Home -> Law Blog Directory -> Federal Judiciary Blogs -> California Appellate Report

Federal Judiciary

: California Appellate Report

People v. Wilkinson (Cal. Ct. App. - June 18, 2008)

By Shaun Martin

Obviously, you shouldn't use your roommate's webcam to secretly record her (and your third roommate) having sex. Not right. Morally or otherwise. Like you can't get better porn on the regular internet anyway? (And, no, I will not provide a hyperlink, thank you very much.)

If you nonetheless disagree, let me warn you: It's 180 days in a world with a lot less interesting sexual action if you're caught.

So that's the purient take on this case. Here's the legal angle:

I know that the relevant precedent on this point is pretty bad. But my personal opinion is that when (1) a police officer volunteers to a roommate that the officer can't search the defendant's room because there's no probable cause -- nudge nudge, wink wink -- and; (2) the roommate responds by getting the "crazy idea" (from I wonder where) that maybe the roomate should search the defendant's room himself and give the evidence to the police; and (3) asks the police officer if he can do so, to which the officer admits he responds "Well, you can do whatever you want. It?s your apartment. . . . But keep in mind, you cannot act as an agent of my authority. I
cannot ask you to go into the room, nor can you go into the room believing that you?re doing so for myself." (the most obvious nudge nudge in the universe, IMHO); and (4) the roommate does so and provides the evidence to the police, well, that's an illegal search. Sure, it's a fact-intensive inquiry. But I find it entirely uncredible -- to the point of absurd -- that the police officer in such a scenario isn't actively encouraging the search.

When someone asks a police officer if they can illegally enter another person's private room and shuffle through (and take) their possessions, the routine (and legitimate) response would be "No, you can't. That'd be trespassing, theft, and a variety of other crimes." When, instead, the officer admits that he says "Well, you can do whatever you want," and goes on to say that they can't tell you to perform the search that because that'd be an illegal search, we all know full well what the officer's really saying. And a finding to the contrary is blind to reality. As well as a similar type of distortion -- though admittedly not nearly as egregious -- regarding what's really going on as the underlying nudge itself.

On the other side of the equation, however, I couldn't agree more with the following language from the outset of Justice Robie's opinion:

"Defendant first contends he had a reasonable expectation of privacy in the contents of the compact discs located in his room. The People disagree, contending he 'did not have a
legitimate expectation of privacy in the stolen images of his roommates? private sex life.' According to the People, 'While [defendant] may subjectively have expressed an interest in keeping the disks private by keeping them in his room and asking people to stay out, the voyeuristic images are not the kind of material that society is willing to recognize as a legitimate
privacy interest.'

We find the People?s argument rather startling, inasmuch as acceptance of it would largely obliterate the Fourth Amendment, because whenever a criminal prosecution is premised on
contraband discovered during a warrantless search, the search that led to discovery of the contraband could always be justified on the ground the defendant did not have a legitimate
expectation of privacy in the contraband. We know of no authority that supports such a broad proposition. Certainly that proposition is not supported by the only two cases the People cite. [Powerful and entirely accurate discussion of those cases then ensues.]"

I think it's entirely right to quote -- and then pound -- silly and/or dangerous legal arguments advanced by a party. Keeps 'em honest. Or, hopefully, will at least make 'em think twice about articulating such positions.

Full post as published by California Appellate Report on June 18, 2008 (boomark / email).