b'February 2, 1979\n\n79-10\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nConstitutional Law\xe2\x80\x94Fourth Amendment\xe2\x80\x94\nInterception of Oral Communications\xe2\x80\x94Legality of\nTelevision Surveillance in Government Offices\n\nThis responds to your request for our opinion concerning the legality o f\nusing concealed television cameras for surveillance in buildings owned by\nor leased to the Governm ent, where the Government officer occupying the\nparticular space has consented to the surveillance.\nWhile existing statutes govern certain aspects o f television surveillance,\nno statute specifically regulates the surveillance for law enforcement pur\xc2\xad\nposes. The requirements o f Title III o f the Omnibus Crime C ontrol and\nSafe Streets Act o f 1968, 18 U .S.C . \xc2\xa7 2510 et seq., would apply if a tele\xc2\xad\nvision device intercepts an oral com m unication \xe2\x80\x9c uttered by a person ex\xc2\xad\nhibiting an expectation that such com m unication is not subject to intercep\xc2\xad\ntion under circumstances justifying such expectation.\xe2\x80\x9d 18 U.S.C.\n\xc2\xa7 2510(2). In the area o f foreign intelligence and foreign counterintelli\xc2\xad\ngence, the recently enacted Foreign Intelligence Surveillance Act o f 1978\nspecifically encompasses television surveillance \xe2\x80\x9c under circumstances in\nwhich a person has a reasonable expectation o f privacy and a warrant\nwould be required for law enforcement purposes.\xe2\x80\x9d 50 U.S.C.\n\xc2\xa7 1801(b)(4). That Act generally requires that any such surveillance under\xc2\xad\ntaken for foreign intelligence purposes be authorized by judicial order.\nSince the existing statutes do not cover much o f this area,1 the Fourth\nAmendment is the only existing check on governmental action in similar\nsituations. The relevant statutes are themselves predicated on the Fourth\nAm endm ent, and are framed in terms o f that A m endm ent\xe2\x80\x99s test o f\n\xe2\x80\x9c reasonable expectation o f privacy.\xe2\x80\x9d O ur discussion will focus on the\nrequirements o f the Fourth Am endm ent.\n\n1 For example, Title III does not apply to surveillance that does not intercept com m unica\xc2\xad\ntions, and the Foreign Intelligence Surveillance Act o f 1978 would not apply to surveillance\nconducted outside the United States.\n\n64\n\n\x0cWe have identified only a few cases dealing with the Fourth Amendment\naspects o f surreptitious television surveillance.2 While these cases apply\ngenerally to surveillance conducted in Government buildings, we do not\nbelieve that the case law in this area has been developed sufficiently to pro\xc2\xad\nvide authoritative guidance. The following discussion will therefore be\ndrawn from the general principles o f Fourth Amendment law and its\napplication in analogous contexts.\nThe starting point in our analysis is the Supreme C ourt\xe2\x80\x99s decision in\nKatz v. United States, 389 U.S. 347 (1967), holding that the Government\nmay not, without warrant or in the absence o f exigent circumstances,\nviolate \xe2\x80\x9c the privacy upon which [an individual] justifiably relied.\xe2\x80\x9d Id. at\n353. In delineating the circumstances in which one may have a justifiable\nexpectation o f privacy, the C ourt stated:\nW hat a person knowingly exposes to the public even in his own\nhome or office, is not a subject o f Fourth Amendment pro\xc2\xad\ntection * * *. But what he seeks to preserve as private, even in\nan area accessible to the public, may be constitutionally\nprotected. [389 U.S. at 351-52.]\nJustice Harlan, in elaborating on this concept, stated that whether what\none seeks to preserve as private will, in fact, be constitutionally protected\ndepends on whether that expectation o f privacy is \xe2\x80\x9c one that society is\nprepared to recognize as \xe2\x80\x98reasonable.\xe2\x80\x99 \xe2\x80\x9d Id. at 361. See also, United States\nv. White, 401 U.S. 745, 752 (1971).