61 Cal.App.5th 237
Cal. Ct. App.2021Background
- Defendant Michael J. Lyon secretly videotaped sexual encounters with prostitutes at his residence in 2013–2014; some recordings contained audio and some only video; the women did not know they were being recorded.
- Lyon had prior convictions (2011) for secretly videotaping prostitutes and was on five‑year probation subject to a broad, warrantless-search condition.
- In 2015–2018 Lyon was charged with multiple counts under Penal Code § 632 (eavesdropping/recording confidential communications) and misdemeanor counts under § 647(j)(3)(A) (secretly recording visual images of partially clothed persons).
- Trial in 2018 resulted in convictions on six § 632 counts and two § 647 counts; other counts were dismissed, acquitted, or mistried; aggregate sentence was 6 years 4 months.
- On appeal Lyon argued: (1) prostitutes lack a reasonable expectation of privacy as a matter of law in outcall sexual encounters at a client’s home (motion to dismiss); (2) instructional error for not giving his pinpoint instruction; (3) unlawful prosecution under the Williamson rule (should be prosecuted only under § 647); and (4) Fourth Amendment/ECPA/Riley challenge to the warrantless search of electronic devices seized pursuant to his probation condition.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Lyon) | Held |
|---|---|---|---|
| Whether prostitutes have, as a matter of law, no reasonable expectation of privacy in communications during sexual encounters at a client’s residence | Section 632 protects confidential communications; participants in private residences can reasonably expect privacy | Prostitutes engaging in outcall work should reasonably expect their communications may be recorded (client’s residence is a workplace; no expectation of privacy as a matter of law) | Court rejected Lyon’s categorical rule; expectation of privacy is not eliminated as a matter of law and must be assessed by circumstances; motion to dismiss properly denied |
| Alleged instructional error (failure to give Lyon’s pinpoint instruction on expectation of privacy) | Statutory language and given instructions adequately stated elements and the confidentiality/expectation-of-privacy test | Court should have amplified element to require jury to find objective reasonable expectation based on circumstances and social norms; requested pinpoint was warranted | No reversible error: trial court’s instructions tracked the statute, were adequate, and the pinpoint request was argumentative/duplicative; defendant did not request amplification at trial in the required manner |
| Whether prosecution under § 632 was barred by Williamson (general vs. special statute) because § 647(j)(3)(A) is the special statute | § 632 and § 647 address different harms; People may prosecute under § 632 for recordings with audio | Williamson requires prosecution under the special statute (§ 647) when it overlaps with the general one (§ 632) — § 647 prosecutions should be exclusive for secretly filming undressed persons | Williamson inapplicable: statutes differ in focus (visual-recording privacy vs. recording confidential communications); modern devices’ audio capability does not make § 647 commonly a § 632 violation; Legislature authorized alternative prosecution by § 647(j)(5) |
| Legality of warrantless search of electronic devices seized under Lyon’s probation search condition (Riley/ECPA arguments) | Probationers consent to reasonable, non-arbitrary searches; broad search condition covered "person, property" and included electronic devices at the time of search | Search exceeded scope because condition did not expressly mention electronic devices; Riley and later ECPA foreclose warrantless device/data searches | Search upheld: objective construction of probation condition includes electronic devices given Lyon’s history and the anonymous tip; Riley is not controlling for probation-search consent; ECPA was not in effect at time of search so did not limit scope |
Key Cases Cited
- Kight v. CashCall, Inc., 200 Cal.App.4th 1377 (Cal. Ct. App. 2011) (legislative purpose and strong privacy protection under the California Invasion of Privacy Act)
- Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (Cal. 2006) (California’s strong interest in vigorous application of § 632)
- Flanagan v. Flanagan, 27 Cal.4th 766 (Cal. 2002) (objective test for "confidential communication" and expectation of privacy)
- People v. Gibbons, 215 Cal.App.3d 1204 (Cal. Ct. App. 1989) (video recorder is a recording device; sexual conduct can be communication for § 632)
- People v. Drennan, 84 Cal.App.4th 1349 (Cal. Ct. App. 2000) (distinguishing audio-less timed photographs from § 632 recordings)
- Hernandez v. Hillsides, Inc., 47 Cal.4th 272 (Cal. 2009) (privacy expectations in semiprivate workplace spaces and intrusive effect of hidden cameras)
- In re Williamson, 43 Cal.2d 651 (Cal. 1954) (Williamson rule on general vs. special statutes)
- People v. Murphy, 52 Cal.4th 81 (Cal. 2011) (tests for applying the Williamson rule)
- People v. Sandee, 15 Cal.App.5th 294 (Cal. Ct. App. 2017) (objective construction of probation search conditions can include electronic devices; timing relative to ECPA is relevant)
- Riley v. California, 573 U.S. 373 (U.S. 2014) (warrant requirement for cell phone searches incident to arrest; discussed but distinguished for probation-search context)
- Minnesota v. Carter, 525 U.S. 83 (U.S. 1998) (Fourth Amendment expectation-of-privacy analysis for short-term commercial guests; factually distinguishable)