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Cowles v State of Alaska (06/08/2001) sp-5418
Cowles v State of Alaska (06/08/2001) sp-5418
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
LINDALEE COWLES, )
) Supreme Court No. S-8831
)
Petitioner, ) Court of Appeals
) No. A-6381
)
v. ) Trial Court No.
) 4FA-S95-2145 Cr.
)
STATE OF ALASKA, )
) O P I N I O N
)
Respondent. ) [No. 5418 - June 8, 2001]
______________________________)
Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District, Fairbanks, Ralph R.
Beistline, Judge.
Appearances: Robert John, Law Office of
Robert John, Fairbanks, for Petitioner. Kenneth M. Rosenstein,
Assistant Attorney General, Anchorage, Bruce M. Botelho, Attorney
General, Juneau, for Respondent.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.
MATTHEWS, Chief Justice.
FABE, Justice, with whom BRYNER, Justice,
joins, dissenting.
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. [Fn. 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. [Fn. 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. [Fn. 3] But photographing a person in an enclosed public
restroom stall is a search. [Fn. 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?"[Fn. 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. [Fn. 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."[Fn. 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."[Fn. 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. [Fn. 9] Activities that are
open to public observation are not generally protected by the
Fourth Amendment. [Fn. 10] "What a person knowingly exposes to the
public, even in his own home or office, is not a subject of fourth
amendment protection."[Fn. 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. [Fn. 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."[Fn. 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. [Fn. 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 vantage point (but not another). [Fn. 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.
[Fn. 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. [Fn. 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."[Fn.
18] Cowles's activities were observable through the open ticket
window and the office door and by co-employees circulating through
the office. [Fn. 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. [Fn. 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. [Fn. 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. [Fn. 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. [Fn. 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."[ [Fn. 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, [Fn.
25] State v. Bonnell, [Fn. 26] and State v. Thomas. [Fn. 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,
Taketa 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 Circuit 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."[Fn. 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."[Fn. 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. [Fn. 30] Further,
each of the three was named as a co-conspirator in the criminal
conduct charged. [Fn. 31]
The Ninth Circuit 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."[Fn. 32] But the court found
that the general rule did not apply both because of the private
nature of the place [Fn. 33] where the videotaping took place and
the time when it occurred. [Fn. 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. [Fn.
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.[ [Fn. 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.
[Fn. 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."[Fn. 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. . . ."[ [Fn. 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.
FABE, Justice, with whom BRYNER, Justice, joins, dissenting.
According to the court's decision today, the government
may use hidden cameras to monitor workers without obtaining a
search warrant, so long as the workers do not have private offices.
This decision permits deeply intrusive police surveillance of
individuals who have -- and deserve -- every reasonable expectation
of privacy. Although the Alaska Constitution's search and seizure
protection is "broader in scope than that guaranteed in the federal
Constitution,"[Fn. 1] the court's decision defines Alaskans'
constitutional protections more narrowly than has any decision of
the United States Supreme Court. In so doing, it disregards ample
state and federal precedent supporting the conclusions that workers
should expect privacy from surreptitious police surveillance
regardless of the nature of their work space; that police violate
reasonable expectations of privacy by engaging in more intrusive
searches than a defendant would expect from a member of the public;
and that secret overhead video observation is a uniquely intrusive
mode of search, thus requiring a warrant. The court also fails to
support its unprecedented assertion that a defendant who works with
cash has a legally diminished expectation of privacy. Because I
cannot agree with the court's departure from established Alaska and
federal law, I respectfully dissent.
I. THE ALASKA CONSTITUTION PROTECTS INDIVIDUALS FROM
SURREPTITIOUS POLICE VIDEO SURVEILLANCE.
The "primary purpose"of Alaska's constitutional
guarantee against unreasonable searches and seizures [Fn. 2] is
"the protection of personal privacy and dignity against unwarranted
intrusion by the State."[Fn. 3] Because of this protection, law
enforcement officials may not intrude upon individual privacy
without a warrant. The warrant requirement is a weighty one. As
Chief Justice Jay Rabinowitz wrote in Smith v. State, [Fn. 4] "[i]n
my judgment, it is preferable to entrust the decision to invade
citizens' privacy to the scrutiny of neutral judicial officials
rather than police officers -- even police officers operating under
great self-restraint." Quoting the U.S. Supreme Court's opinion in
McDonald v. United States, [Fn. 5] Chief Justice Rabinowitz
continued:
We are not dealing with formalities. The
presence of a search warrant serves a high function. Absent some
grave emergency, the Fourth Amendment has interposed a magistrate
between the citizen and the police. This was done not to shield
criminals nor to make the home a safe haven for illegal activities.
It was done so that an objective mind might weigh the need to
invade that privacy in order to enforce the law. The right of
privacy was deemed too precious to entrust to the discretion of
those whose job is the detection of crime and the arrest of
criminals.[ [Fn. 6]]
In State v. Glass, we held that warrantless electronic
audio monitoring violated the state constitution. [Fn. 7] In so
holding, we expressed grave concerns about electronic surveillance
technologies and their effect on "the right of persons to determine
for themselves when, how, and to what extent information about them
is communicated to others."[Fn. 8] The court's decision today is
at odds with both the logic and language of Glass. The Glass
opinion emphasized "the high value placed on speech by our
society,"[Fn. 9] but it did not thereby abandon our
constitutionally mandated concern for "the protection of personal
privacy and dignity against unwarranted intrusion by the State."
[Fn. 10] In fact, the Glass opinion built on this very concern:
It spoke of "[t]he corrosive impact of warrantless . . .
monitoring on our sense of security"[Fn. 11] and twice defined the
right at issue in the case as the "right to be let alone."[Fn. 12]
Our opinion in Glass even intimated that Glass's specific
holding should apply to video as well as audio surveillance. We
suggested that Alaska's constitutional privacy provision may have
been enacted "out of a concern to protect against extensive
governmental use of electronic surveillance techniques."[Fn. 13]
We also mentioned with approval Dietemann v. Time, Inc., a common-
law privacy case involving both surreptitious photography and audio
recording; [Fn. 14] the analysis in that case almost exclusively
concerned visual images and "electronic devices with their capacity
to . . . intrude upon [an individual's] most intimate activities,
and expose his most personal characteristics to the public gaze."
