Wiretaps and Secret Video Taping by Spouses in the Home Can Lead to Criminal and Civil Exposure
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Marriage may well begin in bliss but during divorce often ends in mutually destructive acrimony between the spouses. Sometimes the acrimony in a failed marriage prompts one of the spouses to do something that violates the law resulting in criminal liability. That’s what happened to J. Duffy in 1996. We came upon Duffy’s case when a local attorney representing a husband charged with aggravated assault on his wife consulted with us regarding the legality of a situation where a husband, who suspected his wife of adultery, wiretapped the home telephone to gather incriminating evidence and recorded statements made by the wife bragging about accusing her husband of the assault. Was the wiretapping of the home phone legal? Having represented a client charged with a felony in a similar fact pattern we knew the answer was NO, but did some quick research and found Duffy’s case illustrative of the point.
J Duffy learned the hard way that the resounding answer to that question. Not knowing the right answer to the question about wiretapping in a marriage cost Duffy a two-year probated sentence and a fine of $1,000 for violating the provisions of Texas Penal Code Sec. 16.02. Duffy’s nightmare began in March 1996 when his wife, Darlene, filed a petition for divorce after 26 years of marriage. Duffy and Darlene agreed to live in the “family residence” near Wylie, Texas while the divorce petition was pending. Darlene lived in the downstairs master bedroom while Duffy took an upstairs bedroom. Both spouses had equal access to the rest of the residence, including the study.
Not long after this living arrangement went into effect, Darlene began to suspect Duffy was listening to her messages left on an answering machine to a telephone located in the kitchen. She removed the machine from the telephone and obtained “voice mail capabilities.” Darlene would later testify that Duffy asked her for the access code to the voice mail but she refused to give it to him. Still, according to Darlene, Duffy “seemed to … know every move [she was] going to make before [she] made it,” so she expressed concern to her divorce attorney and the children. Darlene’s suspicions that Duffy was somehow eavesdropping on her private telephone conversations really clicked into high gear after he learned about her new employment, something she had gone “to great lengths to keep private from him.” Darlene’s suspicions were underscored by the fact that Duffy was vice president with a telecommunications company, thus she surmised he had the means and knowledge to place a “bug” on the home telephones. Her suspicions were confirmed one evening when she began a search for the “bug” and found a “black wire” behind a cabinet in the study which did not match the telephone wires. She followed the black wire into the cabinet where she located a “black box” containing a microcassette tape with an “illuminated” red light on its outside. Although not a communications expert, Darlene believed she had found a “recording device,” and sure enough when she played back “the tape,” she discovered conversations on it between her and other persons, including her daughter and attorney.
Darlene summoned family members to the residence at which time she showed and played the tape for them. The family members decided to leave the residence to give Darlene an opportunity to confront Duffy with the tape and recording device. She said that when she showed him the tape and asked why he had installed the recording device, Duffy replied that he wanted to “see what [she] was up to.” Darlene later turned the tape over to the Collin County Sheriff’s Department who, in turn, submitted it to the local District Attorney’s office which somehow managed to lose not only the tape but the recording device as well. Nonetheless, the District Attorney went forward with the case securing an indictment and ultimately a conviction against Duffy. While Duffy did not testify during the guilt phase of his trial, he did testify during the punishment phase and admitted his guilt to installing the recording device.
Under Sec. 16.02(b)(1), the State had to prove that Duffy intercepted, endeavored to intercept and procured another person to intercept or endeavor to intercept “a wire, oral, or electronic communication.” Chapter 18 of the Texas Code of Criminal Procedure deals with “search warrants” and Article 18.20 of this chapter defines the terms used in Sec. 16.02. For example, Art. 18.20, § 1(3) defines the term “intercept” as the “aural or other acquisition” of the contents of a “wire, oral, or electronic communication” through the “use of an electronic, mechanical, or other device.” Art. 18.20, § 1(2) defines “oral communication” as an oral communication “uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.”
