Cameras now watch businesses, homes, intersections, parking lots, and patrol cars, and many officers wear one on their uniform. So when someone is accused of a crime, the question isn’t only what a camera may have recorded. It’s also whether anyone bothered to keep it. (I’ve written before about how much of daily life now ends up on camera in Surveillance of Crime and Digital Evidence.)

A Recent Hillsborough County Case

I recently represented a client in a Hillsborough County case involving several serious alleged charges: driving under the influence, leaving the scene of an accident, and falsifying information.

As I reviewed the case, I quickly realized that law enforcement had relied on video surveillance as part of its investigation but had not properly secured that video. In my view, that failure raised serious due process and fair-trial concerns. It left the defense without evidence it was entitled to examine, even though the investigation itself had leaned on it. Ultimately, the initial charges were dismissed.

Past results do not guarantee a similar outcome in any other case. Every case is different, and each one turns on its own facts, evidence, and circumstances.

Why Unpreserved Evidence Matters

When police fail to preserve evidence, especially evidence that could readily prove or disprove a crime, the defense may have a number of options. Broadly speaking, they fall into two groups:

• Constitutional issues. Failing to preserve and secure evidence can raise due process and fair-trial questions that may need to be addressed by the court.
• Weight-of-the-evidence issues. If a case goes to trial, gaps in the investigation can bear on how much weight a jury gives the evidence that remains, and on how much it trusts the people who gathered it.

Whether a failure to preserve video evidence leads anywhere in a particular case depends on what was lost, why it was lost, and what it might have shown. That’s a conversation for a lawyer who has reviewed the whole file.

I Ask What Was Left Behind

With cameras nearly everywhere, whenever a person faces a criminal allegation, I make it a point to understand what surveillance may have been left behind and never explored by law enforcement. Was there a camera that could have captured the moment? Did officers request the footage? Did they watch it, rely on it, and then fail to secure it?

Missing surveillance video in a criminal case is not a technicality. When police failed to preserve evidence they themselves relied on, that fact can say a great deal about how the investigation was handled. Video that never made it into the file can matter as much as video that did. Sometimes the most important evidence in a case is the evidence nobody kept.

Every Camera Raises the Same Question

The same thinking applies to every kind of surveillance: license plate reader cameras, body-worn cameras, business security systems, and whatever comes next. I recently wrote about the questions raised by license plate reader evidence, and earlier about body cameras in Hillsborough County. More cameras mean more potential evidence. They also mean more places where evidence can be overlooked, mishandled, or never collected at all.

That’s especially true in alleged DUI and traffic cases, where video can play a large role in how an investigation unfolds. (See our page on DUI and traffic violations in Tampa.) On our national site, we’ve also discussed what happens when the government fails to preserve digital evidence.

Questions About Missing Video in Your Case? Let’s Talk.

If you would like to speak with an experienced criminal defense lawyer about missing video, surveillance evidence, or how a failure to preserve evidence could affect an investigation or case in Florida, or you have further questions, don’t hesitate to contact Attorney Ron Frey of The Frey Law Firm, LLC. Your initial consultation is free and confidential. You can talk with us by phone, by video, or at our Tampa office, and when the situation calls for it, we can come to you.

Call or text (813) 775-2276. Rapid response, 24/7.

This post is for general information only. It is not legal advice, and reading it or contacting us does not create an attorney-client relationship.

Laws on surveillance video and digital evidence are changing quickly and vary from state to state, and how they apply depends on the facts of each case and on how courts interpret them. Please don’t rely on this post, or on any other information online, to make decisions about your situation. Talk with a lawyer.

According to recent reports in the media, such as ABC Action News, automated license plate reader cameras, “such as Flock,” are now off Florida’s state highway rights-of-way, but they are far from gone across Tampa Bay. The station reported that the Florida Department of Transportation directed agencies to remove the cameras from state highway rights-of-way within 30 days. The order reaches only cameras on state-owned property near highways.

Per the report, the Tampa Police Department said it removed all 17 of its license plate readers that sat within the right-of-way of a state highway within the 30-day window. The Hillsborough County Sheriff’s Office told the station that all of its cameras have been removed from the rights-of-way. Neither agency announced a broader change. Tampa police plan to keep the rest of their camera program, and the Sheriff’s Office said it will comply without announcing a larger change to its program. Cameras on county roads, city streets, and private property are not covered by the order. Tampa police also told the station that in recent years, the cameras have assisted in 622 arrests.

So license plate cameras in Hillsborough County are still very much part of how cases get built, and many of those cases start with a traffic stop. (See our page on DUI and traffic violations in Tampa.)

Politics Aside, Two Kinds of Questions

Putting the politics and controversy over these cameras aside, as a criminal defense practitioner I see license plate reader cameras and similar surveillance technology raising two kinds of questions. The first is constitutional: how far this kind of surveillance should be allowed to go. The second is practical: what license plate reader evidence actually proves in any given case.

