§ 42.03 Surveillance Location Privilege

• Jurisdiction: United States

§ 42.03 Surveillance Location Privilege

In United States v. Green,³⁰ the D.C. Circuit, reasoning by analogy to the informant's privilege, recognized a privilege for a surveillance location:

Like confidential informants, hidden observation posts may often prove to be useful law enforcement tools, so long as they remain secret. Just as the disclosure of an informer's identity may destroy his future usefulness in criminal investigations, the identification of a hidden observation post will likely destroy the future value of that location for police surveillance. The revelation of a surveillance location might also threaten the safety of police officers using the observation post, or lead to adversity for cooperative owners or occupants of the building. Finally, the assurance of nondisclosure of a surveillance location may be necessary to encourage property owners or occupants to allow the police to make such use of their property.³¹

Green involved a suppression hearing. The privilege was extended to trial in United States v. Harley.³² There, however, the officers who conducted the surveillance were not essential witnesses for the prosecution. Harley was charged with engaging in a drug transaction with a different officer, who identified him at trial. Moreover, the surveillance was recorded on videotape.

By contrast, in United States v. Foster,³³ a drug case, the police officer claimed the privilege and the accuracy of his identification of Foster was critical. Fifteen other people were in the vicinity at the time, some playing basketball, others moving about in the open area. Another officer, who arrived on the scene in response to the surveillance officer's call describing Foster, arrested someone else, who was later released. The defense wanted to cross-examine the officer about his estimate of the distance between himself and Foster, the angle of his view, and his line of sight. Without knowing the location of the observation post, the defense could not effectively probe the officer's memory or veracity about these subjects. Therefore, the privilege should have given way to the right of confrontation.³⁴

Some state courts have recognized this privilege,³⁵ while others have rejected it.³⁶

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Notes:

^[30] 670 F.2d 1148 (D.C. Cir. 1981).

^[31] Id. at 1155.

^[32] 682 F.2d 1018 (D.C. Cir. 1982).

^[33] 986 F.2d 541, 542-44 (D.C. Cir. 1993).

^[34] See also United States v. Jimenez, 464 F.3d 555, 561 (5th Cir. 2006) ("[W]hen the district court prohibited Jimenez's...