On appeal Duffy argued that Sec. 16.02 was not intended to apply in the “area of marital conflicts” because the Fifth Circuit Court of Appeals, in Simpson v. Simpson, held that the Federal Wiretapping Statute, 18 U.S.C. Sec. 2511, did not apply in marital conflict situations. The Texas Court of Appeals, sitting in El Paso, was not impressed. The court pointed out that, first, Sec. 16.02 does not contain an “exception for interspousal wiretaps,” and, second, Texas appeals courts, in Collins v Collins and Kent v. State, have not only rejected but roundly criticized the Simpson holding by the Fifth Circuit. The Texas courts have been joined by a majority of the federal circuits who have also criticized and refused to follow Simpson: the Eighth, Fourth, Sixth, Tenth, and Eleventh federal circuits. Only the Second Circuit, in Anonymous v. Anonymous, followed the lead of Simpson, which remains the law in the Fifth Circuit at the federal level.
Using technology to eavesdrop on a spouse can not only a crime in the State of Texas, but it can also be tortuous invasion of privacy that can lead to civil money damages, as an estranged wife and her private investigator also found out the hard way.Gary Clayton filed a civil lawsuit against his estranged wife, Marie, and James Michael Richards, a private investigator with an agency called Ounce of Prevention, alleging that the pair had illegally invaded his right to privacy through a video recording in his Beaumont residence in the summer of 1999. Richards filed a motion for summary judgment to have the lawsuit dismissed, and the motion was granted by the trial court. The court of appeals, in Clayton v. Richards, reversed the trial court’s judgment.
Marie had hired Richards in May of 1999 to “follow and videotape her husband.” This surveillance operation included Richards installing and setting up a “video camera” in Gary’s bedroom. Marie “assisted” Richards “in the placement and installation of the video camera” before she left the residence to visit her family in Virginia. Richards monitored the camera while Marie was in Virginia. During this period, Gary was the “sole occupant” in the family residence. At one point Marie called Richards instructing him to go the residence and change out “the tape in the tape recorder.” She then made arrangements with a neighbor to allow Richards to have access to the residence.
In pretrial proceedings, Marie informed that court that she decided to install the camera in the bedroom after a “psychic” advised her that her husband had been “committing adultery.” She hired Richards to help her set up a surveillance operation of her husband—and the appeals court, citing Sec. 16.02, said that “even if the detective may have furnished only technical services in connection with acts constituting invasion of privacy, the private investigator may still be liable in tort if an actual invasion of privacy has been committed.” The appeals court then addressed the extent of privacy rights enjoyed in a marital situation, saying:
“A spouse shares equal rights in the privacy of the bedroom, and the other spouse relinquishes some of his or her rights to seclusion, solitude, and privacy by entering into marriage, by sharing a bedroom with a spouse, and by entering into ownership of the home with a spouse. However, nothing in the Texas Constitution or our common law suggests that the right of privacy is limited to unmarried individuals…
“When a person goes into the privacy of the bedroom, he or she has a right to the expectation of privacy in his or her seclusion. A video recording surreptitiously made in that place of privacy at a time when the individual believes that he or she is in a state of complete privacy could be highly offensive to the ordinary reasonable person. The video recording of a person without consent in the privacy of his or her bedroom even when done by the other spouse could be found to violate his or her rights of privacy.
“As a spouse with equal rights to the use and access of the bedroom, it would not be illegal or tortious as an invasion of privacy for a spouse to open the door of the bedroom and view a spouse in bed. It could be argued that a spouse did no more than that by setting up a video camera, but that the viewing was done by means of technology than by being physically present. It is not generally the role of the courts to supervise privacy between spouses in a mutually shared bedroom. However, the videotaping of a person without consent or awareness when there is an expectation of privacy goes beyond the rights of a spouse because it may record private matters, which could later be exposed to the public eye. The fact that no later exposure occurs does not negate the potential and permit willful intrusion by such technological means into one’s person life in one’s bedroom…”
In a concurring opinion, Judge Donald R. Ross pointed out that while Sec. 16.02 pertains strictly to “wiretapping … within the marital home,” and although “the act of videotaping a spouse does not meet the technical requirements to come under the” sanctions of Sec. 16.02, “an individual’s right of privacy is compromised no less from being secretly videotaped than from being secretly recorded. A secret videotape of an individual who presumes to be in a private place is an even greater intrusion of privacy than secretly recorded conversations.”
As for the local attorney who recently floated the question about whether Sec. 16.02 applied to couples still living together, we have this advice.
