Cowles v. State

Justice, MATTHEWS, Chief Before EASTAUGH,FABE, BRYNER, and CARPENETI, Justices.

OPINION MATTHEWS, Chief Justice.

I. INTRODUCTION University receiving information that After manager Lindalee Alaska box office sales, stealing ticket cash from Cowles was obtaining a University police, without warrant, video camera installed a hidden theft. The her in the act of which recorded videotape whether the question in this case is consti- of Cowles's was obtained violation have rights and therefore tutional nega- in the suppressed. answer been We tive.

II. AND FACTS PROCEEDINGS ous flow of traffic about desk." [Cowles's] recording No sound was made.

Cowleswas convictedof theft in the second degree stealing University cash from the III. DISCUSSION box office. At trial and before the court of appeals, videotape she the contended that videotaping Cowles contends that the vio- showing money taking her from the Universi right lated her to be free from unreasonable ty bag transferring cash and it first to her I, guaranteed by searches Article Section 14 purse sup desk and then to her should be of the Alaska Constitution and the Fourth pressed product because it was the of an Amendment to the United States Constitu- superior rejected unlawful search. The court right privacy guaranteed tion and her to argument, appeals.1 her the court as did of I, Article Section of the Alaska Constitu- tion. underlying fully The facts set out opinion appeals. of the of court For our The United States and Alaska Con purposes important following. is to note the prohibit stitutions unreasonable videotaping requested by University The was searches, physical but also unreasonable report officials who had a received from a co- technological placing searches.2 Thus a hid employee taking that Cowles cash from den video camera a house in order to receipts. ticket An audit had verified that record activities there without a warrant is shortages. there were substantial cash No prohibited just entry as is a warrantless to warrant was obtained. The covert video sur- search for But technologi evidence. not all place veillance took over the course of two monitoring places cal or individuals is re during busy Monday a half hours a garded as a search pur for constitutional morning University office, in the box a twen- poses. Photographing person a as she walks ty-by-twelve occupied foot room which was public park in a does not raise constitutional by Cowles. The room has one other work photographing person concerns.3 But a in an co-employee station for a but it is unclear on enclosed restroom stall is a search.4

