Cowles v. State

23 P.3d 1168, 2001 Alas. LEXIS 67, 2001 WL 632901

• Court: Alaska Supreme Court
• Decided: June 8, 2001
• Docket: S-8831
• Status: Published

Opinions

OPINION

MATTHEWS, Chief Justice.

I. INTRODUCTION

After receiving information that University of Alaska box office manager Lindalee Cowles was stealing cash from ticket sales, the University police, without obtaining a warrant, installed a hidden video camera which recorded her in the act of theft. The question in this case is whether the videotape was obtained in violation of Cowles's constitutional rights and therefore should have been suppressed. We answer in the negative.

II. FACTS AND PROCEEDINGS

Cowles was convicted of theft in the second degree for stealing cash from the University box office. At trial and before the court of appeals, she contended that the videotape showing her taking money from the University cash bag and transferring it first to her desk and then to her purse should be suppressed because it was the product of an unlawful search. The superior court rejected her argument, as did the court of appeals.¹

The underlying facts are fully set out in the opinion of the court of appeals. For our purposes it is important to note the following. The videotaping was requested by University officials who had received a report from a co-employee that Cowles was taking cash from ticket receipts. An audit had verified that there were substantial cash shortages. No warrant was obtained. The covert video surveillance took place over the course of two and a half hours during a busy Monday morning in the University box office, a twenty-by-twelve foot room which was occupied by Cowles. The room has one other work station for a co-employee but it is unclear on the record before us whether a co-employee was situated at the other work station during the taping. The video camera was hidden in a ceiling vent, pointed at Cowles's desk. The desk was visible to members of the public through the ticket window and through the open office door and to co-workers and visitors to the office. The tape shows what the trial judge described as "an almost continuous flow of traffic about [Cowles's] desk." No sound recording was made.

III. DISCUSSION

Cowles contends that the videotaping violated her right to be free from unreasonable searches guaranteed by Article I, Section 14 of the Alaska Constitution and the Fourth Amendment to the United States Constitution and her right to privacy guaranteed by Article I, Section 22 of the Alaska Constitution.

The United States and Alaska Constitutions prohibit not only unreasonable physical searches, but also unreasonable technological searches.² Thus placing a hidden video camera in a house in order to record activities there without a warrant is prohibited just as is a warrantless entry to search for evidence. But not all technological monitoring of places or individuals is regarded as a search for constitutional purposes. Photographing a person as she walks in a public park does not raise constitutional concerns.³ But photographing a person in an enclosed public restroom stall is a search.⁴

The general test used to determine whether particular technological monitoring is a search is the expectation of privacy test. Under this test courts ask: "(1) did the person harbor an actual (subjective) expectation of privacy, and, if so, (2) is that expectation one that society is prepared to recognize as reasonable?" ⁵

In the present case Cowles obviously did not believe that her activities were being monitored by a video camera from above. Based on this, the State does not take issue with Cowles's assertion that she had an actual expectation of privacy and thus meets the first part of the test.⁶ We will focus therefore on the second part of the test, namely whether Cowles's expectation of privacy was, from a societal perspective, a reasonable one.

This question, in turn, entails "a value judgment ... whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society."⁷ The utility of the challenged police conduct must be considered in making this judgment. Whether an expectation of privacy is justified "must ... be answered by assessing the nature of a particular practice and the likely extent of its impact on the individual's sense of security balanced against the utility of the conduct as a technique of law enforcement." ⁸

We believe that the court of appeals correctly identified the public nature of Cowles's office as the critical factor in answering this question. Cowles's desk could be seen by members of the public through the ticket window and the open door, and by her fellow employees who were walking around the office almost continuously during the videotaping.⁹ Activities that are open to public observation are not generally protected by the Fourth Amendment.¹⁰ What a person knowingly exposes to the public, even in his own home or office, is not a subject of fourth amendment protection."¹¹

