okay legal eagles, weigh in on this one......

[eye95]

It is all about "reasonable expectation." The best way to judge it is to ask yourself whether what you are doing is subject to ordinary observation without any special measures. i.e., in your car, folks who happen to be in the area can usually see you through your car windows. You have no reasonable expectation of privacy when you pick your nose in traffic.

 

[Nevada carrier]

IMO if your committing a crime you should be forfeiting your rights to privacy or any other rights you wish to invoke.

So you're saying that whole fourth, fifth and sixth amendment thing shouldn't apply to you if you're arested and charged with a crime?

 

[OC for ME]

It is all about "reasonable expectation." The best way to judge it is to ask yourself whether what you are doing is subject to ordinary observation without any special measures. i.e., in your car, folks who happen to be in the area can usually see you through your car windows. You have no reasonable expectation of privacy when you pick your nose in traffic.

The statute specifically cites reasonable expectation of privacy. Does a student or staff member, authorized to enter that locker room, have a reasonable expectation of privacy? I submit that they do not if any student or staff member can enter the locker room at any time.

 

[eye95]

The statute specifically cites reasonable expectation of privacy. Does a student or staff member, authorized to enter that locker room, have a reasonable expectation of privacy? I submit that they do not if any student or staff member can enter the locker room at any time.

Not all students and staff members may enter at will. Some may at will. Some may with specific or implied permission. The expectation of privacy does not need to be from everybody, just some group of people. For example, in your living room, you generally have an expectation of privacy, yet your family may be there and observe you all they want.

In the ladies locker room, females expect rightly some level of privacy from a huge segment of the population. They do not expect what they do, legal or illegal, modest or immodest, to become available to a segment of the population that would otherwise not be allowed to observe anything they do in there. Video recordings, especially those taken surreptitiously, shatter that expectation.

 

[OC for ME]

Not all students and staff members may enter at will. Some may at will. Some may with specific or implied permission. The expectation of privacy does not need to be from everybody, just some group of people. For example, in your living room, you generally have an expectation of privacy, yet your family may be there and observe you all they want.

In the ladies locker room, females expect rightly some level of privacy from a huge segment of the population. They do not expect what they do, legal or illegal, modest or immodest, to become available to a segment of the population that would otherwise not be allowed to observe anything they do in there. Video recordings, especially those taken surreptitiously, shatter that expectation.

I disagree with calls to prosecute her under CPC647 based on the student's reported stated intent.

California Penal Code 647 : (j) (1) .....with the intent to invade the privacy of a person or persons inside.....

Criminals have a reasonable expectation of privacy, but not in a girls locker room.

The 9th Circuit seems to have addressed this issue.

As the Court's opinion states, "the Fourth Amendment protects people, not places." The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a "place." My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Thus, 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. Cf. Hester v. United States, supra.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0389_0347_ZC1.html

Granted, this is a opinion regarding the 4A, a phone booth, and a conversation. But the definition of reasonable expectation of privacy is made it seems. A girls locker room [place], in my view, does not afford a citizen a reasonable expectation of privacy and I suspect that society would not either.

 

[carolina guy]

I disagree with calls to prosecute her under CPC647 based on the student's reported stated intent.Criminals have a reasonable expectation of privacy, but not in a girls locker room.

The 9th Circuit seems to have addressed this issue.Granted, this is a opinion regarding the 4A, a phone booth, and a conversation. But the definition of reasonable expectation of privacy is made it seems. A girls locker room [place], in my view, does not afford a citizen a reasonable expectation of privacy and I suspect that society would not either.

If it covers the person, not the place, then it is unlikely that the teacher was going choose a time/place that was public/non-private (read where there were other people present), rather a place where she could secretly and privately search and steal items with the smallest likelihood of being observed/caught.

 

[sudden valley gunner]

In Washington a perv was using shoe cameras to video up skirts and dresses of women. He was arrested but had to be let go....

I would expect there would be an expectation of privacy but there wasn't, because what he did was in public, like on busses....etc...he was not convicted.

Our state then passed a law to outlaw that.


What we may think is private isn't always "private". This is a public school, others are allowed in the Locker room, the person stealing was on the public dime (which narrows his privacy expectation)

In my state, they ruled that privacy laws were not a double edged sword to protect public officials from the public but the public from them.


I would say it is a stretch to meet common law requirement..

Victim- was not harmed by the actions of another citizen, only busted creating victims of others

Actus reus- her action was specifically focused to capture a thief, one that was causing discord amongst her peers, if she was to video someone in a private act and not a public employee stealing,,,,,,,maybe she committed the criminal act

Mens rea- her intent was not to break the law, she had no "criminal mind".

 

[carolina guy]

In Washington a perv was using shoe cameras to video up skirts and dresses of women. He was arrested but had to be let go....

