THIRD DIVISION DILLARD, P. J., GOBEIL and HODGES, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
October 31, 2019
In the Court of Appeals of Georgia A19A1284. WEINTRAUB v. THE STATE.
GOBEIL, Judge.
Joshua Weintraub, who faces prosecution for a single count of family violence-
simple battery, filed a motion in limine to preclude the State from tendering a cell
phone recording1 of a dispute he had with his pregnant wife, arguing that the
recording is inadmissible under OCGA § 16-11-62, Georgia’s Eavesdropping Statute.
The trial court denied the motion. We subsequently granted Weintraub’s application
for interlocutory review , and the instant timely appeal followed. For the reasons that
follow, we vacate and remand the case with direction.
“A trial court’s ruling on a motion in limine is reviewed for abuse of
discretion.” Carver v. State, 324 Ga. App. 422, 423 (750 SE2d 735) (2013) (citation
1 The cell phone recording contained both video images and audio sounds. and punctuation omitted). “[I]n reviewing the denial of a motion in limine, this Court
must construe the evidence most favorably to the upholding of the trial court’s
findings and judgment, and we cannot reverse a trial court’s ruling absent an abuse
of discretion.” Brown v. State, 316 Ga. App. 137, 139 (1) (728 SE2d 778) (2012)
(citation, punctuation, and footnote omitted). “The trial court’s application of the law
to the undisputed facts is subject to de novo review.” State v. Barnard, 321 Ga. App.
20, 20 (740 SE2d 837) (2013) (citation and punctuation omitted). So viewed, the
relevant facts show that in January 2018, Kenneth Jeter was temporarily staying with
Weintraub and his wife, Rebecca Weintraub (“Rebecca”), in the Weintraub’s two-
bedroom apartment. Jeter worked at a Long John Silver’s restaurant and Weintraub
was his manager. Jeter did not have his own room in the Weintraub’s apartment.
Rather, he slept on the couch in the living room.
Jeter had been staying with the Weintraubs for the three weeks leading up to
the incident at issue here while he looked for a place of his own. During this period,
Jeter slept at the residence nightly and kept the belongings he “had on [him]” there,
including bags of clothing, toiletries, and other possessions that he kept by the couch.
Jeter was not named on the lease for the Weintraub apartment, did not pay rent or
utilities, did not receive his mail there, and did not have any furniture in the home.
2 On January 11, 2018, Jeter was sitting on the couch in the living room and
texting with his girlfriend on his cell phone.2 Weintraub and his wife, who were also
in the living room, began arguing. At some point, Jeter decided to record portions of
the argument between the Weintraubs, which Jeter described as amounting to
“[v]erbal abuse.” Jeter also feared that the argument might “become physical.”
Specifically, Jeter testified as follows:
When I was sitting on the couch, I was texting my girlfriend at the time and just regularly talking. Whenever I saw the opportunity to take that recording, I just kind of lifted up my phone to where it was viewable but not noticeable.
Jeter clarified that he did not try to hide his phone by placing it in a corner or
covering it with a cushion or blanket. He continued to hold his phone as if he was
texting while he recorded the interaction between Weintraub and his wife in the living
room. Jeter did not know if his phone was noticeable because he was holding his
phone in front of his mid-section, but “[i]t wasn’t like [he] was trying to hide it.” Jeter
stated that neither Weintraub nor his wife asked him to record the interaction or
consented to being recorded, and neither of them gave Jeter any indication that they
2 At the time, Jeter had a Samsung Galaxy J3 smartphone, which was capable of recording audio and video.
3 were aware that he was recording them on his phone. Moreover, Jeter did not tell the
couple after the fact that he had recorded the interaction. Jeter indicated he previously
had recorded the Weintraubs in their home. Specifically, he described that on “days
when everything would be okay, and . . . we would just be joking around and having
a good time,” he would “pull out [his] camera and start recording the funny things we
would say or jokes we would be making and stuff like that.”
Jeter intended to give the recording to the police “in case things got bad and
the law got called out there.” Jeter called 911 later that night to report that Rebecca
appeared to be experiencing labor pains.3 He then called the police the following
morning and met with them to show them the videos he had captured on the cell
phone.