the record co-employee before us whether a was situated at the other work during station general test used to determine taping. The video camera was particular hidden whether technological monitoring vent, ceiling a pointed at Cowles's desk. The expectation is a search is the test. desk "(1) was visible to members of the Under this test courts ask: did the through the ticket through person window and (subjective) harbor an expecta actual open office door and privacy, and, so, to co-workers and visi- tion of if expecta is that to tape tors the office. The shows what the society prepared tion one that recognize is to as reasonable?" judge trial described as "an almost continu- State, (Alaska LaFave, App. 2.4(c), See Cowles v. supra, 961 P.2d 438 § 4. 1 Quinto, City Borough & Juneau v. States, v. United Katz (Alaska 1984) (decided I, under Article (1967) (attaching listening 22). Quinto Section made it clear that our earli- recording device to outside of tele per er Glass decision did not bar se all covert phone intercepted telephone booth which calls Instead, participant recording of conversations. prohibited by held to be unreasonable search in each case is [defen- "whether question Fourth Amendment to United States Constitu expectation dant's] [under the] cir- tion); (Alaska 1978) State v. Glass, 583 P.2d 872 society willing cumstances is one which to (audio recording involving of conversations sale recognize requires as nothing reasonable. Glass illegal drugs buyer with consent of held to Quinto, more." 684 P.2d at 129. The test under violate priva seller's state constitutional the United States Constitution is similar: "Karz cy). first, posits two-part inquiry: has individual LaFave, Wayne subjective expectation 3. 1 manifested a R. Search and Seizure 2.7(F), (3d 1996) (" object Second, challenged § ed. search? '[Clovert visual society person willing recognize surveillance' of a while he moves about in as is not to fourth amendment re- reasonable?" v. Ciraolo, California straints."). 90 L.Ed.2d against utility of the obviously balanced conduct did present In the case Cowles being technique activities were of law enforcement." that her not believe camera from above. monitored a video ap We that the court of believe this, take issue does not Based on State correctly peals identified the nature of had an actu assertion that she Cowles's with as the critical factor in an Cowles's office meets the and thus al swering question. could Cowles's desk there part of the test.6 We will focus first public through be seen members of test, namely part of the fore on the second door, open the ticket window and the was, expectation privacy whether Cowles's employees walking her fellow who were one. perspective, a societal continuously during around the office almost turn, question, entails "a This videotaping.9 Activities that are whether, particular if judgment ... the value public generally protect observation are not by practiced the is form of surveillance by ed the Fourth Amendment.10 What a by permitted go unregulated to constitutional knowingly public, person exposes to the even restraints, privacy and free the amount of office, subject in home or is not a of his own remaining to citizens would be diminish dom 1 protection."1 fourth amendment aims of compass a inconsistent with the ed to 7 Ortega, In O'Connor v. the United States utility open society." The of the a free and physician a at a Supreme Court ruled that considered challenged police conduct must be hospital expectation a of state had reasonable an making judgment. Whether ex in privacy private the contents of office as to his justified ... be pectation privacy of "must hospital.12 But was careful the Court partic by assessing the nature of a answered expectation would not likely to note that the same practice ular and the extent of its offices, necessarily government security apply to all impact the individual's sense of Surveillance, 2-9.1(c) Physical (noting open Standard Although acts to view all of Cowles's were - regulating open by among door and the factors relevant to the ticket window and from (i) continuously co-employees who were almost law inter use of surveillance enforcement office, ests, prong (ii) what is needed under the first the extent to which the surveillance privacy analysis inqui (ii) expectation. is an technique privacy, of invades the extent to (or ry degree-rather fact into the than the diminishes or enhances which the surveillance exposure. possibility)-of public 1 La- mere First Amendment freedoms and the exercise of Fave, 2.1(d), supra, § at 389 n. 86. Even if (iv) to which the values, related and the extent expected privacy had no from customers Cowles technique is less intrusive than other surveillance alternatives). ground-devel, at she could still and efficient or co-workers available effective privacy expectation have had an that her would eye "intruding a invaded an from not be appeals stated: The court of vantage point' above her. See State v. concealed where, place McDaniel, 163, 173, videotaped in a ac- was Cowles App.2d 44 Ohio 337 N.E.2d findings, cording Judge her activ- (1975). Beistline's Similarly, although may 177 Cowles readily have been observed expectation privacy ities "could general in her have had no by any public great member of the who detail have had an office, she could still "expectation videotaped happened visit the office or ticket window." privacy against being in it." See addition, open to view (9th her activities were 676 Taketa, v. 923 F.2d United States Judge employees. Beistline observed Cir.1991). fellow finding court's factual The superior subjective belief "an almost continuous flow that "Ms. Cowles harbored that there was ... would be that her actions in the box office her desk." We therefore believe traffic about place open and thus not to electronic moni and nature of that the finding argues against worked where Cowles toring," 442-43, P.2d at is thus not Cowles, 961 clearly priva- expectation erroneous. that she had reasonable cy. LaFave, 2.1(d), supra, § at 393 Am 7. 1 Cowles, 961 P.2d Amendment, on the Fourth sterdam, Perspectives L. 58 Minn. Rev. 334, 336, U.S. States, 10. See Bond United 146 L.Ed.2d 745, 787, 91 White, 401 U.S. United States (Harlan, L.Ed.2d S.Ct Katz, at 88 S.Ct. 507. LaFave, 2.1(d), dissenting); supra, § see 1 Stan 391-92; see also American Bar Association 94 L.Ed.2d 12. 480 Justice Electronic Surveillance dards Criminal (3d ed.) Technologically Assisted Section B: g.17 incriminating Where conduct government may occurs open for "some offices so employees area, however, to fellow or that no participants in that expectation reasonable." already observation, conduct risk and so have evidence in this case shows that the Universi "no constitutional ... to demand that ty videotaping box office at the time of the only by per such observation be made some employees open to fellow so presence they son of whose aware." [are] view of members of the fall as to through Cowles's activities were observable description. within this open ticket window and the office door by co-employees circulating through Given the clear view of Cowles's office.19The fact that the video camera desk members of the and Universi especially good position have been from ty employees, we do not believe that the fact which to view transferring Cowles's acts of ceiling that the video camera was hidden in a money University money pouch eye-level vantage vent rather than at an purse her desk and thence to her is not point dispositive importance. is of Just as a sufficient to person expectation create a reasonable expectation can have a reasonable in an particular public setting from surveillance one (but another), means reasonably she can have a where no such could exist.20 from sur particular veillance from vaniage point one Nor does the fact that the video (but another).15 Having closed the door tape pur surveillance was conducted for the booth, glass phone of a the defendant in Katz pose recording of illicit conduct violate expectation had a reasonable that he could expectation Cowles's privacy. reasonable of though not be overheard even he had no two-stage money In her transfer of from the expectation reasonable that he could not still University money pouch purse, to her Cowles Similarly, person engaging be seen.16 a appears to expectation have relied less on an illicit conduct a doorless restroom stall of than on a expectation have a belief that those who reasonable that she will not observed her actions did vantage suspect be observed from a hidden so without point her, though ing wrongdoing above part. even have on her would Members of expect been