[Fn. 15]
Warrantless secret electronic surveillance by law
enforcement agents violates deeply held and constitutionally
protected values. As we recognized in Glass, "we exclude the
evidence [gathered by unconstitutional means] because the
transcendent values preserved by constitutional guarantee are of
greater societal moment than the use of that evidence to obtain a
conviction."[Fn. 16] These values remain paramount regardless of
the facts of the case or the character of the defendant. As
Justice Frankfurter explained, "[i]t is a fair summary of history
to say that the safeguards of liberty have frequently been forged
in controversies involving not very nice people. And so, while we
are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed
by the Fourth Amendment."[Fn. 17] Following those "great themes,"
our own precedent, and that of the U.S. Supreme Court, the
government violated Lindalee Cowles's rights by subjecting her to
surreptitious and warrantless video surveillance in the workplace.
II. THE PRESENCE OF COWORKERS IN COWLES'S WORKPLACE CLEARLY DOES
NOT DEFEAT HER REASONABLE EXPECTATION OF PRIVACY.
State and federal search and seizure provisions protect
people, not places. [Fn. 18] We have recognized that "[w]herever
a man may be, he is entitled to know that he will remain free from
unreasonable searches and seizures."[Fn. 19] This right does not
depend on an individual's physical location or on her status in the
workplace. The court, however, concludes that constitutional
protection depends on whether an individual shares her work space,
holding that "the public nature of Cowles' office [is] the critical
factor"in denying her Fourth Amendment protection. [Fn. 20] This
holding runs afoul of clear U.S. Supreme Court precedent and
insupportably discriminates between citizens based on their
workplace status.
The court suggests that the U.S. Supreme Court's decision
in Katz v. United States [Fn. 21] limits search and seizure
protection to private locations. [Fn. 22] But Katz created no such
limitation -- to the contrary it stated:
What a person knowingly exposes to the public,
even in his own home or office, is not a subject of Fourth
Amendment protection. But what he seeks to preserve as private,
even in an area accessible to the public, may be constitutionally
protected.[ [Fn. 23]]
The Katz standard does not support this court's holding. Rather,
it supports a conclusion that, regardless of her location, an
individual who seeks and reasonably expects privacy is protected by
the Fourth Amendment. As subsequent cases applying Katz make
clear, an individual such as Cowles can reasonably expect privacy
in her workplace.
The U.S. Supreme Court applied the Katz standard to the
workplace in O'Connor v. Ortega. [Fn. 24] A majority of that Court
found that a defendant can reasonably expect privacy in her office,
even if that office is open to other people. [Fn. 25] In today's
decision, this court quotes O'Connor's plurality opinion as legal
authority. [Fn. 26] But the quoted language [Fn. 27] is not
O'Connor's holding; in fact, it conflicts with the only holding for
which O'Connor legally stands: the narrow rule endorsed by Justice
Antonin Scalia as the concurring fifth vote. [Fn. 28] Justice
Scalia's concurrence expressly disputed the plurality standard
quoted by this court's majority. He wrote that the standard "must
be wrong if it leads to the conclusion on the present facts that if
Hospital officials had extensive work-related reasons to enter Dr.
Ortega's office no Fourth Amendment protection existed. It is
privacy that is protected by the Fourth Amendment, not solitude."
[Fn. 29] To illustrate the reach of the Fourth Amendment, Justice
Scalia described a hypothetical defendant very much like Lindalee
Cowles: "[T]he secretary working . . . in an office frequently
entered by . . . other employees is protected against unreasonable
searches of that office by the government."[Fn. 30] Justice
Scalia supported his position by reference to Mancusi v. DeForte,
a case holding that the Fourth Amendment protected a defendant in
an office shared with coworkers. [Fn. 31] Justice Scalia's narrow
rule -- the rule for which O'Connor stands -- is that government
employees lose Fourth Amendment protection only in "such unusual
situations as that in which the office is subject to unrestricted
public access."[Fn. 32] Following this U.S. Supreme Court
interpretation of the Federal Constitution, the presence of
Cowles's coworkers did not defeat her privacy expectation. [Fn. 33]
The legally binding rule from O'Connor, then, is that
government workers enjoy a reasonable expectation of privacy in the
office regardless of the presence of coworkers; their expectation
remains reasonable unless the public has unrestricted access to the
office. [Fn. 34] The public clearly did not have unrestricted
access to Cowles's office. Her office was an enclosed space, and
public access was restricted by a door with a combination lock.
The record does not suggest that members of the public ever
physically entered the space; rather, public access was limited to
a view from the box-office window. [Fn. 35] Under both Katz and
O'Conner, Cowles's privacy at her desk is protected by the Fourth
Amendment. [Fn. 36]
This court's conclusion that only inhabitants of private
offices are protected from warrantless surveillance is particularly
disturbing because it effectively ties a defendant's constitutional
rights to her economic status. Following the standard articulated
today, executives in private offices will be protected, but
clerical workers in shared work spaces will not. This rule will
disproportionately affect women, who represent 99% of secretaries,
96% of receptionists, 91% of bookkeepers, and 77% of cashiers. [Fn.
37] The impact of this rule is still greater for African-American
women, who are more likely to work in administrative support or
service positions than in any other jobs. [Fn. 38] The court
offers no principled reason why constitutional protection of
privacy, which we have defined as "the individual's interest in
preserving his essential dignity as a human being,"[Fn. 39] should
depend upon an individual's status in the workplace.
