PD-0984-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 12/22/2015 8:27:10 AM December 22, 2015 Accepted 12/22/2015 9:23:38 AM ABEL ACOSTA No. PD-0984-15 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
WENDEE LONG, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Denton County
- • * * * *
STATE’S BRIEF ON THE MERITS
- • * * * *
LISA C. McMINN State Prosecuting Attorney Bar I.D. No.13803300
JOHN R. MESSINGER Assistant State Prosecuting Attorney Bar I.D. No. 24053705
P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov 512/463-1660 (Telephone) 512/463-5724 (Fax)
ORAL ARGUMENT REQUESTED
NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT
*The parties to the trial court’s judgment are the State of Texas and Appellant, Wendee Long.
*The case was tried before the Honorable Margaret Barnes, 367th District Court, Denton County.
*Counsel for Appellant at trial was Barry Sorrels and Stephanie A. Luce, 2311 Cedar Springs, Suite 250, Dallas, Texas 75201.
*Counsel for Appellant on appeal was Bruce Anton and Brett E. Ordiway, 2311 Cedar Springs, Suite 250, Dallas, Texas 75201.
*Counsel for Appellant before this Court is Bruce Anton, 2311 Cedar Springs, Suite 250, Dallas, Texas 75201.
*Counsel for the State at trial was Matthew J. Shovlin and Lindsey E. Sheguit, Denton County Assistant District Attorneys, 1450 E. McKinney Street, Suite 3100 Denton, Texas 76209.
*Counsel for the State on appeal was Charles E. Orbison and Andrea R. Simmons, Denton County Assistant District Attorneys, 1450 E. McKinney Street, Suite 3100 Denton, Texas 76209.
*Counsel for the State before this Court is John R. Messinger, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.
i
TABLE OF CONTENTS
INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 2
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. What the court of appeals did... . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. Rules for statutory construction... . . . . . . . . . . . . . . . . . . . . . . . . . 10
III. The statutory definition of “oral communication” is plain.. . . . . 11
IV. Extratextual sources confirm the plain meaning of the statute.. 16
V. Coach Townsend exhibited a justified expectation that his words would not be stolen by excluded parties.. . . . . . . . . . . . . . 34
VI. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
APPENDIX Texas House Committee on Criminal Jurisprudence Bill Analysis for H.B. 360, 67th Leg. R.S.
ii
United States Senate Committee on the Judiciary Report No. 1097, 90th Cong., 2d Sess. (Excerpts)
iii
INDEX OF AUTHORITIES
Cases Alameda v. State, 235 S.W.3d 218 (Tex. Crim. App. 2007).. . . . . . . . . . . . . . . 8, 11
Angel v. Williams, 12 F.3d 786 (8th Cir. Mo. 1993).. . . . . . . . . . . . . . . . . . . . 26-27 Bartnicki v. Vopper, 532 U.S. 514 (2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-25 Berger v. New York, 388 U.S. 41 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Boddie v. American Broadcasting Cos., 731 F.2d 333 (6th Cir. Ohio 1984). 28-29 Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). . . . . . . . . . . . . . 6, 10-11 Minnesota v. Carter, 525 U.S. 83 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Castillo v. State, 810 S.W.2d 180 (Tex. Crim. App. 1990). . . . . . . . . . . . . . . . . . 11 Chambless v. State, 411 S.W.3d 498 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . 10 United States v. Clark, 22 F.3d 799 (8th Cir. Iowa 1994). . . . . . . . . . . . . . . . . . . 25 United States v. Dunbar, 553 F.3d 48 (1st Cir. Mass. 2009). . . . . . . . . . . . . . 26-27
Evens v. Superior Court, 77 Cal. App. 4th 320 (Cal. App. 2d Dist. 1999, review denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33-34
Gonzales v. State, 689 S.W.2d 900 (Tex. Crim. App. 1985) .. . . . . . . . . . . . . . . . . 9
Ex parte Graves, 853 S.W.2d 701 (Tex. App.–Houston [1st Dist.] 1993, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Harrelson, 754 F.2d 1153 (5th Cir. Tex. 1985). . . . . . . . . . . 26-27 Huff v. Spaw, 794 F.3d 543 (6th Cir. Ky. 2015). . . . . . . . . . . . . . . . . . . . . . . . 29-31 In re John Doe Trader Number One, 894 F.2d 240 (7th Cir. Ill. 1990).. . . . . 25, 28
iv Katz v. United States, 389 U.S. 347 (1967). . . . . . . . . . . . . . . . . . . . . . . . 17, 20-21 United States v. Larios, 593 F.3d 82 (1st Cir. Mass. 2010). . . . . . . . . . . . . . . . . . 27 Lee v. Florida, 392 U.S. 378 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Lee v. State, 191 So. 2d 84 (Fla. 1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Liverman v. State, 470 S.W.3d 831 (Tex. Crim. App. 2015). . . . . . . . . . . . . . . . . 10 Long v. State, 469 S.W.3d 304 (Tex. App. El Paso 2015). . . . . . . . . . . . . . . . . . 7-9 United States v. Longoria, 177 F.3d 1179 (10th Cir. Kan. 1999). . . . . . . . . . . . . . 9 McDuff v. State, 939 S.W.2d 607 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . 9 United States v. McIntyre, 582 F.2d 1221 (9th Cir. 1978). . . . . . . . . . . . . . . . . . . . 8 United States v. McKinnon, 985 F.2d 525 (11th Cir. Fla. 1993). . . . . . . . . . 725, 27 Meyer v. State, 78 S.W.3d 505 (Tex. App.–Austin 2002, pet. ref’d). . . . . . . . . . . . 8 Murray v. State, 457 S.W.3d 446 (Tex. Crim. App. 2015).. . . . . . . . . . . . . . . . . . 10 United States v. Peoples, 250 F.3d 630 (8th Cir. Mo. 2001). . . . . . . . . . . . . . 25, 27 Plock v. Board of Education, 545 F. Supp. 2d 755 (N.D. Ill. 2007). . . . . . . . 33-34 Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . 11
Roberts v. Houston Independent School District, 788 S.W.2d 107 (Tex. App.–Houston [1st Dist.] 1990, writ. denied). . . . . . . . . . . . . . . . 33-34
State v. Savage, 933 S.W.2d 497 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . 9 Smith v. Maryland, 442 U.S. 735 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18 United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944). . . . . . 19
v United States v. Turner, 209 F.3d 1198 (10th Cir. Wyo. 2000). . . . . . . . . . . . 26-27
Vinez v. State, 08-10-00195-CR, 2012 Tex. App. LEXIS 817 (Tex. App.–El Paso Feb. 1, 2012, no pet.) .. . . . . . . . . . . . . . . . . . . . . . . . . 12
Walker v. Darby, 911 F.2d 1573 (11th Cir. Ala. 1990). . . . . . . . . . . . . . . . . . 31-32
Statutes and Rules 18 U.S.C. § 2510(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19, 30
CAL. PEN CODE § 632(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 TEX. CODE CRIM. PROC. art. 18.20 §1(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12 TEX. CODE CRIM. PROC. art. 18.20 §1(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 TEX. PENAL CODE § 16.02(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12 TEX. PENAL CODE § 16.02(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 12, 15 TEX. PENAL CODE § 16.02(c)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Other Texas House Committee on Criminal Jurisprudence Bill Analysis for H.B. 360, 67th Leg. R.S.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17
United States Senate Committee on the Judiciary Report No. 1097, 90th Cong., 2d Sess.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-20
vi
No. PD-0984-15
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
WENDEE LONG, Appellant v. THE STATE OF TEXAS, Appellee
- • * * * *
STATE’S BRIEF ON THE MERITS
- • * * * * TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Comes now the State of Texas, by and through its State Prosecuting Attorney, and respectfully presents to this Court its brief on the merits.
