.




                   ATTORNEW                 GENEECAI..
                       ~FTEXAS




Honorable A. Ross Rommel
Traffic Safety Administrator
Executive Department
Drawer P
205 Sam Houston slag.,
Austin, Texas 78711
                                  opinion      No. M- 692
                                  Re: Several questions rela-
                                      tive to whether a partieu-
                                      lar traffic surveillance
Dear Mr. Rommel:                      system is legak~..
       Your request for an opinion as to whether the operation
of the described traffic surveillancesystem is legal, pre-
sents the following questions:
      1.   Is there an actionable invasion of the
           right of privacy of a person whose
           photograph is taken ona public highway
           by the described traffic surveillance
           system when the photo is used solely for
           speed enforcementpurposes?
      2.   Is there an actionable invasion of the
           right of privacy of a person whose photo
           is taken on a public highway by the above
           system when used for traffic surveying'
           purposes?
       Your third question has been withdrawn and is there-
fore omitted.
      4.   Assuming that the chain of possession of the
           film is unbroken from the time it is placed
            in the camera until the time of trial of a
           defendant to a speeding violation,would
           the photographbe admissible in evidence
           was proof of identificationof the defendant
           and of the speed at which he was driving


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                                                         ,       1




    Hon. A'.Ross Rommel, page 2 (M- 692)


            when'the traffic surveillanceunit is
            left unattended during its operation?
       5.   With the same assumption as stated in
            Question 4, would the photographbe a'd-
            mlssible in evidence as proof of ldentlfi-
            cation of the driver and of the speed at
            which he ,wastraveling when the traffic
            surveillanceunit is attended,bya police
            officer who &es not apprehend the de-~
            fendant at the time ,ofviolation?
       According to your letter, this system consists of a
sensing device, a computer, and a camera with illwinatin~ "
attachment to measure the spee~dof a,motor vehicle, .photo-
graph the,front view of the,vehicle,.the driver,,its'regls-
tration plate, and showing the date, time, location'~and~
posted speed limit. The only service requirement~1sthe
occasional change of film cassettes, and no attendant is
required for the operation of the system. Its primary in-
tended uses are for traffic speed control and traffic
engineeringsurvey purposes. Your questions raise issues
of first impressions in Texas, as there are no court decl-
sions which have decided these issues.
       With reference to your first two questions,"it'is well
settled that the individual'sright to preserve hispersonal
seclusion must give way to the state's reasonableexercise
of the police power. Consequently,for example, statutes
making reasonable provision for taking and keeping finger-
prints and photographsof persons accused of crime have been
sustained. 14 A.&.R.2d 761, Right of Privacy, Sec. 9, Police
Power.,
        In the case of Voelker v. T.yndall.75 N.E.2d 548 find.
Sup. 1957:app. denied 7~~
                        33 U.S. 834 reh. denied 133 U;S. 8581
appellant was arrested on a misd&eanor charge end claimed '
,an invasion of his right of privacy. The Court, in uphold-
ing the right to take his fingerprintsand photograph,said:
                "The purpose issingle, clear and
                 quite salutary to promote the pub-
                 lic safety, by achieving greater
                 success in preventingand detect;
                 ing crimes and apprehendingcrimi-
                 nals. The accomplishmentof this


                            -3336-
Hon. A. ROSS Rommel, Page   3 (M-692)