unreasonable for her to that co-employees she and Cowles's did not through would not be seen openin the doorless watch purpose Cowles with the ferreting of 718, (Plurality opinion Id. at 107 S.Ct. 1492 of Katz, 16. See at O'Connor). Court, Justice ("[What A fifth member of the sought [Katz] to exclude when he en- Scalia, Justice concurred in the result of Justice intruding eye-it tered the booth was not the opinion, agreed O'Connor's that an office the uninvited ear. He did not shed his " subject would not be 'a of Fourth Amendment simply do so because he made his calls from a protection'" in "such unusual situations as that seen."). place might where he be in which the office is to unrestricted access, 'exposed pub so that it is People Triggs, 8 Cal.3d 106 Cal. 1492, Scalia, J., lic'." at Rptr. 238 n. 7 concurring (quoting Katz, 389 U.S. at Jarrell, N.C.App. 18. State v. 211 S.E.2d Compare Vega-Rodriguez v. Puerto Rico Tele Co., (1st phone 1997) ("It 110 F.3d Cir. simply implausible suggest society is that 19. The door a was around corner from the win- recognize employee's would as reasonable an investigating dow. The officer testified that from expectation privacy against being viewed vantage points any the two member of the toiling open while in the Center's and undifferen everything could see shown the camera. See provide tiated work area. PRTC did not Cowles, 961 P.2d at 443. use, appellants' work station for the exclusive physical layout any expectation and its belies 20. There videotaping also evidence that do not privacy. Security operators occupy pri They vate offices or cubicles. toil instead in a intrusive, needlessly Cowles from above was not vast, space-a patulous undivided work area so prevented as the ticket office's cement walls expectation as to a render broadcast positioning eye-level. a camera at unreasonable."). Cowles, at 443. P.2d LaFave, 4(c), supra, § See 1 reason for out however, activities served theft duct from surveillance had no reasonable point malfeasance.22 trusted When ment situation appeals ness a relevant factor ments, treated assume stated: which worked where taping was money for tickets. the the misconduct, A second does could have generally used of Cowles's University office, it becomes less with that her conduct that the fact that Cowles had access. the fact members of the are individual in a not affect the the hidden camera. private.23 We also handling analysis.21 Because Cowles's and was stored basis for fiduciary capacity in an office purpose while with been seen from bearing was directed to view with the agree enters expectation of As high her they finding that the video reasonable for regularly handled Money belonging to results of a Fourth the court of was, on the employer's cash is detecting miscon public security require into an Cowles was the reasonable public, Video surveil detecting her in a If that Cowles actually course, job exchanged person's court of vantage privacy. employ appeals safe Cowles will public, her to ob en to in vert work rights. The cases are United present case was her .27 We Bonnell are not ,25 here was placed in the and we his gest served for defendant O'Brien's Thomas court. Ninth Cireuit found interest reaching this conclusion expectation of reasonable, O'Brien, sive use a forcible edged that even the performed tellers against Cowles position that the covert co-defendant, Taketa, had a reasonable State video place was held Taketa, in an office reserved for disagree with the work. permissible. relies on finding believe that at a the surveillance entry monitoring of activities in the especially when asserted court Bonnell,26 ceiling a covert video privacy in the office. As privacy." place Thus, only distinguishable that she By after constitutionally noted: "We find a Cowles's three cases in which co to violate constitutional private that both O'Brien and contrast, work hours.28 and State v. Thomas ^[24] the court acknowl employment nature of the work had a reasonable Thomas monitoring in the reasoning of the office of a States v. Taketa office camera was Takete and one's exclu took use. The forbidden, office re supports but against argues to be place sug gov In protected would not be ernment worker in commonly stores lance is conducted privacy if the office expectation of reasonable money is ex commercial offices where employees or the open to fellow in where were "so changed, areas banks such as Treasury Employees Union v. Von National 213- Ciraolo, v. 21. See California Raab, (1986); 489 U.S. L.Ed.2d 210 14 n. (1989) ("[It plain that certain 445, 453, 109 L.Ed.2d 685 see also Florida Riley, (O'Connor, con priva public employment diminish forms of (if personal respect ... judgment) cy expectationseven with to curring activities can be in person's vantage point generally used observed Mint, Employees of the United States searches. reasonably expect pri person public, that cannot subject example, expect to cer to for police). vacy from observation they leave personal searches when tain routine LaFave, supra, every day."); workplace the only theft be seen from 22. Not could Cowles's 8.6(d), § n. 86. at 823 vantage point, of her co- public but at least one coming in from theater workers had seen cash being deposited, she knew was not shows which Cowles, 961 P.2d University reported to the Cowles and had personal money receipts taking for her from the (9th Cir.1991). 25. 923 F.2d 665 P.2d at 441. The trial Cowles, use. continuous flow of that the "almost court found 26. 75 Haw. desk," about her visitors] traffic [co-workers handling cash in the particularly when she was (Ind.App.1994). 27. 642N.E.2d240 it, "seriously embezzling process undermined" agree privacy We with assertions." "Cowles'[s] conclusion, appeals. See did the court of as 28. 923 F.2d at 673. 443, id. at expectation that no is reas Court of Hawaii concluded that the defen- noted that onable.2 But the court the objectively expecta- an dants had open question office in was not respect tion of with to their activities people regular and that three had access concluding in the room. break so Further, to it.30 each of the three was court noted co-conspirator named in the criminal public place break room was neither a nor charged.31 conduct Only hearing. to view or The Ninth Cireuit also found Taketa to postal employees guests and invited were have a reasonable in Accordingly, allowed in it. the defendants special O'Brien's office. Taketa was the position regulate were in a their conduct agent charge Drug Enforcement present company. as a function of More Agency suite which O'Brien's office was over, room, when seated in the break finding located. that Taketa had a rea anyone approaching defendants could see sonable when he was being surprised and could avoid office, videotaped in O'Brien's the court first intruder.[36] untrusted acknowledged rule, general "Videotaping banks, suspects public places, such as Again, significantly this contrasts with the Amendment; does not violate the Fourth University present box office case. police may they normally may record what open The box office was view and eye.32 view with a naked But the court regularly by co-employees visited whom general found that apply rule did not any report Cowles could not trust not private both because of the nature of the they might misconduct observe. place videotaping place where the took when it time occurred.34 The third case on which Cowles relies contrast, By University box officewas State Thomas.37 The defendant in that office, place not a but a from which park case ran a store a state under a public. tickets were sold to the It was not agreement required concession which him to for Cowles's exclusive use. It was to pay percent gross receipts ten to the state. videotaping. at the time of the Suspecting using that the defendant was not Moreover, University employees, numerous register transactions, park the cash for all co-conspirators who were in no sense of officials focused a hidden video camera on Cowles, regular had access to it. register during the cash business hours for distingu materially State v. Bonnell is also days. videotape four The showed incrimina The covert video surveillance ting part. ishable.35 conduct on the defendant's The there a in was video camera hidden a smoke Appeals upheld sup Indiana Court the post detector in the room break of a office. pression tape grounds on the that the police reports gam had received that defendant had a reasonable activity bling taking place. was The covert respect with to his activities that year. video surveillance lasted for a full recorded, though were even these activities holding "openly exposed