STATEMENT OF THE CASE
This case turns on the meaning of “oral communication.” Appellant was convicted of procuring her daughter to intercept an oral communication and then intentionally disclosing its contents knowing it was obtained through that interception.1 An “oral communication” is an “oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception
1 See TEX. PENAL CODE § 16.02(b)(1), (2).
under circumstances justifying that expectation.”2 The court of appeals decided that words spoken by a coach to his players are not “oral communication” because he “d[oes] not have [a] justifiable expectation that only they would acquire the contents of his communications.”
STATEMENT REGARDING ORAL ARGUMENT
Oral argument was requested and granted.
ISSUES PRESENTED
1. Does Penal Code section 16.02 prohibit intercepting and disclosing the contents of an oral communication even when the speaker has no expectation that his words will not be repeated by those present?
2. Does a basketball coach have a justifiable expectation that his pep talk in a girls’ locker room will not be secretly recorded by a former player?
STATEMENT OF FACTS
Appellant was a member of the Argyle ISD school board who had two daughters attending Argyle High School.3 After Lelon “Skip” Townsend was hired as the varsity girls’ basketball coach, appellant claims she began hearing stories about
2 TEX. CODE CRIM. PROC. art. 18.20 §1(2). The term is defined, in part, by the term itself, presumably according to its lay meaning. 3 State’s Ex. 10, p.1 (Appellant’s “Statement of Video Information” given by her attorney to police); 4 RR 114-16.
how mean Townsend was to his players.4 One of her daughters, Rose,5 quit the team after the first game.6 Appellant encouraged the parents of players to call the school board about Townsend’s alleged behavior.7
On February 7, 2012, Argyle’s regular season ended with an away game at Sanger High School.8 When a team visits another school for a game, they are assigned a locker room.9 The visitor’s locker room at Sanger High School is down a set of stairs past the gym.10 This area is “pretty much [for] athletes only.”11 After descending the stairs “and back around,” there is a hallway with three locker rooms.12 The visitor’s locker room is the farthest one “all the way down on the right.”13 One must pass through two doors to enter the locker room; the first opens to “a little
4 State’s Ex. 10, p.1-3. 5 “Rose” is a pseudonym. 6 State’s Ex. 10, p.1. 7 State’s Ex. 10, p.4. 8 4 RR 145; State’s Ex. 10, p.4. 9 4 RR 142-43. 10 4 RR 57-58. 11 4 RR 58. 12 4 RR 58. 13 4 RR 58; State’s Ex. 1 (photo).
nothing room” with a door that opens to the locker room itself.14
“It’s a private area.”15 As Townsend explained, that space is for the visiting team and coaches
to have a refuge to get away from the people that are at the ball game. It’s a place where we can go sit and talk. It’s a place for our kids to sit and meditate before a game to -- it’s a quiet place and a --a -- a place to dress, a place that we can call our own for about two and a half hours.16
The players put all their personal belongings there.17 “It’s supposed to be for our team and our coaches only.”18 “[I]t’s a place where coaches and teammates can meet and discuss aspects of the game, get a scouting report together, do team activities, such as pray.”19
That night, Rose told a Sanger student that her mom is the principal, she is the team manager, and she needed to get into Argyle’s locker room because their coach was being mean to the players and she wanted to catch it on video.20 They entered the locker room just before half-time and Rose taped her phone on the inside of a
14 4 RR 58, 60. 15 4 RR 60 (agreeing with counsel’s statement). 16 4 RR 143. 17 4 RR 143. 18 4 RR 144. 19 4 RR 159. 20 4 RR 56-57.
locker.21
Rose went alone to retrieve the phone after half-time.22 When her attempts to crop and e-mail the video resulted in most of it being lost, she re-entered the locker room so that she could record Townsend’s post-game speech.23 She waited and counted the players as they came out of the locker room after the game before she retrieved her phone.24
Sanger police interviewed the girls on the team and none of them were aware they were being recorded.25 Townsend did not give anyone permission to record his remarks to his team.26 He “was surprised[,]” and “had no idea that anyone would be videoing.”27 He felt “violated,” like his privacy was invaded.28
Appellant showed the video to a co-worker between February and March of
21 4 RR 61-62; State’s Ex. 10, p.4. 22 4 RR 62. 23 4 RR 73; State’s Ex. 10, p.4. 24 State’s Ex. 10, p.4. 25 4 RR 98. 26 4 RR 144. 27 4 RR 146. 28 4 RR 152-53.
2012.29 She thought to herself, “Maybe if the board sees him in action?”30 The video was distributed to members of the school board prior to its March meeting, when Townsend’s contract was to be discussed.31
SUMMARY OF THE ARGUMENT
The sufficiency of the evidence in this case turns on the meaning of the definition of “oral communication.” The court of appeals ignored basic rules of statutory construction when it bypassed the plain language and, instead of analysis based in Boykin v. State,32 relied exclusively on a single Ninth Circuit decision for its view of the legislative history of an analogous federal statute.
Review of the plain language of the statutory definition shows that it was intended to prevent the type of privacy violation presented in this case. Even if one cannot ensure that parties to a private conversation never disclose what they have heard, the legislature has sought to prevent people who are not parties from surreptitiously recording and disseminating private conversations. If the plain language is not enough to discount the interpretation espoused by the court of appeals and appellant, the absurdity of that interpretation in practice, the state and federal
29 4 RR 230-31. State’s Ex. 8 and 9 (videos). 30 State’s Ex. 10, p.5. 31 4 RR 153-54. 32 818 S.W.2d 782 (Tex. Crim. App. 1991).
legislative histories, commentary from the Supreme Court, and persuasive federal cases show that it is untenable.
ARGUMENT
Can anything that can be repeated by a listener be recorded by a stranger? When should someone expect that a hidden camera has been placed in a girls’ locker room by someone who is not permitted inside? The answers to both questions depend on how this Court interprets the statutory definition of “oral communication.” I. What the court of appeals did.
