Could police use audio and video from a hostage-rescue phone as evidence under federal interception law?

Plain-English summary

A Myrtle Beach officer asked whether audio and video from a “hostage rescue phone” could be presented in court. The device let police talk with a subject while hidden cameras and microphones kept recording nearby activity even when the handset was hung up. In July 2001, the assistant AG concluded that use in the described hostage, barricade or suicide situations would not violate federal Title III and would not trigger its evidence-exclusion rule.

The letter gave several reasons for that view. Title III did not cover video surveillance as such. A police officer participating in a telephone conversation could consent to recording it. The statute contained an emergency procedure, and the AG also said a subject in the described standoff lacked a reasonable expectation that the communications were free from interception, including during the phone’s hang-up mode. These were the office’s conclusions on the stated setting, not a general ruling on every police recording device.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Crisis-negotiation teams

The opinion treated the device’s video and officer-participated calls as outside the Title III violation described in the request. It also relied on the urgency of a hostage-type situation.

Courts and parties reviewing evidence

The letter addressed the federal interception statute’s exclusion consequence. It did not independently decide other possible grounds to challenge or admit a specific recording.

Common questions

Did Title III cover the phone’s video camera?
A: The AG said Title III did not apply to video surveillance itself.

Could the officer consent to recording the call?
A: The opinion said yes, because one party to the conversation was a police officer who consented.

What about recording after the subject hung up?
A: The AG’s stated view was that a standoff subject in these circumstances lacked a protected expectation against interception even in the phone’s hang-up mode.

Background and statutory framework

The letter discussed federal Title III, including 18 U.S.C.A. 2515 on exclusion and 18 U.S.C.A. 2518(7) on emergency interception. It cited United States v. Torres for the video-surveillance distinction.

Citations and references

• 18 U.S.C.A. 2515: exclusion rule discussed by the AG.
• 18 U.S.C.A. 2518(7): emergency provision cited by the AG.
• United States v. Torres: video outside Title III’s interception rules.

Official title

Indicating that the City of Myrtle Beach Police Department is in the process of forming a “Crisis Negotiation team” and that you are researching “the use of a device commonly known as a ‘hostage rescue phone’.”

Requester

Pfc. Brian K. Mein, Myrtle Beach Police Department

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-13-2001/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/01july13mein.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

July 13, 2001
Pfc. Brian K. Mein
Myrtle Beach Police Department
1101 Oak Street
Myrtle Beach, South Carolina 29577
Re: Your Letter of March 20, 2001
Dear Pfc. Mein:
In your above referenced letter, you indicate that the City of Myrtle Beach Police Department is in the process of forming a "Crisis Negotiation team" and that you are researching "the use of a device commonly known as a 'hostage rescue phone'." By way of background, you indicate that: As a tool for law enforcement, [the hostage rescue phone] has proven to be extremely valuable in resolving hostage, barricaded subject, and suicide situations. It is not only a communication device between police and the often emotionally charged subject, but is important for audio and video intelligence as well through the use of tiny cameras and microphones built within the unit ... [t]his recording of events in the immediate area of the subject continues even while the phone is in the "hang up" mode and the subject is not in direct contact with police. You request the opinion of this office regarding the use of the "hostage rescue phone" as it relates to the presentation in court of evidence recovered as a result of the use of the device. Specifically, you indicate that you are" ... interested in any Title III issues that may arise in court since the phone is equipped with audio/visual recording devices." "Title III" is part of the federal statute known as the "Omnibus Crime Control and Safe Streets Act" and is found in 18 U.S.C.A. §§2510 et seq.(Wire and Electronic Communications Interception and Interception of Oral Communications). In certain instances, these statutes prohibit the interception of "wire, oral or electronic communication." The interception of such communications in violation of these statutes could result in the exclusion of evidence contained therein from a subsequent trial or other judicial proceeding. See 18 U.S.C.A. 2515. For the following reasons, however, it is my opinion that the use of the device you describe in the situations

REMBERT C. DENNIS BUILDING

~~~

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POST OFFICE Box 11549

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COLUMBIA,

s.c. 29211-1549

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TELEPHONE: 803-734-3970

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FACSIMILE: 803-253-6283

Pfc. Mein
Page2
July 13, 2001
you describe would not constitute a violation of "Title III" and would not lead to the exclusion of
any evidence gained.

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1.

Title III has no application to video surveillance. United States v. Torres, 751 F.2d 875,
880-82 (7th Cir.1984). See also United States v. Westberry, Op. No. 98-6458 (Ct.App. 6'h
Cir. June 13, 2000)(Unpublished).

2.

Oral communication is excepted from Title III when one of the parties to the communication
has given prior consent to the interception. §18 U.S.C.A. 2511(2)(c). United States v.
Burford, 755 F. Supp. 607 (S.D. N.Y. 1991). This exception is applicable when the
consenting party is an agent of the government. Id.

3.

Exigent circumstances, such as a hostage situation, would justify the use of such tools and
the use of any evidence gained as a result of the use of the tool. There is, in fact, an
emergency exception to "Title III." See 18 U.S.C.A. 2518(7).

4.

"Oral communication" as defined by 18 U.S.C.A. 2510(2) is subject to "an expectation that
such communication is not subject to interception under circumstances justifying such
expectation... "

The video recording of a subject during a hostage type situation with the "hostage rescue
phone" would not appear to implicate the proscriptions of "Title III." The telephonic
communications between the subject and a police officer would obviously involve at least one
consenting party, the police officer. Therefore, recording the conversation would not be unlawful.
Further, a subject who has taken hostages or is in a standoff with police and has had telephonic
communication with police would have absolutely no reasonable expectation of privacy. The subject
would have no reasonable expectation that his "communication is not subject to interception" even
when he is recorded while the phone is "in the hang up mode."

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This letter is an informal opinion only. It has been written by a designated Assistant Attorney
General and represents the position of the undersigned attorney as to the specific question asked.
It has not, however, been personally scrutinized by the Attorney General and not officially published
in the manner of a formal opinion.

Assistant Attorney General