\nUnder these principles, the installation and maintenance o f video\nsurveillance in a private office would constitute, in our opinion, an inva\xc2\xad\nsion o f one\xe2\x80\x99s reasonable expectation o f privacy and would thus be a search\nand seizure within the Fourth Amendment. See, United States v. H um\xc2\xad\nphrey, supra, 451 F. Supp. at 60; People v. Teicher, supra at 590. The next\n\n1 The most recent, United States v. Humphrey , 456 F. Supp. 51 (E .D . Va. 1978), will be\nmore fully discussed below. United States v. McMillon, 350 Supp. 593 (D .D .C . 1972) upheld\npolice visual observations and videotapes o f an individual\xe2\x80\x99s yard; the court reasoned that,\nsince the officers had authority to be on an adjacent piece o f property, the observations were\nwithin the plain view doctrine and that the police actions were reasonable under the circum \xc2\xad\nstances. Poore v. State o f Ohio, 243 F. Supp. 777 (N .D . Ohio 1965), a ff\xe2\x80\x99d, 366 F. (2d) 33 (6th\nCir. 1966), was a pre-Katz decision concluding that police observations and movies made from\nbehind a \xe2\x80\x9c two-way\xe2\x80\x9d glass in a m en\xe2\x80\x99s washroom were not a search, for the reason that any\nmember o f the public might have walked into the washroom and m ade the same observations.\nThe State courts have also dealt on occasion with this issue. People v. Teicher, 395 N.Y.S.\n2d 587 (N .Y.S.C. 1977), upheld a visual surveillance conducted pursuant to court order\nagainst contentions that the court had no statutory authority to issue the order and that it did\nnot conform to the Fourth A m endm ent\xe2\x80\x99s requirements as to probable cause, particularly,\nminimization, and use o f electronic surveillance where other investigative tools were avail\xc2\xad\nable. A nother decision, Avery v. State, 292 A .2d 728 (M d. Ct. o f Special Appeals 1972), ap\xc2\xad\npeal dismissed, 410 U .S. 977 (1973), upheld the warrantless use o f a television camera\nprimarily on the ground that the surveillance was conducted with the full cooperation and\nconsent o f the victim. Sponick v. City o f Detroit Police Department, 211 N .W . 2d 674, 690\n(Mich. Ct. App. 1973), upheld television surveillance o f a bar on the ground that the sur\xc2\xad\nveillance only m ade \xe2\x80\x9c a perm anent record o f what any member o f the general public would\nsee if he entered the tavern as a p a tro n .\xe2\x80\x9d\n\n65\n\n\x0cquestion is whether the situation differs when the surveillance is conducted\nin Government buildings or offices. For the following reasons we believe\nthat the situation is not any different in Government offices and that per\xc2\xad\nsons within Government offices also have a reasonable expectation of\nprivacy.\nA. \xe2\x96\xa0\nSurveillance in a Governm ent office still constitutes a search within the\nFourth Amendment. In United States v. Hagarty, 388 F. (2d) 713 (7th Cir.\n1968), the only C ourt o f Appeals decision to date applying K atz analysis to\nthe question o f a warrantless continuous electronic surveillance in a\nGovernment office, the court held that evidence obtained by such a\nsurveillance violated the Fourth Am endm ent. The court stated that the key\nquestion under Katz was whether the defendant sought to exclude \xe2\x80\x9c the\nuninvited ear\xe2\x80\x9d and that, under this standard, it was \xe2\x80\x9c immaterial that the\noverheard conversation took place in an IRS office.\xe2\x80\x9d Id. at 716. The same\nrationale would apply to a visual surveillance by electronic means.\nIn United States v. Humphrey, supra, the court indicated that while\none\xe2\x80\x99s reasonable expectation o f privacy is less in an office than at home,\nthe television surveillance o f the Government office involved was subject\nto the Fourth Am endm ent. 451 F. Supp. at 60.3\nSeveral arguments, predicated on the Governm ent\xe2\x80\x99s authority over its\nbuildings, may be advanced contrary to this result. First, it is a familiar\ncanon that one with joint access or control over property may permit it to\nbe searched, United States v. Matlock, 415 U.S. 164, 171 note 7 (1974),\nand the Governm ent\xe2\x80\x99s control over its buildings may be a basis for allow\xc2\xad\ning the appropriate officials to \xe2\x80\x9c consent\xe2\x80\x9d to the search. However, the\ncourts have not taken such a broad view o f the G overnm ent\xe2\x80\x99s authority.