In were tape that surveillance to members of the admitted, Supreme should not have public camp been who used the state-owned O'Connor, (Taketa 29 videotaped Sunday Id. at 673 480 U.S. at 717- 34. See id. was on a . people "at a time when other would not normal- ly present."). Id. at 673. 35. 75 Haw. 856 P.2d 1265 Id. at 669 n. 2. Id. at 677. Id. at 1276. ("As id. before, noted the office not was (Ind.App.1994). 37. 642 N.E.2d open public. to the Taketa also exercised a cer- premises, tain dominion and control over the a ..."). entry. the time of his society. values of our free But this conclu- store.3 necessarily sion would not be the same if the argues that Thomas is distin- The State monitoring legiti- had not been initiated for a grounds. The guishable on a number of purpose-the mate detection of theft-and licensee, a not a em- defendant was grounds had not been based on reasonable agreement a ployee; under his license he had stealing. Lacking believe that Cowles was superior store to that possessory cause, legitimate purpose, or reasonable state; actually handling and he was his utility monitoring of the would be diminished money in who own contrast to Cowles was might and a different balance be struck. University money. handling with entrusted But we do not believe that these differences IV. CONCLUSION necessarily important point critical. The Thomas, here, videotaped that is stated, For the reasons the decision of the transactions were and visible to mem- appeals court of is AFFIRMED. disagree public. bers of the But while we materially that Thomas