In O'Connor v. Ortega, the United States Supreme Court ruled that a physician at a state hospital had a reasonable expectation of privacy as to the contents of his private office in the hospital.¹² But the Court was careful to note that the same expectation would not necessarily apply to all government offices, for "some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable."¹³ The evidence in this case shows that the University box office at the time of the videotaping was so open to fellow employees and to the view of members of the public as to fall within this description.¹⁴

Given the clear view of Cowles's desk by members of the public and University employees, we do not believe that the fact that the video camera was hidden in a ceiling vent rather than at an eye-level vantage point is of dispositive importance. Just as a person can have a reasonable expectation of privacy from surveillance by one particular means (but not another), she can have a reasonable expectation of privacy from surveillance from one particular vaniage point (but not another).¹⁵ Having closed the door of a glass phone booth, the defendant in Katz had a reasonable expectation that he could not be overheard even though he had no reasonable expectation that he could not still be seen.¹⁶ Similarly, a person engaging in illicit conduct in a doorless restroom stall may have a reasonable expectation that she will not be observed from a hidden vantage point above her, even though it would have been unreasonable for her to expect that she would not be seen through the doorless opening.¹⁷ Where incriminating conduct occurs in a public area, however, participants in that conduct already risk observation, and so have "no constitutional right ... to demand that such observation be made only by some person of whose presence they [are] aware."¹⁸ Cowles's activities were observable through the open ticket window and the office door and by co-employees circulating through the office.¹⁹ The fact that the video camera may have been in an especially good position from which to view Cowles's acts of transferring money from the University money pouch to her desk and thence to her purse is not sufficient to create a reasonable expectation of privacy in an open and public setting where no such expectation could reasonably exist.²⁰

Nor does the fact that the videotape surveillance was conducted for the purpose of recording illicit conduct violate Cowles's reasonable expectation of privacy. In her two-stage transfer of money from the University money pouch to her purse, Cowles appears to have relied less on an expectation of privacy than on a belief that those who observed her actions did so without suspecting wrongdoing on her part. Members of the public and Cowles's co-employees did not watch Cowles with the purpose of ferreting out misconduct, while that was, of course, the reason for the hidden camera. If a person's activities are open to view by the public, however, the fact that they are actually observed for the purpose of detecting misconduct does not affect the results of a Fourth Amendment analysis.²¹ - Because Cowles's theft could have been seen from a vantage point generally used by the public, Cowles had no reasonable expectation of privacy from surveillance directed at detecting her malfeasance.²²

We also agree with the court of appeals that the fact that Cowles was entrusted with handling her employer's cash is a relevant factor bearing on the reasonableness of Cowles's expectation of privacy. When an individual enters into an employment situation with high security requirements, it becomes less reasonable for her to assume that her conduct on the job will be treated as private.²³ As the court of appeals stated:

A second basis for finding that the video taping was reasonable is that Cowles worked in a fiduciary capacity in an office where members of the public exchanged money for tickets. Money belonging to the University was regularly handled in the office, and was stored in a safe to which Cowles had access. Video surveillance is commonly conducted in stores and commercial offices where money is exchanged, such as areas in banks where tellers work. Thus, the nature of the work performed in Cowles's office argues against finding that she had a reasonable expectation of privacy." [²⁴]

Cowles relies on three cases in which covert video monitoring of activities in the work place was held to violate constitutional rights. The cases are United States v. Taketa,²⁵ State v. Bonnell,²⁶ and State v. Thomas.²⁷ We believe that only Thomas supports her position that the covert monitoring in the present case was constitutionally forbidden, and we disagree with the reasoning of the Thomas court. By contrast, Takete and Bonnell are not only distinguishable but suggest that the surveillance that took place here was permissible.

