State v. Cohen
302 Ga. 616
Ga.2017Background
- Mye Brindle, a housekeeper/personal assistant, secretly recorded Joe Rogers (her employer) naked and during a sexual encounter on June 20, 2012 and delivered the recordings to counsel.
- Brindle later retained attorneys David Cohen and John Butters; Cohen sent a July 16, 2012 demand letter referencing multiple audio/video recordings and seeking settlement.
- In 2016 Brindle and her attorneys were indicted on: Count 1 — conspiracy to commit extortion (OCGA § 16-8-16); Counts 2–4 — conspiracy and substantive counts under the unlawful surveillance statute (OCGA § 16-11-62).
- Defendants moved to dismiss via general demurrer and challenged constitutionality of OCGA §§ 16-8-16(a)(3), 16-11-62(2), and 16-11-66(a); the trial court dismissed all counts and declared the surveillance statutes unconstitutionally vague and § 16-8-16(a)(3) overbroad.
- The State appealed; the Georgia Supreme Court reviewed whether the indictment sufficiently alleged the charged crimes and whether the statutes were vague/overbroad.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count 1 (conspiracy to commit extortion under OCGA §16-8-16(a)(3)) was legally sufficient | The July 16 demand letter and settlement pressure constituted a threat to disseminate information to obtain property, supporting extortion conspiracy | Threat to sue / demand to settle is protected petitioning activity; indictment alleges only a threat to litigate, not to publicly disseminate outside litigation | Count 1 insufficient; demurrer properly granted. Court vacated trial court’s facial overbreadth ruling because resolution could be made on nonconstitutional ground |
| Whether Counts 2–4 (conspiracy and substantive unlawful surveillance under OCGA §16-11-62(2)) were legally sufficient | Secret use of a spy camera in Rogers’s home without consent of all persons recorded violates §16-11-62(2) and supports conspiracy and substantive counts | Defendants claim one-party consent suffices (citing OCGA §16-11-66(a)) and that recording was not in a “private place” given Brindle’s access/relationship | Indictment sufficient as to Counts 2–4: §16-11-62(2) requires consent of all persons recorded; alleged recordings were in a private place and out of public view, so demurrer was improperly granted |
| Whether the one-party-consent rule (OCGA §16-11-66(a)) negates §16-11-62(2)’s “all persons” consent requirement | One-party consent allows Brindle (as a participant) to record without others’ consent | §16-11-66(a) applies to interception of communications (wire/oral/electronic), not observational surveillance; it does not authorize covert video/photographing in private places | §16-11-66(a) does not apply to photographic/video surveillance; the one-party rule does not defeat §16-11-62(2)’s “consent of all persons observed” requirement |
| Whether OCGA §§ 16-11-62(2) and 16-11-66(a) are unconstitutionally vague | Defendants argued statutes are vague about what is prohibited | State argued statutory text is clear regarding consent and exceptions; people of ordinary intelligence have fair notice | Court held neither statute is unconstitutionally vague and vacated the trial court’s vagueness rulings |
Key Cases Cited
- Borough of Duryea v. Guarnieri, 564 U.S. 379 (discussing Petition Clause protection for access to courts)
- United States v. Pendergraft, 297 F.3d 1198 (11th Cir.) (threats to sue alone do not constitute criminal extortion)
- Buckley v. DIRECTV, Inc., 276 F. Supp. 2d 1271 (N.D. Ga.) (demand-to-settle letters do not typically meet legal definition of extortion)
- Lowe v. State, 276 Ga. 538 (standard for sufficiency of indictment under general demurrer)
- Katz v. United States, 389 U.S. 347 (Fourth Amendment reasonable-expectation-of-privacy framework)
- Smith v. Maryland, 442 U.S. 735 (Fourth Amendment surveillance/expectation-of-privacy analysis)
- Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731 (First Amendment protection does not extend to litigation based on intentional falsehoods or frivolous claims)