            object has been an important duty of
            government in all times. Not infre-
            quently a lack of accurate identifi-
            cation has been a serious handicap in
            clearing up a crime. It is probable
            that an accurate identificationsystem,
            faithfully administered,may be an
            assistancenot only in finding the
            guilty criminal, but in clearing an inno-
            cent suspect."
      The rule generally    is also stated in 41 Am.Jur. 945,
Privacy, Sec. 27:
           "It is generally held that the customary
            photographingand measuring of a prisoner
            for the purpose of police records do not
            amount to an invasion of the prisoner's
            right of privacy."
       It is our opinion that a person driving on a public
highway in an automobile, is subject to public view and to
the state's reasonable exercise of the police power to pro-
mote the public safety. Accordingly,we answer your ques-
tions 1 and 2 that there is not an actionable invasion of
the right of privacy. We find no case authoritiesrecogniz-
ing such a right of privacy. Our Courts have 80 far oon-
fined their decisions in upholding a right of privacy to
matters relating to marriage. familv and sex. 56 American
Bar Assn. Journ; 673-677,landsee California v: Belous,
80 Cal.Reptr. $54, 458 =d 194 (1969 01       Id
Connecticut,3 1 U.S. 479 (1965). Tl!iCzu:E have " refused
to extend a riaht of privacy where public health or safety
or other nolice powers of the state-are a comoetlna'in- -
terest. Public Unilities Commission v. Poll&, 343 U.S. 451
(1952); Frank v. Maryland, 359 U.S. 360 (195g .
       Your letter expresses concern as to whether the described
system can become accepted as a scientificallyreliable speed
testing device.
       The evldentiaryproof required In Court for the re-
ception of evidence in this system would be the same as for
any other photographicsystem in a criminal case.
       The rule stated in Wigmore, The Science of Judicial
Proof, p. 450, as quoted in Wilson v. State, 168 Tex.Cr.

                              -3337-
Hon. A. Ross Rommel, page 4 (M-692)


239; 328 S.W.28 311 (1959), applies to your questions 4 and
 :
                II
                 0.. since the additions made possible
            to our unaided senses are due to the.uae of
            instrumentsconstructedon knowledge of
            scientificlaws, it is plain that the cor-
            rectness of the data thus obtainablemust
            depend upon the correctnessof the instru-
            ment in constructionand the ability of
            the technical witness to use it. Hence,
            the following three fundamentalproposi-
            tions apply to testimony based on the use
            of all such instruments:
                ' 'A. The type of apparatus purporting
           to be constructedon scientific principles
           must be accepted as dependablefor the pro-
            osed purpose by th profession concerned
            n that branch of s:ience or its related art.
           This can be evidenced by qualified expert
           testimony; or, If notorious, it will be judi-
           cially noticed by the judge without evidence.'
                ' 'B. The particular apparatus used by
            the witness must be constructedaccording to
            an accepted type and must be in good condition
            for accurate work. This may be evidenced by
            a qualified expert.'
               " 'C. The witness using the apparatus as
           the source of his testimony must be one
           qualified for its use by training and ex-
           perience.I"
       As stated in Wilson v. State, supra, "... there
must be proof that the machine has been properly set up and
recently tested for accuracy."
       As to your questions 4 and 5 regarding the admissi-
bility in ,evldenceof photographs from the traffic surveil-
lance  system as proof of identificationof defendants and
speed of driving, the establishedrules of evidence would
apply and the burden is upon the prosecutionto qualify the
evidence for submissionand to connect up and prove the
identity.ofthe defendant committing the offense. This

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                                                              .
Hon. A. Ross Rommel, page 5 (M- 692)