Chief Justice Rabinowitz raised a nearly identical
objection in his dissent from Smith v. State. [Fn. 40] The court
held that individuals who disposed of trash in a common dumpster
could not reasonably expect that the police would not search their
garbage. [Fn. 41] But Chief Justice Rabinowitz disagreed with the
majority's holding "insofar as it discriminates between the right
to privacy of citizens occupying a single family dwelling, and
those living in multiple unit dwelling places."[Fn. 42] He
explained:
In my opinion, such a distinction is
unjustifiable as being either arbitrary or ultimately grounded upon
impermissible economic discrimination . . . . Nowhere in the text
of the fourth amendment, article I, section 14 or article I,
section 22 is the proviso, "for property owners only.". . . To
make the protection of the fourth amendment, article I, section 14
or article I, section 22 depend upon the economic status of an
individual . . . is, in my opinion, unacceptable. The appropriate
analytical focal point should be appellant's reasonable expectation
of privacy. In my view, such expectation will remain constant,
regardless of whether appellant's living unit is situated by itself
on a spacious multi-acre estate or stacked upon others in a . . .
crowded tenement in the inner city.[ [Fn. 43]]
The individual's reasonable expectation of privacy from police
video surveillance should similarly remain constant whether she
works in a private office or a crowded common space. "It is
privacy that is protected by the Fourth Amendment [and article I,
sections 14 and 22 of the Alaska Constitution], not solitude."[Fn.
44] The court gravely errs by recognizing constitutional
protection for executives in private offices but denying it to
secretaries in typing pools.
III. THE PARTIAL VISIBILITY OF COWLES'S WORKPLACE THROUGH A BOX-
OFFICE WINDOW CLEARLY DOES NOT DEFEAT HER REASONABLE
EXPECTATION OF PRIVACY FROM OVERHEAD VIDEO SURVEILLANCE.
Cowles's desk was partially visible to the public through
a customer service window. [Fn. 45] Based on this fact, the court
concludes that Cowles had no reasonable expectation of privacy from
ceiling-mounted video surveillance by the police. This conclusion
is at odds with our own precedent and with that of other state and
federal courts. Because video surveillance is particularly
intrusive, and because it far exceeds the reasonable expectations
of people in all but the most public locations, numerous courts
agree that warrantless police surveillance violates defendants'
rights.
A. Police May Not, Without a Warrant, Use Means of
Surveillance More Intrusive than Those Which a Defendant Reasonably
Expects from Public Observers.
Even in an area completely open to the public -- which
Cowles's office was not -- citizens are protected from intrusive,
warrantless searches. Again, the standard is the defendant's
reasonable expectation of privacy. [Fn. 46] Where the defendant
should reasonably expect public observation, the government may
engage in observation of that sort. But the presence of public
observers does not give the government unlimited license to pursue
more intrusive modes of surveillance. The U.S. Supreme Court has
repeatedly articulated this standard. Thus, in Katz, a defendant
inside a glass phone booth could reasonably expect to be seen, but
not heard. [Fn. 47] Similarly, a merchant who invites the public
to view his goods is constitutionally protected from police using
more intrusive techniques for "seeing them as a customer would
[not] ordinarily see them."[Fn. 48] In its most recent term, the
Court reaffirmed this principle, holding that a bus passenger who
knew that other passengers or bus employees might handle his soft-
sided luggage nevertheless reasonably expected privacy from a law
enforcement agent "feel[ing] the bag in an exploratory manner."
[Fn. 49] These rulings reflect a single consistent rule: citizens
may reasonably expect privacy from intrusive modes of government
observation, even if they expect members of the public to engage in
less intrusive observation.
B. Secret Overhead Video Surveillance Is a More Intrusive
Mode of Observation than Cowles Could Reasonably Have Expected from
the Public or Her Coworkers.
Courts have recognized two related but distinct ways in
which secret video surveillance uniquely intrudes on privacy.
First, police monitoring by hidden cameras poses a special threat
to personal dignity, security, and privacy. Second, hidden cameras
may violate reasonable expectations of privacy as a practical
matter, because an individual does not reasonably expect sustained
observation from a vantage point where no human would reasonably
be. Courts have drawn on both conceptions of defendants'
reasonable expectation of privacy to conclude that hidden video
surveillance by police violates constitutional rights.
1. Secret police video surveillance is uniquely
offensive to individual dignity and privacy.
Video surveillance is a far more intrusive mode of
observation than Cowles could reasonably have expected from her
coworkers or the public. Our own opinion in Glass recognized that
warrantless electronic surveillance has a "corrosive impact . . .
on our sense of security."[Fn. 50] In cases involving video
surveillance, courts have found it "unarguable that television
surveillance is exceedingly intrusive . . . and inherently
indiscriminate, and that it could be grossly abused -- to eliminate
personal privacy as understood in modern Western nations."[Fn. 51]
In the recent words of the Court of Appeals for the Ninth Circuit,
"[h]idden video surveillance is one of the most intrusive
investigative mechanisms available to law enforcement. [Fn. 52]
The court quoted Judge Kozinski's statement that "every court
considering the issue has noted [that] video surveillance can
result in extraordinarily serious intrusions into personal privacy.
. . . If such intrusions are ever permissible, they must be
justified by an extraordinary showing of need."[Fn. 53]
Surreptitious video recording is clearly more intrusive than the
ordinary public gaze which a defendant in Cowles's position might
expect. As such, it is beyond the range of activities in which law
enforcement agents may, without a warrant, engage.
2. Secret overhead video surveillance violates
defendants' reasonable expectations of privacy because it gives
police information that defendants do not reasonably expect to
expose to public observers.
Surreptitious overhead video surveillance by police
violated Cowles's reasonable expectation of privacy because it
exceeded her reasonably expected public observation in its
duration, proximity, focus, and vantage point. Cases involving
aerial observation of defendants' property confirm that a defendant
may expect the public gaze without reasonably expecting the
unblinking lens of a video camera close overhead.
