Rutter v. Rutter
316 Ga. App. 894
Ga. Ct. App.2012Background
- In a divorce case, Charles Rutter moved to exclude evidence derived from Stacy Rutter’s surreptitiously installed video surveillance in the marital home.
- OCGA 16-11-62(2) generally prohibits private video surveillance without consent; subparagraph (2)(C) creates an exception for surveillance within the curtilage of the residence for security, crime prevention, or crime detection.
- SB 316 repealed or amended OCGA 16-11-62; this dispute centers on whether subparagraph (2)(C) remains in force after SB 316.
- The trial court applied the (2)(C) exception to admit the surveillance evidence; Charles appeals.
- The court ultimately held that (2)(C) survives and applies, and Stacy’s surveillance was within the curtilage and for a permissible purpose; the record showed Stacy resided at the home and used the devices for crime-detection to aid custody litigation.
- The court noted no findings about abuse or spoliation were required for this interlocutory appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SB 316 repealed (2)(C) by implication. | Rutter contends (2)(C) was repealed. | Rutter argues no repeal by implication; (2)(C) survives. | (2)(C) survived; SB 316 did not repeal by implication. |
| Whether the phrase “within the curtilage” includes the residence itself. | Stacy’s surveillance of the residence is outside the curtilage. | “Within the curtilage” includes the residence itself. | Yes, “within the curtilage” includes the residence itself. |
| Whether Stacy was a resident of the marital home during the relevant period. | Stacy did not sleep there and had another address. | Stacy kept personal items, paid mortgage, received mail, and spent substantial time there. | Stacy was a resident during the relevant times. |
| Whether Stacy’s use of the devices served a permissible purpose under (2)(C). | Use was for security, crime prevention, or crime detection. | Devices were surreptitious and not used for live crime prevention; may not be security-focused. | The use was for crime detection, a permissible purpose under (2)(C). |
Key Cases Cited
- Boynton v. Lenox Square, Inc., 232 Ga. 456 (1974) (repeal by implication rules; statutory interpretation)
- Inter-City Coach Lines v. Harrison, 172 Ga. 390 (1931) (construe statutes touching same subject together)
- Dunn, United States v., U.S. 480 U.S. 294 (1987) (curtilage understanding context)
- Thomas v. State, 300 Ga. App. 265 (2009) (definition of curtilage in Georgia)
- Fleet Finance, Inc. of Ga. v. Jones, 263 Ga. 228 (1993) (lenity applies to penal statutes)
- Harris v. State, 286 Ga. 245 (2009) (lenity used to resolve ambiguity in penal statute)
- Haley v. State, 289 Ga. 515 (2011) (lenity guiding interpretation of penal statute)