Copyright held by The John Cooke Fraud Report. Reprint rights are granted with attribution to The John Cooke Fraud Report with a link to this website.
By Kelly E. Riddle
There are many court cases on record that affect the way private investigators conduct surveillance. The cases listed below are, by no means, the final or sole cases related to the subject. It should be understood that the courts are constantly hearing cases that may have a bearing on the PI industry. The courts have the right to overrule prior decisions, to restrict prior findings or to disregard prior case law altogether. Therefore, the following cases should be considered with these circumstances in mind.
DeLuna v. State of Texas (1986): Part of the courts findings involved a decision that photographs are admissible as evidence if they accurately depict the subject at the time they were taken.
Darden v. State of Texas (1982): The court ruled on several issues which included the admissibility of motion pictures and photographs as evidence. The court decided that motion pictures and photographs are admissible as evidence provided there is proof of their accuracy as correct representations of the subject at the given time and they have material relevance.
Johnson V. State of Texas (1977): The court delivered
a finding that photographs that fairly and accurately depict the subjects are generally admissible and any discrepancies between the photograph and the subject at the relevant time, if properly pointed out, will not render the photograph inadmissible.
Terry v. State of Texas (1973): The court indicated that photographs are admissible in evidence and cited the theory that they are pictorial communications of the witness who uses them, instead of/or in addition to, some other method of communication.
Hall v. State of Texas (1992): The court ruled that under Rule 1001, which governs the admissions of photographs, including video tapes, the -“seven-prong test” must be satisfied. The seven-prong test consists of the following:
- It must be proven that the recording device (camera) was capable of taking testimony. Note: the investigator mist be able to show that the camera was in good operating condition without malfunctions.
- The operator of the recording device must be shown to be competent in the use and in the operation of the device.
- The authenticity and correctness of the recording must be documented. Note: the investigator must be able to document the proper chain of custody and that tampering with the tape has not occurred.
- The investigator must be able to show that the tape or photographs have not had any additions, deletions or changes made to the tape. Note: the investigator must be able to testifi1 that the tape is a trite and complete recording, free of editing or tampering of any kind. If a tape is edited, the original unedited copy must be available for review by the court.
- The court must be shown the manner of presentation.
- The recordings must show proper identification of the subjects depicted in the tape or photographs. Note: The investigator must have proper facial views of the subject documented so that the identity of the subject can be assessed.
- Must be able to show that the testimony or actions was elicited voluntarily without inducement. Note: This goes directly to the “entrapment” of a subject. The investigator cannot cause a situation that would create circumstances that would make the subject act differently than they might without the circumstances presented to then. Example: the investigator cannot let the air out of a tire to cause the subject to have to change the tire.
U.S, v. Pretzirtger (1976): The court indicated that the attachment of an electronic location device to a vehicle moving about on 
public thoroughfares or through public air or public space does not infringe upon any reasonable expectation of privacy and does not constitute a search. Therefore, no search warrant is needed for installation of the
device. Note: The investigator should remember other such laws, such as trespassing laws, when considering the use of these devices. If the investigator has to enter upon the property of the subject to affix the device on the vehicle, trespassing may have occurred.
U.S. v. Mendoza (1978): The court made a ruling on the admissibility of tape recordings which were made with the consent of one party to a conversation (e.g., an undercover officer). The court ruled that judicial authorization to record conversations is not necessary in these situations.
U.S. v. Torres (1984): According to the findings in this case, television surveillance of suspected criminals and criminality is not unconstitutional.
U.S. v. Rizzo (1978): The court found that, in this case, a private investigator was attempting to gather evidence of marital infidelity on behalf of their client. The court stated that regardless of whether or not the private investigator installed an electronic device for recording conversations over the telephone or procured the client-spouse to install it by giving her the device and instructing her on how to use it, they violated the provision against interception of wire or oral communications.
White v. Weiss (1976): The court found that when a private investigator used, or gave their client an electronic device to record telephone conversations, even though it was within the client’s own home, and it involved one spouse against another, violated the wiretap provisions of the Omnibus Crime Control and Safe Streets Act.
U.S. v. Miers (1982): In a case in which the undercover agents videotaped a conversation with a Congressman, the court ruled that the agents did not violate the Congressmen’s first and fourth Amendment rights.
Air Line Pilots Association International v. United Airlines: The court rules that it is a violation of the National labor Relations Act to unlawfully photograph a picket line if it is intended to coerce or interfere.
National Labor Relations Board v. Southern Maryland Hospital: The court ruled that it is not illegal to photograph union activities in areas restricted to the union.
General Notes: It is apparent that the court has ruled that a person has the right to privacy if a reasonable and prudent person would have an expectation of privacy under similar circumstances. If a person has the garage door open and you can see the subject from the street without any binoculars or other visual assistance, the person can’t expect to have a total sense of privacy. Whereas, a subject in his own home, with the doors and curtains closed, will be expected to have a certain degree of privacy. Common sense goes a long way in this type of work. Remember, it is your business, livelihood and reputation on the line. Making a few dollars illegally is not worth the long term consequences. If the situation involves trespassing, entrapment or some other violation, think before you commit.
Often in surveillance, other investigative techniques have to be used whirl may or may not involve recording telephone conversations. The National Association of Investigative Specialists has sought input from PIs in all 5() states regarding this issue. This information is from PIs, not attorneys, and therefore should be checked for accuracy and currency. State law requires both parties (two party) or just one to give consent that the conversation is being recorded.
© 2000 John Cooke Fraud Report