Two U.S. Supreme Court cases, California v. Ciraolo [Fn.
54] and Florida v. Riley, [Fn. 55] hold that defendants should
reasonably expect overflight observation by law enforcement
officers in airplanes or helicopters, because it is routine for
members of the public to see the same view during air travel. [Fn.
56] But it was not routine or even possible for members of the
public to view Cowles's desk as did the police investigators
through their video camera. The public did not have access to the
box-office ceiling. The record suggests that members of the public
looking in the window may not even have been able to see past piles
of paper on the desk to observe all of the incriminating activities
captured on tape, including desktop activities such as Cowles's
writing on the cash deposit receipt.
Even if intermittent public observation from the ceiling
vantage point were possible, case law applying Ciraolo indicates
that warrantless overhead video surveillance would still violate
the Fourth Amendment. In United States v. Cuevas-Sanchez, the
Court of Appeals for the Fifth Circuit faced this question:
"Ciraolo teaches us that a fly-over by a plane at 1,000 feet does
not intrude upon the daily existence of most people; we must now
determine whether a camera monitoring all of a person's backyard
activity does."[Fn. 57] The court of appeals opined that Ciraolo
does not "authorize[] any type of surveillance whatever just
because one type of minimally-intrusive aerial observation is
possible."[Fn. 58] It concluded that government agents could not
engage in warrantless video surveillance because this "potentially
indiscriminate and most intrusive method of surveillance"was not
comparable to the routine public observations discussed in Ciraolo.
[Fn. 59]
A California court, applying federal constitutional law,
arrived at similar governing principles without specifically
addressing video surveillance in People v. Romo. [Fn. 60] The
court indicated that, under Ciraolo, a defendant's reasonable
expectation of privacy might be violated by law enforcement agents
hovering over her property or using electronic aids to observation.
[Fn. 61] The reasonableness of overflight observation, the court
stated, depends in part on the duration and altitude of the
observation. [Fn. 62] Following this standard, sustained
observation from close overhead is more likely to violate the
Fourth Amendment than would the passing observation of a law
enforcement officer in an aircraft. In this case, the government
observed Cowles from a non-public vantage point immediately over
her head for a period of hours, and it used uniquely intrusive
surveillance technology to do so. This action was a search; in the
absence of a warrant, it was unconstitutional.
IV. PERSUASIVE FEDERAL AND STATE AUTHORITY HOLDS THAT WORKERS IN
SEMI-PUBLIC WORKPLACES HAVE A REASONABLE EXPECTATION OF PRIVACY
FROM SECRET GOVERNMENT VIDEO SURVEILLANCE.
In both State v. Thomas [Fn. 63] and United States v.
Taketa, [Fn. 64] courts concluded that warrantless video
surveillance in the workplace violated workers' reasonable
expectations of privacy, despite the fact that the workers did not
have private offices. And in State v. Bonnell, the Hawaii Supreme
Court explicitly relied on the "exceedingly intrusive"nature of
video surveillance in concluding that a hidden camera in an
employee breakroom violated workers' reasonable expectations of
privacy. [Fn. 65] The majority recognizes the significance of
Thomas in its opinion, but misconstrues both Taketa and Bonnell.
All three cases apply the clear legal principles outlined above to
conclude that surveillance of the sort used in this case is
unconstitutional.
In Thomas, state officials installed a video camera above
the cash register of a park concession store and recorded the
clerk's cash transactions. [Fn. 66] The Indiana Court of Appeals
applied both state and federal search and seizure law to conclude
that the clerk reasonably expected privacy, and therefore the tape
was inadmissible. [Fn. 67] In so doing, it recognized all of the
points of law discussed above: workers do not lose their
expectation of privacy even in a publicly accessible workplace,
[Fn. 68] video is a uniquely intrusive mode of surveillance, [Fn.
69] and prolonged observation from an overhead vantage point is
"grossly intrusive."[Fn. 70]
The Court of Appeals for the Ninth Circuit reached a
similar conclusion in Taketa. [Fn. 71] In that case, federal
agents installed a hidden video camera in the ceiling of defendant
Thomas O'Brien's office. [Fn. 72] The camera recorded
incriminating footage of both O'Brien and a coworker, David Taketa.
The Taketa court concluded that the surveillance violated the
Fourth Amendment rights of both men. [Fn. 73]
As the majority characterizes Taketa, the Taketa court
found Taketa's expectation of privacy reasonable only "because of
the private nature of the place where the videotaping took place
and the time when it occurred."[Fn. 74] But Taketa plainly does
not support this reading; the Taketa court explicitly and
repeatedly named as the primary bases for its decision two factors
discussed at length in this dissent: the intrusive nature of video
surveillance and the personal locus of privacy rights, even in non-
private places. The Taketa court cited Katz for the principle that
"the Fourth Amendment protects people not places"; [Fn. 75] then
"base[d its] holding expressly upon Katz, and upon [the court's]
recognition of the exceptional intrusiveness of video
surveillance."[Fn. 76] This court's majority apparently ignores
this unambiguous language in its discussion of Taketa. [Fn. 77]
In analyzing Taketa's right to freedom from secret video
surveillance, the Taketa court emphasized that its decision was
based on Taketa's personal privacy rights, and not merely on
location-based privacy. [Fn. 78] It noted that "persons may create
temporary zones of privacy within which they may not reasonably be
videotaped . . . even when that zone is a place they do not own or
normally control, and in which they might not be able reasonably to
challenge a search at some other time or by some other means."[Fn.
79] This individually rooted right was violated, the Taketa court
held, both because the "silent, unblinking lens of the camera was
intrusive"as no human search of the office could have been, and
because the "video search was directed straight at [Taketa]."[Fn.
80] These factors are identical in the case now before us.
