Man eavesdrops on himself with prostitutes; conviction upheld

California law provides robust privacy protections for individuals. Unlike many other states, the California Constitution explicitly guarantees privacy as an "inalienable right." Cal. Const., art. 1, Section 1. Violations of this right to privacy can give rise to criminal charges under several different provisions of the Penal Code. Beginning in 1967, the Legislature criminalized what is commonly referred to as eavesdropping, or wiretapping: the surreptitious recording of another individual without his or her consent in a context in which the recorded individual enjoys an objectively reasonable expectation of privacy. The 3rd District Court of Appeal in People v. Lyon, 2021 DJDAR 1816 (Feb. 24, 2021), has confirmed that a prostitute who plies his or her trade at a client's home can reasonably expect not to be subject to surreptitious recording.

Lyon's conduct consisted of hiring prostitutes with whom he engaged in sexual contact at his home in Sacramento County. Unbeknownst to the women he hired, Lyon was surreptitiously recording the encounters. In most instances, the recording included both video and audio, though in others only video was captured. Lyon, who had previously been convicted of substantially similar conduct, was charged in the instant case with multiple violations of Penal Code Sections 632(a) and 647(j)(3)(A).

Section 632 is the paradigmatic eavesdropping statute, criminalizing the non-consensual monitoring or recording of a confidential communication between two or more parties. California is an "all-party consent," jurisdiction, meaning every party to a confidential communication must consent for monitoring or recording to be lawful. Federal law, and the laws of many other states, permit recording if only one party to a communication consents.

Section 647(j) is a much newer and more specifically targeted provision. Subdivision (1) addresses "peeping Tom" behavior through which the defendant views another person in an area in which the victim has a reasonable expectation of privacy with the purpose of invading the victim's privacy. Subdivision (2) is addressed at what the Legislature found to be the pervasive problem of "upskirting," in which defendants employ electronic devices to secretly capture images of victims under or through their clothing for the purpose or arousing the defendant's "lust, passions, or sexual desire." Subdivision (3), the provision under which Lyon was charged, also involves surreptitious recording by electronic means, but specifically addresses victims who are in a state of full or partial undress.

The jury found Lyon guilty of many of the Section 632 charges, which were felonies, as well as the misdemeanor Section 647 charges. On appeal, Lyon advanced several arguments in support of reversal, including that he could not have properly been convicted of the Section 632 because prostitutes as a matter of law lack a reasonable expectation of privacy when engaged in sexual activity with a client in the client's home. In making this argument, Lyon cited People v. Nazary, a 2010 case in which the defendant, a gas station manager, was videotaped by a hidden camera placed in his office by his employer. The court there held that Nazary lacked a reasonable expectation of privacy based on his awareness of his employer's ongoing interest in ensuring safety and security of the premises. Perhaps more importantly, Nazary was aware of his employer's installation of cameras in many areas of the station, including the manager's office, and that Nazary himself was under suspicion of improper conduct on the job.

Lyon also cited People v. Hernandez, a 2009 case also involving hidden cameras at the workplace. In that case, the employer installed cameras without Hernandez's knowledge to detect unauthorized computer use. The office in question was described as "semi-private," and was often used by Hernandez by herself. The Court of Appeal held that Hernandez had a reasonable expectation of privacy because the filming in question fell closer to the end of the spectrum involving areas subject to limited public access or "inherently personal acts," such as a bathroom, than the end of the spectrum involving areas open to the public's access and view, such as an outdoor patio used for break times or lunch.

The Lyon court had little difficulty distinguishing both Nazary and Hernandez based on California's strong public policy preference for privacy. Nazary was not engaged in sexual activity behind closed doors, an inherently personal act, and was aware of the presence of cameras in the workplace. Further, the holding of Hernandez made Lyon's claim less plausible, not more. On the spectrum of privacy interests described in Hernandez, sexual activity at a private residence surely fell close to the end representing the highest expectation of privacy, notwithstanding the fact that the sexual activity occurred as part of a commercial transaction. In short, Lyon's attempts to characterize his residence as a workplace, and therefore subject to lawful surreptitious monitoring, failed.

Finally, Lyon relied on several federal and out-of-jurisdiction cases which the court similarly rejected as inapposite. In an interesting aside, the court distinguished a Maine case which was seemingly on all-fours and concluded that the societal opprobrium toward prostitution activity negated any expectation of privacy by noting that the Maine constitution lacks a guarantee of the right to privacy. The court also rejected the reasoning of the United States Supreme Court in Minnesota v. Carter, the 1998 case holding that guests at a residence who were present for the sole purpose of packaging cocaine for distribution lacked a reasonable expectation of privacy. The Supreme Court relied on the short period of time the guests were presence, their lack of prior relationship to the lessee, and their presence solely to conduct a commercial transaction in its holding. Though not made as explicit as it could have been, the Lyon court's treatment of Carter suggested that California law, built as it is on the state constitutional right to privacy, creates a broader expectation of privacy than does the federal constitution for Fourth Amendment purposes.

Lyon provides a definitive answer to the narrow question of whether prostitutes enjoy a reasonable expectation of privacy when serving a client in the client's home. Advocates are expected to cite Lyon in other factual scenarios as part of California's growing body of law on the privacy rights of employees in the workplace. 