Police Illegally Use Hidden Camera –Evidence Suppressed

Evidence secured through a hidden camera inside a house is in admissible in court. Really! In Mercer County, Pa the narcotics task force utilized a confidential informant to gain access to an alleged drug dealer’s house. During the coordinated drug purchase in the defendant’s house, the confidential informant wore a police provided, small video camera (that did not record sound), which video recorded drug transactions between the defendant and the confidential informant.  The police could not see the drug transaction and required either the video or the CI to testify at trial to secure a conviction.  Defendant Dunnavant file a motion to suppress the video evidence, knowing the government would not identify the CI.

The trial court granted the Motion to Suppress, concluding that the video evidence was secured illegally and the evidence contained in the video was not essential for the government to prove its case. Rather, the Government could produce the identity of the confidential informant, who would then testify about the transactions and identify the seller of the drugs.  The Commonwealth, instead, chose not to identify the CI, and appealed the trial court’s decision granting the Motion to Suppress.  The police stipulated to the facts of the case, but claimed the suppression court decision constituted an error of law.

The Commonwealth relied on a case in which the defendant there secreted a video camera in a house and took videos of sexual acts of the house member.  That evidence was suppressed because a “defendant has a legitimate expectation of privacy not only in their home, but also in the reflection of their home as depicted in the video.”  Commonwealth vs Kean.  The Pennsylvania Supreme Court did not review this decision and the law still stands that any government video inside a private residence, not properly supported by a warrant and probable cause, is in admissible.  Kean.

Pennsylvania has long granted greater protections to its citizens than the federal constitution. In this context, our Superior Court in Commonwealth v. Dunnavant focused on the improper behavior of the government in having its agent enter the home of another for the purposes of video taping a meeting without a warrant. The court found the use of a camera amounted to a search of the residence through a lens of the digital hidden images that the camera produces. Significantly, the court emphasized the government’s inability to identify any case supporting its argument that the inadvertent video recording would be legally admissible.

The importance of this ruling is clear: the Pennsylvania courts are policing the police in their use, and the admissibility, of surreptitiously secured electronic data. The federal and state laws addressing surveillance and eavesdropping, either consensual or via warrant, have opened up vast amounts of evidence to be used in criminal prosecutions. However, with the additional opportunities to secure evidence, at the cost of significant civil liberty infringement, the courts understand they are the last bulk head protecting citizens from over zealous police investigative techniques.

This is one clear case where the courts push back the government’s investigative techniques where a warrant is not secured and there is an alternative way to present the criminal acts to a fact finder.  The government used this case as a test case on how little few people it could call to testify at trial about evidence of criminal activity.  The trial and appellate courts drew a line in the sand.  Anytime video evidence of criminal acts secured through the placement of a camera inside a potential defendant’s house, a warrant, at a minimum, must be secured.  Here no was secured.

The boundaries of proper policing must be questioned in every case. Motions to Suppress should be filed in every case. The motions should address the legality of police conduct to properly limit illegally secured evidence from making its way into trial.  Call me to discuss your case.

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