• Eavesdropping, Per P.C. § 632(a)
• P.C. § 632(a) and Acts of Prostitution
• Confidential Communications Pursuant to P.C. § 632(c)

A prostitute’s acts and oral conversations while plying her trade at a client’s home constitute a “confidential communication,” as defined in P.C. § 632(c), making the surreptitious audio and visual recording of those acts a violation of P.C. § 632(a). 

Defendant Michael J. Lyon had the nasty habit of engaging the services of prostitutes at his home, and then secretly videotaping his liaisons with them.  But he wasn’t very clever in doing this, repeatedly getting busted and prosecuted for violating Pen. Code § 632(a); eavesdropping on or recording confidential communications.  With a prior conviction for the same in 2011—for which he received a suspended sentence and probation—defendant continued to commit this offense through 2013 and 2014.  Finally in 2015, he was charged in a multi-count information, alleging his repeated violations of P.C. § 632(a) (eavesdropping) and P.C. § 647(j)(3)(A) (disorderly conduct).  Sixteen counts of eavesdropping involved the surreptitious video recordings that captured both the participants’ audio and visual participation in the act of prostitution, while twelve counts of disorderly conduct involved video recordings that only captured real-time images, but no audio.  Out of this, he was eventually was convicted by a jury in 2018 of six counts of eavesdropping and two counts of disorderly conduct.  Sentenced to six years and four months in prison, defendant appealed.

The Third District Court of Appeal affirmed.  Prior to trial, defendant filed a motion to dismiss, arguing that prostitutes, as a matter of law, do not have a reasonable expectation of privacy in their communications during sexual encounters at a client’s residence.  The trial court judge denied his motion.  On appeal, defendant renewed this same argument.  Subdivision (a) of Pen. Code § 632, first enacted in 1967 as part of the California Invasion of Privacy Act, imposes criminal liability on “[every] person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication . . . .”  A video recorder, as used by defendant, has since been held to be an instrument which, if used in the manner proscribed under section 632, is a “recording device” for purposes of this section.  (People v. Gibbons (1989) 215 Cal.App.3rd 1204, 1208.)  The issue here was whether a prostitute’s acts and conversations at a client’s home while plying her trade constitute a “confidential communication.”  Subdivision (c) of section 632 provides a statutory definition of “confidential communication:”  “‘(C)onfidential communication’ means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”  Defendant’s argument was that “[o]utcall prostitution inherently entails circumstances ‘in which the parties to the communications may reasonabl[y] expect that their communications may be overheard or recorded.’”  As such, the acts and conversations of a prostitute at the client’s house are not “confidential communications.” In support of this argument, defendant contended that a client’s residence is a “workplace,” and that prostitutes, as a matter of law, have no reasonable expectation of privacy in their communications at this workplace since prostitutes should reasonably expect that they will be videotaped for various reasons, including security purposes (e.g., to discover theft or drug use).  In support of this argument, defendant cited (among other cases) a case out of Maine (State v. Strong (2013) 2013 ME 21.) where it was held that there is no expectation of privacy in a place where prostitutes carry on their trade, such as the prostitute’s residence, studio, or place of business.  The Court here, however, held that Strong does not deal with the situation where the location at issue is the client’s home, instead of the prostitute’s.  Further, the Court also noted that unlike California’s Constitution, the Constitution of Maine does not expressly include the right to privacy as an inalienable right. (See Cal. Const., art. I, § 1: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Italics added) The Court further noted that the term “confidential communication” has been interpreted to include communication by conduct in addition to oral or written dialogue. (See People v. Drennan (2000) 84 Cal.App.4th 1349, 1353, 1356.)  Although a confidential communication under § 632 does not include “still, timed photographs without accompanying sound” (thus the “disorderly conduct” counts, pursuant to P.C. § 647(j)(3)(A); see Note, below), it does include “sound-based or symbol-based communications,” which in turn includes communication by conduct, including sexual relations.  (Gibbons, supra, 215 Cal.App.3rd at p. 1209.)   It was also noted that the test of confidentiality is an objective one.  A communication is confidential under section 632 if either party to that communication “has an objectively reasonable expectation that the [communication] is not being overheard or recorded.” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, at p. 777.)  The subjective intent of either party to the communication is irrelevant.  (Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 929.)  

In sum, after noting that “the Legislature expressed its intent to strongly protect an individual’s privacy rights” when it enacted P.C. § 632, the Court rejected defendant’s arguments that a prostitutes’ activities in the homes of their customers were not “confidential communications.”  Per the Court:  “As a general matter, there is nothing about prostitution activities at a private residence that strips a prostitute of their right to control the firsthand dissemination of their words and images.” The prostitute’s activities at a client’s home, therefore, constitute a confidential communication for purposes of P.C. § 632(a).   Defendant was therefore properly convicted of those counts.

The confidential communication element of P.C. § 632(a) is a common stumbling block to getting eavesdropping cases filed and prosecuted.  It’s not unusual for me to receive calls or e-mails asking about specific scenarios that could go either way.  But quite frankly, my opinion on this issue and a dime won’t even get you a cup of coffee anymore.  This is a good case to read in its entirely for a quick education on what constitutes a “confidential communication,” and what does not.  Just to educate myself a bit more, I pulled up every relevant case listed in LEXIS (the research tool I use) to add to my Fourth Amendment Search and Seizure Outline.  If you’d like a list of those cases with a brief description of each, I will be glad to send it to you upon request.  Not in issue in this case were acts of prostitution at locations other than the client’s home.  As noted above, the State of Maine (in State v. Strong) says that such conversations are not confidential.  Given the existence of California’s Invasion of Privacy Act, which specifically recognizes and is intended to protect its citizens’ right to privacy, a constitutionally specified protection of a right to privacy (again, as noted above), and the Court’s reasoning in this case, a California court might very well rule otherwise.  We’ll just have to wait and see.  Also not in issue here were the two “disorderly conduct” counts, pursuant to P.C. § 647(j)(3)(A).  This “Peeping Tom” misdemeanor offense deals with those instances where the offending pictures are produced without any audio recordings, and is intended to protect one’s visual privacy rights in various states of undress.  Defendant’s only complaint about the prosecution’s use of the disorderly conduct statute related to whether it is a “lesser included offense” of the already charged P.C. § 632 offenses; an argument similarly rejected by the Court.