I would expect there would be an expectation of privacy but there wasn't, because what he did was in public, like on busses....etc...he was not convicted.

Our state then passed a law to outlaw that.


What we may think is private isn't always "private". This is a public school, others are allowed in the Locker room, the person stealing was on the public dime (which narrows his privacy expectation)

In my state, they ruled that privacy laws were not a double edged sword to protect public officials from the public but the public from them.


I would say it is a stretch to meet common law requirement..

Victim- was not harmed by the actions of another citizen, only busted creating victims of others

Actus reus- her action was specifically focused to capture a thief, one that was causing discord amongst her peers, if she was to video someone in a private act and not a public employee stealing,,,,,,,maybe she committed the criminal act

Mens rea- her intent was not to break the law, she had no "criminal mind".

Mens rea is not always needed for a conviction...look to statutory rape...both individuals are consenting, yet one is underage and the other is not.

The state defines the victim. The consensual encounter would have been otherwise legal, and the person above the age of consent might have done everything "reasonable" to verify age, yet...

 

[eye95]

When the court says that the right of privacy protects people and not places, they are not saying that the context of the place is not a consideration, just that merely being in the locker room does not afford the privacy. For example, when the male janitor is in the locker room, he will leave the door open and not expect privacy. However, when a female enters the locker room and closes the door behind her, the expectation for privacy immediately exists. Recording through a hole in a locker immediately violates that privacy and constitutes the intent.

Again, the intent does not have to be to commit an act that one knows is illegal. Intent is to commit the act that turns out to be illegal. The student intended to record. That recording would violate an expectation of privacy. Therefore, whether aware of this connection or not, the student had the intent to violate privacy.


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<o>

 

[HyDef]

Did the student intend to record, or did see intend to see who was stealing things and then record the criminal activity?

 

[Ca Patriot]

Did the student intend to record, or did see intend to see who was stealing things and then record the criminal activity?

If you watch the her video and the news video where she demostrated how she filmed, its obvious that a person can NOT sit in a locker and see out of the hole with their own eyes.

The student had to crouch down and hold up the cell phone at an akward angle to film out the hole.

 

[eye95]

When she pushed the button, whenever that happened, she intended to record (unless hitting the button was an accident). The intent, much like following the bullet, follows the light rays. By intending to record someone who turns out to have a reasonable expectation of privacy, through a hole in a locker, regardless of when the recording started, the necessary intent was formed.

This is quite similar to intent following the bullet. You intentionally shoot at target A. You miss and hit target B, killing him. You may not have intended to shoot and kill target B, but the intent to shoot A follows the bullet to B, making shooting B an intentional act, possibly criminal, depending on the circumstances.

The student intended to record the teacher committing a criminal act. In the process, she recorded someone who had a reasonable expectations of privacy, albeit the same person, violating that privacy with the intentional act of recording through the hole in the locker.

 

[eye95]

If you watch the her video and the news video where she demostrated how she filmed, its obvious that a person can NOT sit in a locker and see out of the hole with their own eyes.

The student had to crouch down and hold up the cell phone at an akward angle to film out the hole.

Even more damning!

 

[mikeyb]

We all in agreement that it's the first section of the code that this situation may apply to:
California Penal Code 647 :
(j) (1) Any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision shall not apply to those areas of a private business used to count currency or other negotiable instruments.

Order of events:
Students get stuff stolen.
Student hides in locker and observes teacher rummaging through the student's bags
Student sets up cameras to record the teacher in the act.

Reasonable expectation of privacy: Students have the reasonable expectation of privacy within the locker room and their own lockers. That's why random locker searches are unconstitutional. As the common area within the locker room is for students, that area is to be private to the extent of same-sex privacy. The teacher has their own area- their office. I remember in my PE classes, the teachers were always in their offices when we changed.

The intent was not to invade privacy. Having established the teacher had been stealing, the student had the right to record for evidenciary purposes. The teacher has no reasonable expectation of privacy in the common locker room area. The court has decided that cameras in the locker room violate the student's right to privacy. They say nothing of the teacher's right to privacy in that area.

 

[eye95]

OK, let's try this one more way:

What would you think if a female police officer had hidden herself in a locker and started filming whoever came in--and happened to catch the thief on tape?

I suspect (despite any protestations to the contrary) that almost everyone here would be screaming bloody murder. Absent specific authority granted in specific situations, police officers are citizens. When we equate them with us, it works both ways. They cannot break the law to catch a criminal. Neither can we.

Too much TV watching has left folks with the misimpression that, as long as the good guy catches the bad guy in the end, breaking a few little laws along the way is OK. It isn't. For cops. Or for civilians.