\nThe cases generally utilize the traditional test whether the property has in a\npractical sense been devoted to the exclusive use o f the employee. See,\nUnited States v. Blok, 188 F. (2d) 1019 (D.C. Cir. 1951) (search of\nemployee\xe2\x80\x99s desk); United States v. Kahan, 350 F. Supp. 784 (S.D.N.Y.\n1972), a ff\xe2\x80\x99d on other issues, 415 U.S. 239 (1974) (search o f employee\xe2\x80\x99s\nwastebasket). Cf., United States v. Millen, 338 F. Supp. 747, 753 (E.D.\nWis. 1972). Under this test, if the property has been devoted to the\nexclusive use o f a person, he has a justifiable expectation o f privacy in it\nsufficient to insulate the property from search even though the search is\n\n1 The court found, first, that the television surveillance was justified by the same exception\nfor audio surveillance, and that the intrusion was reasonable, at least until the date that the\nprimary focus shifted from foreign intelligence. The court then found, however, that televi\xc2\xad\nsion surveillance after that date was reasonable due to the office setting and the limited scope\no f the intrusion. It is unclear whether this latter finding was meant to suggest that television\nsurveillance might be conducted without a warrant even in a law enforcement context so long\nas it is conducted reasonably, or whether it was only addressing the issue o f reasonableness\napart from the warrant question.\n\n66\n\n\x0cconsented to by the owner o f the property (or his agent) who for certain\npurposes at least has authorized access to the property. See, Stoner v.\nCalifornia, 376 U.S. 483 (1964); Chapman v. United States, 365 U.S. 610\n(1961).\nMore im portantly, it is doubtful whether the G overnm ent\xe2\x80\x99s \xe2\x80\x9c consent\xe2\x80\x9d\nhas any validity with respect to surveillance o f an individual, as opposed to\ndiscrete physical searches. Under Title III o f the Omnibus Crime C ontrol\nAct electronic m onitoring o f telephonic and oral communications requires\na warrant even though the owner o f the property or the subscriber to the\ntelephone has consented; only the consent o f a party to a com m unication\nsuffices to dispense with the warrant requirement. See 18 U.S.C. \xc2\xa7 2511\n(2)(c). The same was true prior to Title III under \xc2\xa7 605 o f the Com munica\xc2\xad\ntions Act o f 1934, 47 U .S.C . \xc2\xa7 605, with respect to telephone com m uni\xc2\xad\ncations. See, Rathbun v. United States, 355 U.S. 107 (1957).\nThese statutory restrictions have a constitutional foundation. The cases\nupholding the doctrine o f consent to surveillance under the Fourth\nAmendment are not predicated on the consent of the owner o f the perti\xc2\xad\nnent property, but rather on the consent of the person to whom the\ntargeted individual reveals his communications or activities. United States\nv. White, supra. The underlying rationale seems to require that the doc\xc2\xad\ntrine be kept within these limits. The courts reason that there can be no\njustifiable expectation o f privacy regarding information voluntarily\nrevealed to another; one\xe2\x80\x99s confidant may later reveal the disclosures to the\nGovernment. H offa v. United States, 385 U.S. 293 (1966). The use o f elec\xc2\xad\ntronic equipment, with the confidant\xe2\x80\x99s consent, to record these disclosures\nsimultaneously is then regarded as much the same as a subsequent\ndisclosure to the Government. Lopez v. United States, 373 U .S. 427\n(1963). The \xe2\x80\x9c consent\xe2\x80\x9d necessary for the surveillance is thus that o f the\nconfidant, whose ability to report to the police is equated with the elec\xc2\xad\ntronic surveillance\xe2\x80\x94i.e., the one to whom the disclosures are made.