Covert video surveillance by a warrant under Rule 41(b) is analyzed under Title III for guidance

The defendants were targets of audio and silent video surveillance in a terrorism investigation. The audio surveillance was governed by Title III, and the silent video was analyzed under Title III, although the warrant was issued under Rule 41(b), because that was how most courts to have faced the question analyze it. United States v. Batiste, 2007 U.S. Dist. LEXIS 61186 (S.D. Fla. August 21, 2007):

Surveillance conducted pursuant to a Rule 41(b) order must only comply with the Fourth Amendment. E.g., United States v. Nerber, 222 F.3d 597, 603-04 (9th Cir. 2000). Though this issue has not been directly addressed in the Eleventh Circuit, circuits elsewhere conclude that to conduct lawful video surveillance, for Fourth Amendment purposes, the government armed with probable cause must also satisfy the requirements of Title III for analogous audio surveillance:

(1) the judge issuing the warrant must find that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(3)(c); (2) the warrant must contain “a particular description of the type of [activity] sought to be [videotaped], and a statement of the particular offense to which it relates,” id. § 2518(4)(c); (3) the warrant must not allow the period of [surveillance] to be “longer than is necessary to achieve the objective of the authorization, []or in any event longer than thirty days” (though extensions are possible) id. § 2518(5); and (4) the warrant must require that the [surveillance] “be conducted in such a way as to minimize the [videotaping] of [activity] not otherwise subject to [surveillance] …” id.

Falls, 34 F.3d at 680 (internal citation omitted) (and cases cited therein); see also United States v. Williams, 124 F.3d 411, 417 (3rd Cir. 1997) (“every court of appeals that has addressed video surveillance has held that video surveillance conforming to the standards set out in Title III is constitutional”); Koyomejian, 970 F.2d at 542 (court looked to substantive requirements in Title III for guidance in determining whether silent video surveillance comported with Fourth Amendment requirements); Nerber, 222 F.3d at 605 (“Although no federal statute regulates the government’s use of video surveillance, the existence of a law which prohibits the warrantless use of audio surveillance on a citizen … is strong evidence that society is not prepared to accept the warrantless use of an even more intrusive investigative tool in the same situation.”); United States v. Cuevas-Sanchez, 821 F.2d 248, 252 (5th Cir. 1987) (“We accept these as the standards under which an order for video surveillance may issue. We cannot add the other technical requirements of Title III because Title III does not cover video surveillance. We are not a legislature; we can mandate only those protections required by the Constitution. The above requirements protect the constitutional rights of those under surveillance as they have been announced by the Supreme Court.”).

Accordingly, because of the weight of persuasive authority that requires it, this Court’s analysis of the Rule 41(b) orders is the same as its analysis of the Title III wiretap orders. The Court’s discussion will thus refer to both the Title III and Rule 41(b) video surveillance orders except where differentiation is appropriate.

Going to the merits, the court concludes that the surveillance was necessary because the government was able to show that other forms of investigation were inadequate.

The affidavits further detail that search warrants were unlikely to produce sufficient evidence to determine the full scope and nature of the conspiracy; would inform the targets of the investigation; and would be premature and of marginal assistance. Id., P 76. Moreover, the FBI was not aware, on the date the affidavits were submitted, of residence locations for any of the targets except Batiste. Id.

The Court thus finds that the conventional techniques suggested by the Defendants would have done little to expose the entire workings of an organization that was allegedly plotting to commit terrorist acts in the United States.

. . .

The wiretap statute does not require a piecemeal, uncoordinated approach to the investigation of this alleged conspiracy, in which agents rely on good fortune to uncover small pieces of the enterprise. Rather, the statute simply requires that the affiant explain to the issuing judge the difficulties surrounding conventional techniques that already had been taken, or been contemplated to have been taken. This was done in this case, and the issuing judges did not err in assessing those difficulties and signing the orders to intercept. This Court finds that the government complied with the necessity requirement of 18 U.S.C. § 2518(1)(c) and no basis to suppress on this ground exists as to either the wiretape evidence or the video surveillance.