In four separate points, appellant claimed that the evidence was legally insufficient and that the trial court erred in overruling her motions for directed verdict, judgment of acquittal, and new trial.33 Each of these points had the same basis: “because the complainant had no justifiable expectation that only his students would acquire the contents of his communication.”34 The court of appeals addressed only appellant’s motions for directed verdict and judgment of acquittal, deciding it “need not address her remaining issues.”35
The court based its decision on the meaning of “oral communication.” But it
33 App. CoA Br. at 3 (Table of Contents). 34 Id. 35 Long v. State, 469 S.W.3d 304, 313 (Tex. App.–El Paso 2015).
did not attempt to discern the meaning of the plain language of the statute, identify ambiguity or absurdity, or perform its own review of extratextual sources. Instead, claiming an ability to “rely on decisions . . . construing the [federal] Wiretap Act[,]”36 it held, “The legislative history of the Wiretap Act reveals that Congress’s intent was to protect persons engaged in oral communications under circumstances justifying an expectation of privacy.”37 This conclusion was attributed entirely to what the Ninth Circuit said about the federal legislative history in a single case.38 Citing Smith v. Maryland, the case in which the Supreme Court adopted Justice Harlan’s concurrence in Katz v. United States as the standard for Fourth Amendment cases, the court of appeals identified the two-pronged test it would use: “(1) did the person exhibit a subjective expectation of privacy; and (2), if so, is that subjective expectation one society is willing to recognize as reasonable.”39
The court of appeals held that, because “instructional communications and activities, regardless of where they occur, . . . are always subject to public
36 Long, 469 S.W.3d at 308 (citing Alameda v. State, 235 S.W.3d 218, 222-23 (Tex. Crim. App. 2007), and Meyer v. State, 78 S.W.3d 505 (Tex. App.–Austin 2002, pet. ref’d)). 37 Id. at 308. 38 Id. (citing United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978)). As it happens, Meyer, supra, also relies exclusively on a case from the First Court of Appeals that exclusively relies on McIntyre for the same proposition. Meyer, 78 S.W.3d at 509 (citing Ex parte Graves, 853 S.W.2d 701, 705 (Tex. App.–Houston [1st Dist.] 1993, pet. ref’d). 39 Long, 469 S.W.3d at 308 (citing 442 U.S. 735, 740 (1979)).
dissemination and generally exposed to the public view[,]” Townsend had no such justifiable expectation.40 “Consequently, the recordings in dispute are not ‘oral communications’ covered by Section 16.02 of the Texas Penal Code.”41 A claim of legal insufficiency by any other name . . .
As appellant acknowledged in the court of appeals, all four of her claims are challenges to the legal sufficiency of the evidence.42 The sufficiency of the only challenged element turns on whether the definition provided for “oral communication” should be read according to its plain meaning or instead requires a court perform a standard Fourth Amendment “expectations” analysis. When a sufficiency-of-the-evidence issue turns in large part on the meaning of the statute, that
40 Id. at 311; see also id. (“society is not willing to recognize as reasonable any expectation of privacy in half-time and post-game instructional communications uttered by a public high school basketball coach to his team in the visiting locker room of a public high school.”). 41 Id. at 313. 42 App. CoA Br. at 2 (“Did the trial court therefore err in overruling Long’s motions for a directed verdict, judgment of acquittal, and new trial, and was the evidence thus legally insufficient, where the intercepted speech was a high school basketball coach’s locker-room tirade?”). See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (“a complaint about overruling a motion for directed/instructed verdict is in actuality an attack upon the sufficiency of evidence to sustain the conviction”); State v. Savage, 933 S.W.2d 497, 499 (Tex. Crim. App. 1996) (“a trial court’s JNOV ruling after a jury determination of criminal guilt accomplishes exactly the same effect as granting the defendant a new trial for insufficient evidence -- a functional acquittal.”); Gonzales v. State, 689 S.W.2d 900, 901 (Tex. Crim. App. 1985) (“Appellant challenges the sufficiency of the evidence, arguing the trial court erred in overruling his motion for new trial on the ground that the verdict rendered is contrary to the law and evidence.”).
question is one of law reviewed de novo.43 II. Rules for statutory construction.
The first step is reading the statute. When determining the collective legislative intent or purpose of a statute, this Court necessarily focuses its attention on its literal text and attempts to discern the fair, objective meaning of that text at the time of its enactment.44 “The best evidence of the Legislature’s intent is the plain language of the law it passed[,]”45 and “the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted.”46
Only if the plain language of a statute would lead to absurd results, or if the language is not plain but ambiguous, may a court consider such extratextual factors as legislative history.47 Another such factor is the treatment of similar statutes in different jurisdictions. This Court has done so twice in cases dealing with this
43 Liverman v. State, 470 S.W.3d 831, 2015 Tex. Crim. App. LEXIS 992 at *7 (Tex. Crim. App. 2015). In this case, how the underlying facts are viewed could play a role. If so, the evidence should be viewed in the light most favorable to the verdict as usual. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). 44 Boykin, 818 S.W.2d at 785. 45 Chambless v. State, 411 S.W.3d 498, 503-04 (Tex. Crim. App. 2013). 46 Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). 47 Id. at 785-86.
statutory scheme.48 Both cases make clear that this consideration cannot come at the expense of independent analysis.49 At the very least, a reviewing court cannot simply rely on a single case’s conclusory statement about a similar statute’s legislative history, as did the court of appeals in this case. III. The statutory definition of “oral communication” is plain.
An “oral communication” is an “oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under
48 Alameda, 235 S.W.3d at 222-23; Castillo v. State, 810 S.W.2d 180, 183 (Tex. Crim. App. 1990). 49 In Castillo, a pre-Boykin case, this Court’s “initial task [wa]s to ascertain the meaning of the terms ‘aural acquisition’ and ‘interception.’” 810 S.W.2d at 183. It framed its attempt to effectuate the collective “intent” or “purpose” of the Legislature to include the legislative history of the statute, the consequences of any particular construction (with a presumption that the Legislature intended a reasonable result), and, “Finally, because [the term’s definition] was borrowed from the federal wiretap statute, . . . the construction placed upon the federal statute by other courts.” Id. (citations omitted). The Court noted dueling interpretations, and went on to hold that “the language of [the statute] plainly contemplates” a certain meaning and that the contrary interpretation “is unreasonable and probably does not reflect the intent of the Legislature” based on the relevant legislative history and policy consequences. Id. at 184. In Alameda, this Court considered whether a mother could vicariously consent to the recording of phone conversations between her 13-year-old child and a child molester without either of their knowledge. 235 S.W.3d at 220. “Because no Texas cases have addressed a parent’s ability to vicariously consent to the recording of a child’s telephone conversations, and the federal wiretap statute is substantively the same as the Texas statute,” this Court looked to the “leading case” regarding the vicarious-consent doctrine in the context of the federal wiretap statute. Id. at 222 (citing Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998)). But identifying the holding of the “leading case” did not end the inquiry; this Court conducted a complete policy analysis that, while informed by persuasive authority, addressed each of Alameda’s arguments in turn and arrived at its own conclusion. Id. at 222-23.
