.

ATTORNEW GENEECAI..
~FTEXAS

HonorableA. Ross Rommel Traffic Safety Administrator ExecutiveDepartment Drawer P 205 Sam Houston slag., Austin, Texas 78711 opinion No. M- 692
Re: Several questionsrelative to whether a partieular traffic surveillance Dear Mr. Rommel: system is legak~..
Your request for an opinion as to whether the operation of the described traffic surveillancesystem is legal, presents the followingquestions: 1. Is there an actionable invasion of the right of privacy of a person whose photograph is taken ona public highway by the describedtraffic surveillance system when the photo is used solely for speed enforcement

purposes? 2. Is there an actionable invasion of the right of privacy of a person whose photo is taken on a public highway by the above system when used for traffic surveying' purposes?
Your third questionhas been withdrawn and is therefore omitted. 4. Assuming that the chain of possessionof the film is unbroken from the time it is placed in the camera until the time of trial of a defendant to a speedingviolation,would the photographbe admissible in evidence wasproof of identification of the defendant and of the speed at which he was driving

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5. , 1

Ross Rommel, page 2 (M- 692)

when'the traffic surveillance unit is left unattendedduring its operation? With the same assumptionas stated in Question 4, would the photographbe a'dmlssible in evidenceas proof of ldentlfication of the driver and of the speed at which he ,wastravelingwhen the traffic surveillance

unit is attended,bya police officerwho &es not apprehend the de-~ fendant at the time ,of violation? According to your letter, this system consists of a sensing device, a computer,and a camera with illwinatin~ " attachmentto measure the spee~d of a,motor vehicle, .photograph the,frontview of the,vehicle,. the driver,,its'reglstration plate, and showing the date, time, location'~and~ posted speed limit. The only service requirement ~1sthe occasionalchange of film cassettes,and no attendant is required for the operation of the system. Its primary intended uses are for traffic speed control and traffic engineeringsurvey purposes. Your questionsraise issues of first impressionsin Texas, as there are no court declsions which have decided these issues. With reference to your first two questions,"it' is well settled that the individual's right to preservehispersonal seclusionmust give way to the state's reasonableexercise of the police power. Consequently,for example, statutes making reasonableprovision for taking and keeping fingerprints and photographsof persons accused of crime have been sustained. 14 A.&.R.2d 761, Right of Privacy, Sec. 9, Police Power.,
In the case of Voelker v. T.yndall. 75 N.E.2d 548 find. Sup. 1957:app.denied 7~~ 33 U.S. 834 reh. denied 133 U;S. 8581 appellantwas arrested on a misd&eanor charge end claimed ' ,an invasion of his right of privacy. The Court, in upholding the right to take his fingerprints and photograph,said: "The purpose issingle,clear and quite salutary to promote the public safety,by achievinggreater success in preventingand detect; ing crimes and apprehendingcriminals. The accomplishment of this

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object has been an importantduty of government in all times. Not infrequently a lack of accurate identification has been a serious handicap in clearingup a crime. It is probable that an accurate identification system, faithfullyadministered, may be an assistancenot only in finding the guilty criminal,but in clearing an innocent suspect." The rule generally is also stated in 41 Am.Jur. 945, Privacy, Sec. 27:

"It is generallyheld that the customary photographing

and measuring of a prisoner for the purpose of police records do not amount to an invasion of the prisoner's right of privacy."
It is our opinion that a person driving on a public highway in an automobile,is subject to public view and to the state's reasonableexercise of the police power to promote the public safety. Accordingly, we answer your questions 1 and 2 that there is not an actionable invasion of the right of privacy. We find no case authoritiesrecognizing such a right of privacy. Our Courts have 80 far oonfined their decisions in upholdinga right of privacy to matters relating to marriage. familv and sex. 56 American Bar Assn. Journ; 673-677,landsee Californiav: Belous, 80 Cal.Reptr. 01 Id Connecticut,3 1 U.S. 479 (1965). Tl!i Czu:E h " $54, 458 =d 194 (1969 ave refused to extend a riaht of privacy where public health or safety or other nolice powers of the state-area comoetlna'in- - terest. Public Unilities Commissionv. Poll&, 343 U.S. 451 (1952);Frank v. Maryland, 359 U.S. 360 (195g

. Your letter expressesconcern as to whether the described system can become accepted as a scientifically reliable speed testing device. The evldentiaryproof required In Court for the reception of evidence in this system would be the same as for any other photographicsystem in a criminal case. The rule stated in Wigmore, The Science of Judicial Proof, p. 450, as quoted in Wilson v. State, 168 Tex.Cr.
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239; 328 S.W.28 311 (1959),applies to your questions 4 and : II

0.. since the additionsmade possible to our unaided senses are due to the.uae of instrumentsconstructedon knowledge of scientificlaws, it is plain that the correctness of the data thus obtainable must depend upon the correctnessof the instrument in construction and the ability of the technicalwitness to use it. Hence, the following three fundamentalpropositions apply to testimonybased on the use of all such instruments:
' 'A. The type of apparatuspurporting to be constructedon scientificprinciples must be accepted as dependablefor the proosed purpose by th professionconcerned n that branch of s:ience or its related art. This can be evidencedby qualified expert testimony;or, If notorious, it will be judicially noticed by the judge without evidence.'
' 'B. The particularapparatusused by the witness must be constructedaccording to an accepted type and must be in good condition for accuratework. This may be evidencedby a qualified expert.'
" 'C. The witness using the apparatusas the source of his testimonymust be one qualified for its use by trainingand experience.

