AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability
of Law Enforcement Agencies & Personnel


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Wiretapping, Video Surveillance, and Internet Legal Issues

     Monthly Law Journal Article: Cell Site Location Evidence: A New Frontier in Cyber-Investigation, 2011 (2) AELE Mo. L. J. 401.
     Monthly Law Journal Article: No Warrant Needed to Search a Cell Phone Found on an Arrestee, 2011 (3) AELE Mo. L. J. 401.
     Monthly Law Journal Article: Videotaping and Police Behavior, 2011 (6) AELE Mo. L. J. 501.
     Monthly Law Journal Article: The Use of Personally-Owned Mobile Phone Cameras and Pocket Video Cameras by Public Safety Personnel,
2012 (2) AELE Mo. L. J. 501.
     Monthly Law Journal Article: Video and Audio Taping Police Activity, 2012 (7) AELE Mo. L. J. 201

    A photojournalist sued police officers who arrested him for taking their pictures arresting a man while on duty. The U.S. Department of Justice issued a statement supporting the constitutional rights of the plaintiff to take the pictures under the First and Fourth Amendments. The statement upholds citizensí constitutional rights to record police officers in their public capacity without being arrested or having their recordings unlawfully seized. Garcia v. Montgomery County, Maryland, #8:12-cv-03592, U.S. Dist. Ct. (D. Md. March 4, 2013).
     A documentary filmmaker, making a film concerning gang activity, was filming in a public place when a police officer compelled him to stop. He brought a civil rights lawsuit under a New Jersey state statute, claiming violations of his First and Fourth Amendment rights, and his rights under the state Constitution. Reversing the trial court's grant of qualified immunity to the defendant police officer, an intermediate New Jersey appellate court found that the defense of qualified immunity applies to the state statute just as it does to federal civil rights claims, but that it only applies to claims for money damages, not to claims seeking injunctive relief. Additionally, applying the qualified immunity defense on summary judgment was incorrect, since, if the plaintiff's claims were true, the officer may have violated his right of free speech. Ramos v. Flowers, #A-4910-10T3, 2012 N.J. Super. Lexis 157 (App Div.).
     In a criminal prosecution, a federal district court found that police officers did not violate the Fourth Amendment by searching a suspect's Facebook page through the consented use of another person's Facebook account, and using the information obtained to provide probable cause for a search warrant. U.S. v. Meregildo, #11-Cr-576, 2012 U.S. Dist. Lexis115085, 2012 WL 3264501 (S.D.N.Y.).
     An Illinois eavesdropping statute violated the First Amendment to the extent that it could be applied to prohibit the open audio taping of police officers in public performing their official duties. Any supposed governmental interest in protecting conversational privacy was not implicated when officers performing their duties engage in communications audible to those witnessing the events. In restricting more speech than necessary to protect legitimate privacy interests, the statute was likely to violate the free speech and free press guarantees of the First Amendment. An injunction against enforcement of the statute was therefore ordered. ACLU of Illinois v. Alvarez, #11-1286, 2012 U.S. App. Lexis 9303 (7th Cir.).
     A motorist arrested for DUI sought discovery of a videotape made by police of his arrest, for use in his defense. Despite receiving notice of this request, the police destroyed the video a number of hours before a court hearing on his discovery requests, doing so under a department policy mandating the destruction of such videos 30 days after an arrest. The trial court properly imposed sanctions on the prosecution for this barring the state from introducing testimony relating to what was shown on the video. This did not bar the prosecution, and the officer could still be questioned as to what his observations of the defendant at the scene had been, other than testifying about what the video showed. People v. Kladis, #110920, 2011 IL 110920, 2011 Ill. Lexis 2236, 2011 IL 110920.