Weintraub was later charged by accusation with one count of family violence-
simple battery, which alleged that Weintraub “did unlawfully . . . intentionally make
contact of an insulting and a provoking nature” with his wife.4 Weintraub filed a
motion in limine, challenging the admissibility of the cell phone recording. According
3 Rebecca was pregnant at the time with twins. 4 The parties agree that Jeter reported to law enforcement that Weintraub pulled his wife’s hair during the course of the dispute, although this was not captured on the recording.
4 to Weintraub, because neither he nor his wife had consented to being recorded within
the privacy of their own home, the audio recording was inadmissible under OCGA
§ 16-11-62 (1). He further asserted that the video portion of the recording should be
excluded because Jeter did not have the consent of all the persons observed and none
of the exceptions provided by OCGA § 16-11-62 (2) (A) - (D) applied because, as
relevant here: (1) Jeter was not an owner or occupier of the property, (2) the
apartment where the recording took place was not Jeter’s residence, (3) Jeter was not
attempting to prevent a crime, and (4) the Weintraubs had a reasonable expectation
of privacy in their own living room.
At the hearing on Weintraub’s motion in limine, the State played a recording
of two 15-second clips taken from Jeter’s cell phone. As noted by the trial court, the
recording depicts “Weintraub as speaking in a loud, harsh tone of voice and using
obscene language while standing in close proximity to [Rebecca].” The recording
does not show any physical contact between Weintraub and his wife.
The trial court denied Weintraub’s motion in limine to exclude the cell phone
footage, construing the recording as separate audio and video recordings. First, the
court ruled that the audio portion of the recording was admissible, finding that
“recording with an exposed smartphone [does not] constitute[] recording ‘in a
5 clandestine manner,’” as contemplated by OCGA § 16-11-62 (1). Specifically, Jeter
was holding his phone in the same manner as if he was sending a text message, and
although neither of the Weintraubs consented to or knew that they were being
recorded, “either of them would have been able to see the smartphone had they been
looking for it.” Next, the trial court concluded that the video portion of the recording
was admissible, holding that (1) Jeter was an “occupier” of the apartment, as he had
been invited to stay at the property, and recorded the argument between the
Weintraubs for the purpose of crime prevention pursuant to OCGA § 16-11-62 (2)
(B); and (2) Jeter was a “resident” in the apartment and the activities he recorded
were within the curtilage of the residence and the recording was made for the purpose
of crime prevention pursuant to OCGA § 16-11-62 (2) (C).5 The court further noted
that “because Mr. Jeter was invited to stay at the property and sleep in the living room
by the Weintraubs[,] [t]he Weintraubs did not have a reasonable expectation of
privacy with respect to Mr. Jeter and his activities.” The court certified its order for
5 The trial court’s order contains a scrivener’s error. The court cites to OCGA § 16-11-62 (2) (A), while quoting language from OCGA § 16-11-62 (2) (B). Similarly, the court cites to OCGA § 16-11-62 (2) (B), while quoting language from OCGA § 16-11-62 (2) (C).
6 immediate review, and we subsequently granted Weintraub’s application for
interlocutory review. The instant appeal followed.
Georgia’s Eavesdropping Statute provides that “[n]o evidence obtained in a
manner which violates any of the provisions of [the Eavesdropping Statute] shall be
admissible in any [Georgia] court[.]” OCGA § 16-11-67. Code Section 16-11-62,
formerly Code Ann. § 26-2002, was enacted in 1967. The legislature defined the
purpose of the statute as follows:
It is the public policy of this State and the purpose and intent of this Chapter to protect the citizens of this State from invasions upon their privacy. This Chapter shall be construed in light of this expressed policy and purpose. The employment of devices which would permit the clandestine overhearing, recording or transmitting of conversations or observing of activities which occur in a private place has come to be a threat to an individual’s right of privacy and, therefore, should be prohibited. It is further the purpose of this Chapter to provide to authorized law enforcement officers modern methods of crime detection and prevention under strict procedures and safeguards.
