Essentially, surveillance enhanced view allows one to view a scene with more clarity and detail by increasing or improving in value, quality, desirability, or attractiveness.
Currently, there are no existing laws regarding enhanced view, but rather guidelines outlined in rulings determined on a case-by-case basis.
During any given surveillance, there can be three forms of enhanced view. They include:
- Assuming an aided, unnatural, or contorted position
- Illuminating an otherwise darkened area
- Magnifying what is visible to the “naked” eye, or otherwise not visible
The use of enhancement devices, in and of themselves, are lawful. Surveillance professionals often use tools that can magnify a view, such as binoculars and zoom lenses on cameras and camcorders. Using such methods has been upheld in many instances as constitutionally proper; however, not all enhanced views are appropriate. Until such time that the Supreme court addresses the issue of enhancement methods or tools, the lower courts will continue to use their discretion in determining which enhancements are lawful.
Let’s address some of these issues. The lawfulness of the surveillance is often determined by the positioning of the investigator in relation to the location of the subject. To avoid this jeopardy, the professional investigator must frequently assess, “to what extent are my enhancement efforts violating a subject’s expectation of privacy?”
We have not yet seen decisions on surveillance of activities on public streets or other public areas being a violation of the Fourth Amendment. However, surveillance in public areas such as public restrooms or dressing rooms, and locker rooms, may violate the civil rights of those viewed.
The courts have established specific guidelines of visual enhancements when the area under observation is more private, such as a home or fenced yard; however, those guidelines vary in different jurisdictions. In that light, an investigator may observe a home from public areas, such as parking lots, public streets, or any area that can be accessed by the public.
Courts support photographing activities that can be seen with unaided vision or enlarging photographs that merely enable one to see items that were in plain view, though in greater detail. In the opinion of the courts, guidelines for using mechanical devices to enhance a view into the home also differ dramatically.
Can a surveillance professional use an enhancement device to view from a distance (to avoid detection) any activity that could have been observed with the unaided vision from a closer vantage point, i.e., enhanced views that are confined to the window area of a residence? Yes. Any activity viewed inside the home must be viewable from a public space. Courts look more favorably on the use of enhancement devices, which simply confirm those activities observed with unaided vision. An enhanced view is lawful in instances when the observations are not in an attempt to see something that is not in plain view without the enhancement device.
Finally, it is important to remember that each situation is uniquely different when dealing with legal issues of enhanced views. In general, visual enhancement devices are not illegal, however, their application relates to specific parameters. These parameters are determined by the particular area in which the effort is conducted and the protections that area affords to the people in these areas. The protections may be established by a subject’s reasonable expectations as well as the efforts of the subject to ensure privacy.
This article is not intended to provide legal advice. It is the sole opinion of the author. Be sure to seek professional legal guidance. And perhaps equally as necessary, communicate what you are doing with your client as they would likely experience any adverse outcome of a surveillance operator’s illegal or unethical activities.
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