Yet a third case excluding video evidence like that at
issue today, State v. Bonnell, explicitly relied on the
"exceedingly intrusive"nature of video surveillance and the
defendants' personal, non-location-based privacy rights as bases
for the ruling. [Fn. 81] The Hawaii Supreme Court in Bonnell also
relied on the non-public nature of the surveilled space -- an
employee breakroom -- as an element of its decision. [Fn. 82] But,
like the Ninth Circuit in Taketa, it strongly emphasized personal
privacy rights: "A person has a 'halo' of privacy wherever he goes
and can invoke a protectable right to privacy wherever he may
legitimately be."[Fn. 83] And it discussed in no uncertain terms
the suspicion with which the court viewed video surveillance,
concluding that such surveillance is more intrusive than audio
taping and that this intrusiveness was an essential factor for
Fourth Amendment analysis. [Fn. 84] The court explicitly grounded
its decision in "the same factors as those considered by the Taketa
court."[Fn. 85] The court also implied that because of the
individual privacy right at stake, the outcome of the case might
have been the same even if the defendants were not in a private
room. "Whatever the general privacy interest the defendants may or
may not have had in the break room,"the court wrote, "they had an
actual and objectively reasonable expectation of privacy against
being taped in it."[Fn. 86]
Thomas, Taketa, and Bonnell all squarely support Cowles's
claim that police surveillance by hidden camera violated her rights
against unreasonable search and seizure. All three cases apply the
straightforward legal standards established by the U.S. Supreme
Court. Because the court today offers scant authority for the
opposite conclusion, I cannot agree with its holding.
V. NO AUTHORITY SUPPORTS THE COURT'S ASSERTION THAT COWLES'S
RESPONSIBILITY FOR HANDLING CASH SHOULD HAVE DIMINISHED HER
EXPECTATION OF PRIVACY.
The court states 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."[Fn. 87]
While this factor may certainly be relevant to the legal analysis
of surveillance conducted by employers, it is not relevant when
surveillance is carried out by police. Although the majority
offers two legal authorities for its position, neither supports the
court's assertion that workplace responsibility for cash should
increase an employee's expectation of police surveillance.
First, the court cites National Treasury Employees Union
v. Von Raab, a case holding that drug testing of U.S. Customs
Service employees is reasonable. [Fn. 88] Von Raab states in dicta
that operational realities of the workplace can render reasonable
requirements that would elsewhere be unreasonable -- such as
physical fitness requirements in the military or daily personal
searches for U.S. Mint workers. [Fn. 89] But "these operational
realities will rarely affect an employee's expectations of
privacy."[Fn. 90] Von Raab nowhere states or even implies the
sweepingly broad rule that anyone who works with cash has a
diminished expectation of privacy; it certainly does not support
today's specific ruling that police may surreptitiously, and
without a warrant videotape anyone who handles an employer's cash.
Second, the court relies on a footnote from Professor
LaFave's treatise, [Fn. 91] discussing United States v. Donato.
[Fn. 92] In that case, however, a federal district court upheld
the search of a federal mint employee's locker only because federal
regulations permitted the search. [Fn. 93] No case law or other
authority supports the novel proposition that an employee's
fiduciary duty should reduce her reasonable expectation of privacy
from police surveillance at her desk; the court's adoption of this
rule is unprecedented and groundless.
VI. CONCLUSION
Under Katz and O'Conner, people who work in shared
quarters or who work with the public still have Fourth Amendment
rights. The court offers no precedent or principled argument for
stripping Alaskans of these rights. Nor does the court address
other rulings limiting the scope of police searches and
surveillance, and specifically holding that warrantless secret
videotaping of workers is unconstitutional. Today's holding
dramatically restricts the rights of Alaskans who do not occupy
their own offices: It establishes that secret video monitoring by
the police should be among their reasonable expectations. I cannot
support this conclusion and therefore respectfully dissent.
FOOTNOTES
Footnote 1:
See Cowles v. State, 961 P.2d 438 (Alaska App. 1998).
Footnote 2:
See Katz v. United States, 389 U.S. 347 (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).
Footnote 3:
1 Wayne R. LaFave, Search and Seizure sec. 2.7(f), at 659 (3d
ed.
1996) ("'[C]overt visual surveillance' of a person while he moves
about in public is not subject to fourth amendment restraints.").
Footnote 4:
1 LaFave, supra, sec. 2.4(c), at 543.
Footnote 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:
"Katz 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 (1986).
Footnote 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 LaFave, supra, sec. 2.1(d), at 389 n.86. Even if
Cowles had expected no privacy from customers or co-workers at
ground-level, 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, 337 N.E.2d 173,
177 (Ohio App. 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.
Footnote 7:
1 LaFave, supra, sec. 2.1(d), at 393 (quoting Amsterdam,
Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 403
(1974)).
Footnote 8:
United States v. White, 401 U.S. 745, 787 (1971) (Harlan, J.,
dissenting); see 1 LaFave, supra, sec. 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, (iii) 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).
Footnote 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.
Footnote 10:
See Bond v. United States, 529 U.S. 334, 336 (2000).
Footnote 11:
Katz, 389 U.S. at 351.
Footnote 12:
480 U.S. 709, 718 (1987).
Footnote 13:
Id. at 718 (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,
Scalia, J., concurring (quoting Katz, 389 U.S. at 351).
Footnote 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.").
Footnote 15:
See 1 LaFave, supra, sec. 2.4(c), at 545.
Footnote 16:
See Katz, 389 U.S. at 352 ("[W]hat [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.").
Footnote 17:
See People v. Triggs, 506 P.2d 232, 238 n.7 (Cal. 1973).
Footnote 18:
State v. Jarrel, 211 S.E.2d 837 (N.C. App. 1975).
Footnote 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.
Footnote 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.
Footnote 21:
See California v. Ciraolo, 476 U.S. 207, 213-14 n.2 (1986);
see also Florida v. Riley, 488 U.S. 445, 453 (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).
Footnote 22:
Not only could Cowles's theft be seen from a public vantage
point, but at least one of her co-workers 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.