Ransom v. Ransom, 253 Ga. 656, 658 (1) (324 SE2d 437) (1985) (citing former Code
Ann. § 26-2001, Ga. L. 1967, pp. 844, 845).
“Eavesdropping is an ancient practice which at common law was condemned
as a nuisance.” Berger v. New York, 388 U. S. 41, 45 (II) (87 SCt 1873, 18 LE2d
7 1040) (1967). At one time the eavesdropper listened by naked ear under the eaves of
a house or at its windows or beyond its walls seeking out private discourse. Id. In
1967, in Berger, the United States Supreme Court recognized that technological
advances had yielded sophisticated electronic devices capable of eavesdropping under
almost any condition by remote control. Id. at 46-47 (II). At that time, the Court was
concerned with devices suitable to an Ian Fleming novel such as miniature
microphones (no bigger than a postage stamp) and “electronic rays” beamed at walls
or glass windows to record voice vibrations. Id. at 47 (II). The Court could not have
imagined the eavesdropping potential in the modern cell phone. See, e. g., Riley v.
California, 573 U. S. 373, 393 (III) (B) (1) (134 SCt 2473, 189 LE2d 430) (2014)
(describing in detail the multitude of features of modern cellphones as well as noting
their pervasiveness in modern society).
In the instant case, the trial court addressed the admissibility of the audio and
video segments of the cell phone recording separately.6 Weintraub challenges both
6 Because OCGA § 16-11-62 addresses audio and video recordings separately, in cases of a recording with both audio and video images, one portion of the recording could be admissible under the statute even if the other portion is ruled inadmissible. Cf. Durham v. State, 309 Ga. App. 444, 447-448 (3) (710 SE2d 644) (2011) (Any error by trial counsel for failing to move to exclude the video portion of surveillance footage by an audio/visual recorder did not prejudice the defendant where the audio recording of the footage was admissible).
8 holdings on appeal. As an initial matter, the admissibility of a cell phone recording
pursuant to OCGA § 16-11-62 appears to be one of first impression in Georgia.6 Our
analysis, therefore, necessarily begins with the language of the statute. See Chan v.
Ellis, 296 Ga. 838, 839 (1) (770 SE2d 851) (2015) (“[a] statute draws its meaning, of
course, from its text”). Under OCGA § 16-11-62 (1), it is unlawful for “[a]ny person
in a clandestine manner intentionally to overhear, transmit, or record or attempt to
overhear, transmit, or record the private conversation of another which shall originate
in any private place[.]” Next, with respect to video recordings, OCGA § 16-11-62 (2)
precludes persons from observing, photographing, or recording “the activities of
another which occur in any private place and out of public view[.]” There are four
exceptions to the prohibition under OCGA § 16-11-62 (2), including recordings
made: (1) in a correctional facility; (2) by the owner or occupier of real property for
security purposes and crime prevention; (3) within the curtilage of a residence of the
person using such device for security or crime prevention purposes; and (4) by law
enforcement in the performance of official duty. See OCGA § 16-11-62 (2) (A) - (D).
6 Despite the proliferation of cell phones over the past decade, there is a surprising dearth of cases addressing the admissibility of recordings made on a cell phone, even from other jurisdictions.
9 In determining the scope of conduct covered by OCGA § 16-11-62 (1) & (2),
we presume that “the General Assembly meant what it said and said what it meant.”
Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and
punctuation omitted). To that end, we afford the statutory text “its plain and ordinary
meaning,” and we read that text in the “most natural and reasonable way, as an
ordinary speaker of the English language would.” Id. at 172-173 (1) (a) (citation and
punctuation omitted). See also OCGA § 1-3-1 (b) (“[i]n all interpretations of statutes,
the ordinary signification shall be applied to all words”). This Court is required to
read a particular statute as a whole, considering specific words and phrases not in
isolation, but in relation to each other. Warren v. State, 294 Ga. 589, 590 (1) (a) (755
SE2d 171) (2014). As our Supreme Court has explained:
[i]n our search for the meaning of a particular statutory provision, we look not only to the words of that provision, but we consider its legal context as well. After all, context is a primary determinant of meaning. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law—constitutional, statutory, and common law alike—that forms the legal background of the statutory provision in question.
