Be Careful: Someone May Be Watching

By Vic Brown Hill

Every family law attorney is faced eventually with the client who explains about the great electronic gadget that s/he has found to "get the goods" on an offending spouse. Time after time, we explain privacy laws and the potential consequences of violating those laws. The door for electronic surveillance of a spouse has been opened just a crack more. The "reasonable expectation of privacy" may mean something a little different after a recent case from the Georgia Court of Appeals.

In Rutter v. Rutter, 2012 WL 2866416, the Georgia Court of Appeals created a new rule (or perhaps confirmed the existence of a previous rule) that gives guidance to practitioners faced with the need to advise a client regarding secret surveillance under limited circumstances. Under those certain circumstances, those rights to privacy are not what we once thought they were.

On July 13, 2012, the Court of Appeals published its opinion in Rutter v. Rutter, 2012 WL 2866416. In that opinion, the Court affirmed the trial court's decision to admit video recordings made by cameras hidden in a marital residence by one spouse — without the other spouse's knowledge or consent — of the other spouse's activities.

In Rutter, the parents were "nesting" — rotating turns in and out of the house on a daily basis while the children remained consistently in the home. The mother was fearful that the father was abusive to the minor children in her absence. To protect the children, the mother installed hidden cameras in the common areas of the home. The cameras provided both live feed video of activities within the common areas and recorded the activities. The mother could access the live feed or the recordings via the Internet from any computer.

After learning of the surveillance, the father brought a motion to exclude the recordings from evidence. The father claimed that the recordings were unlawful pursuant to O.C.G.A. 16-11-62(2), a penal statute. That statute makes it unlawful to conduct secret surveillance of another in a private place, out of public view and without that person's consent. The father maintained that he had a reasonable expectation of privacy.

Vic Brown Hill is a trial attorney in Marietta, Georgia, and partner in the firm Hill Macdonald, LLC. His practice is limited to divorce and other matters of family law. Mr. Hill is a member of the State Bar of Georgia (including its Family Law Section), the Charles Longstreet Weltner Family Law Inn of Court, the Cobb County Bar Association (including its Family Law Section), Phi Delta Phi and other professional and civic organizations. Mr. Hill and Hill Macdonald, LLC, represented the Appellee in the appellate phase of the Rutter case. Mr. Hill and his family are residents of Cobb County.

The trial court relied on an exception contained in O.C.G.A. 16-11-62(2)(c) to admit the recordings. Pursuant to subsection 2(c), one may use electronic equipment to record activities within the curtilage of one's residence for "security purposes, crime prevention, or crime detection." The mother testified that her purpose was to guard against crimes being committed against the children by the father, thus the trial court applied subsection 2(c) and ruled that the recordings were admissible at trial. The father filed an interlocutory appeal of the trial court's ruling.

The Court of Appeals affirmed the trial court and ruled that the mother's surveillance was permissible pursuant to O.C.G.A. 16-11-62(2)(c) — the curtilage exception. The Court reasoned that the mother met the elements of the exception contained in subsection 2(c), and that the interior of the home was within the curtilage. It was important that the mother remained a resident of the home, and that she conducted the surveillance for security purposes, crime prevention or crime detection. Prior to this holding, an attorney may have been reluctant to advise a client to install equipment for clandestine surveillance of the other party. The lines between permissible and illegal use of such surveillance were blurred at best.

Thus, the safe course of action was advise against any kind of secret surveillance. While Rutter DOES NOT issue a license for non-consensual surveillance in every case, it does provide some guidance as to when such surveillance may be lawful. Prior to Rutter, there was little case law addressing the issue of surveillance between spouses; now the lines are not quite as blurred. The law is now that secret surveillance is permissible under certain circumstances. How far those certain circumstances extend remains to be tested in the future.