Footnote 23:
See National Treasury Employees Union v. Von Raab, 489 U.S.
656, 671 (1989) ("[I]t 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, sec. 8.6(d), at 823 n.86.
Footnote 24:
Cowles, 961 P.2d at 444.
Footnote 25:
923 F.2d 665 (9th Cir. 1991).
Footnote 26:
856 P.2d 1265 (Haw. 1993).
Footnote 27:
642 N.E.2d 240 (Ind. App. 1994).
Footnote 28:
923 F.2d at 673.
Footnote 29:
Id. at 673 (quoting O'Connor, 480 U.S. at 717-18).
Footnote 30:
Id. at 673.
Footnote 31:
Id. at 668, 669 n.2.
Footnote 32:
Id. at 677.
Footnote 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 the time of his entry . . . .").
Footnote 34:
See id. (Taketa was videotaped on a Sunday "at a time when
other people would not normally be present.").
Footnote 35:
856 P.2d 1265 (Haw. 1993).
Footnote 36:
Id. at 1276.
Footnote 37:
642 N.E.2d 240 (Ind. App. 1994).
Footnote 38:
Id. at 244.
Footnote 39:
Id. at 248 (quoting Katz, 389 U.S. at 351).
FOOTNOTES (Dissent)
Footnote 1:
Woods & Rohde, Inc. v. State, Dep't of Labor 565 P.2d 138, 150
(Alaska 1977) (extending search and seizure protection to
commercial property); see also Reeves v. State, 599 P.2d 727
(Alaska 1979) (expanding limits on preincarceration searches);
Jackson v. State, 791 P.2d 1023 (Alaska App. 1990) (limiting pat-
down searches and rejecting the bright-line rule adopted by the
U.S. Supreme Court in United States v. Robinson, 414 U.S. 218
(1973)).
Footnote 2:
See Alaska Const. art. 1, sec. 14.
Footnote 3:
Woods & Rohde, 565 P.2d at 148 (internal quotations omitted).
Footnote 4:
510 P.2d 793, 800 (Alaska 1973).
Footnote 5:
335 U.S. 451 (1948).
Footnote 6:
Smith v. State, 510 P.2d 793, 800 (Alaska 1973) (Rabinowitz,
J., dissenting) (quoting McDonald, 335 U.S. at 455-56); see also
Woods & Rohde, 565 P.2d at 149 ("The conclusion that the imposition
is reasonable should not be drawn by the very persons who are the
agency for the deprivation of rights.") (quoting Keller v. State,
543 P.2d 1211, 1219 (Alaska 1975)).
Footnote 7:
583 P.2d 872 (Alaska 1978). In Glass, we cited with approval
a Montana case holding that, under Montana's state constitutional
privacy provision, defendants reasonably expected privacy from
audio broadcast of their conversation, despite the fact that they
were in a public parking lot. Id. at 878 (citing State v.
Brackman, 582 P.2d 1216 (Mont. 1978)), overruled by State v. Brown,
755 P.2d 1364 (Mont. 1988). More recent Montana cases have found
broad protection from warrantless technologically aided
surveillance under the state constitution. In State v. Solis, 693
P.2d 518 (Mont. 1984), the Montana Supreme Court excluded from
evidence videotapes of defendant's conversation with an undercover
officer, and in State v. Siegal it found that warrantless thermo-
imaging of an indoor marijuana-growing operation constituted an
unreasonable search. 934 P.2d 176 (Mont. 1997), overruled on other
grounds by State v. Kuneff, 970 P.2d 556 (Mont. 1998)).
Footnote 8:
Glass, 583 P.2d at 880 (quoting Alan F. Westin, Privacy and
Freedom 7 (1967)).
Footnote 9:
State v. Page, 932 P.2d 1297, 1297 (Alaska 1997) (Matthews,
J., dissenting) (arguing that a concern for free speech was the
central rationale in Glass). Video surveillance, too, threatens
activities protected by the First Amendment, including assembly,
writing, and symbolic speech. See U.S. Const. amend. I (protecting
freedom of speech, freedom of the press, and the right to peaceable
assembly); see also Tinker v. Des Moines Indep. Community Sch.
Dist., 393 U.S. 503, 505-06 (1969) (First Amendment protects right
to wear black armbands to school to protest Vietnam conflict);
Johnson v. Tate, 774 P.2d 185, 186 n.3 (Alaska 1989) (Hell's Angels
emblem is protected symbolic speech). The concern for freedom of
expression in Glass is therefore applicable to this case, as well.
Footnote 10:
Woods & Rohde, Inc. v. State, Dep't of Labor 565 P.2d 138, 148
(Alaska 1977) (extending search and seizure protection to
commercial property) (internal quotations omitted).
Footnote 11:
583 P.2d at 877 (quoting Holmes v. Burr, 486 F.2d 55, 65 (9th
Cir. 1973) (Hufstedler, J., dissenting)).
Footnote 12:
Id. at 876, 880.
Footnote 13:
Id. at 879 (quoting State v. Roy, 510 P.2d 1066, 1069 (Haw.
1973)).
Footnote 14:
Id. at 880-81.
Footnote 15:
449 F.2d 245, 248 (9th Cir. 1971) (quoting Briscoe v. Reader's
Digest Ass'n, 483 P.2d 34, 37 (Cal. 1971)). See also United States
v. Torres, 751 F.2d 875 (7th Cir. 1984). In that case, Judge
Posner observed:
[S]ecretly televising people (or taking still
or moving pictures of them) while they are in what they think is a
private place is an even greater intrusion on privacy than secretly
recording their conversations.
Id. at 878.
Footnote 16:
Glass, 583 P.2d at 878 (explaining why "more reliable"
evidence of a conversation is not necessarily admissible for that
reason alone).
