Naked City

By Doug Potter

It's Friday night at the Austin Police Department station downtown, and a group of officers on DWI detail gather around a television set to view videotapes of suspects arrested that evening on drunken driving charges. On one tape, a man fails each of the field sobriety tests given by the officer. He is arrested, handcuffed, and escorted to the patrol car. Alone in the back seat, the man starts crying and screaming hysterically about his father.

The man's sobriety tests, his tears, and even his desperate pleas to his father were all recorded without the suspect's knowledge. A small video camera located near the rearview mirror of the patrol car recorded the entire incident.

On another tape, a woman weeps softly. In another, a man arrested on his third DWI charge calls the arresting officer a "fucking pig."

As it happens, the videotapes are used as evidence and may be played in court as part of the prosecution's case against the defendant.

Do the suspects know they're being filmed? "Only if they ask," says APD officer Ted Hernandez.

A recent ruling by Texas Attorney General John Cornyn now makes it legal for officers to secretly film suspects. In his ruling, Cornyn determined that "a statement made by a person seated in a police car does not occur under circumstances justifying the expectation of privacy." If nothing else, the tactic has resulted in fewer DWI cases clogging the court dockets. "I've had a lot of clients who, after they have watched the video of themselves, decide they will plea bargain the case," says Austin defense attorney Larry Sauer.

Some police departments have allegedly begun a new tactic: placing two or three suspects in the back seat of a patrol car equipped with a radio/recording device, then leaving the suspects alone in the car, after surreptitiously turning on the device. An officer can then easily eavesdrop on the suspects' conversation to find out what, if anything, they know about a crime. APD neither confirms nor denies this practice, says APD spokeswoman Sally Muir. "It's not something that we typically practice," she says. "It's not something that we teach the officers to do."

APD started videotaping arrests in 1998. Of 201 APD patrol cars, 35 have video cameras, including all five of the DWI patrol cars. The department plans to buy 32 more cameras by the end of this year, which means that a third of all the APD patrol cars will have video cameras.

The decision of whether or not to secretly record suspects is "up to the discretion of the officer," says APD assistant police chief Michael McDonald. "But the primary reason for the video camera is for the safety of the officer and to record the events of the arrest."

McDonald says that videotaping a suspect without his or her knowledge is not a violation of privacy; reading the suspects their Miranda rights informs them that anything they say may be held against them, he says. Miranda is a 1966 Supreme Court ruling that requires police officers to advise criminal suspects of their rights before questioning them.

But according to defense attorney Sauer, Miranda does not give the police the right to secretly videotape suspects.

"Miranda does not say that you give up your constitutional right not to be eavesdropped on," Sauer said. "It doesn't say you are giving up all your privacy rights. Miranda just says, 'If you say something to us voluntarily then it can be used against you.' Well, when they are surreptitiously recording your conversation and taking your picture, then you aren't making an informed waiver of your rights."

Will Harrell, executive director of the Texas chapter of the American Civil Liberties Union, agrees with Sauer. "They should tell them that anything they say to a police officer or during this process might be recorded and might be used against them," he says. "What's the problem with telling them that they are going to be taped? It shouldn't change anything if they are informed." The ACLU is not opposed to video cameras in patrol cars, says Harrell; they just oppose videotaping suspects without their knowledge. After all, he says, "In my experience, video cameras are more honest than the average police officer."

No one knows how many police officers are videotaping suspects surreptiously, but as the use of video cameras in police cars grows, questions about civil liberties will become more and more frequent, Harrell says. "It's really early to say how widespread it is, but I know that police officers are beginning to do this, and it will be a broad issue soon enough."

If secret videotaping is allowed to continue, it will move America "one stop closer toward the Big Brother nation we've always feared," Harrell says. "The technology of today is such that people can be taped and videotaped in any situation that they live; and if we accept that the police can take this step, then the next step is that much closer."