In Fulbright v. U.S., 392 F.2d 432 (10^th Cir. 1968), the court upheld the introduction of evidence that government agents had gathered by looking into the defendant's shed with binoculars. The court stated that observations from outside enclosed area surrounding the building generally are not prohibited by the Constitution. Indeed such a prohibition would require passing officers to close their eyes to the commission of felonies on front door steps.

Similarly, the Supreme Court of Pennsylvania in Commonwealth v. Hernley, 263 A.2d 904 (Pa. 1970), upheld the warrantless use of binoculars by a police agent to look through the window of the defendant's shop at night. The agent was 35 feet away from the defendant's window, standing atop a four-foot ladder situated on abutting railroad tracks during the surveillance. The court held that it was incumbent on the suspect to preserve her privacy from visual observation by drawing her curtains.

Consider the following facts:

As part of their investigation into suspected gambling activities of the defendant, the FBI used an 800-millimeter telescope with 60mm opening to observe activities in the defendant's apartment and on his balcony. The building from which the surveillance was conducted was approximately a quarter mile from the defendant's building; there were no buildings in the line of sight located significantly closer to the defendant's building.

With the telescope, the agents were able to see two other men along with the defendant on his balcony and within his apartment. They observed the defendant making telephone calls while reading what the telescope revealed to be the JK Sports Journal. The journal was allegedly for use in connection with the defendant's operation of the telephone spot for a major gambling operation.

Other agents also used a pair of height powered binoculars, from a different vantage point on the opposite side of and about 160 feet from the defendant's building.

The information acquired during the surveillance was used both to establish probable cause for court approval of a wiretap on the defendant's phone, and to demonstrate that the wiretap was necessary because the surveillance and other normal investigative procedures were unable to collect enough evidence to convict the suspected gamblers.

The defendant files a motion to suppress the evidence derived from the telescopic surveillance of the apartment due to the fact that using the artificial viewing aids constituted a search and that the search was unreasonable because no warrant had been obtained.

Should the motion to suppress be denied based on the Fullbright and Hernley decisions? See U.S. v. Kim, 415 F.Supp 1252 (D. Haw. 1976).

Submitted by Josh Bretstein
Emory Law School

Answer

No, Motion to suppress allowed.  These types of telescopic devices are not in general use as opposed to regular binoculars which are in general use.  If the government agents have probable cause to believe that criminal activity is afoot, then they need to apply for a search warrant in order to conduct this type of telescopic surveillance.