535 S.W.3d 511
Tex. Crim. App.2017Background
- Wendee Long arranged for her daughter C.L. to surreptitiously place a phone in the visiting girls’ locker room at a high-school basketball game and record Coach Lelon “Skip” Townsend’s halftime and post-game speeches.
- The locker room had two entry doors, limited access (Argyle coaches and players), and was used for team meetings; no one in the room consented to the recording.
- Long received, edited (spliced/repeated portions), and anonymously distributed the recording to school-board members during consideration of Townsend’s contract.
- Police obtained copies from Long’s work computer; Long was indicted for violating Texas Penal Code § 16.02 (unlawful interception/disclosure of oral communications).
- The court of appeals reversed, holding a public-school coach has no reasonable expectation of privacy in classroom-like communications; Texas sought review.
- The Texas Court of Criminal Appeals reversed the court of appeals, reinstating Long’s conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Long) | Held |
|---|---|---|---|
| Whether Article 18.20’s definition of “oral communication” incorporates the Fourth Amendment legitimate-expectation-of-privacy test | The statute requires only an expectation that the communication is not being intercepted (an expectation-of-non-interception); legislature used plain language and intended capture-based scope | The phrase “circumstances justifying that expectation” is ambiguous and should be read to require the Katz two-part test (subjective expectation and societal reasonableness) | The statute is ambiguous on this point and should be read to incorporate the Katz legitimate-expectation-of-privacy standard; held for Long on this issue |
| Whether Coach Townsend had a reasonable expectation of privacy in locker-room speeches (so his remarks qualify as an “oral communication”) | Focus on the capture (not content) and the private character of the locker room; access was restricted and recording was surreptitious | The locker-room speech was instructional, public in nature (classroom-like), delivered loudly with doors open and multiple coaches present, so society would not recognize a reasonable expectation of privacy | A rational jury could find Townsend exhibited a subjective expectation of privacy and that expectation was objectively reasonable under the circumstances; recordings qualified as “oral communications,” so conviction affirmed |
Key Cases Cited
- Katz v. United States, 389 U.S. 347 (establishes the two-part reasonable-expectation-of-privacy test)
- Berger v. New York, 388 U.S. 41 (rejects broad eavesdropping statutes; stresses need for particularized safeguards)
- Smith v. Maryland, 442 U.S. 735 (endorses Harlan’s Katz formulation as the inquiry for expectations of privacy)
- Vernonia School Dist. 47J v. Acton, 515 U.S. 646 (discusses diminished but extant privacy interests in school locker-room/bathroom contexts)
- Brannum v. Overton County School Bd., 516 F.3d 489 (6th Cir.) (recognizes students’ reasonable expectation against covert locker-room video surveillance)
- Crosby v. State, 750 S.W.2d 768 (Tex. Crim. App. 1987) (recognizes reasonable expectation of privacy in a private dressing room)