Fed. Dep. Ins. Corp. v. Loudermilk, 295 Ga. 579, 588 (2) (761 SE2d 332) (2014)
(citation and punctuation omitted).
10 1. Our analysis of the admissibility of both the audio and video portions of the
cell phone recording necessarily begins with a determination of whether the recording
occurred “in a private place.” See OCGA § 16-11-62 (“It shall be unlawful for:
(1) Any person in a clandestine manner intentionally to overhear, transmit, or record
. . . the private conversation of another which shall originate in any private place;
(2) Any person, through the use of any device, without the consent of all persons
observed, to observe, photograph, or record the activities of another which occur in
any private place and out of public view[.]”) (emphasis supplied).
A “private place” is defined as “a place where there is a reasonable expectation
of privacy.” OCGA § 16-11-60 (3). Our Supreme Court recently had the occasion to
address the meaning of “private place,” in the context of a home for purposes of
OCGA § 16-11-62 (2), in State v. Cohen, 302 Ga. 616 (807 SE2d 861) (2017),
pursuant to an earlier version of OCGA § 16-11-60 (3).7 The relevant facts of that
7 The statute was amended effective July 1, 2015. Prior to this date, a “private place” for purposes of OCGA § 16-11-62 was defined as “a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance.” OCGA § 16-11-60 (3) (2014). Neither our Supreme Court nor this Court has yet to have an occasion to address the scope of the definition of “private place” following this amendment. In Cohen, the Supreme Court utilized a prior version of the statute because the conduct at issue there took place in 2012. 302 Ga. at 616. More recently, we considered whether a defendant was in a “private place,” for purposes of OCGA § 16-11-62 (2), while she was unaccompanied in a police
11 case involve a housekeeper who was having an affair with her employer. Id. at 616.
She later used a “spy” camera to secretly record video of her employer naked in his
bathroom and bedroom, as well as video of a sexual encounter between the two of
them in a bedroom, which her attorney sought to use to gain a settlement in a
proposed sexual harassment suit. Id. The housekeeper and her lawyer subsequently
were charged with several crimes, including violating OCGA § 16-11-62 (2) for
illegally recording the sexual encounter. Id. The trial court granted a demurrer to the
indictment, finding that OCGA § 16-11-62 (2) was unconstitutionally vague. Id. at
616-617. Our Supreme Court reversed this ruling, and in so doing clarified what the
statute prohibits, which is the recording of activities that “occur in any private place
and out of public view without the consent of all persons being observed.” Id. at 628
(2) (b) (punctuation omitted). As relevant here, the Supreme Court explained that it
typically has looked to Fourth Amendment jurisprudence8 as a guide when
interview room. Wilson v. State, 351 Ga. App. 50, 52 (1) (830 SE2d 407) (2019). In that case, we also used the prior version of OCGA § 16-11-60 (3) because the recording at issue there occurred in 2013. Id. at 52 (1) n. 4. 8 It is unclear whether OCGA § 16-11-62 can bear the weight of the Fourth Amendment when addressing the behavior of private parties and not of the government. In fact, the one Georgia case that has examined the potential distinction between privacy from strangers and privacy from family members or other close parties, is one that specifically concluded that “there is almost a total lack of
12 determining “the scope of privacy protected by OCGA § 16-11-62.”9 Id. at 629 (2)
(b). See Burgeson v. State, 267 Ga. 102, 106-107 (3) (d) (475 SE2d 580) (1996);
authority” addressing parental wiretapping, which was the closest Fourth Amendment analog that the court could identify. Kelley v. State, 233 Ga. App. 244, 248-249 (2) (503 SE2d 881) (1998), disapproved on other grounds by State v. Burns, 306 Ga. 117, 124 (2) (829 SE2d 367) (2019). The Court instead looked to an earlier Georgia case interpreting OCGA § 16-11-62 without any reference at all to the Fourth Amendment. Id. (citing Ransom, 253 Ga. at 658). 9 The Supreme Court was fractured in its analysis. In special concurrences, several justices questioned the applicability of Fourth Amendment jurisprudence.