In Taketa, a covert video camera was placed in the ceiling of a private office reserved for defendant O'Brien's use. The Ninth Cireuit found that both O'Brien and his co-defendant, Taketa, had a reasonable expectation of privacy in the office. As to O'Brien, the court noted: "We find a privacy interest in an office reserved for one's exclusive use at a place of employment to be reasonable, especially when asserted against a forcible entry after work hours.²⁸ In reaching this conclusion the court acknowledged that even the private office of a government worker would not be protected by a reasonable expectation of privacy if the office were "so open to fellow employees or the public that no expectation of privacy is reasonable.²⁹ But the court noted that the office in question was not open to the public and that only three people had regular access to it.³⁰ Further, each of the three was named as a co-conspirator in the criminal conduct charged.³¹

The Ninth Cireuit also found Taketa to have a reasonable expectation of privacy in O'Brien's office. Taketa was the special agent in charge of the Drug Enforcement Agency suite in which O'Brien's office was located. In finding that Taketa had a reasonable expectation of privacy when he was videotaped in O'Brien's office, the court first acknowledged the general rule, "Videotaping of suspects in public places, such as banks, does not violate the Fourth Amendment; the police may record what they normally may view with a naked eye.³² But the court found that the general rule did not apply both because of the private nature of the place ³³ where the videotaping took place and the time when it occurred.³⁴

By contrast, the University box office was not a private office, but a place from which tickets were sold to the public. It was not for Cowles's exclusive use. It was open to the public at the time of the videotaping. Moreover, numerous University employees, who were in no sense co-conspirators of Cowles, had regular access to it.

State v. Bonnell is also materially distinguishable.³⁵ The covert video surveillance there was a video camera hidden in a smoke detector in the break room of a post office. The police had received reports that gambling activity was taking place. The covert video surveillance lasted for a full year.

In holding that the surveillance tape should not have been admitted, the Supreme Court of Hawaii concluded that the defendants had an objectively reasonable expectation of privacy with respect to their activities in the break room. In so concluding the court noted that the

break room was neither a public place nor subject to public view or hearing. Only postal employees and invited guests were allowed in it. Accordingly, the defendants were in a position to regulate their conduct as a function of present company. Moreover, when seated in the break room, the defendants could see anyone approaching and could avoid being surprised by an untrusted intruder.[³⁶]

Again, this contrasts significantly with the University box office in the present case. The box office was open to public view and was regularly visited by co-employees whom Cowles could not trust not to report any misconduct they might observe.

The third case on which Cowles relies is State v. Thomas.³⁷ The defendant in that case ran a store in a state park under a concession agreement which required him to pay ten percent of gross receipts to the state. Suspecting that the defendant was not using the cash register for all transactions, park officials focused a hidden video camera on the cash register during business hours for four days. The videotape showed incriminating conduct on the defendant's part. The Indiana Court of Appeals upheld the suppression of the tape on the grounds that the defendant had a reasonable expectation of privacy with respect to his activities that were recorded, even though these activities were "openly exposed to members of the public who used the state-owned camp store.³⁸

The State argues that Thomas is distinguishable on a number of grounds. The defendant was a licensee, not a public employee; under his license agreement he had a possessory right to the store superior to that of the state; and he was actually handling his own money in contrast to Cowles who was entrusted with handling University money. But we do not believe that these differences are necessarily critical. The important point in Thomas, as here, is that the videotaped transactions were open and visible to members of the public. But while we disagree with the State that Thomas is materially distinguishable from the present case, we do not believe that it was correctly decided. Instead, we agree with the view of the dissenting judge in Thomas that, because the transactions in question were openly exposed to members of the public, society should not regard as reasonable any expectation on the part of the defendant that the transactions were private:

The camera videotaped commercial transactions which members of the public consummated on public land inside a public building. The transactions, by their nature, were public and not private.... "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection ...." [³⁹]

In summary, we agree with the conclusion of the court of appeals that the covertly recorded videotape of Cowles's activities in the University box office was properly admitted into evidence. For largely the same reasons as those expressed by the court of appeals, we agree with the value judgment that Cowles did not have an expectation of privacy at the time and place in question that society should recognize as reasonable. The covert video monitoring that took place was not, in our judgment, inconsistent with the values of our free society. But this conclusion would not necessarily be the same if the monitoring had not been initiated for a legitimate purpose-the detection of theft-and had not been based on reasonable grounds to believe that Cowles was stealing. Lacking a legitimate purpose, or reasonable cause, the utility of the monitoring would be diminished and a different balance might be struck.