\nThe Governm ent\xe2\x80\x99s authority over its buildings may raise another ques\xc2\xad\ntion. It is a generally accepted principle o f Fourth Amendment law that no\n\xe2\x80\x9c search\xe2\x80\x9d occurs when an officer observes objects or activities from a loca\xc2\xad\ntion where he has a right to be. Harris v. United States, 390 U.S. 234, 236\n(1968). See also, M cDonald v. United States, 335 U.S. 451, 458 (1948)\n(Jackson, J., concurring). Under this rationale, courts have upheld\nsearches o f areas that are usually deemed quite private\xe2\x80\x94e.g., looking into\nbedrooms, United States v. Johnson, 561 F. (2d) 832 (D.C. Cir. 1977) (en\nbanc)\\ Nordskog v. Wainwright, 546 F. (2d) 69 (5th Cir. 1977); or\nbathroom s, Ponce v. Craven, 409 F. (2d) 621 (9th Cir. 1969), cf. Smayda\nv. United States, 352 F. (2d) 251 (9th Cir. 1965).\nEven searches when the police went to great lengths to secure a view\nfrom a position where they were authorized to be were upheld by the\ncourts: for example, searches through only a narrow opening, see, United\nStates v. Wright, 449 F. (2d) 1355 (D.C. Cir. 1971) (peeping through an\n8-to-9-inch crack in garage); United States v. Vilhotti, 323 F. Supp. 425,\n67\n\n\x0c431-32 (S.D .N .Y . 1971) (gaps between boards covering window),4 or\nwhere the officers had to go through various machinations to conduct\ntheir \xe2\x80\x9c search,\xe2\x80\x9d see, e.g., James v. United States, 418 F. (2d) 1150, 1151\nnote 1 (D.C. Cir. 1969) (squatting to see under garage door), United States\nv. Fisch, 474 F. (2d) 1071 (9th Cir. 1973) (listening at crack below door be\xc2\xad\ntween motel room s),5 or even where Governm ent agents have resorted to\nartificial means to conduct their surveillance. See, United States v. Solis,\n536 F. (2d) 880 (9th Cir. 1976) (use o f dogs to smell drugs); Fullbright v.\nUnited States, 392 F. (2d) 432 (10th Cir. 1968) (use o f binoculars to see\nthrough shed door). C f , United States v. Lee, 274 U.S. 559, 563 (1927).6\nThese cases could arguably allow the surveillance here, since the Govern\xc2\xad\nm ent\xe2\x80\x99s authority over its premises could certainly confer on an officer the\nright to be in the location from which he could conduct the surreptitious\nm onitoring. In fact, one decision upholding the use o f video equipment\nrelied in part on this rationale. See, United States v. McMillon, supra.\nWe think, however, that this is not a controlling principle here. In the\ncited cases the Governm ent agent\xe2\x80\x99s \xe2\x80\x9c search\xe2\x80\x9d was usually limited in time;\nthe outcom e o f the case may have been different were the investigation an\nongoing one. C f , Texas v. Gonzales, 388 F. (2d) 145 (5th Cir. 1968) (in\xc2\xad\nvolving repeated police peeps through window). Moreover, the targeted\nindividual himself left his affairs open to public view in these cases. See,\ne.g., United States v. Coplen, 541 F. (2d) 211, 215 (9th Cir. 1976); Ponce\nv. Craven, supra (both suggesting that if an individual wanted privacy, he\nshould have closed the window to public view). This rationale has little ap\xc2\xad\nplicability in a Governm ent office where an individual cannot bar entry to\na Government agent. C f , United States v. Holmes, 521 F. (2d) 859, 865\n(5th Cir. 1975), a ff\xe2\x80\x99d by an equally divided court, 537 F. (2d) 227 (5th Cir.\n1976) (en banc).\nM ore im portantly, however, adherence to this \xe2\x80\x9c plain view\xe2\x80\x9d rationale in\nall circumstances would disregard the fundamental teaching o f Katz. The\nC ourt there decided that individuals might retain under the Fourth\nAmendment a justifiable expectation o f privacy despite the existence of\nsophisticated techniques that could intrude on that privacy. Just as this\nprecept holds true in the area o f oral communications, it would appear to\nbe equally applicable with respect to an individual\xe2\x80\x99s activities. O f course,\nthe fact that these activities are visible by officers in a position where they\nare authorized to be will bear heavily on the issue whether a person\xe2\x80\x99s ex\xc2\xad\npectations o f privacy are reasonable. But this fact cannot be determinative\nwithout ignoring the essential inquiry m andated by Katz.\nThe courts appear to share this view o f Katz. In response to intrusive\n\n\xe2\x80\xa2 See also, People v. Berutko, 453 P.. 2d 721 (S.C. Cal. 1969) (opening in drape).