13 Quintrell v. State, 231 Ga. App. 268, 269-271 (1) (499 SE2d 117) (1998).10 In this
regard,
the application of the Fourth Amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy that has been invaded.” This inquiry normally embraces two discrete questions. The first is whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy — whether the individual has shown that he seeks to preserve something as private. The second question is whether
10 It remains an open question whether one’s reasonable expectation of privacy under OCGA § 16-11-62 (2) is limited to the parameters set forth in Fourth Amendment jurisprudence. As noted by the Supreme Court in Cohen, “the Fourth Amendment is concerned with stopping unauthorized intrusion by the government by any means into areas where a person has a reasonable expectation of privacy, whereas OCGA § 16-11-62 (2) is concerned with stopping unauthorized intrusion by all persons through the specific means of non-consensual photographing or video recording of their activities.” Cohen, 302 Ga. at 629 (2) (b) n. 12 (emphasis omitted). As a result, “[i]t may very well be true that a person had a greater expectation to be free from the specific hostile intrusions of being video recorded or photographed under Georgia statutory law than he or she would have to be free from government intrusion for Fourth Amendment purposes.” Id. (applying the pre-2015 definition of “private place”) (emphasis omitted). The Cohen Court declined to reach this issue due to the specific facts at issue in that case. Id. The Court further declined to address “whether, by amending the statute in 2015 to define ‘private place’ as ‘a place where there is a reasonable expectation of privacy’ (OCGA § 16-11-60 (3)), the legislature intended for the definition of ‘private place’ under OCGA § 16-11-62 (2) to only reference the ‘reasonable expectation of privacy’ that one would have under the Fourth Amendment” because the language under the 2015 amendment was not at issue in that case. Id.
14 the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable — whether the individual’s expectation, viewed objectively, is “justifiable” under the circumstances.
Id. at 630 (2) (b) (citations and punctuation omitted).
We have recognized that one’s home is one’s castle and “[t]he storm and wind
may enter, but the King cannot enter, and all the forces of the Crown cannot cross the
threshold of his ruined tenement.” Hogan v. State, 140 Ga. App. 716, 716 (231 SE2d
802) (1976). See also Florida v. Jardines, 569 U. S. 1, 6 (II) (A) (133 SCt 1409, 185
LE2d 495) (2013) (“[W]hen it comes to the Fourth Amendment, the home is first
among equals. At the Amendment’s ‘very core’ stands the right of a man to retreat
into his own home and there be free from unreasonable governmental intrusion.”)
(citation and punctuation omitted). Accordingly, even under the Fourth Amendment,
there exists a fundamental expectation of privacy “against unreasonable intrusions
into the home.” Pledger v. State, 257 Ga. App. 794, 797 (572 SE2d 348) (2002)
(citations and emphasis omitted). This protection, however, is not absolute. “For
Fourth Amendment purposes, one who begins with a reasonable expectation of
privacy in a particular area such as his or her residence can lose that expectation of
privacy by inviting a guest into that otherwise private place.” Cohen, 302 Ga. at 630
15 (2) (b). See, e.g., United States v. Davis, 326 F3d 361, 363, 366 (2d Cir. 2003)
(defendant did not have reasonable expectation of privacy to prevent being video-
recorded with hidden camera in jacket of confidential informant after inviting
confidential informant into his residence to sell drugs to the informant); State v.
Almand, 196 Ga. App. 40, 41 (395 SE2d 609) (1990) (because defendant invited off-
duty officer into her apartment, she had no reasonable expectation of privacy).
