Via Turley, this story of a Wisconsin man, Mark Jahnke, who covertly videotaped his girlfriend in the nude, leading to his conviction for violating the “video voyeur law.” On appeal, Jahnke argued that by exposing herself to him in the nude, she had de facto consented to being videotaped.
Jahnke and the woman had an intimate three-year relationship. Using a video camera concealed in a pile of clothing, he recorded her on April 1, 2006. She later learned of the video, which was not shown to anyone else, and went to the police.Wisconsin’s 2001 law makes it a felony to secretly record someone in the nude if they have not consented and it happens in a circumstance in which the person would have a reasonable expectation of privacy.
Jahnke argued that because his girlfriend knowingly exposed herself to him, she did not have the required reasonable expectation of privacy. The appellate court found that she did, since her expectation was not that her boyfriend wouldn’t see her, but that he wouldn’t be secretly recording her.
Jahnke had also argued that the court had found in a previous case that a reasonable expectation of privacy existed when a nude person reasonably believed he or she was “secluded from the presence of others.”
The court’s decision seems eminently sensible, but makes me wonder why courts aren’t equally sensible when the consent involved relates to a police search. When an office asks if he can look in your trunk, and (foolishly) permission is given, he’s now got the keys to the kingdom, from the glove box to removing the fenders if he so chooses. Once consent, any consent, is granted, there is no meaningful limitation of scope.
Of course, consent can be withdrawn, though I’ve never personally seen that successfully argued though I’ve tried it numerous times.
So why is consent viewed in almost polar opposite fashion when it’s the police versus anyone else? Why is scope no concern? Why doesn’t anyone care whether it is truly knowing, voluntary and intelligent?
The obvious answer is that the system wold break down and fail if a consent search was truly limited to actual consent. Ironically, it’s not that most people wouldn’t consent, just as they feel compelled to speak despite the clear warning to shut their yap. It’s that the courts can’t take chances and give defendants half a chance for suppression.
The problem with videotaping people in the nude without consent was one without a legal solution for quite a while, and one that offended many because it was just wrong. Wisconsin’s handling could have been better, but I won’t quibble with the court’s reasoning. I only ask that they consider applying it across the board.
No means no. Consent means consent.
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I like it. Meanwhile, though, we have a good answer to the question “Why refuse if you have nothing to hide?” Because I can’t limit the scope of my consent to just a reasonable search.
And while we’re making wishes, it’s well established that employees have very little right to privacy against their employer while on the job. Your employer can search your desk, read your email, record your phone calls, and film and record you while you work. Can we extend that concept to public employees working for the public, so that it’s legal to record, say, your conversation with the officer during a traffic stop?
I hate the “why refuse if you have nothing to hide” argument. It is in-american. Fuck you, that’s why. Get a warrant.
I know, Scott, in the Miranda post you talked about your opposition to broad blanket fixes, the consequences of which cannot be known, but I think, like videotaping citizen encounters and all interrogations, there is a blanket rule that could cut down considerably on the abuse of the consent search and reduce the inefficient litigation (I run a suppression motion on every single consent search where my client’s agreeable unless there is a recording of the consent) that arises out of it.
The recording of all citizen contacts would help because we’d have at least an audio record of how it went down, but short of that, I think like the Miranda advisement, there should be a written consent advisement that advises the person they are free to refuse consent.
If I didn’t make clear, the person would have to sign the consent.
I agree with you. While Miranda has many other complications, there is no reason why police shouldn’t be required to get consent in writing, signed, with notice that the person is entitled to refuse consent without consequences and withdraw it at any moment. Consent to search is a much more concrete event. But what are the chances? Zero.
They actually do the written consent forms around here on a fairly regular basis. I still challenge them, because the voluntary consent issues don’t really go away just because there’s a piece of paper with a signature on it.
It is here; in Minnesota, it’s lawful to record any conversation that you’re a party to. Consent — or, for that matter, knowledge — isn’t required. A lawyer friend of mine has been known to say, “Why don’t you be sure that your record is on, so we’ll both have our own records of this conversation?” as a way to encourage better behavior.
Yeah, I imagine it is not a magic bullet, but it seems to me it would be very helpful. Scott, don’t FBI and other federal agencies use them? It is part of their protocol, so at least you can cross on that if they don’t.
My experience is that they claim on cross that they do and don’t, according to what they did in any particular case. I had one case where the defendant was in custody and needed his diabetes medication. They took him to his apartment to get it, and asked for his keys to enter. He gave them the keys and they told him they had to do a sweep first if he wanted them to allow him inside to get his medicine. He agreed, and then they tore the place to shreds in a full blown search. No signed consent, and clearly no reason why, if the Fibbers testimony was true, they couldn’t have obtained a signed consent.
He lost suppression before Judge Mukasey.