\n\xe2\x80\x99 See also, State v. Day, 362 N .E. 2d 1253 (Ohio Ct. o f A pp. 1976). But see, State v.\nKaaheena, 575 P. (2d) 462 (S.C. Haw. 1978).\n\xe2\x80\x98 See also, Commonwealth v. Hernley, 263 A. 2d 904 (Pa. Super. Ct. 1970) (use o f ladder\nand binoculars); People v. Ferguson, 365 N .E. 2d 77 (111. A pp. 1977) (use o f binoculars).\n\n68\n\n\x0cinvestigative methods, the courts have gone beyond the test of whether the\nofficer was where he was authorized to be and focused instead on whether\nhis observations intruded on a reasonable expectation o f privacy. In\nUnited States v. Kim, 415 F. Supp. 1252, 1254 (D. Haw. 1976), the court\nexplicitly stated that Katz protected individuals against \xe2\x80\x9c unreasonable\nvisual intrusions,\xe2\x80\x9d even from viewpoints where the police had a right to\nbe, and held that the Governm ent\xe2\x80\x99s use o f a powerful telescope to observe\nactivities in the defendant\xe2\x80\x99s apartm ent constituted a search.7 The courts\nhave also held invalid those police searches which, although not dependent\non sophisticated equipm ent, depended on particularly intrusive methods\no f search to view areas usually considered private. See, e.g., Kroehler v.\nScott, 391 F. Supp. 1114 (E.D . Pa. 1975) (peephole use to view public\ntoilet stall).8\nThis approach is also reflected in the cases upholding police investiga\xc2\xad\ntive activities. It is implicit in the decisions upholding police observations\ninto windows on the ground that, because the area was open to public\nview, no reasonable expectation o f privacy existed. More recent decisions\nmake this trend more explicit by going beyond the \xe2\x80\x9c plain view\xe2\x80\x9d concept\nand inquiring whether the investigation intruded into the subject\xe2\x80\x99s privacy\nor constituted reasonable police conduct. See, e.g., United States v. Solis,\nsupra (use o f dogs to smell drugs in trailer home); United States v.\nMcMUlon, supra. See also, United States v. Bronstein, 521 F. (2d) 459,\n464 (2nd Cir. 1965) (Mansfield, J., concurring); Comment, Shiner, Police\nHelicopter Surveillance, 15 Ariz. L. Rev. 145, 162-67 (1973).\nWe believe that this approach would, at the least, preclude a\nmechanistic resort to warrantless television surveillance in Government\nbuildings, although the Government may otherwise have full authority to\nimplement the monitoring. While Government employees may not\nreasonably expect that their activities will remain wholly private, the\nHagarty and Humphrey decisions demonstrate that at least some\nemployees may retain justifiable expectations o f privacy at work.\nA reasonable expectation o f privacy is a factual m atter and there may be\ncircumstances when no such expectation exists. For example, where (1) the\nsearch is directly related to safeguarding the integrity o f the work being\nperformed by the employee, (2) the employee has effective notice that such\na search might be made, and (3) there is an especially im portant public\nneed concerning the integrity o f the work being performed by the em \xc2\xad\nployee, the employee probably has no justifiable expectation o f privacy.\n\n7 See also, People v. Fly, 34 Cal. A pp. 3d 665 (1973) (use of telescope); People v. Sneed, 32\nCal. A pp. 3d 535 (1973) (use o f helicopter); but see, State o f Hawaii v. Stachler, 570 P . 2d\n1323 (Haw. 1977) (use o f helicopter); People v. Superior Court, 37 Cal. A pp. 3d 836 (1974)\n(air patrol); Dean v. Superior Court, 35 Cal. A pp. 3d 112 (1973) (use o f helicopter).\n\xe2\x96\xa0 See also, People v. Triggs, 506 P . 2d 232 (Cal. 1973) (observation o f a toilet stall) and\ncases cited therein; State v. Bryant, 177 N .W . 2d 800 (Minn. 1970) (same); State v. Kent, 432\nP. 2d 64 (Utah 1967) (observation from motel attic through ventilator to bathroom and part\no f bedroom).\n\n69\n\n\x0cSee, United States v. Bunkers, 521 F. (2d) 1217 (9th Cir. 1975); United\nStates v. Collins, 349 F. (2d) 863 (2nd Cir. 1965) cert, denied, 383 U.S. 960\n(1966); Shaffer v. Field, 339 F. Supp. 997 (C.D. Cal. 1972), aff\'d, 484 F.\n(2d) 1196 (9th Cir. 1973); United States v. Donato, 269 F. Supp. 921 (E.D.