circumstances justifying that expectation.”50 This language is plain and it makes sense in context.51 Section 16.02(b)(1) prohibits intentionally procuring another person to intercept, through the use of an electronic device, words uttered by someone exhibiting a justified expectation that they are not subject to interception. Section (b)(2) prohibits intentionally disclosing the contents of an utterance the actor knows was unlawfully intercepted under (b)(1). It is an affirmative defense that “a person . . . intercepts a[n] . . . oral . . . communication, if: (A) the person is a party to the communication; or (B) one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing an unlawful act[.]”52
Read as a whole, this statutory scheme concerns a specific type of invasion of privacy unrelated to whether someone present could repeat what she heard. Rather, it prohibits people who are not party to a conversation from recording that
50 TEX. CODE CRIM. PROC. art. 18.20 §1(2). 51 In fact, this court of appeals has reviewed a claim of illegally obtained recordings under section 16.02(b)(1) using only the plain language of the statute, without reference to the federal Wiretap Act or any other extratextual sources. Vinez v. State, 08-10-00195-CR, 2012 Tex. App. LEXIS 817, *5-6 (Tex. App.–El Paso Feb. 1, 2012, no pet.) (not designated ro publication) (“In our view, these circumstances did not justify an expectation that Vinez’s oral communications were not subject to police interception.”) (citations omitted). It did, however, compare the circumstances to those in which this Court and another found no reasonable expectation of privacy in jail phone calls or between co-defendants at a county jail. Id. at *6. This overlap will be discussed below. 52 TEX. PENAL CODE § 16.02(c)(4).
conversation without the knowledge or consent of the parties, provided the parties recorded exhibited a justified expectation that they would not be recorded. Put another way, under objectively justifiable circumstances, the law prohibits acquiring the contents of oral utterances without the consent, implied or express, of at least one of the parties. What the plain language does not say is as important as what it does.
While the plain language of the statute does require the jury to determine whether an expectation is justified—i.e., reasonable—it does not mention anything about some broad “right to privacy.” Instead, the interest at stake is the much narrower expectation of not being recorded.
There is also no requirement that the State prove the victim’s subjective expectation, as is necessary in a traditional Fourth Amendment analysis. The statute requires only that the victim “exhibit[] an expectation that the communication is not subject to interception.” “Exhibition” is a fact question determinable from a victim’s actions; it is not enough that the jury believe the victim harbored such an expectation. The interceptor should not be liable for violating an expectation that is not exhibited, but she also should not be permitted to ignore an apparent exhibition of an expectation of non-interception on the off chance it does not exist. This statute exists for the speaker’s benefit, not the interceptor’s.
Finally, the definition of “oral communication” does not refer to the “contents” being intercepted; it refers to the uttered communication itself. The incorporation of the term “intercept” by reference does not change this. True, “intercept” means “the aural or other acquisition of the contents of a wire, oral, or electronic communication through the use of an electronic, mechanical, or other device.”53 In context, however, “the contents” of an utterance aurally acquired necessarily includes the speaker’s voice, and his voice must be acquired by a device. Appellant’s interpretation is absurd
There is nothing extraordinary about preventing technological eavesdropping, or preventing violators from spreading what they have illegally acquired. But an interpretation of the statute that focuses exclusively on the ultimate security of the contents rather than the specific method of acquisition not only renders the statute a virtual nullity but produces absurd results.
The court of appeals held that what Townsend said was not protected by statute because he could not expect parties to the communication—his team—not to repeat any of it. If that is all that matters, the statute has little or no purpose. Outside of a relationship of professional privilege or contractual non-disclosure, no one can reasonably expect that something shared will never be repeated by the listener(s). If
53 TEX. CODE CRIM. PROC. art. 18.20 §1(3) (emphasis added).
repetition were impossible, trust would be unnecessary. The court’s interpretation renders the statute, which on its face is broadly applicable, useless in all but circumstances in which the speaker is already protected by law.
It could be that appellant and the court of appeals, without saying so, look at 16.02(b)(2)—the “disclosure” aspect of the offense—and ask what difference it makes who reveals the contents if no listener was bound. This would miss the point of subsection (b)(2), which is meant to prevent anyone from knowingly profiting from or exacerbating an already-existing violation of the subsection. It is akin to the “fruit of the poisonous tree” doctrine; it was neither written nor intended as a blanket ban on repeating anything one hears.
Second, the undesirable practical effect of a “privacy of contents” approach is apparent. As noted above, it is an affirmative defense that the interceptor is a party to the communication. Because one’s spouse could legally record what is done or said in the marital bedroom and share it with a third party, the “content” rationale dictates that a third party could simply cut out the middle man with no harm done. This cannot be the legislature’s intent. This absurdity can be avoided by adhering to the plain language of the statute, which prevents intrusions by third parties. *16 IV. Extratextual sources confirm the plain meaning of the statute.
If resort to extratextual sources is necessary, the federal and state legislative histories, policy pronouncements of the Supreme Court, and better-reasoned decisions interpreting the federal analogue all support a framework that focuses on the narrow expectation of being free from electronic interception. Texas legislative history
According to the Bill Analysis from the House Criminal Jurisprudence Committee, article 18.20 and section 16.02 were passed in response to Title III’s statement that “states must enact specific legislation if they desire to implement the authority granted in the [Omnibus Crime Control and Safe Streets] Act to conduct electronic surveillance.”54 Article 18.20 “generally follows the provisions of Title III” except for provisions not relevant here.55 Little is said about section 16.02, except that it “[p]rovides a penal sanction for the interception and/or disclosure of wire or oral communications outside the scope of this Act[,]” and that exceptions are provided for, inter alia, “[c]onsensual surveillance.”56 The author acknowledged that
54 The Bill Analysis for H.B. 360, 67th Leg. R.S., p.1. The analysis can be found at http://www.lrl.state.tx.us/LASDOCS/67R/HB360/HB360_67R.pdf#page=45 but is also included in the Appendix. 55 Bill Analysis at 1. 56 Id. at 4.