Both the Duffy and Richards cases strongly suggest that the attorney’s client has exposed himself to both criminal and civil sanctions by intercepting his wife’s oral communications. In fact, while the attorney has a professional obligation to protect confidential disclosures given to him by his client, he should be very careful about advising his client about possession and disclosure of those “tapes.” As pointed out in the Richards holding, it is not the actual exposure but the “potential” for exposure that satisfies a claim of invasion of an individual’s privacy rights.
The Texas Supreme Court in City of Sherman v. Henry some fifteen years ago held that adultery is no longer a crime in the State of Texas, although courts may still disfavor the practice. Thus, the wife did not commit a “crime” by cheating on her husband, and while her behavior may raise legitimate moral issues, she has under the law an unquestioned expectation of privacy in any telephone conversations during which she admitted or discussed her private and very personal adulterous activities. It is a crime and a invasion of privacy to another person phone conversations, married or not.
Thus, we would suggest that the attorney vigorously defend the against the assault charge and keep a professional distance from any illegal evidence obtained in the husband/wife’s acrimonious marital relationship.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization
Sec. 16.02. UNLAWFUL INTERCEPTION, USE, OR DISCLOSURE OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS.
(a) In this section, “computer trespasser,” “covert entry,” “communication common carrier,” “contents,” “electronic communication,” “electronic, mechanical, or other device,” “immediate life-threatening situation,” “intercept,” “investigative or law enforcement officer,” “member of a law enforcement unit specially trained to respond to and deal with life-threatening situations,” “oral communication,” “protected computer,” “readily accessible to the general public,” and “wire communication” have the meanings given those terms in Article 18.20, Code of Criminal Procedure.
(b) A person commits an offense if the person:
(1) intentionally intercepts, endeavors to intercept, or procures another person to intercept or endeavor to intercept a wire, oral, or electronic communication;
(2) intentionally discloses or endeavors to disclose to another person the contents of a wire, oral, or electronic communication if the person knows or has reason to know the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(3) intentionally uses or endeavors to use the contents of a wire, oral, or electronic communication if the person knows or is reckless about whether the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(4) knowingly or intentionally effects a covert entry for the purpose of intercepting wire, oral, or electronic communications without court order or authorization; or
(5) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when the device:
(A) is affixed to, or otherwise transmits a signal through a wire, cable, or other connection used in wire communications; or
(B) transmits communications by radio or interferes with the transmission of communications by radio.
(c) It is an affirmative defense to prosecution under Subsection (b) that:
(1) an operator of a switchboard or an officer, employee, or agent of a communication common carrier whose facilities are used in the transmission of a wire or electronic communication intercepts a communication or discloses or uses an intercepted communication in the normal course of employment while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the rights or property of the carrier of the communication, unless the interception results from the communication common carrier’s use of service observing or random monitoring for purposes other than mechanical or service quality control checks;
(2) an officer, employee, or agent of a communication common carrier provides information, facilities, or technical assistance to an investigative or law enforcement officer who is authorized as provided by this section to intercept a wire, oral, or electronic communication;
(3) a person acting under color of law intercepts:
(A) a wire, oral, or electronic communication, if the person is a party to the communication or if one of the parties to the communication has given prior consent to the interception;
(B) a wire, oral, or electronic communication, if the person is acting under the authority of Article 18.20, Code of Criminal Procedure; or
(C) a wire or electronic communication made by a computer trespasser and transmitted to, through, or from a protected computer, if:
(i) the interception did not acquire a communication other than one transmitted to or from the computer trespasser;
(ii) the owner of the protected computer consented to the interception of the computer trespasser’s communications on the protected computer; and
(iii) actor was lawfully engaged in an ongoing criminal investigation and the actor had reasonable suspicion to believe that the contents of the computer trespasser’s communications likely to be obtained would be material to the investigation;
(4) a person not acting under color of law intercepts a wire, oral, or electronic communication, if:
(A) the person is a party to the communication; or
(B) one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing an unlawful act;
(5) a person acting under color of law intercepts a wire, oral, or electronic communication if:
(A) oral or written consent for the interception is given by a magistrate before the interception;
(B) an immediate life-threatening situation exists;
(C) the person is a member of a law enforcement unit specially trained to:
(i) respond to and deal with life-threatening situations; or