     A federal appeals court ruled that residential telephone customers could proceed with their claims that the federal government, with the assistance of major telecommunications companies "engaged in widespread warrantless eavesdropping in the United States following the September 11, 2001, attacks," constituting a "communications dragnet of ordinary American citizens." The court found that the plaintiffs had made detailed allegations and claims of harm, that the claims were not barred by the "political question" doctrine, and that the fact that the claim of illegal wiretapping arose in the context of national security issues did not impose on the plaintiffs any heightened scrutiny requirement in terms of the details they had to provide in their complaint. Claim were asserted concerning alleged violations of the First Amendment right of association, violation of the Fourth Amendment, and violation of federal wiretapping and privacy laws. Jewel v. National Security Agency, #10-15616, 2011 U.S. App. Lexis 25951 (9th Cir.).
     A man was exercising clearly established First Amendment rights in standing ten feet away from officers and using a cell phone's video recorder with an audio microphone to record their activities, based on his concern that they were using excessive force on an arrestee in a public place. The officer was not entitled to qualified immunity on the man's false arrest lawsuit, despite his argument that the videotaping, by recording audio without consent of all parties to a conversation, violated a state wiretapping statute. The wiretapping statute aimed at clandestine recording, and the officers admitted that the arrestee was open about the fact that he was recording them. Glik v. Cunniffe, #10-1764, 2011 U.S. App. Lexis 17841 (1st Cir.).
     Various groups asserted a facial constitutional challenge to 2008 amendments to the Foreign Intelligence Surveillance Act of 1978 which they claimed violate the Fourth Amendment, the First Amendment, and separation of powers by allowing the executive branch "sweeping and virtually unregulated authority to monitor the international communications of law-abiding U.S. citizens and residents." The amendments created new procedures for conducting electronic surveillance targeting non-United States persons outside the United States for purposes of collecting foreign intelligence. A federal appeals court, not reaching the merits of these claims, held that the plaintiffs, attorneys, journalists, and labor, legal, media, and human rights organizations, had standing to challenge the procedures because they showed that they could have a reasonable fear of future injury from the procedures being used to monitor their international communications, and from the costs that they might incur in attempting to avoid such injury. Summary judgment for the defendants was therefore overturned. Amnesty International U.S.A. v. Clapper, #09-4112, 2011 U.S. App. Lexis 5699 (2nd Cir.).
     Officers were required to obtain a search warrant before viewing an Internet user's e-mail, a federal court ruled, striking down as unconstitutional a portion of the 1986 federal Stored Communications Act, 18 U.S.C. § 2701 et seq., which allowed warrantless access to such emails. The ruling came in a criminal prosecution for fraud of several persons and a company selling Enzyte, an herbal supplement purported to enhance male sexual performance. "Given the fundamental similarities between e-mail and traditional forms of communication, it would defy common sense to afford e-mails lesser Fourth Amendment protection." At the same time, the court ruled that the exclusionary rule did not apply to bar the use of the evidence obtained from the emails, since the federal agents relied in good faith on the provisions of the statute. A criminal conviction was therefore upheld, as was a $400 million forfeiture order. U.S. v. Warshak, #08=3997, 2010 U.S. App. Lexis 25415 (6th Cir.).
     The California Supreme Court has ruled that the warrantless search of a suspect's cell phone for incriminating text messages was valid as incident to a lawful custodial arrest. The cell phone was "immediately associated" with the arrestee's person, being in his possession, so that officers could search it and inspect its contents 90 minutes after the arrest, regardless of whether or not exigent circumstances existed. The defendant was arrested for transporting drugs, and was being interrogated when an incriminating text message believed to refer to a drug transaction was found. Confronted with this, the arrestee confessed, but later argued that the text message was illegally obtained. The court rejected this argument. People v. Diaz, #S166600, 2011 Cal. Lexis 1.