Texas’s statute could be “more restrictive than the Federal Act, and therefore more protective of individual privacy . . . .”57 Based on this fact alone, it is not unreasonable to conclude that whatever ambiguity exists in the statute should be construed in favor of protection from interception regardless of whether Congress intended the Wiretap Act to be the mere statutory adoption of what was then an unsettled Fourth Amendment expectation-of-privacy analysis. Federal legislative history
But the report of the United States Senate Committee on the Judiciary shows that the bill was not meant to codify what would later become the subjective/objective analysis for privacy.58 Title III of the Omnibus Crime Control and Safe Streets Act of 1968, also known as the “Wiretap Act,” was created in response to the Supreme Court’s then-recent cases on wiretapping and electronic surveillance, Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967).59 Recognizing that “authorized wiretapping and electronic surveillance techniques by
57 Id. at 1. 58 S. Rep. No. 1097, 90th Cong., 2d Sess., Reprinted in (1968) U.S.Code Cong. & Admin.News (hereafter referred to as U.S.C.C.A.N.) beginning at p. 2112. Further cited pages are included in the Appendix. 59 In Berger, the Supreme Court struck down New York statutory scheme providing for the installation of recording devices on the ground that the framework for obtaining judicial approval lacked the particularity and proof of suspicion required by the Fourth Amendment. 388 U.S. at 54- 60. Katz is discussed in detail ante.
law enforcement officials are indispensable legal tools,”60 “the drafters “used the Berger and Katz decisions as a guide in drafting title III.”61 Both Berger and Katz are summarized in some detail in the report.62 As it stated in its list of people and organizations supporting the bill, “the purpose of title III” was creating “[l]egislation meeting the constitutional standards set out in the decisions, and granting law enforcement officers the authority to tap telephone wires and install electronic surveillance devices in the investigation of major crimes and upon obtaining a court order[.]”63
Regarding the specific provisions at issue, “[e]ach section of title III is discussed in detail in the analysis section of this title, including those provisions which are intended to conform to the Berger and Katz decisions.”64 Section 2510 contained applicable definitions, including that for “oral communication,” which was written “to include any oral communication uttered by a person exhibiting an
60 U.S.C.C.A.N. at 2161. 61 Id. at 2163. 62 Id. at 2161-62. Relevant later, only the majority opinion of Katz is mentioned. Neither Justice Harlan nor the privacy analysis set forth in his concurrence, which years later would be adopted by the Supreme Court in Smith v. Maryland as the standard for expectations of privacy and later standing, are mentioned. 63 U.S.C.C.A.N. at 2163. 64 Id. at 2163.
expectation that such communication is not subject to interception under circumstances justifying that expectation.”65 This definition was “intended to reflect existing law[,]” citing Katz.66 Thus, “The person’s subjective intent or the place where the communication is uttered is not necessarily the controlling factor.” “[S]uch an expectation,” referring in context to “an expectation that such communication is not subject to interception,” “would clearly be unjustified in certain areas; for example, a jail cell or an open field.”67 And while a person would “[o]rdinarily . . . be justified in relying on such expectation when he was in his home or office, . . . even there, his expectation under certain circumstances could be unwarranted, for example, when he speaks too loudly.”68 The analysis of that section concluded: “the person’s expectation that his communication is or is not subject to “interception” . .
65 Id. at 2178 (codified at 18 U.S.C. § 2510(2)). 66 Id. The reader is also asked to “compare” Lee v. State, 191 So. 2d 84 (Fla. 1966), an intermediate appellate court opinion about the legality of police arranging with the telephone company to set up a recorder on a party line, and United States v. South-Eastern Underwriters Ass’n (SEUA), 322 U.S. 533 (1944), which “required the Court to decide the issue of whether the Commerce Clause grants to Congress the power to regulate insurance transactions stretching across state lines.” Id. at 534. Lee was presumably cited because it asserted that “there were no state or federal statutes applicable in Florida which would make wiretapping illegal and inadmissible in evidence,” 191 So. 2d at 85, and SEUA to demonstrate Congress’s authority to create it. The Senate report noted that Lee’s petition for writ of certiorari was granted. Lee was subsequently reversed by the Supreme Court on the grounds that the police conduct violated the Federal Communications Act of 1934. Lee v. Florida, 392 U.S. 378, 380 (1968). 67 U.S.C.C.A.N. at 2178 (citations omitted). 68 Id. (citations omitted).
. is thus to be gathered and evaluated from and in terms of all the facts and circumstances.”69
The federal definition of “oral communication” was thus intended to say exactly what it says. As should be expected in a statutory scheme about electronic surveillance, the term defining the focus of secret recording hinges on the expectation that what you are saying is not being secretly recorded. It is not, as uncritically accepted by the court of appeals, about a broad expectation of privacy or even the narrower expectation that what you say will never be repeated to anyone by the other party. This is entirely consistent with Katz, which it was “intended to reflect.”
Katz was convicted of transmitting wagering information across state lines via telephone.70 The FBI obtained his conversations through an electronic listening and recording device attached to the outside of the public telephone booth he used to placed his calls.71 The Supreme Court rejected any formulation of the issues based on the “incantation of the phrase ‘constitutionally protected area’” or a “general constitutional ‘right to privacy.’”72 “That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and
69 Id. 70 Katz, 389 U.S. at 348 & n.1. 71 Id. at 348. 72 Id. at 349-50.
often have nothing to do with privacy at all.”73
Stating that “the Fourth Amendment protects people, not places,” Katz held that “what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”74 Distinguishing the various privacy interests at play, it pointed out that “what [Katz] sought to exclude when he entered the booth was not the intruding eye -- it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen.”75 “One who occupies [a phone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”76 “The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”77
Comparison of the federal definition of “oral communication” with the Supreme Court’s analysis shows that the definition does indeed reflect the majority
73 Id. at 350. 74 Id. at 351. 75 Id. at 352. 76 Id. 77 Id. at 353.
opinion in Katz. By entering the phone booth and shutting the door, even in public, Katz exhibited an expectation that, while he could be seen and perhaps his lips read, what he “utters” would not be recorded by strangers to the conversation and then “broadcast to the world.” This was justified under the circumstances. The definition of “oral communication” provides no more, nor any less, protection. It is thus difficult to argue with the Supreme Court’s conclusion in Bartnicki v. Vopper that Congress drafted Title III “[l]argely in response to [Berger], and to our holding in Katz v. United States, that the attachment of a listening and recording device to the outside of a telephone booth constituted a search . . . .”78
In short, Berger was about wiretapping and electronic surveillance. Katz was about wiretapping and electronic surveillance. Title III was about wiretapping and electronic surveillance in response to Berger and Katz. It makes no sense to hold that Title III, or a statute that mirrors it, is concerned with broad issues of privacy or privilege rather than the narrow issue of wiretapping, electronic surveillance and the fruits of those specific violations. Policy supports a plain reading of the statute.
If the Senate Report is insufficient to confirm the meaning of the statute from which the Texas scheme was derived, the policy behind Title III—and the prohibition
78 532 U.S. 514, 523 (2001) (emphasis added) (citations omitted).
on disclosure in particular—were thoroughly considered by the Supreme Court in Bartnicki v. Vopper. In that case, the Supreme Court addressed the “novel and narrow” question of, “Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?”79 Its holding was based on specific facts and legal claims not present in this case,80 but its analysis considered the purpose of criminalizing the disclosure of private conversations.
