Municipal Law Q&A Test your knowledge of municipal practices and procedures with the questions and answers below. Click here to submit a question to Ancel Glink.
Municipal Q&A - March 2005
May a local government body utilize video surveillance equipment to monitor the activities of its residents without first obtaining a warrant or providing notice to residents with a posted sign?
ANSWER:
The answer, of course, is maybe. Though evocative of the omnipotent Orwellian government of science fiction lore, technological innovation, coupled with the relative lack of constitutional strictures placed upon video surveillance of public areas and dramatic reductions in cost, have ensured that the practice has become widespread, with the use of video surveillance equipment by local government bodies now increasingly prevalent throughout the nation as an effective tool for detecting and preventing crime and identifying both hardened criminals and traffic scofflaws alike. Video surveillance may require signage depending on the type of area under surveillance. Generally speaking, however, local governments may surreptitiously videotape open, public areas such as streets and intersections, parks, subways, school playgrounds and the like without any sort of advance warning. While governmental bodies may freely videotape open, public portions of their property without any notification to the public at all, it is advisable to post signs near the entrances of facilities or parks subject to surveillance in order to definitively eradicate any otherwise-existing expectations of privacy and keep the public body on solid legal footing, particularly in areas where the members of the public may legitimately expect to be free from public view. Moreover, the warning itself may serve as an effective impediment to criminal activity.
Video surveillance is constitutionally permissible under circumstances where the individual being observed has either consented to the search or where the surveillance does not constitute a Fourth Amendment search because the people being observed have no reasonable expectation of privacy given the place and circumstances of the surveillance.
Video surveillance only constitutes a Fourth Amendment search insofar as it violates an individual's "constitutionally protected reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Therefore, covert video surveillance is only constitutionally suspect if the individual being monitored may rightfully claim that a "justifiable,"reasonable," or "legitimate expectation of privacy that has been invaded by government action." Smith v. Maryland, 442 U.S. 735, 740 (1979); People v. Mannozzi, 260 Ill.App.3d 199, 203 (1994). Thus, if video surveillance does not intrude upon a legitimate expectation of privacy, there is no 'search' subject to the warrant clause of the Fourth Amendment.
Whether someone possesses a constitutionally cognizable privacy interest turns on two elements. First, individuals must demonstrate that they actually demonstrated an expectation of privacy as evidenced by their behavior at the time of the surveillance and second, even if the individual did subjectively expect privacy, the expectation of privacy must be one that "society is prepared to recognize as reasonable." Katz, 389 U.S. at 360.
Of course, as a practical matter, the Fourth Amendment's protection depends largely on where the person alleging an unlawful search is located. See Minnesota v. Carter, 525 U.S. 83, 88 (1998). To be permissible, the area subject to video surveillance must be of such a character as to reasonably nullify an individual's expectation of privacy. While the analysis is inherently fact-dependent and the reasonableness of an individual's expectation of privacy necessarily turns on the details of individual cases, governmental bodies are generally free to videotape public areas because the objective reasonableness of an individual's expectation of privacy on public property is very difficult to establish. To varying degrees, individuals have some expectation of privacy in all places, but courts have consistently ruled against finding a protectable privacy interest in open public areas because the expectation of privacy is so reduced in such places that covert video surveillance may be engaged in without providing any notice or warning.
Because individuals in open view do not have constitutionally reasonable expectations of privacy in connection with activities that they expose to the plain view of others in a public space, the extent of the privacy to which one is entitled is inversely proportional to the openness of the area. Therefore, every court that has considered application of the Fourth Amendment to video cameras aimed at public spaces frequented by large groups of people has ruled that such surveillance is not
a search because of the inherent unreasonableness of privacy expectations in highly public areas.
Consequently, local government bodies may safely engage in video surveillance of public areas so long as the portions of property they videotape are readily exposed to public view. This situation must be distinguished from video surveillance of public restrooms, locker rooms and the like, which present much closer questions regarding the legitimacy of privacy expectations and frequently turn on the specific locus of the individual observed within the restroom or locker room and the positioning of the surveillance equipment.
While not legally required, implementing signs in connection with video surveillance removes the surreptitious nature of the search and, more importantly, would eradicate any potential claim to a person's reasonable expectation of privacy and provide the implied consent that would further circumvent Fourth Amendment search and seizure requirements. When a party being videotaped consents to the recording, no legitimate expectation of privacy remains. People v. Herrington, 163 Ill.2d 507, 510 (1994). Furthermore, once a sign is posted warning park attendees that their activities are subject to video surveillance, the warning eradicates any otherwise-existing expectation of privacy.- Mark Heinle
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