I"
As stated in Wilson v. State, supra, "... there must be proof that the machine has been properly set up and recently tested for accuracy."
As to your questions4 and 5 regarding the admissibility in ,evldence of photographsfrom the traffic surveillance system as proof of identification of defendantsand speed of driving, the establishedrules of evidencewould apply and the burden is upon the prosecutionto qualify the evidence for submissionand to connect up and prove the identity.ofthe defendant committingthe offense. This

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.Hon. A. Ross Rommel, page 5 (M- 692)

would probably be more difficultwhen the system'sunits are left unattendedand the defendant is not apprehendedat the time and at the scene of the speedingviolation. The Court would have to be satisfiedthat the photographscomply with, the usual rules of evidenceand accuratelydepict what they purport to represent. However, admissibilityof the photos does not necessarilyrequire identification by an attendant or an eye witness. See Scott, Photographic Evidence, 2nd Ed., Sec. 1026; Vardilos v, Reed, 320 S.W.2d 419 (Tex.Civ.App. 1959, no writ.) The speed of motor vehiclesmay be measured by use of a "phototraffic

camera",andthe "Foto-Patrol" ,which operates on an electronicimpulse which activates a strobe light camera. "It has been held that expert testimonyas to the scientific principlesunderlying it and as to its accuracy at the time of an alleged speedinff offense is necessary in order to base a convictionthereon. 7 Am.Jur.26 871, 872, Sec. 328, Automobile% and Highway Traffic, which cites People v. Pett, 13 Misc.2d, 975, 178 N.Y.S.2d 550.

In People v. Hlldebrant,308 N.Y. 397, 126 N.E.2d 377, ’ N.Y.Ct.App.(l955), the offensewas speeding. Police officers, to measure the speed, had used a "phototraffic camera." The Court said, "there should be applicable the criminal-lawrules of presumptionof innocenceand necessity ,ofproof of guilt beyond a reasonabledoubt." The Court, holding that the identity of the driver must be proven, and that proof of vehicle ownershipalone will not give rise to a presumption that the owner was the driver, said:

,t

. . ..Apparently.

the question is a new one, but that is because speeders are usually pursued and arrested after pursuit, whereas this identity question arises because of the use of a photographicspe,ed recorded,without pursuit or arrest. The device used may be efficientand scientifically trustworthy,its use may make pursuit and immediatearrest Inconvenientor unnecessary,and highway safety may be promotedby eliminatingsuch pursuits. But it takes more than necessity to validate a presumptionin a criminal case. Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241;~ 87 L.Ed. 1519, and here we do not even have a presumption."
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However, positive identification of the defendant is. not required if a witness can testify that the photo~~is a~ fair and accurate representation of the scene. 403 F.2d 977 (6th Mr., 1968). U.S. v.Hobbs,

In Commonwealth

v. Buxton,,

205 Mass: 49, 91~

N.E. 128 (lglC),a speed vlolat$.on case, the questionwas the CornEetency, of an instrument‘known as a “photo-speed

recorder,. The Court said:
“As a rule the questionwhether evidence of experimentsshall be admitted depends largely upon the discretionof thetrial judge; and his action in the. exercise of this discretion will not be reversedunless plainly wrong.?. In thls~

: case the result of the experimentsdid not depend upon the fluctuationsof human. ‘. agencies,nor on conditionswhose relations to the result were uncertain,but upon the immutableworking of natural ;‘laws; and upon the evidence the preslding judge may well have found thatsuch experiments

were likely to be more reliable as to the speed of the automobile than the conjecturalstatement ol an eye witness or the interestedstatement of a chauffeur. We cannot say as a matter of law that the evidencewould not justify the judge in coming to the conclusion that the experiments would be usefu;,? ,, determiningthe speed of the car. - deed, it would seem desirable to have some machine whose action being dependent upon the uniform working of the laws of nature would record the speed of a moving object

.”
It is, therefore,our opinion in answer to your questions, 4 and 5 that the traffic surveillance photographswould be admissible in evidence as proof of identification of defendantsand their speed of driving, subject to the requirementsand rules of evidencehereinabove stated.

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Hon. A. Ross Rommel, 'page.7(M-692)

SUMMARY -------
There is no actionable Invasion of the right of privacy of a person whose photograph is taken on a public highway by a traffic surveillance system when such photo is used solely for speed enforcementor traffic surveyingpurposes. Such photographs

would be admissible in evidenceas proof of identification of defendantsand their speed of driving, provided they comply with the rules of evidenceapplicable thereto.

Preparedby Ben M. Harrison AssistantAttorney General

OPINION COMMITTEE KERNS TAYLOR, Chairman W. E. ALLEN, Co-Chairman Houghton Brownlee Jim Broadhurst Howard Fender John Banks Tom Bullington
MEADE F. GRIFFIN Staff Legal Assistant
ALFRED WALKER, ExecutiveAssistant
NOLA WHITE First Assistant

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