Saturday, May 17, 2008
A Surveillance Photo Can Tell You A Lot...About The Photographer: Case Reaveals That New Jersey Has A "Surveillance Location Privilege"
The recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Bell, 2008 WL 2020174 (N.J.Super. A.D. 2008), reveals that New Jersey has a "surveillance location privilege." In Bell, Keith Bell appealed from his convictions for third-degree possession of heroin, third-degree possession of heroin with intent to distribute, and third-degree possession of heroin with intent to distribute within 1000 feet of a school zone. Bell was charged with these crimes after he was apprehended when police surveillance observed him engaging in a suspected drug transaction. Officer Carlos Lugo was the sole surveillance officer, and he testified at trial that he was within 50 yards of where the alleged drug transaction occurred and had high-powered binoculars. Defense counsel sought to question Lugo about his exact surveillance vantage point and whether he was conducting surveillance from a vehicle or from a house. The prosecution objected to these questions based upon citizen safety concerns, and the trial judge sustained the objections.
After Bell was convicted, he appealed to the Appellate Division, claiming, inter alia, "that the trial court's failure to disclose the officer's exact surveillance location, and its subsequent restriction on defense counsel's ability to cross-examine on that subject, violated his Sixth Amendment right to confrontation." The Appellate Division noted, however, that New Jersey's rules of evidence recognize a "surveillance location privilege" that permits the State, in appropriate circumstances, to conceal information about the location from which law-enforcement personnel observed alleged criminal activities. It further noted that "[t]his privilege is grounded on the notion that 'in certain instances, a defendant's right to gain access to information not vital to the defense must yield to society's interests in effective law enforcement and in encouraging citizens to cooperate with the police.'" The Appellate Division then found that this privilege applied in Bell's case because there were numerous citizen complaints of drug trafficking in the area where Bell was arrested, the State did disclose significant information concerning Lugo's location, and there was substantial corroboration of Lugo's observations.
This is the first that I have heard of such a privilege, but it appears that at least a few other states, such as Illinois, have a similar privilege. See, e.g., People v. Bell, 86 N.E.2d 807, 815 (Ill.App. 1 Dist. 2007). It seems to me, though, that the privilege is very similar to more widespread privileges, such as the state secrets privilege, and thus that states with these existing privileges should adopt a "surveillance location privilege." After all, as Michael Weston said in "Burn Notice," a surveillance photo can tell you a lot...about the photographer. If the State has a legitimate reason to believe that disclosing the exact location from where surveillance was conducted will compromise surveillance efforts in the future, it makes sense to protect that information in the absence of a compelling need for disclosure.