Video surveillance, which is the use of closed-circuit television (CCTV) to conduct a visual surveillance of a person or a place, is not covered by Title III. Rather, its use is governed by the Fourth Amendment and, therefore, when a reasonable expectation of privacy exists, a search warrant should be sought pursuant to Fed. R. Crim. P. 41 and the All Writs Act, codified at 28 U.S.C. 1651. Six circuits, while recognizing that Title III does not govern video surveillance, require that search warrants for video surveillance meet certain higher, constitutional standards required under Title III. See United States v. Falls, 34 F.3d 674 (8th Cir. 1994); United States v. Koyomejian, 970 F.2d 536 (9th Cir.), cert. denied, 113 S. Ct. 617 (1992); United States v. Mesa-Rincon, 911 F.2d 1433 (10th Cir. 1990); United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987); United States v. Biasucci, 786 F.2d 504 (2d Cir. 1986), cert. denie d, 479 U.S. 827 (1986); and United States v. Torres, 751 F.2d 875 (7th Cir. 1984), cert. denied, 470 U.S. 1087 (1985).
Accordingly, a search warrant requesting to use video surveillance must demonstrate not only probable cause to believe that evidence of a Federal crime will be obtained by the surveillance, but also should include: (1) a factual statement that alternative investigative methods have been tried and failed or reasonably appear to be unlikely to succeed if tried or would be too dangerous; (2) a statement of the steps to be taken to assure that the surveillance will be minimized to effectuate only the purposes for which the order is issued; (3) a particularized description of the premises to be surveilled; (4) a statement of the duration of the order, which shall not be longer than is necessary to achieve the objective of the authorization nor, in any event, longer than 30 days, measured from the date of the order (without any 10-day grace period to begin interception, but with 30-day extension periods possible); and (5) the names of the persons to be surveilled, if known.
The Department requires that the investigative agency seeking to use court-ordered video surveillance obtain prior approval from the appropriate Department official. That policy appears at USAM 9-7.200.
[cited in USAM 9-7.200]