Resolution resolved: The United States federal government should substantially curtail its domestic surveillance. Violations

QUESTIONING SUSPECTS IS NOT SURVEILLANCE

Surveillance is all means of perception except direct questioning and third party testimony

Uviller 87 H. Richard Uviller, Professor of Law, Columbia University. Columbia Law Review OCTOBER, 1987 87 Colum. L. Rev. 1137 ARTICLE: EVIDENCE FROM THE MIND OF THE CRIMINAL SUSPECT: A RECONSIDERATION OF THE CURRENT RULES OF ACCESS AND RESTRAINT. lexis

Under the term "surveillance," I intend to group all means of perception other than open interchange between an undisguised law enforcement officer and a suspect or witness. These indirect techniques include reception by all forms of invisible electronic or other sense-amplifying or recording gear, except those employed as memory-enhancers by visible official interrogators: n252 they embrace covert infiltration by police officer or informer; they cover the simple surreptitious tail or stakeout. All these methods of surveillance involve an element of stealth, concealment, or deception: the sensor is hidden or remote, the officer is disguised, the informer's loyalty is feigned. In one way or another, the government waits behind a more or less elaborate blind for the manifestation of culpable consciousness. Not included, however, are those cases in which the information comes into the hands of the authorities as a result of a civilian participant's shift of allegiance, or some other fortuitous, post-facto decision. Observations made by the spontaneous turncoat are the normal risk of confidence and beyond the concern of the Constitution. n253

The location of a surveillance may be as open as a public street or as private as a residential structure. Alternatively, surveillance may occur at a place where expectations of only partial privacy would be reasonable, such as a prison. Or the surveillance may be made in circumstances where a substantial portion of privacy has already been voluntarily relinquished, as with unprivileged oral communications delivered to one or more other people, or uttered in premises used by the general public, such as a restaurant. The techniques of surveillance are often purely passive, employed in one of two ways: the data may be perceived by or in the presence of a human agent, or it may be invisibly monitored. Surveillance techniques are usually noncoercive, but they may also involve solicitation, provocation, unconscionable fraud, or even brutal or threatening conduct.

The methods of surveillance can be conveniently divided, according to their impact upon fourth amendment interests, into three categories. The first and third categories are conventional and readily [*1197] described, the middle one is freshly carved and requires somewhat more extensive explanation and analysis. The first category encompasses the deliberate, surreptitious government intrusion into secure space by means of an invisible electronic device that operates without a human counterpart present. While employed for the purpose of gathering incriminating utterances or actions, the device is capable of perceiving innocent behavior as well. This level is immediately recognizable as conventional electronic eavesdropping, including by easy analogy, electronic visual penetration as well. n254 This is, of course, a fourth amendment event requiring full compliance with constitutional warrant strictures. n255 The third category includes casual, spontaneous, and limited field observation. Such ordinary police work must be left to the field discretion of the officer upon the theory that no cognizable interest in privacy insulates the citizen from the very performance in which we all assume our police are normally engaged. Finally, the middle category comprises perceptions of mind-revealing behavior under circumstances where a reduced expectation of security is reasonable.