Footnote 17:
United States v. Rabinowitz, 339 U.S. 56, 69 (1950)
(Frankfurter, J., dissenting), overruled by Chimel v. California,
395 U.S. 752 (1969), quoted in McCoy v. State, 491 P.2d 127, 139
(Alaska 1971) (Rabinowitz, J., concurring in part and dissenting in
part).
Footnote 18:
See Katz v. United States, 389 U.S. 347, 351 (1967).
Footnote 19:
State v. Glass, 583 P.2d 872, 875 (Alaska 1978) (quoting Katz,
389 U.S. at 359). Glass implies that protection from search and
seizure in general, and electronic surveillance in particular,
extends to people in purely public locations. In holding the in-
house audio surveillance in that case unconstitutional, we cited
with approval a Montana case holding that, under Montana's state
constitutional privacy provision, defendants reasonably expected
privacy from audio broadcast of their conversation, despite the
fact that they were in a public parking lot. See id. at 878
(citing State v. Brackman, 582 P.2d 1216 (Mont. 1978)). See also
State v. Bonnell, 856 P.2d 1265, 1275 (Haw. 1993) ("a person has a
'halo' of privacy wherever he goes and can invoke a protectable
right to privacy wherever he may legitimately be and reasonably
expect freedom from governmental intrusion").
Footnote 20:
Op. at 6.
Footnote 21:
389 U.S. 347 (1967).
Footnote 22:
See Op. at 6-7.
Footnote 23:
Id. at 351 (emphasis added) (citations omitted).
Footnote 24:
480 U.S. 709 (1987).
Footnote 25:
See id. In Mancusi v. DeForte, 392 U.S. 364, 368-69 (1968),
the court established that a defendant who shared a single large
office with several coworkers had a reasonable expectation of
privacy that was defeated by a police search of the office.
Footnote 26:
See Op. at 7.
Footnote 27:
"[S]ome government offices may be so open to fellow employees
or the public that no expectation of privacy is reasonable."
O'Connor, 480 U.S. at 718 (plurality opinion).
Footnote 28:
"When a fragmented court decides a case and no single
rationale explaining the result enjoys the assent of five Justices,
'the holding of the court may be viewed as that position taken by
those Members who concurred in the judgment on the narrowest
grounds.'" Marks v. United States, 430 U.S. 188, 193 (1977)
(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion
of Stewart, Powell, and Stevens, JJ.)). See also Feliciano v. City
of Cleveland, 661 F. Supp. 578, 587 (N.D. Ohio 1987) (noting that
only those aspects of O'Connor in which Scalia joined the plurality
have "the weight of a decision of the Court"), abrogated on other
grounds by National Treasury Employees Union v. Von Raab, 489 U.S.
656, 671 (1989).
Footnote 29:
O'Connor, 480 U.S. at 730 (Scalia, J., concurring in judgment)
(internal quotations and citations omitted).
Footnote 30:
Id.
Footnote 31:
392 U.S. at 368-69.
Footnote 32:
480 U.S. at 731 (emphasis added).
Footnote 33:
The leading treatise on Fourth Amendment law reinforces this
analysis, pointing out that "[i]t is very important to recognize
that a majority of the [U.S. Supreme Court] subscribes to a
somewhat broader notion of a public employee's justified privacy
expectations in the workplace [than that expressed by the
plurality]." 4 Wayne R. LaFave, Search and Seizure: A Treatise on
the Fourth Amendment sec. 10.3(d), at 482 (3d ed. 1996).
Footnote 34:
See O'Connor, 480 U.S. at 718.
Footnote 35:
As discussed below, the partial visibility of Cowles's desk
from the public area outside the box office does not defeat her
reasonable expectation of privacy from the type of surveillance
employed in this case.
Footnote 36:
The court cites without discussion Vega-Rodriguez v. Puerto
Rico Telephone Co., 110 F.3d 174 (1st Cir. 1997). Op. at 7 n.14.
Interestingly, the Vega-Rodriguez holding depended on the fact that
the surveillance was disclosed -- "the affected workers were on
clear notice from the outset"of the video surveillance. Id. at
180. The court "caution[ed], however, that cases involving the
covert use of clandestine cameras, or cases involving
electronically-assisted eavesdropping, may be quite another story."
Id. at 180 n.5.
Footnote 37:
Women's Bureau, U.S. Dep't of Labor, Twenty Leading
Occupations of Employed Women (1999) (March 14, 2001)
.
Footnote 38:
Women's Bureau, U.S. Dep't of Labor, No. 97-1, Facts on
Working Women, Black Women in the Labor Force (1997).
Footnote 39:
Glass, 583 P.2d at 880 (quoting Alan F. Westin, Privacy and
Freedom 7 (1967)).
Footnote 40:
510 P.2d 793 (Alaska 1973). The New Jersey Supreme Court
cited Chief Justice Rabinowitz's dissent in its holding that
curbside trash searches violate the New Jersey Constitution. See
State v. Hempele, 576 A.2d 793, 805 (N.J. 1990).
Footnote 41:
See Smith, 510 P.2d at 798.
Footnote 42:
510 P.2d at 805 (Rabinowitz, C.J., dissenting).
Footnote 43:
Id.
Footnote 44:
O'Connor, 480 U.S. at 730 (Scalia, J., concurring).
Footnote 45:
The court below found that Cowles's incriminating activities
were visible to the public. Cowles v. State, 961 P.2d 438, 443
(Alaska App. 1998). But the record indicates that the detail
captured by the camera surpassed that which any member of the
public could have seen. This intrusive focus is relevant to Fourth
Amendment analysis even if the public's less-intrusive gaze would
also have discerned the incriminating acts. See United States v.
Taketa, 923 F.2d 665, 677 (9th Cir. 1991) (treating intrusiveness
against personal dignity as reason for finding search unreasonable
in video surveillance case); State v. Bonnell, 856 P.2d 1265, 1277
(Haw. 1993) (same).
