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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 20081
Experience:  Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
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Hello and thank you. At a high school in California, students

Resolved Question:

Hello and thank you. At a high school in California, students noticed things missing in their bags during gym class. A girl decided to hide in a locker and videotape to see what might occur. She captured someone on videotape --her cellphone camera-- rummaging through the bags. Turned out it was the gym teacher. He's in hot water and the public's instinctive reaction is that he be fired. But what if the girl violated the law, thus making the evidence inadmissable. Did she violate the law by videotaping in a locker room? You can check the news coverage here: http://www.news10.net/news/article/232343/2/Mastermind-of-student-sting-tells-her-story
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Lucy, Esq. replied 1 year ago.

Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today.

It is a violation of California law to use a hidden camcorder in a place where a person may be in a full or partial state of undress, even if the person is not in a full or partial state of undress. Cal. Pen. Code, Section 647. The one thing that might save her is the intent portion of the statute - she did not make the tape for purposes of arousal, or even for the purposes of catching someone undressed. She did it to catch a thief. So, it's possible that she might be able to avoid prosecution.

As far as admissibility goes, evidence obtained in violation of state and federal wiretapping and recording laws cannot be used as evidence in court. The girl will be able to testify as to what she personally observed, but it is likely that the video will be suppressed.

Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 20081
Experience: Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
Lucy, Esq. and 9 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

Lucy...


 


Thanks for this thorough answer. 5 stars. May I ask: I write columns for the Sacramento Bee. While doing some broad searches yesterday (Friday), I ran across the Just Answer site and figured I'd give it a shot. What I'd like to know is this: What are the chances you and I can talk further so I can quote you if necessary? I'd want to cite you by full name, your practice, etc. If you are OK with this please let me know by contacting me at my e-mail,XXX@XXXXXX.XXX.


 


I'm pondering a column this in the context of two recent columns about privacy (here and here). We're pretty hypocritical about privacy (given that we want our own, but can be awfully nosy when it comes to office or neighborhood gossip, or the tabloids), and we have a contentious ongoing debate in Alameda County over a Sheriff's Department request to use drones for investigative work. Interestingly, the very same public worried about government spying and drones, etc, is going to say, "Fire the teacher!" They already have if you look at the comments to the media coverage linked in my initial question (here)

However, if the evidence is inadmissable for whatever legal reasons regarding privacy violations, can you imagine the uproar from those same folks championing privacy rights? It speaks to the protections of the 4th Amendment, wherein it is tacitly understood that for reasons of "the greater good," sometimes, the guilty get away with it, and my guess is, the California law, in part, tries to mimic this fundamental 4th Amendment premise on the local level, regarding privacy violations among individuals or within the private sector (as opposed to government). And on a larger level, it brings us back to these same conflicts regarding our hypocrisy when it comes to privacy. In order to convict, there are procedures that must be adhered with regard to privacy. Just how serious are we in our allegiance to the fundamental concept? Is the teacher guilty? Yes. Can the video be used? No. And then it becomes a matter of he said she said. In a court of law, that's not good enough (he could say he was searching for drugs, or something). What's more important here: Getting the conviction or protecting privacy?


 


What do you think?


 


Feel free to contact me and perhaps provide a phone number where I might call you if you want to talk.


 


Here's mine:(NNN) NNN-NNNN/p>

 


Thanks in advance,


Bruce


 


Here are the external links in case the embedding gets quirky on you.


http://www.news10.net/news/article/232343/2/Mastermind-of-student-sting-tells-her-story


http://www.sacbee.com/2013/02/19/5199126/hypocrisy-abounds-in-debate-over.html
http://www.sacbee.com/2013/02/19/5199126/hypocrisy-abounds-in-debate-over.html


 


 

Expert:  Lucy, Esq. replied 1 year ago.
Hi Bruce,

Unfortunately, to protect our anonymity, I'm not able to give you my name and other information. I do think the article sounds fascinating, and I personally would enjoy reading it when you're done. I would prefer not to be quoted or used as a source.

The Fourth Amendment follows the general rule that is it better for guilty people to go free than for one innocent person to be jailed, yes. It also is supposed to be a sort of leash on police work. Officers aren't allowed to do whatever it takes to get the evidence, and, if they do, any evidence they find will be suppressed - under the fruit of the poisonous tree doctrine, any additional evidence found will also be suppressed. For example, say, during an illegal search, police find evidence of drug use. They also find a key to a van that they never would have found otherwise. The van is full of drugs - none of that can be used.

This isn't a Fourth Amendment violation, because the girl was not working for the police at the time. No police officer directed her to make the video. The problem is that it's a crime to use a recording device in a locker room, so a judge could choose to suppress the video. Then it comes down to her word against his - but also credibility. If there is evidence from a number of students that items have gone missing from their bags, and one person saw the teacher do it, that suggest that he wasn't searching for drugs (and I would say that a teacher doesn't have a license to search student bags at will for drugs, anyway). So, a conviction IS possible, although not as certain as it would be if the video were admitted.
Customer: replied 1 year ago.

Lucy:


 


Again, thank you for your reply. Tell the website moderators to give you a raise! (5 stars again!)


 


I understand and appreciate the desire/need to preserve anonymity. On background, the information you provided, including this follow-up answer, is extremely helpful. An attorney up the street (though not a criminal lawyer) mentioned the fruit of the poison tree doctrine, as well. And he mentioned something called "extrinsic evidence" – evidence that informs the true witness – as a way to make an alternative argument to convince a judge that somehow, there's a way to get what was seen on video into evidence. I intend to call the D-A's office this week and hopefully track down a good criminal attorney in the area for their input. Your detailed responses have provided the basis for plenty of questions to help flesh out the matter. I am deeply appreciative.


 


Now we'll see if the editors are up for the idea. For me, it's all about challenging our perceptions and opinions of readers. As it may not surprise anyone, people like the law when it affirms their notions of right and wrong. When it doesn't, they tell lawyer jokes.


 


Wink


 


I will try to notify you here about the fate of the column.


 


Obliged,


Bruce

Expert:  Lucy, Esq. replied 1 year ago.
I'm glad I could help. I hope the column works out. I look forward to reading it.

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