     A police officer was not entitled to qualified immunity on Fourth Amendment claims arising out of his arrest of a man for filming his actions during a traffic stop. At the same time, as the right to videotape police officers during traffic stops was not clearly established, the officer was entitled to qualified immunity on the arrestee's First Amendment claim. The arrestee was a passenger in a vehicle stopped for speeding, and he used a video camera he had with him to record the officer, allegedly without the officer's knowledge or consent. The officer believed that this was a violation of a Pennsylvania wiretapping and electronic surveillance law. The officer called a prosecutor, and contended that he relied on the prosecutor's advice in placing the passenger under arrest. The officer believed that the passenger was violating the statute, as it requires police officers to inform people when they record traffic stops. While the officer's reliance on the prosecutor's advice in placing the passenger under arrest might give rise to a presumption that he was entitled to qualified immunity, the appeals court ordered further proceedings to determine whether that reliance was objectively reasonable. Kelly v. Carlisle #09-2644, 2010 U.S. App. Lexis 20430 (3rd Cir.).
     A motorist stopped by two Maryland state troopers recorded his interaction with the officers without informing them he was doing so. The recording included both video and audio. He later posted the recordings on the YouTube website. He was subsequently arrested and then indicted on charges that included, among other things, making the recordings of an oral private conversation. The trial judge ruled that the recorded audio exchange between the arrestee and the officers was not a private conversation as intended by the provisions of a state wiretap statute. "There is no expectation of privacy concerning a traffic stop on a public street. The law is clearly established that a traffic stop is not a private encounter." Charges concerning making and disseminating the recording were dismissed, while charges concerning traffic violations arising from the same incident will go forward. "Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation." State of Maryland v. Graber, #12-K-10-647 (Circuit Court, Harford County, Md. 2010).
     Officers lawfully placed a video camera on a utility pole across from a house, using it to conduct surveillance on the house for a period of eight months. No vegetation, gates or fences in front of the building obstructed the public's view of the garage or the driveway from the street. The residents had no reasonable expectation of privacy in places exposed to public view. U.S. v. Bucci, #07-2376, 2009 U.S. App. Lexis 20338 (1st Cir.).
     At the time that a police chief and former mayor were allegedly involved in the surreptitious recording of phone calls made from a village's finance department, it was clearly established that government employees have a reasonable expectation of privacy in the workplace. The defendants were not, therefore, entitled to qualified immunity in a lawsuit brought by the village's former comptroller on behalf of a class of employees claiming that the recording violated Fourth Amendment rights and a federal statute. Narducci v. Moore, #06-3427, 2009 U.S. App. Lexis 15107 (7th Cir.).
     A man allegedly subjected to illegal wiretapping, physical surveillance, and placement on terrorist watch lists after telling an airline that it should screen everything to avoid the placement of bombs on airplanes could pursue Fourth Amendment, First Amendment, and privacy claims, as he sufficiently alleged that he suffered harm from these actions. Additionally, while 49 U.S.C. Sec. 46110(a) denied the court jurisdiction over claims concerning the Transportation Security Administration watch lists, it did not bar claims concerning the plaintiff's possible placement on other watch lists. Tooley v. Napolitano, No. 07-5080, 2009 U.S. App. Lexis 3252 (D.C. Cir.).
     Federal court enjoins enforcement of city ordinance requiring convenience stores with premises of less than 5,000 square feet to install video surveillance cameras. The plaintiffs were prevailing parties entitled to an award of attorneys' fees under 42 U.S.C. Sec. 1988. Midwest Retailers Association v. City of Toledo, Case No. 3:08CV851, 2008 U.S. Dist. Lexis 84288 (N.D. Ohio).
     The Virginia Dept. of Game and Inland Fisheries, in placing a hidden, motion activated, video camera in a man's open fields, and using it to monitor his hawk trap, did not violate his Fourth Amendment rights. He had no legitimate expectation of privacy, as the video merely recorded what any member of the public would have been able to see while passing by. U.S. v. Vankesteren, No. 08-4110, 2009 U.S. App. Lexis 183 (4th Cir.).
