justifications have been put forth to support the conclusion that no expectation of privacy, either objective or subjective, exists in "waste heat." The observation of "waste heat" has been analogized to the garbage search approved in California v. Greenwood, 486 U.S. 35 (1988); to the dog sniff found constitutional in United States v. Place, 462 U.S. 696 (1983); to the pen register condoned by Smith v. Maryland, 442 U.S. 735 (1979); and to the overhead surveillance flights upheld in California v. Ciraolo, 476 U.S. 207 (1986); Dow Chem. Co. v. United States, 476 U.S. 227 (1986), and Florida v. Riley, 488 U.S. 445 (1989). It has been noted that (1) the thermal imager is a passive device, employed from beyond the curtilage, which emits no rays or beams and which does not intrude in any fashion upon the observed property; (2) the resolution of the device is limited and that, in general, it detects only hot spots on the exterior surfaces of a building; (3) in many cases the machine measures heat which has been actively vented from a structure by a defendant; and (4) the machine only observes a phenomenon that could be watched by any member of the public equipped with a similar instrument (which is commercially available).
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Covert police surveillance, surreptitious surveillance, surveillance, police, law enforcement, covert operations, communications, confidential informant, narc, electronic eavesdropping, wearing a wire, bug, bugging, electronic bugging, parabolic microphones, tape recordings, wiretapping, telephone pen registers, pen register, electronic tracking devices, beepers, artificial light, infrared light, illuminate, binoculars, telescopes, telescopic lenses, photo enlargement, image enhancement, video surveillance, aerial surveillance, thermal imaging, Colorado Springs, El Paso County, Colorado, court, Colorado Springs Municipal Court, criminal defense, defense lawyer, lawyer, attorney
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