“However, a person does not lose one’s reasonable expectation of privacy
simply when he or she invites a family member or someone who is more akin to being
a member of the household into a place where one has a reasonable expectation of
privacy.” Cohen, 302 Ga. at 630-631 (2) (b) (emphasis in original). See also OCGA
§ 16-1-3 (15) (defining “public place” as used in Title 16 as “any place where the
conduct involved may reasonably be expected to be viewed by people other than
members of the actor’s family or household”) (emphasis supplied). Moreover, a
homeowner does not lose his or her reasonable expectation of privacy in those areas
of the home that they intend to remain private. See Moses v. State, 328 Ga. App. 625,
628 (2) (a) (760 SE2d 217) (2014) (homeowner did not lose reasonable expectation
of privacy “by allowing persons such as household residents, family members of
residents, or housecleaners access to the house”); Cohen, 302 Ga. at 616, 631-632 (2)
16 (b) (holding that indictment sufficiently alleged that the recording took place in a
“private place out of public view,” where the housekeeper used a hidden “spy”
camera to record her employer in his bedroom and bathroom). See also Kelley v.
State, 233 Ga. App. 244, 247-249 (2) (503 SE2d 881) (1998), disapproved on other
grounds by State v. Burns, 306 Ga. 117, 124 (2) (829 SE2d 367) (2019)
(sixteen-year-old girl had a reasonable expectation of privacy against her own family
members when she was passed out nude in the family’s home bathroom in the act of
or following bathing). However, context matters. For instance,
a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.
Katz, 389 U. S. at 361 (Harlan, J. concurring) (citing Hester v. United States, 265 U.
S. 57 (44 SCt 445, 68 LEd 898) (1924)).
Here, the trial court failed to make specific findings addressing whether Jeter’s
recording of the Weintraubs on his cell phone took place in a “private place” with
respect to both the audio and video portions of the recording. First, as to the audio
17 recording, the trial court rested its conclusion solely on whether Jeter’s recording was
done “in a clandestine manner” under OCGA § 16-11-62 (1), without first addressing
whether the recording occurred in a “private place.” Similarly, the trial court jumped
to whether the video portion of the recording fell within an exception listed in OCGA
§ 16-11-62 (2) (A) - (D) without first analyzing the threshold issue of whether the
recording took place in a “private place.”11 We are mindful that a determination of
whether the recording occurred in a “private place” constitutes a mixed question of
law and fact. See Slayton v. State, 281 Ga. App. 650, 650-651 (1) (637 SE2d 67)
(2006) (“[A] trial court’s ruling on a motion to suppress frequently involves a mixed
question of fact and law.”) (citation omitted). Nevertheless, our Supreme Court has
advised that, as an appellate court, “[w]e must focus on the facts found by the trial
court in its order, as the trial court sits as the trier of fact.” Williams v. State, 301 Ga.
60, 61-62 (799 SE2d 779) (2017) (the Court of Appeals cannot make additional
factual findings beyond those contained in the trial court’s order, and, where those are
11 Within the context of addressing whether Jeter was an “occupier” of the property and recorded the interaction for crime prevention or detection purposes, pursuant to the exception outlined in OCGA § 16-11-62 (2) (B), the trial court summarily concluded that because the Weintraubs had invited Jeter to stay in their apartment and sleep in their living room, they “did not have a reasonable expectation of privacy with respect to Mr. Jeter and his activities.”
18 insufficient to enable appellate review, remand is warranted) (citation and emphasis
omitted). See also Slayton, 281 Ga. App. at 651 (“As a reviewing court, we must
accept the factual and credibility determinations and inferences drawn by the trier of
fact, even if we disagree with them, as long as there is evidence in the record to
support the trial court’s findings.”) (citation omitted).
Our Supreme Court has instructed that we may remand for further factual
findings where the trial court’s order lacks sufficient detail to enable meaningful
appellate review. See Martinez v. State, 347 Ga. App. 675, 684 (C) (ii) (820 SE2d
507) (2018); see also Williams, 301 Ga. at 62 (“Given the uncertainty in the trial
court’s order regarding the basis for its ruling, this Court must vacate the opinion”
and “remand this case to the trial court for further clarification on the specific
findings that form the basis for its legal conclusions.”) (citation omitted). In light of
these constraints, we conclude that the trial court’s order denying Weintraub’s motion
in limine lacks the necessary specific findings to enable our review as to whether
Jeter’s cell phone recording took place in a “private place.” Accordingly, given the
fact-intensive nature of this analysis, and in an abundance of caution, we vacate the
trial court’s order and remand for the court to make necessary findings in the first
instance on whether Jeter’s cell phone recording took place in a “private place.” See
19 Martinez, 347 Ga. App. at 685 (C) (ii); Williams, 301 Ga. at 62. See also Stroud v.
State, 344 Ga. App. 827, 834 (3) (812 SE2d 309) (2018) (reversing denial of motion
to suppress and remanding for determination of factual questions necessary to decide
that motion). If the trial court concludes that an additional evidentiary hearing is
necessary to resolve these issues, it may conduct such a hearing.