IV. CONCLUSION

For the reasons stated, the decision of the court of appeals is AFFIRMED.

1 . See Cowles v. State, 961 P.2d 438 (Alaska App.1998).

2 . See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (attaching listening and recording device to outside of public telephone booth which intercepted telephone calls held to be unreasonable search prohibited by Fourth Amendment to United States Constitution); State v. Glass, 583 P.2d 872 (Alaska 1978) (audio recording of conversations involving sale of illegal drugs with consent of buyer held to violate seller's state constitutional right to privacy).

3 . 1 Wayne R. LaFave, Search and Seizure § 2.7(F), at 659 (3d ed. 1996) (" '[Clovert visual surveillance' of a person while he moves about in public is not subject to fourth amendment restraints.").

4 . 1 LaFave, supra, § 2.4(c), at 543.

5 . City & Borough of Juneau v. Quinto, 684 P.2d 127, 129 (Alaska 1984) (decided under Article I, Section 22). Quinto made it clear that our earlier Glass decision did not bar per se all covert participant recording of conversations. Instead, the question in each case is "whether [defendant's] expectation of privacy [under the] circumstances is one which society is willing to recognize as reasonable. Glass requires nothing more." Quinto, 684 P.2d at 129. The test under the United States Constitution is similar: "Karz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986).

6 . - Although all of Cowles's acts were open to view from the ticket window and open door and by the co-employees who were almost continuously in the office, what is needed under the first prong of the expectation. of privacy analysis is an inquiry into the degree-rather than the fact (or the mere possibility)-of public exposure. See 1 La-Fave, supra, § 2.1(d), at 389 n. 86. Even if Cowles had expected no privacy from customers or co-workers at ground-devel, she could still have had an expectation that her privacy would not be invaded by an "intruding eye from a concealed vantage point' above her. See State v. McDaniel, 44 Ohio App.2d 163, 337 N.E.2d 173, 177 (1975). Similarly, although Cowles may have had no general expectation of privacy in her office, she could still have had an "expectation of privacy against being videotaped in it." See United States v. Taketa, 923 F.2d 665, 676 (9th Cir.1991). The superior court's factual finding that "Ms. Cowles harbored a subjective belief that her actions in the box office ... would be private and thus not subject to electronic monitoring," Cowles, 961 P.2d at 442-43, is thus not clearly erroneous.

7 . 1 LaFave, supra, § 2.1(d), at 393 (quoting Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L.Rev. 349, 403 (1974)).

8 . United States v. White, 401 U.S. 745, 787, 91 S.Ct 1122, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting); see 1 LaFave, supra, § 2.1(d), at 391-92; see also American Bar Association Standards for Criminal Justice Electronic Surveillance (3d ed.) Section B: Technologically Assisted Physical Surveillance, Standard 2-9.1(c) (noting that among the factors relevant to regulating the use of surveillance are (i) law enforcement interests, (ii) the extent to which the surveillance technique invades privacy, (ii) the extent to which the surveillance diminishes or enhances the exercise of First Amendment freedoms and related values, and (iv) the extent to which the surveillance technique is less intrusive than other available effective and efficient alternatives).

9 . - The court of appeals stated:

Cowles was videotaped in a place where, according to Judge Beistline's findings, her activities "could have been readily observed in great detail by any member of the public who happened to visit the office or ticket window." In addition, her activities were open to view by fellow employees. Judge Beistline observed that there was "an almost continuous flow of traffic about her desk." We therefore believe that the open and public nature of the place where Cowles worked argues against finding that she had a reasonable expectation of privacy.

Cowles, 961 P.2d at 444.

10 . See Bond v. United States, 529 U.S. 334, 336, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000).

11 . Katz, 389 U.S. at 351, 88 S.Ct. 507.

12 . 480 U.S. 709, 718, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987).