While the First Amendment is typically cited for our freedom of speech, “[t]here is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its
79 Id. at 517, 528 (2001). 80 An illegal recording of a phone conversation between a union representative and its president was ultimately provided to and aired by a local radio host. Id. at 518-19. In it, the two discussed threats of violence against their opposition. Id. at 518. The Supreme Court’s decision to hold the federal analogue to section 16.02(b)(2) unconstitutional as applied were based on three distinguishing characteristics: 1) “respondents played no part in the illegal interception,” 2) “their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else[,]” and 3) “the subject matter of the conversation was a matter of public concern[;] [i]f the statements about the labor negotiations had been made in a public arena -- during a bargaining session, for example -- they would have been newsworthy.” Id. at 525. The concurrence, accounting for the fifth and sixth votes of the majority, was more forceful, agreeing with the “narrow holding . . . limited to the special circumstances present here: (1) the radio broadcasters acted lawfully (up to the time of final public disclosure); and (2) the information publicized involved a matter of unusual public concern, namely a threat of potential physical harm to others.” Id. at 535-36 (Breyer, J., concurring) (citation and internal quotations omitted). “Given these circumstances, along with the lawful nature of [the broadcasters’] behavior, the statutes’ enforcement would disproportionately harm media freedom.” Id. at 540.
affirmative aspect.”81 “In a democratic society[,] privacy of communication is essential.”82 “Title III’s restrictions are intended to protect that interest, thereby encouraging the uninhibited exchange of ideas and information among private parties . . . .”83 As the Presidents’s Commission on Law Enforcement and Administration of Justice put it, “Fear or suspicion that one’s speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas.”84 The court called this “a chilling effect on private speech.”85 Moreover, “the disclosure of the contents of a private conversation can be an even greater intrusion on privacy than the interception itself.”86 “As a result, there is a valid independent justification for prohibiting such disclosures by persons who lawfully obtained access to the contents of an illegally intercepted message, even if that prohibition does not play a significant role in preventing such interceptions from occurring in the first place.”87
81 Id. at 533 n.20 (2001) (citations and internal quotations omitted). 82 Id. at 533 (quoting The Challenge of Crime in a Free Society 202 (1967)). 83 Id. at 532 (citations and internal quotations omitted). 84 Id. at 533 (quoting The Challenge of Crime in a Free Society 202 (1967)). 85 Id. 86 Id. at 533. 87 Id.
Again, whatever ambiguity exists in the definition of “oral communication” should be resolved in favor of an interpretation that supports prohibition of the monitoring and dissemination of private speech by strangers to that communication. Federal courts that attempt an analysis support the plain language.
To whatever extent this Court’s analysis is to be influenced by federal cases on Title III, there is no “leading case” as there was in Alameda. There are certainly many cases that, like the single case relied upon by the court of appeals, treat the analyses under Title III and the Fourth Amendment as identical, explicitly or otherwise.88 There are also a number of opinions that are unclear, at times focusing on the plain language of the statute but also applying Justice Harlan’s formulation of Katz or treating the analyses as equivalent.89 At least one case reduces the issue to the
88 See, e.g., United States v. Peoples, 250 F.3d 630, 637 (8th Cir. Mo. 2001) (“Before the interception of a conversation can be found to constitute a search under the Fourth Amendment or an ‘oral communication’ under the federal wiretap law, therefore, the individuals involved must show that they had a reasonable expectation of privacy in that conversation.”); United States v. Clark, 22 F.3d 799, 801 (8th Cir. Iowa 1994) (“Under either the fourth amendment or the Wiretap Act, the inquiry is 1) whether defendant manifested a subjective expectation of privacy, and 2) if so, whether society is prepared to recognize that expectation as reasonable.”); United States v. McKinnon, 985 F.2d 525, 527 (11th Cir. Fla. 1993) (“the statutory and constitutional test is whether a reasonable or justifiable expectation of privacy exists. . . . First, whether McKinnon’s conduct exhibited a subjective expectation of privacy; second, whether McKinnon’s subjective expectation of privacy is one that society is willing to recognize as reasonable.”); In re John Doe Trader Number One, 894 F.2d 240, 242-43 (7th Cir. Ill. 1990) (“Congress limited its protection of ‘oral communications’ under Title III to those statements made where ‘first, a person [has] exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.’”) (citing Katz, 389 U.S. at 361 (Harlan, J., concurring)). 89 United States v. Dunbar, 553 F.3d 48, 57 (1st Cir. Mass. 2009) (citations omitted) (quoting (continued...)
expectation of revelation, like the court of appeals in this case.90 Others are, for lack of a better word, unique.91
89 (...continued) definition of “oral communication,” agreeing that the legislative history shows that Congress intended this definition to “parallel the ‘reasonable expectation of privacy test’ articulated by the Supreme Court in Katz[,]’” and holding “that the back of a police car is not a place where individuals can reasonably expect to communicate in private.”); United States v. Turner, 209 F.3d 1198, 1200-01 (10th Cir. Wyo. 2000) (equating an “actual, subjective expectation of privacy” with the expectation “that his communications were not subject to interception” but deciding that it “need only address the second, objective prong” and concluding that “under Title III or the Fourth Amendment, society is not prepared to recognize an expectation that communications in a patrol car, under facts presented here, are not subject to interception.”); United States v. Harrelson, 754 F.2d 1153, 1169-71 (5th Cir. Tex. 1985) (framing the “question presented” as “whether the Harrelsons had a reasonable expectation of privacy as they spoke to each other in jail” but, after quoting the entire Senate Report analysis on “oral communication,” holding that Harrelson’s conversations were not oral communications because “evidence showing the Harrelsons to have known or suspected that attempts would be made to eavesdrop on their conversations at the jail.”); Angel v. Williams, 12 F.3d 786, 790 n.6 (8th Cir. Mo. 1993) (citation omitted) (claiming not to “resolve the dispute between the parties whether, as the officers suggest, the expectation of non-interception is different in some way from the Fourth Amendment expectation of privacy.”), id. at 790 (“We hold that the circumstances here do not justify an expectation that the incident in question was not subject to interception, and therefore no statutory ‘oral communications’ of the officers were intercepted.”). 90 United States v. Longoria, 177 F.3d 1179, 1181-82 (10th Cir. Kan. 1999) (citations omitted) (“for Title III to apply, the court must conclude: (1) the defendant had an actual, subjective expectation of privacy - i.e., that his communications were not subject to interception; and (2) the defendant’s expectation is one society would objectively consider reasonable.”), 1183 (concluded that Longoria “had no reasonable expectation that the person in whose presence he conducts conversations will not reveal those conversations to others.”). 91 A good example is United States v. Larios, 593 F.3d 82, 92-93 (1st Cir. Mass. 2010). That court used an analysis “parallel” to Katz with the clarification that the expectation of privacy at issue was “that his communications were not subject to interception[,]” but “concluded that the most reasonable reading of the statute is that the meaning of ‘oral communication’ was intended to parallel evolving Fourth Amendment jurisprudence on reasonable expectations of privacy in one’s communications.” Id. at 92. It then denied the claim based on Minnesota v. Carter, 525 U.S. 83 (1998), a case decided on the lack of privacy interest of a brief visitor to a motel room for a drug deal. Id. at 93 (emphasis in original). However, the court also considered that “at least in theory, privacy interests in not being overheard may be greater than in not being seen, and vice versa, depending on the circumstances of the case[,]” and that “as a general matter, whether an individual (continued...)
