Jacqueline R. Kanovitz Constitutional Law, Twelfth Edition (2010)

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.What is significantoffered in evidence and the enforcement offi- is not the type of room in which the surveil-cials alleged that nothing else was recorded.lance occurred but Lee s action in admittingUnder this approach a room or an entire hotel Beavers to the room.Although Lee had ancould be bugged permanently with impunity expectation of privacy in the hotel suite soand with the hope that some usable conversa- long as he was alone there, when Lee allowedtions with agents would occur.Beavers to enter, any expectation of privacyIn contrast to the First Circuit, the Second vis-a-vis Beavers vanished.We note thatand Eleventh Circuits have held that the in Hoffa many of the conversations alsoFourth Amendment is not violated by the use occurred in a hotel suite, but the Court never-of a fixed electronic device to record a meet- theless held that the case did not involve anying between a defendant and a person who legitimate Fourth Amendment interest.consents to the recording.In Myers, a defen- Second, we cannot draw a constitutionaldant was videotaped during a meeting with a distinction between consensual audio andgovernment informant at a townhouse main- video surveillance.The principle underlyingtained by the FBI.Rejecting the defendant s the governing Supreme Court cases is that ifFourth Amendment argument, the Court a defendant consents to the presence of a per-stated that the defendant s conversations son who could testify about a meeting and iswith undercover agents in whom he chose to willing to reveal what occurs, the defendantconfide were not privileged, and mechanical relinquishes any legitimate expectation ofrecordings of the sights and sounds to which privacy with respect to anything that the tes-the agents could have testified were proper timony could cover.Thus, just as Lee gave upevidence. any expectation of privacy in the things thatIn Yonn, the Eleventh Circuit likewise he allowed Beavers to hear, Lee also gave upheld that the Fourth Amendment was not any expectation of privacy in the things thatviolated when agents placed a microphone he allowed Beavers to see.Although videoin a motel room and monitored and recorded surveillance may involve a greater intrusionthe defendant s conversations when a person on privacy than audio surveillance, the dif-who consented to the surveillance was pres- ference is not nearly as great as the differ-ent.The Court held that [t]he location of ence between testimony about a conversationthe electronic equipment does not alter the and audio recordings of conversations.Asirrefutable fact that Yonn had no justifiable noted, however, the Supreme Court has notexpectation of privacy in his conversation drawn any distinction between those twowith [the person who consented]. The Court types of evidence, and we similarly see noalso specifically rejected the reasoning of constitutionally relevant distinction betweenPadilla, stating that it saw no reason to sup- audio and video surveillance in the presentpress the recording of a clearly unprotected context.642 CONSTITUTIONAL LAWFinally, we do not agree with the First enforcement is likely to find this an alluringCircuit that it is appropriate to suppress strategy.recordings of meetings between a defendant First, a person who illegally interceptsand a cooperating individual simply because wire, oral, or electronic communicates isthe recording device was placed in the room subject to criminal and civil penalties, andrather than on the cooperating individual s a federal agent who violates the Fourthperson.To be sure, there are three circum- Amendment may be sued under Bivens v.Sixstances in which this distinction would mat- Unknown Fed.Narcotics Agents.Second,ter for Fourth Amendment purposes.First, if in order to install a monitoring device, lawthe defendant had an expectation of privacy enforcement authorities or a person cooper-in the premises at the time when the device ating with them must acquire a right to enterwas installed, the entry to install the device the premises, such as by obtaining a warrantwould constitute a search.Second, the cases or renting the premises in which the device isinvolving consensual monitoring do not apply to be installed.Thus, the Padilla Court s fearif recordings are made when the cooperating that agents might bug an entire hotel, andindividual is not present.Third, the logic of the fear of the District Court in Shabazz thatthose cases is likewise inapplicable if the devices could be placed in a person s homeplacement of the recording device permits it seem misplaced.Third, it is not clear thatto pick up evidence that the cooperating indi- law enforcement would have much to gainvidual could not have heard or seen while in from monitoring conversations that occurthe room.Unless one of these circumstances when a cooperating individual is not pres-is present, however, it does not matter for ent.A video tape of a conversation generallyFourth Amendment purposes whether the reveals whether a cooperating individual isdevice is placed in the room or carried on present, and without proof of the presencethe person of the cooperating individual.In of the cooperating individual, the tape iseither event, the recording will not gather inadmissible.We do not go so far as to sayany evidence other than that about which the that there is no risk of the type of abuse thatcooperating witness could have testified.worried that Padilla Court, but the risk is notAs the government argues, the decision great enough to justify the holding of thein Padilla appears to be based, not on the Padilla Court.conclusion that the recordings in that case In the present case, there was no viola-had been obtained in violation of the Fourth tion of Lee s Fourth Amendment rights.Amendment, but on a prophylactic rule The monitoring devices were installed in thedesigned to stamp out a law enforcement suite s living room at a time when Lee hadtechnique that the Court viewed as creating no expectation of privacy in the premises.an unacceptable risk of abuse.Even assum- There is no evidence that conversations wereing for the sake of argument that we have monitored when Beavers was absent fromthe authority to adopt such a rule, however, the room, and Beavers was plainly there atwe would not do so.Although Padilla was the time of the incriminating meetings showndecided more than a quarter century ago and on the tapes that were introduced at Lee shas not been followed in any other circuit, trial.We are satisfied that the tapes do notwe are not aware of evidence that the instal- depict anything material that Beavers himselflation of recording devices to monitor meet- was not in a position to hear or see while in theings attended by a cooperating individual room.Finally, we reject Lee s suggestion thathas led to the sort of abuse that the Padilla the government was required, before resort-Court feared.Nor is it intuitively obvious that ing to video surveillance, to demonstratethere is much risk of such abuse.As noted, that less intrusive investigative techniquesthe Padilla Court feared that law enforce- were unlikely to succeed.Although thisment agents would install electronic devices requirement applies to monitoring governedin a hotel rooms and monitor what occurred by the federal wiretapping statute, that stat- in the hope that some usable conversations ute does not apply to electronic surveillancewith agents would occur [ Pobierz całość w formacie PDF ]

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