 

[OC for ME]

It is a opinion that she broke a law. No trial has proved that she has broken a law. Even if she is convicted there is the possibility of that conviction being overturned on appeal, if the conviction is appealed. I contend, after reading the 9th Circuit opinion, that her intent and the location will be key factors and that she should be exonerated. Conversely, she may not be exonerated. Though break for her and a teachable moment was not wasted. The 9th Circuit seems to address what a reasonable expectation of privacy is and where that expectation can be reasonably presumed.

 

[nonameisgood]

Police ARE civilians. But when acting as an agent of the government, they are enjoined from doing things which ordinary citizens are not.

The girl had no intent to make public those things which are private in this setting. It seems to me that the words and intent of the law are to prevent making private things public. The teacher had no expectation that a plain clothes police officer would not be present in this locker room, except for the chilling effect the presence of anyone would have on the actions. It is reasonable to expect when you do not see someone else, that you are alone. It is reasonable to expect that you can enter the girls' locker room for the purpose of changing clothes and remain unseen by the boys. But it is not reasonable to say that your being alone is guaranteed, nor that you should expect privacy for the purpose of committing the crime.

And being in your home is an entirely different thing from being in a public space accessible to any of a number of people, even if that space has some restriction about who may enter.

 

[eye95]

The law does not enjoin her from intending to make the recording public.

The only intent required is intent to violate the privacy of someone. The act of recording secretly through a hole in a locker in a locker room of someone who had a reasonable expectation of privacy (even if they were using that privacy to secretly commit a crime), unless she accidentally pushed the record button, provides the requisite intent for her action to be a crime.

 

[color of law]

Too easy!

The student broke no law - the teacher had no expectatioon of privacy while stealing. The fact that it was taking place in a locker room is a red herring.

The video is admissable. The government did not ask the student to take it so the government could "avoid" the 4th Amendment search warrant issue. The student made the video and turned it over to the government. No "fruit of the poisoned tree" there.

stay safe.

Absolutely the correct answer.

No crime was committed.

(1)...with the intent to invade the privacy of a person or persons inside.
(2)...under circumstances in which the other person has a reasonable expectation of privacy.
(3)... with the intent to invade the privacy of that other person.

None of the above were breached.

 

[MKEgal]

California Penal Code 647 :
(j) (1) Any person who looks through a hole or opening into

Check

the interior of a changing room

Check

[in which] the occupant has a reasonable expectation of privacy

Only from males. Any female could come in at any time. It was a common area, not a private area.

with the intent to invade the privacy of a person

I don't think so.

Her intent was to film a thief, not to invade anyone's privacy.

If any girl, or number of girls, can enter at any normal time, regardless of who else is in there already, or if unoccupied, then it is not a private setting/space it is a public setting/space... for girls only. If only one girl at a time were permitted in the locker room then it is a private setting/space.

+1 on those.

Students have the reasonable expectation of privacy within the locker room and their own lockers. That's why random locker searches are unconstitutional. As the common area within the locker room is for students, that area is to be private to the extent of same-sex privacy.

Yes and no. The way I understand it, the lockers belong to the school, so may be searched. Contents, such as a backpack, belong to the student, so need a warrant.
+1 on the bolded part.

The teacher was stealing. He/she was not undressing. So he/she had "nothing to hide." Therefore, filming is OK.
Would you tolerate this kind of logic from the police? We all know the answer to that question!

We would be screaming bloody murder had the police, without a warrant, hid in a locker and videoed inside a locker room.

What would you think if a female police officer had hidden herself in a locker and started filming whoever came in--and happened to catch the thief on tape?
... almost everyone here would be screaming bloody murder.

No, this would not & should not be tolerated in the course of official business, or by anyone acting on orders of a government agency.
But as someone else pointed out (see next) it is OK for a regular citizen (not a gov't employee) to record a crime on video & give it to police, even if it happens in an otherwise private, protected place such as a home.

Neither could a neighbor record an individual in their home, again, even if they catch them committing a crime that the neighbor suspects that prompted the recording

Remember the video about Michael Phelps, showing him smoking marijuana?
I'm pretty sure he thought he was at a private party. Nobody got in trouble for filming. (Not sure whether or not Phelps got in trouble for drugs, but he could have & the video could have been used.)

This is quite similar to intent following the bullet. You intentionally shoot at target A. You miss and hit target B, killing him. You may not have intended to shoot and kill target B, but the intent to shoot A follows the bullet to B, making shooting B an intentional act, possibly criminal, depending on the circumstances.

I disagree. If I intend to shoot the criminal in front of me, & the bullet either misses or goes through to hit someone innocent behind him, that is not an intentional act. I could not be charged with murder if that second person dies. Manslaughter, yes, since a person did die.