A police witness testified that Cowles's desk was 12-13
feet from the window and her desktop was partially obscured from
view. He indicated that a member of the public could not see
everything recorded by the camera without simultaneously looking
through both the box office window and the door around the corner
from the window. The record does not reflect whether the door and
window were open when the surveillance was conducted, although they
were typically open during business hours.
Footnote 46:
See City and Borough of Juneau v. Quinto, 684 P.2d 127, 129
(Alaska 1984).
Footnote 47:
See Katz v. United States, 389 U.S. 347, 352 (1967).
Footnote 48:
Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329 (1979) (where
town justice issuing warrant did not pay for films he viewed and
removed wrappers from print material, he "was not seeing them as a
customer would ordinarily see them,"and therefore violated the
Fourth Amendment); see also Maryland v. Macon, 472 U.S. 463, 470
(1985) (in vice investigations, "[a] government agent, in the same
manner as a private person, may accept an invitation to do business
and may enter upon the premises for the very purposes contemplated
by the occupant") (quoting Lewis v. United States, 385 U.S. 206,
211 (1966)).
Footnote 49:
Bond v. United States, 529 U.S. 334, 339 (2000).
Footnote 50:
Glass, 583 P.2d at 877 (quoting Holmes v. Burr, 486 F.2d 55,
66 (9th Cir. 1973) (Hufstedler, J., dissenting)).
Footnote 51:
State v. Bonnell, 856 P.2d 1265, 1277 (Haw. 1993) (quoting
United States v. Torres, 751 F.2d 875, 882 (7th Cir. 1984); see
also United States v. Cuevas-Sanchez, 821 F.2d 248, 252 (5th Cir.
1987) (adopting constitutional standards governing valid warrants
for video surveillance); State v. Thomas, 642 N.E.2d 240, 245 (Ind.
App. 1994) (Department of Natural Resources's right to inspect
concessionaire's premises did not confer right to install hidden
video surveillance).
Footnote 52:
United States v. Nerber, 222 F.3d 597, 603 (9th Cir. 2000).
Footnote 53:
Id. (quoting United States v. Koyemejian, 970 F.2d 536, 551
(9th Cir. 1992) (Kozinski, J., concurring) (alterations in
original)). See also George Orwell's description of video
surveillance from 1984:
The telescreen received and transmitted
simultaneously. Any sound that Winston made, above the level of a
very low whisper, would be picked up by it; moreover, so long as he
remained within the field of vision which the metal plaque
commanded, he could be seen as well as heard. There was of course
no way of knowing whether you were being watched at any given
moment.
George Orwell, 1984 4 (1949) (quoted in Cuevas-Sanches, 821 F.2d at
251 n.3).
Footnote 54:
476 U.S. 207 (1986).
Footnote 55:
488 U.S. 445 (1989).
Footnote 56:
See id. at 450-51 (plurality holding, four votes) and 452-55
(O'Connor, J., concurring); Ciraolo, 476 U.S. at 213-14; see also
Katz, 389 U.S. at 359 (a defendant loses Fourth Amendment
protection only for activities he "knowingly exposes to the public.
. . . But what he seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected.")
(citation omitted). Thus, exposing an activity to the sky or
ceiling overhead constitutes knowing exposure to the public only if
the public can reasonably be expected to occupy that vantage point.
Footnote 57:
821 F.2d 248, 251 (5th Cir. 1987) (holding that video
surveillance was a search for Fourth Amendment purposes, but that
the warrant obtained by police was valid). In Florida v. Riley,
the court approved closer observation from only 400 feet, but as in
Ciraolo, the ruling depended on the fact that a member of the
public could see the same view. See Riley, 488 U.S. at 449-50.
Footnote 58:
821 F.2d at 251.
Footnote 59:
Id. at 250-51.
Footnote 60:
243 Cal. Rptr. 801 (Cal. App. 1988) (holding that overflight
observation was not a search because the aircraft had a right to
occupy its public vantage point, and the flight was neither
unreasonable nor intrusive).
Footnote 61:
See id. at 805.
Footnote 62:
See id.
Footnote 63:
642 N.E.2d 240 (Ind. App. 1994).
Footnote 64:
923 F.2d 665 (9th Cir. 1991).
Footnote 65:
856 P.2d 1265, 1277 (Haw. 1993).
Footnote 66:
642 N.E.2d at 242.
Footnote 67:
See id. at 247.
Footnote 68:
See id. at 244-45.
Footnote 69:
See id. at 245.
Footnote 70:
Id. at 245.
Footnote 71:
923 F.2d 665 (9th Cir. 1991).
Footnote 72:
See id. at 669.
Footnote 73:
See id. at 678.
Footnote 74:
Op. at 12-13.
Footnote 75:
Id. at 676 (quoting Katz v. United States, 389 U.S. 347, 350
(1967)).
Footnote 76:
Id. at 677.
Footnote 77:
Two cases which draw on Taketa support the discussion above
and conflict with the majority's interpretation. See United States
v. Nerber, 222 F.3d 597, 602 (9th Cir. 2000); State v. Bonnell, 856
P.2d 1265, 1266-67 (Haw. 1993).
Footnote 78:
923 F.2d at 677.
Footnote 79:
Id. at 677.
Footnote 80:
Id. at 677.
Footnote 81:
856 P.2d 1265, 1276-77 (Haw. 1993).
Footnote 82:
See id. at 1275.
Footnote 83:
Id. (quotation omitted).
Footnote 84:
See id. at 1277.
Footnote 85:
Id.
Footnote 86:
Id. (internal quotations omitted).
Footnote 87:
Op. at 10.
Footnote 88:
489 U.S. 656, 677 (1989); see Op. at 10 n.23.
Footnote 89:
See id. at 671.
Footnote 90:
Id.
Footnote 91:
3 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment sec. 8.6, at 823 n.86 (3d ed. 1996).
Footnote 92:
269 F. Supp. 921 (E.D. Pa. 1967).
Footnote 93:
See id. at 923-24.
