32
Video SurveillanceUse of Closed-Circuit
Television (CCTV)
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Video surveillance, which is the use of closed-circuit
television (CCTV)
to conduct a visual surveillance of a person or a place, is not
covered by Title
III. Rather, its use is governed by the Fourth Amendment and,
therefore, when
a reasonable expectation of privacy exists, a search warrant should
be sought
pursuant to Fed. R. Crim. P. 41 and the All Writs Act, codified at
28 U.S.C.
1651. Six circuits, while recognizing that Title III does not
govern video
surveillance, require that search warrants for video surveillance
meet certain
higher, constitutional standards required under Title III.
See United
States v. Falls, 34 F.3d 674 (8th Cir. 1994); United States
v.
Koyomejian, 970 F.2d 536 (9th Cir.), cert. denied, 113
S. Ct. 617
(1992); United States v. Mesa-Rincon, 911 F.2d 1433 (10th
Cir. 1990);
United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir.
1987); United
States v. Biasucci, 786 F.2d 504 (2d Cir. 1986), cert. denie
d, 479 U.S. 827 (1986); and United States v. Torres, 751
F.2d 875 (7th
Cir. 1984), cert. denied, 470 U.S. 1087 (1985).
Accordingly, a search warrant requesting to use video
surveillance must
demonstrate not only probable cause to believe that evidence of a
Federal crime
will be obtained by the surveillance, but also should include: (1)
a factual
statement that alternative investigative methods have been tried
and failed or
reasonably appear to be unlikely to succeed if tried or would be
too dangerous;
(2) a statement of the steps to be taken to assure that the
surveillance will be
minimized to effectuate only the purposes for which the order is
issued; (3) a
particularized description of the premises to be surveilled; (4) a
statement of
the duration of the order, which shall not be longer than is
necessary to achieve
the objective of the authorization nor, in any event, longer than
30 days,
measured from the date of the order (without any 10-day grace
period to begin
interception, but with 30-day extension periods possible); and (5)
the names of
the persons to be surveilled, if known.
The Department requires that the investigative agency seeking
to use
court-ordered video surveillance obtain prior approval from the
appropriate
Department official. That policy appears at USAM
9-7.200.
[cited in USAM 9-7.200] | |