\nPa. 1967), a ff\xe2\x80\x99d, 379 F. (2d) 288 (3d Cir. 1967).\nIn most cases where the television surveillance is related to the safe\xc2\xad\nguarding o f the integrity o f the employee\xe2\x80\x99s work, the surveillance could\nalso be characterized as a search for evidence o f crime; some courts have\ntaken a dim view o f warrantless searches conducted on Government\npremises for this purpose. See, United States v. Hagarty, supra, at 718;\nUnited States v. Blok, supra, at 1201. C f , M cM orrisv. Alioto, 567 F. (2d)\n897, 900 (9th Cir. 1978). Second, it is not entirely clear whether in most\ncases the employees receive effective notice, or even any inkling, that they\nmay be subjected to surreptitious electronic surveillance; the absence of\nsuch notice may preclude such surveillance. See, United States v. Speights,\n557 F. (2d) 362 (3rd Cir. 1977) (relying heavily on absence o f notice to\noverturn search o f employee\xe2\x80\x99s locker). Finally, even if the Government\ndoes give warning o f surreptitious television m onitoring, it is questionable\nwhether the courts would uphold searches based upon such notice in all\ncircumstances. The courts have, in other contexts, warned o f the Govern\xc2\xad\nm ent\xe2\x80\x99s manipulation o f an individual\xe2\x80\x99s reasonable expectation o f privacy,\nsee, United States v. Albarado, 495 F. (2d) 799, 807 note 14 (2nd Cir.\n1974); United States v. Kim, supra, at 1256-57; c f , Collier v. Miller, 414\nF. Supp. 1357, 1366 (D. Tex. 1976),\xe2\x80\x99 and they may accordingly look with\ndisfavor upon a notice o f television surveillance intended to alter the ex\xc2\xad\npectations o f a large num ber o f employees.\nB.\nA second justification advanced for conducting warrantless surrep\xc2\xad\ntitious television surveillance o f Government employees is the \xe2\x80\x9c public\xe2\x80\x9d\nnature o f the area to be surveilled. The Fourth Am endment will not pro\xc2\xad\ntect inform ation knowingly exposed to the public, even if the exposure\noccurs in a home or office. K atz v. United States, supra, at 351. Accord\xc2\xad\ningly, if a particular employee\xe2\x80\x99s activities could be said to be exposed to\nthe public, see, United States v. Santana, A ll U.S. 38, 42 (1976), surrep\xc2\xad\ntitious television surveillance may be conducted without a warrant.\nUnder this standard, certain places are so open to public observation\nthat no justifiable expectation exists with respect to activities conducted\nthere. For example, open fields, see, A ir Pollution Variance Board v.\nWestern Alfalfa Corp., 416 U.S. 861 (1974), public streets, see, United\nStates v. Santana, supra, and com m on areas o f buildings generally open to\nthe public, see, United States v. Cruz Pagan, 537 F. (2d) 554 (1st Cir.\n\n9 See also A m sterdam , Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 384\n(1974); N ote, 86 Yale L .J. 1461, 1475, 1498 (1977).\n\n70\n\n\x0c1976), have been held, in given contexts, to be such public areas. This doc\xc2\xad\ntrine has been applied to uphold surreptitious television monitoring o f a\npublic place. See, Sponik v. City o f Detroit Police Department, supra\n(tavern); see also, Poore v. State o f Ohio, supra (public washroom). We\nbelieve that, as a general rule, warrantless surreptitious television surveil\xc2\xad\nlance may be used to m onitor activity conducted in public areas. C f ,\nUnited States v. Brooks, 567 F. (2d) 134 (D.C. Cir. 1977) (camera\nsurveillance o f customers in a \xe2\x80\x9c Sting\xe2\x80\x9d operation); United States v.\nMitchell, 538 F. (2d) 1230 (5th Cir. 1976) (en banc) (videotaping o f activi\xc2\xad\nties in public parking lot).\nHowever, several caveats are in order. First, even though an area may\nbe usually thought as open to public view, under special circumstances\neven these areas may afford a reasonable expectation of privacy. See,\nUnited States v. FMC Corporation, 428 F. Supp. 615, 618 (W .D. N.Y.