13 . Id. at 718, 107 S.Ct. 1492 (Plurality opinion of Justice O'Connor). A fifth member of the Court, Justice Scalia, concurred in the result of Justice O'Connor's opinion, and agreed that an office would not be " 'a subject of Fourth Amendment protection'" in "such unusual situations as that in which the office is subject to unrestricted public access, so that it is 'exposed to the public'." Id. at 731, 107 S.Ct. 1492, Scalia, J., concurring (quoting Katz, 389 U.S. at 351, 88 S.Ct. 507).

14 . Compare Vega-Rodriguez v. Puerto Rico Telephone Co., 110 F.3d 174, 180 (1st Cir.1997) ("It is simply implausible to suggest that society would recognize as reasonable an employee's expectation of privacy against being viewed while toiling in the Center's open and undifferentiated work area. PRTC did not provide the work station for the appellants' exclusive use, and its physical layout belies any expectation of privacy. Security operators do not occupy private offices or cubicles. They toil instead in a vast, undivided space-a work area so patulous as to render a broadcast expectation of privacy unreasonable.").

15 . See 1 LaFave, supra, § 2. 4(c), at 545.

16 . See Katz, 389 U.S. at 352, 88 S.Ct. 507 ("[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.").

17 . See People v. Triggs, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232, 238 n. 7 (1973).

18 . State v. Jarrell, 24 N.C.App. 610, 211 S.E.2d 837 (1975).

19 . The door was around a corner from the window. The investigating officer testified that from the two vantage points any member of the public could see everything shown by the camera. See Cowles, 961 P.2d at 443.

20 . There is also evidence that videotaping Cowles from above was not needlessly intrusive, as the ticket office's cement walls prevented the police from positioning a camera at eye-level. See Cowles, 961 P.2d at 443.

21 . See California v. Ciraolo, 476 U.S. 207, 213-14 n. 2, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986); see also Florida v. Riley, 488 U.S. 445, 453, 109 S.Ct. 693, 102 L.Ed.2d 835 (O'Connor, J., concurring in judgment) (if person's activities can be observed from vantage point generally used by public, that person cannot reasonably expect privacy from observation of police).

22 . Not only could Cowles's theft be seen from a public vantage point, but at least one of her coworkers had seen cash coming in from theater shows which she knew was not being deposited, and had reported Cowles to the University for taking money from the receipts for her personal use. See Cowles, 961 P.2d at 441. The trial court found that the "almost continuous flow of traffic [co-workers and visitors] about her desk," particularly when she was handling cash in the process of embezzling it, "seriously undermined" "Cowles'[s] privacy assertions." We agree with this conclusion, as did the court of appeals. See id. at 443, 444.

23 . See National Treasury Employees Union v. Von Raab, 489 U.S. 656, 671, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) ("[It is plain that certain forms of public employment may diminish privacy expectations even with respect to ... personal searches. Employees of the United States Mint, for example, should expect to be subject to certain routine personal searches when they leave the workplace every day."); 3 LaFave, supra, § 8.6(d), at 823 n. 86.

24 . Cowles, 961 P.2d at 444.

25 . 923 F.2d 665 (9th Cir.1991).

26 . 75 Haw. 124, 856 P.2d 1265 (1993).

27 . 642 N.E.2d 240 (Ind.App.1994).

28 . 923 F.2d at 673.

29 . Id. at 673 (quoting O'Connor, 480 U.S. at 717-18, 107 S.Ct. 1492).

30 . Id. at 673.

31 . Id. at 668, 669 n. 2.

32 . Id. at 677.

33 . See id. ("As noted before, the office was not open to the public. Taketa also exercised a certain dominion and control over the premises, at a the time of his entry. ...").

34 . See id. (Taketa was videotaped on a Sunday "at a time when other people would not normally be present.").

³⁵

36 . Id. at 1276.

³⁷

38 . Id. at 244.

39 . Id. at 248 (quoting Katz, 389 U.S. at 351, 88 S.Ct. 507).