     In a lawsuit against a city and various individuals for wiretapping that violated the privacy and constitutional rights of 64 of 135 plaintiffs, who were city employees and their friends and family, even though only nominal damages were awarded by a jury, the winning plaintiffs were "prevailing" plaintiffs entitled to an award of attorneys' fees because they achieved success in part or in whole on all their claims. No fees, however, could be awarded for work directed at defendants dismissed from the case, and hours were reduced when attorneys failed to keep time records which were "contemporaneous." The plaintiffs received fees and costs totaling $ 539,452.37 including $ 15,619.57 in costs, $ 494,815.25 in attorneys' fees, and $ 29,017.55 in expert witness fees. Walden v. Providence, C.A. No. 04-304A, 2008 U.S. Dist. Lexis 82002 (D.R.I.).
     Florida appeals court upholds summary judgment for city in lawsuit challenging city policy of recording all telephone calls to and from 911 call center. The plaintiffs contended that this included the improper recording of personal outgoing calls made by city employees and of non-emergency incoming calls. While the appeals court did not agree with the city or the trial court that all calls needed to be recorded to comply with a state 911 statute, the city had a good faith basis for its belief that the manner in which the "instant playback" system was installed in the center was legal, and the city's playback system was in compliance with the requirements of a Florida state 911 plan. Brillinger v. City of Lake Worth, Florida, No. 4D07-2033, 2008 Fla. App. Lexis 5200 (Fla. App. 4th Dist.).
     Thirty-four middle school students claimed that their privacy rights were violated by the installation and operation of video surveillance cameras in athletic locker rooms at the school, which resulted in them being videotaped while dressing and undressing. A federal appeals court ruled that these actions violated the Fourth Amendment protection against unreasonable search and seizures, particularly their fundamental constitutional right not to expose their bodies to strangers of the opposite sex without it being reasonably necessary for some legitimate and "overriding" purpose. The court further found that the record did not show any concern for safety and security that would make the intrusion involved reasonable. The principal and assistant principal were not entitled to qualified immunity, but school officials not involved in authorizing the videotaping, and who were not aware of it, were granted such immunity. Brannum v. Overton County School Board, No. 06-5931, 2008 U.S. App. Lexis 3496 (6th Cir.).
     Police officers had probable cause to stop a motorist who drove on a highway for a time with his hazard lights on, which resulted in his subsequent arrest for drunk driving. Additionally, the arrestee had no reasonable expectation of privacy during a call he made to his attorney from the police station, since it was made in the presence of officers. The recording of that conversation was therefore not an unconstitutional search. Sherbrooke v. City of Pelican Rapids, No. 06-4072, 2008 U.S. App. Lexis 972 (8th Cir.).
     A police sergeant allowed an attorney, who was also an arrestee's alibi witness, to enter an interrogation room, stated that the attorney/witness could not act as the arrestee's lawyer, and then left the room, while videotaping their conversation. The arrestee then sued the sergeant and the city for alleged violations of his Fourth and Fifth Amendment rights. A federal appeals court found that the sergeant was entitled to qualified immunity because there was no clearly established law on the subject of Fourth Amendment protection for an interrogation room conversation between a pre-trial arrestee and an attorney who was also an alibi witness. A reasonable officer, therefore, could have believed that the action of videotaping the conversation was lawful. Additionally, there was no violation of the Fifth Amendment since the conversation did not constitute an interrogation. Sowards v. City of Milpitas, No. 05-16530, 2007 U.S. App. Lexis 24583 (9th Cir.).
     Target of government investigation was entitled to a preliminary injunction barring federal government agents from compelling his Internet service provider (ISP) to disclose the contents of his email without a warrant, notice, or a hearing. Such a disclosure would violate his rights under the Fourth Amendment, and a federal statute. A person retains a reasonable expectation of privacy as to the content of e-mail, even though they are stored with, sent, or received through a commercial ISP. The fact that such emails might be screened to exclude spam, viruses, and child pornography did not remove that reasonable expectation of privacy. The court did state that, if the defendant government could demonstrate factually that the plaintiff had waived his expectation of privacy in relation to the ISP, then disclosure of the emails through a mere notice to the ISP would be allowable. Warshak v. US, No. 06-4092, 2007 U.S. 14297 (6th Cir.).
