Conducting surveillance in furtherance of a criminal investigation can be one of the most crucial and beneficial actions a law enforcement officer engages in. In addition to the more traditional definition of surveillance in which a law enforcement officer follows and observes a suspect or observes a suspect from a fixed location, surveillance today can also include observing a suspect or suspects using electronic equipment or by intercepting electronically transmitted information. Successful surveillance operations can yield important information about a suspect including who they interact with, what their day to day schedule is like, and what assets they are in possession of.
In addition to ensuring that all laws are respected, especially a Fourth Amendment Rights, a capable law enforcement officer will need to understand and be able to apply techniques that will lead to a successful surveillance operation. Here we take a look at the different types of surveillance and some of the best practices to keep in mind when conducting them.
The original and most recognized form of surveillance is physical surveillance. Physical surveillance occurs when a law enforcement officer or law enforcement officers visually observe a suspect or suspects within a certain time frame. Physical surveillance can be long and boring and certain considerations should be made prior to conducting surveillance. Are any of the cars the officers’ may be driving obviously police vehicles? Do the officers and their vehicles look out of place for the neighborhood? How will the surveillance team schedule restroom and/or breaks for food during the operation? All of these issues must be discussed prior to conducting physical surveillance.
Since having video evidence is always preferable to not having video evidence, are the officers conducting surveillance trained in using their agency recording devices? Are all law enforcement officers participating in the surveillance operation familiar with using their departments’ video evidence management system? If they are not, it may be worth conducting extra training with regard to these subjects.
Electronic surveillance occurs when a law enforcement officer or officers observe a suspect or suspects via closed-circuit television or other video feed. While electronic surveillance methods are mostly used to monitor large areas, they can also be useful in monitoring specific locations that are known to law enforcement to be areas of criminal activity. Traffic cameras are a perfect example of electronic surveillance tools that are used by law enforcement on a daily basis. Polecams (cameras placed on top of poles) can also be useful when conducting electronic surveillance of fixed areas. For example, a polecam can be set up on a suspect’s house and the house can be recorded in place of having a law enforcement officer sitting in front of the suspect’s house.
If this method of surveillance is implemented however, it may be worth investing in video redaction software to protect the identities of children, informants, or undercover law enforcement personnel. Especially with surveillance operations being a catalyst to courtroom proceedings, protecting identities of all people becomes crucial.
Changes and advancements in technology necessitate changes and advancements in law enforcement. It is important for law enforcement officers to be current on all laws regarding telephone and Internet surveillance, and to receive training in proper methods for conducting these types of surveillance operations. The monitoring of information (whether it is voices speaking over the telephone or emails or text messages being exchanged) in real time can be especially tricky to navigate. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was enacted to ensure that the government could not overreach in listening in on private citizen’s phone calls.
The Electronic Communications Privacy Act of 1986 extended these protections to include electronic data being transmitted by computer. If a law enforcement officer does wish to conduct real time surveillance of a suspect’s phone or Internet use, they will more than likely need to obtain a “Title III” warrant, which can be much more in depth and harder to obtain than a regular search warrant. This type of warrant is considered to be much more invasive than a typical search or arrest warrant may mandate that a law enforcement officer re-submit the warrant after a stated period of time (i.e. 60 or 90 days). The officer should also take into consideration how the information will be captured and/or stored. Does the officer’s department or agency have a digital evidence system that is capable of keeping and storing large amounts of digital information? Does the officer’s department or agency have access to audio redaction software that may be necessary to protect the identity and/or privacy of any non-suspects? All of these issues must be taken into consideration before conducting telephone and/or Internet surveillance.
We’ve discussed the need to pre-plan surveillance operations. One of the topics that is easily missed in those planning meetings are the post-surveillance considerations. We’ve mentioned the need for personnel to familiar with your agency’s digital evidence management software. But, with any surveillance operation, the consideration for handling and managing corresponding digital evidence is likely a higher, more nuanced priority that may not get the attention it requires. When it comes to ingesting digital evidence into your software, you have to consider file nomenclature. Any surveillance operation is going to produce an unusually higher amount of digital evidence, in particular multimedia type files, and with that in mind, naming conventions have to be considered, if for no other reason, file organization, ease of access in the future, and efficient recall for FOIA requests, courtroom introduction, and even public information events, like press conferences. Each surveillance operation should have its own file nomenclature that each digital evidence file follows. It could be the operation name, followed by a case number (either an all-inclusive case number, or for segment charges/responsibilities – naming each file to the respective case number), along with date and start time. There could be other methods of organizing by file nomenclature, but the idea is to have one way of naming each piece of digital evidence, so that all parties involved in the surveillance operations, and all parties involved in the future, can find the digital evidence, recall it for a multitude of purposes, and disseminate on demand, when required.
Another post-operation consideration is retention of digital evidence. It does stand to reason that once the statute of limitations expires on a given case, that while some digital evidence will need to be preserved beyond that basic date, there will be some that is not subject to extended retention periods, and removal of that digital evidence should be reviewed by lead personnel from the surveillance operation, not just your digital evidence management personnel. The surveillance personnel should know what is the status of the case linked to their operation, and if they don’t, adding this responsibility ensures they will. They don’t have to be in control of disposing the evidence, but that should be one of the signatures captured in the process of removing surveillance-related digital evidence.
Information obtained while conducting surveillance can mean the difference between the conviction of a criminal and that criminal going free. Whether it is accomplished through physical, electronic, or telephone/Internet monitoring, law enforcement officers must be up to date with all laws pertaining to surveillance and must have the proper training and experience in order to conduct an effective surveillance operation.
Police departments and other law enforcement agencies must provide their personnel with the proper training and equipment that is necessary to perform proper, lawful, and effective surveillances no matter what type of surveillance needs to be conducted. By doing so, these various departments and agencies can ensure that their officers are prepared to meet any challenges that may arise during the lifecycle of their case and will help to avoid unnecessary roadblocks to success.