\n1977) (\xe2\x80\x9c open fields\xe2\x80\x9d doctrine not applicable to a lagoon with highly\nrestricted access). Second, even though an individual is in an area where\nhis activities are open to public view, he still may reasonably expect that\nhis privacy is protected against certain types o f investigations such as the\nuse o f a beeper on his clothing, cf., United States v. Holmes, supra, at\n866, or the use o f a powerful microphone to hear his conversations far\nremoved from those who could normally overhear him.\nA different situation exists regarding Government offices or working\nspaces generally not open to public view. As we have already outlined, an\nindividual in a private office has a greater justifiable expectation o f\nprivacy, at least with respect to surreptitious electronic monitoring. United\nStates v. Hagarty, supra. The more troublesome questions arise with\nrespect to offices that are occupied by two or more employees or spaces\nthat are entered at times by others.\nJoint occupation o r frequent entry does not automatically preclude a\nreasonable expectation o f privacy. Katz made clear \xe2\x80\x9c what [an individual]\nseeks to preserve as private, even in an area accessible to the public, may\nbe constitutionally protected.\xe2\x80\x9d 389 U.S. at 351-52. Under this standard,\nalthough an individual\xe2\x80\x99s activity is subject to the view o f those who share\nor enter his office, he still may enjoy reasonable expectation o f privacy\ndue to such factors as the configuration o f the office or an individual\xe2\x80\x99s\nknowledge o f the habits o f others in the office. Indeed, the subject\xe2\x80\x99s abil\xc2\xad\nity to shield his activities from others\xe2\x80\x99 view is generally the reason for in\xc2\xad\nstalling a continuous monitoring system to investigate his actions. We do\nnot believe that the fact that an office is shared or subject to entry by\nothers will always allow the Government to install surreptitious television\nsurveillance without a warrant. A recent decision by the Ninth Circuit\nadopts this view. United States v. McIntyre, 582 F. (2d) 1221, 1224 (9th\nCir. 1978).\nThis conclusion is bolstered by recent developments in Fourth Am end\xc2\xad\nment law concerning reasonable expectations o f privacy in public places.\nIt appears that, even though an individual is in a public place, he may still\n71\n\n\x0cretain a reasonable expectation o f privacy with respect to certain forms of\ninvestigation. This principle is evident in Katz itself: while an individual in\na public telephone booth is subject to visual surveillance (or to eavesdrop\xc2\xad\nping unaided by artificial techniques, see United States v. Fuller, 441 F.\n(2d) 755, 760-61 (4th Cir. 1971)), he may not be subjected to electronic\nsurveillance without a warrant. In the same manner, several courts have\nindicated that although a person driving in public is not free from visual\nobservation, he may reasonably assume that he is not being monitored by\na \xe2\x80\x9c beeper.\xe2\x80\x9d See, United States v. Moore, 562 F. (2d) 106, 112 (1st Cir.\n1977); United States v. Holmes, supra, at 866;10 but see, United States v.\nHufford, 539 F. (2d) 32 (9th Cir. 1976).\nThe above cases show that the lack o f reasonable expectations with re\xc2\xad\ngard to one form o f surveillance does not necessarily forfeit the reasonable\nexpectations with regard to other forms o f surveillance. Rather, any in\xc2\xad\nquiry into a reasonable expectation o f privacy must take into account a\nperson\xe2\x80\x99s expectations both to his surroundings and to the methods o f in\xc2\xad\nvestigation that may be utilized in those surroundings. The use o f sur\xc2\xad\nreptitious monitoring may not be justified solely by the occasional pres\xc2\xad\nence o f others in the same room , because the subject could still reasonably\nexpect to be free from surreptitious m onitoring and because the Govern\xc2\xad\nment has not routinely used this type o f investigatory technique to date to\nm onitor its employees\xe2\x80\x99 activities. People v. Triggs, supra. The decision in\nHagarty supports this view. Just as the Government might not conduct\ncontinual surveillance o f oral communications by electronic means,\nneither can it maintain continual visual surveillance by electronic m eans."