Legal Question in Criminal Law in Wisconsin

police videotaping

can the police videotape an alleged victim of domestic violence without their permission?


Asked on 3/09/09, 11:08 am

1 Answer from Attorneys

JAY Nixon nixon law offices

May Police Videotape Without Permission?

The fourth amendment´┐Żs restrictions contained within the U.S. constitution prohibit unreasonable searches by the government, but they only apply to circumstances where a "reasonable expectation of privacy" exists. For example, while a person is in their own home away from windows or other areas open to public observation, there is usually a reasonable expectation of privacy. This means that a search warrant may be required if the government seeks to use evidence recorded in such a location against a criminal defendant. However, once that same person moves in front of an uncurtained window, the expectation of privacy ends. Police are therefore allowed to observe them at such a location without a search warrant via any type of optical equipment which is generally available to the public. This right of police to record publically available evidence applies to crime victims in the same way it applies to anyone else. Any evidence which is legally observable by police can also legally be videotaped by them and retained as evidence, including the activities of a crime victim. Grey areas often arise in terms of exactly what constitutes a "reasonable expectation of privacy," and these have been resolved via many thousands of pages of caselaw over the last five centuries by our legal system and by its predecessor, the ancient English legal system. "Grey areas" have recently arisen in the case of high-tech infrared and other special recording equipment which is capable of "seeing" through walls and buildings from a public location. Sometimes, search warrants are required if the government wishes to this if the evidence was recorded by such unusual devices while a criminal defendant was in a place where he had a reasonable expectation of privacy. Also, in order the challenge the use of any evidence on the basis that it violated one's reasonable expectation of privacy, the person challenging the evidence must also have legal "standing." This means that only the person whose rights were actually violated (rather than the rights of a victim or other person) has standing to challenge the admission of evidence against him. Therefore, it is arguable that police could even use illegally obtained recordings of a victim's behavior against a criminal defendant, since the defendant would lack legal standing to challenge its admission in court. My comments in this online forum are not intended as legal advice for anyone asking a question here unless that person subsequently retains me. Instead, all participants in this forum must obtain and consult with their own attorney prior to acting upon any comments published here.

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Answered on 3/10/09, 11:39 am


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