ELECTRONIC VISUAL SURVEILLANCE AND THE RIGHT OF PRIVACY WHEN IS ELECTRONIC OBSERVATION REASONABLE?

• NCJ Number: 54982
• Journal: Washington and Lee Law Review Volume: 35 Issue: 4 Dated: (FALL 1978) Pages: 1043-1063
• Author(s): S R ARNOLD
• Date Published: 1978
• Length: 21 pages
• Corporate Author: Washington and Lee University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE NEW YORK COURT DECISION IN PEOPLE V. TEICHER IS EXAMINED TO ELUCIDATE THE CONSTITUTIONAL RIGHT TO PRIVACY ISSUES INVOLVED IN VISUAL ELECTRONIC SURVEILLANCE.

Abstract

WHILE THE U.S. SUPREME COURT HAS DELINEATED THE CONDITIONS UNDER WHICH SEARCH WARRANTS AND EAVESDROPPING WARRANTS MAY BE ISSUED BY THE JUDICIARY TO AID LAW ENFORCEMENT IN OBTAINING EVIDENCE THAT A CRIME HAS BEEN COMMITTED, NO SUCH SPECIFICATIONS HAVE BEEN INDICATED FOR POLICE USE OF VISUAL ELECTRONIC SURVEILLANCE. IN THE CASE OF PEOPLE V. TEICHER, EVIDENCE OF A CRIME WAS OBTAINED THROUGH THE INSTALLATION OF A CAMERA IN TEICHER'S DENTAL OFFICE, WHICH RECORDED HIS MOLESTATION OF A DRUGGED FEMALE POLICE OFFICER. THE CAMERA WAS INSTALLED IN RESPONSE TO CHARGES OF THREE WOMEN PATIENTS THAT TEICHER HAD MOLESTED THEM WHILE THEY WERE UNCONSCIOUS UNDER THE INFLUENCE OF DRUGS IN HIS DENTAL CHAIR. TEICHER'S COUNSEL ARGUED THAT THE VISUAL EVIDENCE OBTAINED WAS INADMISSIBLE DUE TO THE ABSENCE OF ANY NEW YORK LAW PROVIDING FOR THE SPECIFIC ISSUE OF A WARRANT FOR VISUAL ELECTRONIC SURVEILLANCE. THE WARRANTS ACTUALLY OBTAINED IN THIS CASE WERE EAVESDROPPING AND SEARCH WARRANTS. THE COURT RULED THAT THE AURAL PORTION OF THE VIDEOTAPE WAS ADMISSIBLE UNDER THE EAVESDROPPING WARRANT AND THE VIDEOTAPE ITSELF WAS ADMISSIBLE UNDER THE PROVISION OF THE SEARCH WARRANT WHICH ALLOWED FOR REMOVAL OF PROPERTY FROM THE PREMISES TO BE USED AS EVIDENCE. TO ARGUE THAT VISUAL IMAGES ARE 'PERSONAL PROPERTY' SUBJECT TO SEIZURE UNDER A STATUTE THAT APPEARS TO ALLOW ONLY THE SEIZURE OF TANGIBLE PROPERTY IS A TORTUOUS INTERPRETATION OF THE STATUTE. GRAFTING THE ELECTRONIC EAVESDROPPING AND GENERAL SEARCH WARRANT STATUTES TOGETHER TO CREATE A HYBRID THAT AUTHORIZES ELECTRONIC VISUAL SURVEILLANCE IS AN INADEQUATE RESOLUTION OF THE CONSTITUTIONAL QUESTION AT ISSUE. LEGISLATION PATTERNED AFTER THE AUTHORIZATION OF ELECTRONIC EAVESDROPPING IN TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968 SHOULD ALSO BE CONSTRUCTED FOR ELECTRONIC VISUAL SURVEILLANCE. CONDITIONS FOR THE ISSUING OF SUCH A WARRANT SHOULD BE AS FOLLOWS: ALL OTHER LESS INTRUSIVE INVESTIGATIVE TECHNIQUES MUST HAVE BEEN TRIED AND FAILED OR BE JUDGED TOO DANGEROUS, SPECIFY THE EXACT CONDUCT EXPECTED TO BE FILMED, REASONABLE CAUSE TO BELIEVE A CRIME HAS BEEN COMMITTED MUST BE SHOWN, THE PERIOD FOR SURVEILLANCE MUST BE AS SHORT AS IS PRACTICABLE, WITH THE CAMERA BEING STOPPED IMMEDIATELY AFTER THE CONDUCT DESCRIBED IN THE WARRANT HAS BEEN OBSERVED. (RCB)