\nEven though at least one court has upheld the use o f television\nsurveillance on the basis o f consent o f others in the room, Avery v. State,\nsupra, we do not believe that this factor will necessarily alter our con\xc2\xad\nclusion. As discussed above, the doctrine o f consent is predicated on the\nrationale that the targeted individual is voluntarily disclosing his activities\nor communications to those around him. This rationale would allow\nsurveillance o f those activities that the target freely allowed others to see.\nHowever, the rationale would have no application to activities that the\ntarget was not voluntarily leaving open to others and which he might in\nfact succeed in preventing others from seeing. In such instances the\n\n10 See also. United States v. Choate, 422 F. Supp. 261, 269 (C.D . Cal. 1976); People v.\nTriggs, supra; People v. Smith, 67 Cal. A pp. 3d 638, 654 (1977) (beeper on plane); People v.\nSneed, supra, at 541.\n11 For this reason we do not believe that the result in Poore v. State o f Ohio, supra, retains\nall o f its validity today. The court there upheld police observations and movies from behind a\ntwo-way glass in a restroom on the basis that any member o f the public could have walked in\nand m ade the same observation. The approach in Katz may alter this result by looking to the\nreasonable expectations o f those using public restrooms, and some courts have explicitly so\nheld. See, Kroehler v. Scott, supra; People v. Triggs, supra. Moreover, even if one has no\nreasonable expectations with regard to the public, he may still have a reasonable expectation\nwith regard to police use o f two-way mirrors and cameras.\n\n72\n\n\x0csurveillance is not merely securing evidence that would be otherwise avail\xc2\xad\nable, but collecting evidence that the Government could not obtain at all\nfrom the consenting individuals. Indeed, this seems to be the very purpose\no f surreptitious television surveillance.\nConclusion\nIt is apparent from the above discussion that few, if any, definitive con\xc2\xad\nclusions can be made with regard to the general use o f surreptitious televi\xc2\xad\nsion surveillance without a warrant. Rather, the question whether such\nsurveillance will am ount to a \xe2\x80\x9c search,\xe2\x80\x9d and thus be subject to the stric\xc2\xad\ntures o f the Fourth Amendment or o f various statutes that adopt Fourth\nAmendment standards, must depend on all the facts and circumstances o f\na particular situation. A particularized study o f these facts and circum\xc2\xad\nstances must be conducted in each case to determine whether judicial\nauthorization must be obtained.12\nWe recommend that the responsibility for screening proposed television\nsurveillance for law enforcement purposes be lodged in a Deputy Assistant\nAttorney General for the Criminal Division. Where such surveillance is\nproposed for foreign intelligence purposes, this same responsibility should\nbe vested in the Chief A ttorney o f the Investigation Review Unit. If, on\nthe basis o f this screening, the responsible official concludes that the\nsurveillance would not intrude on the target\xe2\x80\x99s justifiable expectations o f\nprivacy, we suggest that he then be vested with the authority to approve\nthe surveillance. If the surveillance would infringe on the target\xe2\x80\x99s\njustifiable expectations o f privacy, he should be required to initiate pro\xc2\xad\nceedings for securing judicial authorization or, in cases involving foreign\nintelligence, appropriate executive approval.\nWe further recommend that guidelines for the screening in the Criminal\nDivision and the Investigation Review be formulated in order to ensure\nthat the screening in the Criminal Division and the Investigation Review\nUnit is conducted on a consistent basis.\nJ o h n M . H a rm o n\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n11 In certain foreign intelligence situations\xe2\x80\x94e.g., overseas surveillance\xe2\x80\x94the approval of\nthe President or his designee might take the place o f judicial authorization in the absence of\nlegislation.\n\n\x0c'