What nearly all of these cases have in common is that the facts presented a typical law enforcement scenario, i.e., the recorded conversation took place in a police car,92 at a jail or police station,93 during a sting operation,94 or in front of a government agent or informant.95 Those cases make it easy to avoid any deep statutory analysis because, regardless of the framework used, society is not prepared to recognize an expectation that such communications are in any way private. The cases in which greater care was taken to apply the plain language of the statute to
91 (...continued) has a reasonable expectation of privacy may depend in part on the nature of the government intrusion.” Id. at 94. Performing a separate analysis, it concluded that there was “no reasonable expectation that he would be free from audio surveillance during his brief visit to another person’s motel room.” Id. at 94-95. 92 Dunbar, 553 F.3d at 53 (audio recording equipment inside the cruiser recorded incriminating statements made by Dunbar to his wife); Clark, 22 F.3d at 800-01 (trooper activated tape recorder on his dash after Clark and the driver asked if they could sit in the patrol car during the consensual search of the car); Turner, 209 F.3d at 1199 (Turner’s conversation with a companion recorded in the back seat of a highway patrol car by a concealed tape recorder); McKinnon, 985 F.2d at 526 (tape recording of his pre-arrest conversation while he sat in the back seat area of a police car). 93 Harrelson, 754 F.2d at 1169 (Harrelson’s conversations with his wife during her visits to him at the Harris County Jail were recorded by a career criminal who occupied the neighboring cell using a disguised tape recorder given to him by the FBI); Angel v. Williams, 12 F.3d at 787-88, 790 (tape-recording of an incident that took place in a public jail and between police officers and a prisoner played at an administrative hearing on alleged excessive force); Peoples, 250 F.3d at 634-45 (recorded conversation between a prison inmate and visitor). 94 Larios, 593 F.3d at 85 (DEA agents rented two rooms at a Motel 8 and installed a concealed audio/video recording device in one to record a drug deal in the other). 95 In re John Doe Trader Number One, 894 F.2d at 241 (undercover FBI agents wearing recording devices posed as traders on the floor of the Chicago Mercantile Exchange as part of a grand jury investigation); Longoria, 177 F.3d at 1181 (a government informant overheard and recorded Longoria conversing with his co-defendants in the informant’s tire shop).
ascertain the intent of the drafters present more novel scenarios: unethical television interviewers, pocket dialing, and office surveillance.
In Boddie v. American Broadcasting Cos. (ABC), an alleged participant in a judicial scandal consented to be interviewed by Geraldo Rivera and others in her home but refused to appear on camera.96 Unbeknownst to Boddie, the journalists recorded the interview by using a hidden videotape camera and concealed microphones.97 A segment of her interview, with video and audio, aired on “20/20.”98 In response to her suit under Title III, ABC argued that Boddie had no reasonable expectation of privacy.99 Quoting the definition of “oral communication,” the court distinguished Boddie’s undisputed “aware[ness] that she was speaking with reporters from ABC” from “whether Boddie had an expectation that the interview was not being recorded and whether that expectation was justified under the circumstances.”100 It noted that:
the statute requires that the plaintiff show only no expectation that the oral communication was being intercepted through the use of electronic devices. Thus, there “may be some circumstances where a person does not have an
96 731 F.2d 333, 335 (6th Cir. Ohio 1984). 97 Id. 98 Id. 99 Id. at 338. 100 Id. at 338-39.
expectation of total privacy, but still would be protected by the statute because he was not aware of the specific nature of another’s invasion of his privacy.”101
So, while Boddie could not reasonably expect that the words she said to Geraldo would not be repeated, she was justified in expecting that her interview would not be recorded and broadcasted because she spoke on that condition.
In Huff v. Spaw,102 that court elaborated on how the definition of “oral communication” dictates the framework. Huff pocket-dialed Spaw, a co-worker, who listened to and transcribed or recorded large portions of a lengthy conversation between Huff and a colleague and, later, Huff and his wife.103 The court noted that the appropriate expectations analysis “parallels the reasonable-expectation-of-privacy test articulated by Justice Harlan in Katz,”104 but drew crucial distinctions based on the plain language of the definition. “Courts generally refer to Katz’s reasonable-expectation test as having a subjective part and an objective part, but the division of labor between these two parts is ill-defined in the Title III context.”105 It concluded that “whether a person had an internal belief in an expectation of privacy
101 Id. at 339 (quoting Bianco v. American Broadcasting Cos., 470 F. Supp. 182, 185 (N.D. Ill. 1979)). 102 794 F.3d 543 (6th Cir. Ky. 2015). 103 Id. at 545. 104 Id. at 548. 105 Id. at 549.
. . . is irrelevant because it is subsumed by the exhibited-an-expectation inquiry”:
If a person lacked an internal belief in privacy, then he would not have exhibited an expectation of privacy and so would fail the reasonable-expectation test. If the person held an internal belief but did not exhibit that belief in an outward manner, he would also fail the reasonable-expectation test due to his inability to satisfy the first objective subpart. Therefore the only relevant inquiries are the two objective subparts: (1) whether a person exhibited an expectation of privacy and (2) whether that expectation was reasonable. . . . These two inquires track Title III’s statutory text that first, a person “exhibit[ed] an expectation that such communication is not subject to interception” and second, “under circumstance justifying such expectation.” 18 U.S.C. § 2510(2). We therefore bifurcate Katz’s reasonable-expectation test—at least in the Title III context—into these two inquiries.106
So there is a parallel, two-step analysis but it must be different because the statute requires a focus 1) on exhibition rather than internal beliefs, and 2) on “interception” rather than general privacy interests. Applying this framework to the facts, the court held that Huff did not exhibit any expectations because he was aware of the phenomenon of pocket-dialing and did not take appropriate measures to prevent it.107 His wife, however, was not held responsible for his negligence. Citing Boddie v. ABC, the court reiterated “that someone who knowingly converses with a person who may be carrying an interception-capable device can nonetheless enjoy a reasonable