Watching Everyone, All the Time, Is Something New

From a constitutional perspective, I believe this technology is different from anything we have experienced before. Surveillance keeps expanding exponentially as technology advances, and artificial intelligence can now sift through the data it collects. That combination has changed the nature of surveillance itself.

It used to be that if you did something open and obvious in public, you understood you could be seen, including by a police officer. Most people accepted that, because most people didn’t expect everyone to be watched all of the time, with every movement traced.

If the current state of the law stands, you can imagine drones or some other technology, from one company or another, tracking every public movement of every person, every second of every day. So there is a real constitutional question about how much pervasive surveillance we want in our society.

ABC Action News noted that the U.S. Supreme Court has already considered how technology changes the analysis, in earlier rulings on GPS tracking and on historical cell phone location records. Whether a long record of where a car has traveled raises the same concerns is now a fair question for Flock-style cameras under the Fourth Amendment. (I have written before about location tracking in Can Police Track My Location Using Cell Phone Records?)

What the Camera Shows, and What It Doesn’t

Inside an individual case, there is a separate question: the evidence itself. A camera recording a vehicle or a license plate doesn’t end the conversation. Questions remain, such as:

• Was the plate read correctly?
• How was the data kept, and who searched it?
• Why was it searched?
• Did reasonable suspicion or probable cause exist to justify any stop, search, or seizure that followed?

There can be other Fourth Amendment concerns beyond those, too. License plate reader evidence is one piece of the puzzle, not the whole picture.

A Car at a Location Is Not a Person at a Location

Just because a vehicle, or a reported license plate, was in a certain place doesn’t necessarily prove that a particular person was there. Can a license plate camera prove who was driving? Red light cameras and similar technology offer a lesson. In my view, there are countless cases where someone else was behind the wheel at the time of the violation.

More Cameras, More Questions

Our society has more cameras now than it ever has. Yet in my experience, camera footage, whether from a body-worn camera, a surveillance system, or video that’s publicly available, often raises more questions than answers once someone looks at it closely. (I’ve written before about surveillance and digital evidence and about body cameras in Hillsborough County.)

These are just some of the concerns to consider. Every case is different, and how any of this applies depends on its own facts.

Questions About Camera Evidence in Your Case? Let’s Talk.

If you would like to speak with an experienced criminal defense lawyer about how license plate reader evidence or other surveillance evidence could affect an investigation or case in Florida, or you have further questions, don’t hesitate to contact Attorney Ron Frey of The Frey Law Firm, LLC. Your initial consultation is free and confidential. You can talk with us by phone, by video, or at our Tampa office, and when the situation calls for it, we can come to you.

Call or text (813) 775-2276. Rapid response, 24/7.

This post is for general information only. It is not legal advice, and reading it or contacting us does not create an attorney-client relationship.

Laws involving surveillance technology and digital evidence are changing quickly and vary from state to state, and how they apply depends on the facts of each case and on how courts interpret them. Please don’t rely on this post, or on any other information online, to make decisions about your situation. Talk with a lawyer.

Notice to all Participants to the Communication

All monitored calls shall contain a prompt which clearly identifies the call as coming from a Florida Department of Corrections institution and advise that the call is subject to being monitored and recorded by the Department of Corrections. Likewise, signs are required to be posted on or near each phone which state that calls are subject to being monitored or recorded.

Additionally, it is standard practice for defense counsel to advise incarcerated clients, and their families, that communications are recorded and monitored. I advise clients to imagine law enforcement, the prosecutor, judge, and jury are all listening in on their jail calls. Despite warnings, that imagined scenario still manages to manifest itself in certain cases. When jail recordings are introduced as evidence, they typically include discussion of criminal activity, even candid confessions.  

Artificial Intelligence

As reported in several media outlets, earlier this year the Florida Department of Corrections contracted with LeoTech, a company that produced a patented artificial intelligence software platform named Verus. According to the LeoTech website, Verus provides continuous real-time monitoring of communications and enables users to search “through millions of transcripts at sub-second speeds.” The A.I. software provides for searches by keyword, customizable alerts, the ability to investigate and uncover links and connections amongst the data collected, and even the ability to identify slang and coded lexical categories, terms, and synonyms. 

Needle in a Haystack

Although it has been standard practice to record jail calls, the ability to effectively examine the content has been limited by the labor and costs required. Widespread examination would be equivalent to looking for a needle in a haystack. Effective mass-investigation of the communications of 80,000 inmates would not economical or feasible without A.I. It has been reported that the contract with LeoTech enables prisons to record and scan up to 50 million minutes of conversations. What used to be impractical, if not impossible, is now at the fingertips of prison officials.

Implications

The use of A.I. will assist prison officials and law enforcement by enhancing the efficiency of call monitoring. However, it raises concerns from privacy advocates, particularly regarding the potential for abuse or misuse of the technology, as well as the potential issues pertaining to data access and storage duration. For the defense practitioner, it is now more important than ever to advise clients, and their families, that calls while incarcerated are not simply subject to recording and monitoring, but also to real-time analysis and investigation conducted by artificial intelligence software.

Author: Ron Frey – The Frey Law Firm, LLC