     Seven individuals with drug convictions claimed that their telephone calls had been intercepted after individuals and entities associated with a city and a county obtained wiretap authorizations by using falsified warrant applications. A federal appeals court found that the principles stated in Heck v. Humphrey, No. 93-6188, 512 U.S. 477 (1994) barred their claims for declaratory relief or damages, since their convictions had not been overturned on appeal or otherwise set aside. One claim for judicial deception, asserted by their lawyer, whose phone calls had also been intercepted, remained. Whitaker v. Garcetti, No. 05-55629, 2007 U.S. App. Lexis 11012 (9th Cir.).
     Trial court abused its discretion in granting summary judgment to police officers in lawsuit over their shooting and killing of a suspect without allowing the plaintiff an opportunity to discover whether video cameras in police vehicles at the scene of the incident recorded it, and what such videotapes might show. Ingle v. Yelton, No. 05-1556, 2006 U.S. App. Lexis 5779 (4th Cir.). [2006 LR Apr]
     Police officer's videotaping of a traffic stop, and of a subsequent search of the motorist's home, did not violate any clearly established right of the motorist, who was stopped for speeding. The officer was also entitled to qualified immunity for asking the driver whether he would be willing to submit to a search of his person, vehicle and home, which revealed marijuana in his pocket. While the drugs were suppressed during a criminal prosecution against the motorist on the basis that the consent given was not voluntary, the federal appeals court ruled that a reasonable officer, under the circumstances, could have believed that the consent was consensual. The Vermont Supreme Court ordered further proceedings, however, as to whether officers engaged in unnecessarily destructive behavior of the motorist's property during the search of his home, and whether they violated his rights when, following the initial search of his home, they returned and allegedly forced their way in again over his wife's objections. Sprague v. Nally, No. 03-489, 882 A.2d 1164 (Vt. 2005). [N/R]
     Undercover police officer did not violate suspect's rights by using a body wire for purposes of protecting his safety while investigating his possible involvement in the running of a prostitution ring, as the use of the wire was authorized by a New Hampshire statute. Mills v. Merrimack New Hampshire Police Department, No. 04-2016, 130 Fed. Appx. 481 (1st Cir. 2005). [N/R]
     Federal court rules that "hand off" procedure under which evidence gathered by one investigating unit under wiretap orders was "handed off" to another investigating unit without disclosing the wiretap as a source of the evidence, resulting in prosecutions in which the existence of the wiretaps was never disclosed, was "per se unconstitutional," but that individual police and prosecution defendants who participated in the practice were entitled to qualified immunity from money damages, since the unconstitutionality of this practice was not previously established. Whitaker v. Garcetti, 291 F. Supp. 2d 1132 (C.D. Cal. 2003). [2004 LR Mar]
     Federal appeals court upholds summary judgment for federal and state law enforcement defendants in civil lawsuit brought by federal prisoner who claimed that his rights under the Federal Wiretap Act, 18 U.S.C. Sec. 2510 et seq. had been violated in the course of his arrest and prosecution by the illegal interception of his phone conversations. Claims against all defendants were barred by the Act's two-year statute of limitations and prosecutors were entitled to absolute immunity. Plaintiff's cause of action under the Wiretap Act accrued on the date that he was informed that his conversations had been recorded. Lanier v. Bryant, No. 00-6408, 332 F.3d 999 (6th Cir. 2003). [N/R]
     Deputy sheriff's alleged dissemination to other law enforcement officials of audiotape of private conversation between a private investigator and another person did not violate Louisiana wiretapping statute. Audiotape, while obtained without a judicially authorized wiretap, was intercepted by a third party, not the deputy, and therefore did not subject the deputy to civil liability. Marinovich v. Illg, No. 2002-CA-1870, 847 So. 2d 659 (La. App. 2003). [N/R]