106 Id. at 549-50. 107 Id. at 552.
expectation of privacy from interception.”108 It held that “[Mrs.] Huff’s expectation of privacy from interception was justified under the circumstances.”109
A similar analysis was conducted by the Eleventh Circuit in Walker v. Darby.110 A coworker told Walker to be careful about what he said while standing near his work station, or “case area,” because he believed that Walker’s conversations were being monitored.111 Walker filed a Title III complaint after he found an “intercom-like object” and another box with buttons near his workstation.112 The court identified three relevant issues based on the plain language of the definition of “oral communication.”113 The court was explicit:
We note as an initial matter that we do not need to determine whether Walker had a reasonable expectation of privacy in his case area in the Florence Post Office. The statute requires us to determine whether he had a subjective
108 Id. 109 Id. at 554. 110 911 F.2d 1573 (11th Cir. Ala. 1990). 111 Id. at 1575. 112 Id. 113 Id. at 1577 (citing 18 U.S.C. § 2510) (identifying the summary judgment elements as “1) whether Walker’s communications were indeed intercepted by Darby, Day, and Robinson through the use of any electronic, mechanical or other device; 2) whether Walker had an expectation that his oral communications were not subject to interception; and 3) whether, if Walker had such an expectation, the expectation was justified under the circumstances.” See also id. at 1578 (“In order to survive summary judgment, Walker would have had to raise a question of fact for trial regarding whether he expected his conversations to be free from interception, and whether, if he had this expectation, it was justified by the circumstances.”).
expectation that his conversations were free from interception, and whether that expectation was objectively reasonable.114
It reiterated:
Again, we must distinguish this inquiry from the question of whether Walker had an objectively reasonable expectation that conversations taking place near his case would be overheard. The case was located in an area shared with other workers. But while Walker might have expected conversations uttered in a normal tone of voice to be overheard by those standing nearby, it is highly unlikely that he would have expected his conversations to be electronically intercepted and monitored in an office in another part of the building.115
Like the Sixth Circuit, the Eleventh Circuit recognized that the focus of Title III is narrower than a generic right to privacy, and that even the understanding that your words may be overheard by others is different from expecting them to be secretly electronically monitored by remote interceptors.
As illustrated, there is a case for every view of the statute. And circuit courts sometimes change position without explanation, perhaps based on the traditional police scenarios presented.116 But many of the cases espousing the “subjective/objective expectation of privacy” model do so based on uncritical adoption of other courts’ decisions; bad ideas do not get better through repetition.
114 Id. at 1578. 115 Id. at 1579. 116 For example, the Eleventh Circuit decided Walker v. Darby three years before it decided McKinnon, which found no reasonable expectation of privacy in the backseat of a patrol car.
The more thorough cases from the Sixth and Eleventh Circuits are more persuasive, but there is no substitute for a court adhering to its own framework for statutory construction and making its own determination. Cases relied upon by appellant and the court of appeals are irrelevant.
The court of appeals reviewed three cases which it said “make clear that an educator has no expectation of privacy in a space where he or she is providing instructional communications and activities to students.”117 These cases are Roberts v. Houston Independent School District,118 Plock v. Board of Education,119 and Evens v. Superior Court.120 If these cases were cited to prove that children repeat things, it was unnecessary. And their facts make them readily distinguishable. In two cases, the teachers objected to the “open and obvious” use of cameras, with their knowledge, in the classroom by school administrators.121 In the third case, two students surreptitiously videotape-recorded their teacher who, along with her union, sought an injunction prohibiting the school board and district from viewing, showing or
117 Long, 469 S.W.3d at 313. 118 788 S.W.2d 107 (Tex. App.–Houston [1st Dist.] 1990, writ. denied). 119 545 F. Supp. 2d 755 (N.D. Ill. 2007). 120 77 Cal. App. 4th 320 (Cal. App. 2d Dist. 1999, review denied). 121 Roberts, 788 S.W.2d at 108 (use of videotaping as part of performance review); Plock, 545 F. Supp. 2d at 756 (“open and obvious” installation of cameras in response to recent allegations of abuse).
distributing the videotape.122 None of these cases shed light on the present situation: prosecution for violation of a statute designed to protect a speaker from being secretly recorded by people who were not permitted into the room.
IV. Coach Townsend exhibited a justified expectation that his words would not be stolen by excluded parties.
The plain language of the statute is also its only reasonable interpretation. Based on the plain language, what Townsend said to his team was an “oral communication” if, when he said it, he exhibited a justified expectation that it would not be electronically stolen by people he had excluded from the room. Townsend’s words were uttered in an area of the school that was generally for athletes only, at the farthest point in this area from the rest of the people in attendance, behind two closed doors, in an area for his team and staff only that he considers their “refuge” and “a place we can call our own.” This place also happened to be a girls’ locker room where the girls changed clothes before and after the game. It is unclear what extra steps he should have taken to exhibit a more clear expectation that people excluded from his team’s refuge would not sneak in and plant recording devices.123 It is similarly unclear how anyone in that situation would not be justified in that
122 77 Cal. App. 4th at 322. California requires all parties to consent to recording. CAL. PEN CODE § 632(c). 123 If the statute silently requires a subjective expectation, Townsend testified to such.
expectation. V. Conclusion
If the privacy interest at stake is the expectation that children will adhere to some unspoken code of silence, that expectation is absurd. If, however, the interest at stake is the narrower expectation that only you and the people present have the power to record and/or repeat what was said, the calculus changes. One can concede that words, once spoken, are no longer secret without giving up all aspects of privacy regarding those words. The plain language of “oral communication” is meant to protect only the narrow interest in not being secretly recorded by people you have made efforts to exclude from the conversation.
As with any inquiry into the justifications for this expectation, it is a factintensive analysis taking into account all of the circumstances. This case is straightforward. Townsend exhibited an expectation that his words would not be intercepted when he spoke them in a girls’ locker room assigned to his team rather than in front of a crowd in the gym. What he said was an “oral communication,” and appellant’s conviction should be affirmed.
PRAYER FOR RELIEF
WHEREFORE, the State of Texas prays that the Court of Criminal Appeals reverse the judgment of the Court of Appeals.
Respectfully submitted,
/s/ John R. Messinger JOHN R. MESSINGER Assistant State Prosecuting Attorney Bar I.D. No. 24053705
P.O. Box 13046 Austin, Texas 78711 information@spa.texas.gov 512/463-1660 (Telephone) 512/463-5724 (Fax)
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the WordPerfect word count tool this document contains 10,273 words.
/s/ John R. Messinger John R. Messinger Assistant State Prosecuting Attorney
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 21st day of December, 2015, a true and correct copy of the State’s Brief on the Merits has been eFiled or e-mailed to the following:
Andrea R. Simmons 1450 East McKinney Denton, Texas 76209 Andrea.Simmons@dentoncounty.com
Bruce Anton 2311 Cedar Springs, Suite 250 Dallas, Texas 75201 ba@sualaw.com
/s/ John R. Messinger John R. Messinger Assistant State Prosecuting Attorney