2. Given our decision to vacate the trial court’s order on the motion in limine,
we do not address Weintraub’s remaining arguments. Nevertheless, if the trial court
concludes that the cell phone recording took place in a “private place,” the court will
then have to determine whether, at least with respect to the audio portion of the
recording under OCGA § 16-11-62 (1), Jeter’s recording was done in a “clandestine
manner.” The statute does not define the word “clandestine.” See OCGA § 16-11-60.
When looking for the generally understood or common meaning of a particular word,
courts most often look to dictionary definitions. See, e. g., Abdel-Samed v. Dailey,
294 Ga. 758, 763 (2) (755 SE2d 805) (2014); Warren, 294 Ga. at 590-591 (1) (a). The
Oxford English Dictionary defines “clandestine” as “[s]ecret, private, concealed;
usually in bad sense, implying craft or deception; underhand, surreptitious.” Oxford
English Dictionary, OED Online http://www.oed.com/view/Entry/33737 (Oct. 28,
2019). In turn, “conceal” is defined in pertinent part as “[t]o keep (information,
20 intentions, feelings, etc.) from the knowledge of others; to keep secret from . . .
others; to refrain from disclosing or divulging.” Id., OED Online
http://www.oed.com/view/Entry/38066 (Oct. 28, 2019) (emphasis omitted). Webster’s
Dictionary similarly defines “clandestine” as “conducted with secrecy and
concealment.” Webster’s Third New International Dictionary, 415 (1981).
Additionally, Webster’s defines “conceal” in relevant part as “to prevent disclosure
or recognition of[,] avoid revelation of[,] refrain from revealing[,] withhold
knowledge of[.]” Id. at 469. Finally, Black’s Law Dictionary defines “clandestine”
as “[s]ecret or concealed, [especially] for illegal or unauthorized purposes.” Black’s
Law Dictionary, 284 (9th Ed. 2009).
At the hearing, Jeter testified that he started recording the escalating conflict
between the Weintraubs in their living room by holding his cell phone in front of his
midsection, where it was “viewable but not noticeable.” Jeter did not attempt to
conceal or hide his phone while it was recording the confrontation between
Weintraub and his wife. There is no dispute that the Weintraubs did not consent to
being recorded in their living room on the night in question, and neither of them gave
Jeter any indication that they were aware that he was recording them on his phone.
The trial court concluded that recording with an exposed smartphone (known to be
21 capable of recording, among numerous other functions) does not constitute recording
“in a clandestine manner.” However, this conclusion does not end the inquiry with
respect to the admissibility of the audio portion of the recording. It is undisputed that
Jeter’s smartphone itself, as the trial court concluded, was viewable and not
clandestine. However, the statute does not hinge upon whether the recording device
was clandestine, but rather whether the “record[ing]” was done “in a clandestine
manner.” OCGA § 16-11-62 (1). For instance, under the facts of this case, could
Jeter’s act in switching from texting with his girlfriend to recording the couple’s
interaction on his smartphone be considered “clandestine?” Here, the trial court made
no findings as to whether the manner in which Jeter was recording was clandestine,
considering the greater factual context.
On remand, if necessary to address this issue, the trial court should consider
whether any of the facts of this case, including Jeter’s act of switching modes on his
cell phone while holding his phone as if he were still texting, is of significance with
respect to whether the recording was done in “a clandestine manner.” If the court
needs supplemental evidence to determine this issue, it may hold another hearing.
Judgment vacated and case remanded with direction. Dillard, P. J., and
Hodges, J., concur.