     Police officers stated a claim against an arrestee for violating a Massachusetts state statute prohibiting unconsented to interception of wire and oral communications in alleging that he surreptitiously made a tape recording of his arrest, transportation, and booking. Gouin v. Gouin, No. CIV. A.2001-10890-RBC, 249 F. Supp. 2d 62 (D. Mass. 2003). [N/R]
     Police officer who recorded a call made by another officer from a cordless phone allegedly concerning drug trafficking was not liable under the Fourth Amendment and the federal Wiretap Act, 18 U.S.C. Sec. 2510 et seq. when the law concerning recording of cordless phone conversations was not clearly established. Officer was entitled to qualified immunity because he could reasonably believe he was not violating any laws, based on his compliance with a state wiretapping statute and the existence of a state court judge's authorizing of his actions. Frierson v. Goetz, 227 F. Supp. 2d 889 (M.D. Tenn. 2002). [N/R]
     Police supervisor was entitled to qualified immunity for state trooper's alleged videotaping of female civilian who was serving as a model for a training video while she undressed in an office to prepare for her role. Poe v. Leonard, #00-9024, 282 F.3d 123 (2nd Cir. 2002). [2002 LR Jun]
     330:94 Routine taping of calls made into and out of police department premises did not violate federal electronic eavesdropping statute even if personal phone calls were recorded and individuals were not told of the taping; law enforcement exception to statute applied; federal statute does not allow lawsuits for violations directly against municipalities. Amati v. City of Woodstock, No. 98-2680, 98-2681, 176 F.3d 952 (7th Cir. 1999).
     [N/R] Director of county office violated federal wiretapping statute when he secretly tape-recorded conversations of the office's employees, in which they had a reasonable expectation of privacy. Dorris v. Absher, No. 96206, 179 F.3d 420 (6th Cir. 1999).
     [N/R] Pennsylvania state wiretap act was violated when police officer's recorded conversations were disclosed for use in internal affairs investigation. Dance v. Commonwealth Pennsylvania State Police, 726 A.2d 4 (Pa. Cmwlth 1999).
     320:126 Officers were entitled to qualified immunity for using wiretap recording allegedly illegally gathered by private party as a means of convincing one party to the conversation to become an informant; "extraordinary circumstances" of their reliance on advice of prosecutor entitled them to such immunity even though such use of tape was illegal. Davis v. Zirkelbach, #97-1107, 149 F.3d 614 (7th Cir. 1998).
     319:110 Man whose phone calls on "cloned" (stolen) cellular phone number were allegedly intercepted by phone company at behest of police investigating kidnapping ransom calls made from that number could sue officers for failure to obtain judicial permission for interception of the calls. McClelland v. McGrath, 31 F.Supp. 2d 616 (N.D. Ill. 1998).
     286:159 Interception and recording of police officer's phone conversation over police telephone line he knew was monitored did not violate his constitutional rights Curley v. Bd of Trustees of Suffern, 624 N.Y.S.2d 265 (A.D. 1995).
     272:125 No civil liability under Federal Wiretap Act for city or internal affairs officers for use and disclosure of information in phone conversations of undercover officers and informant intercepted by informant's neighbor and revealed to internal affairs by neighbor without participation or procurement of neighbor's actions by city Forsyth v. Barr, 19 F.3d 1527 (5th Cir. 1994).
     272:126 Police officers implicitly consented to recording of their phone calls from the station based on their knowledge that recording system was in place; it was not clear, however, that pre-trial detainee had consented, allowing him to assert claim under federal Wiretap Act; officer entitled to qualified immunity on pre-trial detainee's civil rights claim since law on recording detainee's conversations was not "clearly established" George v. Carusone, 849 F.Supp. 159 (D.Conn 1994).
     274:158 Seizure of computer containing stored electronic mail did not constitute an illegal "intercept" in violation of the Federal Wiretap Act Steve Jackson Games, Inc v. U.S. Secret Service, 36 F.3d 457 (5th Cir. 1994).

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