would probably be more difficult when the system's units are
left unattended and the defendant is not apprehendedat the
time and at the scene of the speeding violation. The Court
would have to be satisfied that the photographscomply with,
the usual rules of evidence and accurately depict what they
purport to represent. However, admissibilityof the photos
does not necessarily require identificationby an attendant
or an eye witness. See Scott, PhotographicEvidence, 2nd Ed.,
Sec. 1026; Vardilos v, Reed, 320 S.W.2d 419 (Tex.Civ.App.1959,
no writ.)
       The speed of motor vehicles may be measured by use of
a "phototrafficcamera",andthe "Foto-Patrol",whichoperates
on an electronic impulse which activates a strobe light camera.
"It has been held that expert testimony as to the scientific
principles underlying it and as to its accuracy at the time
of an alleged speedinffoffense is necessary in order to base
a conviction thereon. 7 Am.Jur.26 871, 872, Sec. 328, Auto-
mobile% and Highway Traffic, which cites People v. Pett, 13
Misc.2d, 975, 178 N.Y.S.2d 550.
       In People v. Hlldebrant, 308 N.Y. 397, 126 N.E.2d 377,’
N.Y.Ct.App.(l955),the offense was speeding. Police officers,
to measure the speed, had used a "phototrafficcamera." The
Court said, "there should be applicable the criminal-lawrules
of presumptionof innocence and necessity,of proof of guilt
beyond a reasonable doubt." The Court, holding that the
identity of the driver must be proven, and that proof of
vehicle ownership alone will not give rise to a presumption
that the owner was the driver, said:
                ,t
                 ....Apparently.the question is a new
            one, but that is because speeders are usu-
            ally pursued and arrested after pursuit,
            whereas this identity question arises be-
            cause of the use of a photographicspe,ed
            recorded, without pursuit or arrest. The
            device used may be efficient and scientifi-
            cally trustworthy,its use may make pur-
            suit and immediate arrest Inconvenientor
            unnecessary, and highway safety may be
            promoted by eliminating such pursuits.
            But it takes more than necessity to vali-
            date a presumption in a criminal case.
            Tot v. United States, 319 U.S. 463, 467,
            63 S.Ct. 1241;~ 87 L.Ed. 1519, and here
            we do not even have a presumption."

                           -3339-
Ron. A. ROSS Rommel, page 6 (M-692)


       However, positive identificationof the defendant is.
not required if a witness can testify that the photo~~isa~
fair and accurate representationof the scene. U.S. v.Hobbs,
403 F.2d 977 (6th Mr., 1968).
      In Commonwealthv. Buxton,,205 Mass: 49, 91~N.E. 128
(lglC), a speed vlolat$.oncase, the question was the CornEe-
tency,of an instrument‘knownas a “photo-speedrecorder,.
The Court said:
                “As a rule the question whether evi-
            dence of experimentsshall be admitted
            depends largely upon the discretion of
            thetrial judge; and his action in the.
            exercise of this discretionwill not be
            reversed unless plainly wrong.?.In thls~:
            case the result of the experimentsdid
            not depend upon the fluctuationsof human. ‘.
            agencies, nor on conditionswhose rela-
            tions to the result were uncertain, but
            upon the immutable working of natural
           ;‘laws;and upon the evidence the presld-
            ing judge may well have found thatsuch
            experimentswere likely to be more re-
            liable as to the speed of the automobile
            than the conjectural statement ol an eye
            witness or the interested statement of a
            chauffeur. We cannot say as a matter of
            law that the evidence would not justify
            the judge in coming to the conclusion
            that the experimentswould be usefu;,? ,,
            determining the speed of the car.    -
            deed, it would seem desirable to have
            some machine whose action being dependent
            upon the uniform working of the laws of
            nature would record the speed of a mov-
            ing object.”
       It is, therefore, our opinion in answer to your ques-
tions,4 and 5 that the traffic surveillancephotographswould
be admissible in evidence as proof of identificationof de-
fendants and their speed of driving, subject to the re-
quirements and rules of evidence hereinabove stated.




                           -3340-
     .




Hon. A. Ross Rommel, 'page.7(M-692)


                        SUMMARY
                        -------

              There is no actionable Invasion of the right
         of privacy of a person whose photograph is taken
         on a public highway by a traffic surveillance
         system when such photo is used solely for speed
         enforcement or traffic surveying purposes. Such
         photographswould be admissible in evidence as
         proof of identificationof defendantsand their
         speed of driving, provided they comply with the
         rules of evidence applicable thereto.




Prepared by Ben M. Harrison
Assistant Attorney General


OPINION COMMITTEE
KERNS TAYLOR, Chairman
W. E. ALLEN, Co-Chairman
Houghton Brownlee
Jim Broadhurst
Howard Fender
John Banks
Tom Bullington
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER,
Executive Assistant
NOLA WHITE
First Assistant

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