(ii) install electronic, mechanical, or other devices; and
(D) the interception ceases immediately on termination of the life-threatening situation;
(6) an officer, employee, or agent of the Federal Communications Commission intercepts a communication transmitted by radio or discloses or uses an intercepted communication in the normal course of employment and in the discharge of the monitoring responsibilities exercised by the Federal Communications Commission in the enforcement of Chapter 5, Title 47, United States Code;
(7) a person intercepts or obtains access to an electronic communication that was made through an electronic communication system that is configured to permit the communication to be readily accessible to the general public;
(8) a person intercepts radio communication, other than a cordless telephone communication that is transmitted between a cordless telephone handset and a base unit, that is transmitted:
(A) by a station for the use of the general public;
(B) to ships, aircraft, vehicles, or persons in distress;
(C) by a governmental, law enforcement, civil defense, private land mobile, or public safety communications system that is readily accessible to the general public, unless the radio communication is transmitted by a law enforcement representative to or from a mobile data terminal;
(D) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or
(E) by a marine or aeronautical communications system;
(9) a person intercepts a wire or electronic communication the transmission of which causes harmful interference to a lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of the interference;
(10) a user of the same frequency intercepts a radio communication made through a system that uses frequencies monitored by individuals engaged in the provision or the use of the system, if the communication is not scrambled or encrypted; or
(11) a provider of electronic communications service records the fact that a wire or electronic communication was initiated or completed in order to protect the provider, another provider furnishing service towards the completion of the communication, or a user of that service from fraudulent, unlawful, or abusive use of the service.
(d) A person commits an offense if the person:
(1) intentionally manufactures, assembles, possesses, or sells an electronic, mechanical, or other device knowing or having reason to know that the device is designed primarily for nonconsensual interception of wire, electronic, or oral communications and that the device or a component of the device has been or will be used for an unlawful purpose; or
(2) places in a newspaper, magazine, handbill, or other publication an advertisement of an electronic, mechanical, or other device:
(A) knowing or having reason to know that the device is designed primarily for nonconsensual interception of wire, electronic, or oral communications;
(B) promoting the use of the device for the purpose of nonconsensual interception of wire, electronic, or oral communications; or
(C) knowing or having reason to know that the advertisement will promote the use of the device for the purpose of nonconsensual interception of wire, electronic, or oral communications.
(e) It is an affirmative defense to prosecution under Subsection (d) that the manufacture, assembly, possession, or sale of an electronic, mechanical, or other device that is designed primarily for the purpose of nonconsensual interception of wire, electronic, or oral communication is by:
(1) a communication common carrier or a provider of wire or electronic communications service or an officer, agent, or employee of or a person under contract with a communication common carrier or provider acting in the normal course of the provider’s or communication carrier’s business;
(2) an officer, agent, or employee of a person under contract with, bidding on contracts with, or doing business with the United States or this state acting in the normal course of the activities of the United States or this state;
(3) a member of the Department of Public Safety who is specifically trained to install wire, oral, or electronic communications intercept equipment; or
(4) a member of a local law enforcement agency that has an established unit specifically designated to respond to and deal with life-threatening situations.
(e-1) It is a defense to prosecution under Subsection (d)(1) that the electronic, mechanical, or other device is possessed by a person authorized to possess the device under Section 500.008, Government Code, or Section 61.0455, Human Resources Code.
(f) An offense under this section is a felony of the second degree, unless the offense is committed under Subsection (d) or (g), in which event the offense is a state jail felony.
(g) A person commits an offense if, knowing that a government attorney or an investigative or law enforcement officer has been authorized or has applied for authorization to intercept wire, electronic, or oral communications, the person obstructs, impedes, prevents, gives notice to another of, or attempts to give notice to another of the interception.
(h) Repealed by Acts 2005, 79th Leg., Ch. 889, Sec. 1, eff. June 17, 2005.
Added by Acts 1981, 67th Leg., p. 738, ch. 275, Sec. 2, eff. Aug. 31, 1981. Amended by Acts 1983, 68th Leg., p. 4878, ch. 864, Sec. 1 to 3, eff. June 19, 1983; Acts 1989, 71st Leg., ch. 1166, Sec. 16, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 790, Sec. 16, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 1051, Sec. 9, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1270, Sec. 11, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 678, Sec. 1, eff. Sept. 1, 2003.
Amended by: Acts 2005, 79th Leg., Ch. 889, Sec. 1, eff. June 17, 2005. Acts 2009, 81st Leg., R.S., Ch. 1169, Sec. 9, eff. September 1, 2009.