with the State FABE, Justice, BRYNER, with whom case, distinguishable present we from the do Justice, joins, dissenting. correctly it was decided. not believe were to members of the regard part of the defendant transactions senting judge in Thomas Instead, building. The ture, public, summated on tection The camera actions which members "What a private: as reasonable were we ...." even person knowingly exposes to the agree ^[39] videotaped question of Fourth Amendment his own home or transactions, by with the view of the dis- public, any expectation and not were land inside a society commercial trans of the that, the transactions openly exposed because the private.... should not their na office, pro con intrusive who have-and itor workers without rant, the federal government may use hidden cameras to mon is "broader in tions the United States sion defines Alaskans' constitutional precedent Constitution's doing, According more so offices. This decision long disregards ample police narrowly supporting the conclusions that Constitution," to the court's decision privacy. Although search and seizure seope as the deserve-every surveillance of individuals than has than that obtaining workers state and the court's deci permits deeply any Court. guaranteed do not have search the Alaska decision of today, protection protec federal war so expect privacy surrepti workers should summary, agree we with the conclusion police regardless tious surveillance covertly appeals of the court of space; nature of their work vio videotape recorded of Cowles's activities expectations late reasonable University properly office admit- box engaging in more intrusive searches than a largely ted into evidence. For the same expect from a member of expressed by defendant would reasons as those the court of public; video appeals, agree judgment with the value and that secret overhead we uniquely is a intrusive mode of that Cowles did not have an observation search, requiring privacy place question at thus a warrant. The court the time and society recognize support unprecedented its asser as reasonable. The also fails to monitoring place tion that a defendant who works with cash covert video took not, legally priva judgment, in our inconsistent with the has a diminished 1979) (Alaska preincarcera (expanding limits on Id. at 244. searches); State, Jackson v. 791 P.2d 1023 tion Katz, 351, (quoting U.S. at 88 Id. at 248 389 (Alaska App.1990) (limiting pat-down searches S.Ct. by rejecting bright-line adopted rule and Robinson, v. U.S. Court United States Supreme v. Rohde, State, 1. Woods & Inc. Labor Dep't of 427 467, 38 L.Ed.2d 218, (Alaska 1977) (extending P.2d 565 150 (1973)). protection search and seizure to commercial State, property); P.2d 727 see also Reeves 599

cy. agree dealing I We are not with formalities. The Because cannot with court's presence high of a search warrant serves a departure Alaska and feder from established grave emergency, law, function. Absent some respectfully al I dissent. interposed the Fourth Amendment has magistrate between the citizen and the I THE ALASKA CONSTITUTION PRO- police. was done not to shield crimi This INDIVIDUALS FROM SUR- TECTS nals nor to make the home a safe haven for REPTITIOUS POLICE VIDEO SUR- illegal activities. It was done so that an VEILLANCE. objective might weigh mind the need to purpose" invade order to enforce the "primary The of Alaska's consti right law. The was deemed too against guarantee tutional unreasonable precious to entrust to the discretion of protection is "the searches and seizures2 job those whose detection of crime dignity personal privacy against unwar criminals.[6] and the arrest of by ranted Because of intrusion State."3 protection, law officials enforcement Glass, In we State held warrantless upon individual without a not intrude monitoring electronic audio violated the state requirement warrant. The warrant is a holding, expressed constitution.7 so we Jay weighty one. As Chief Justice Rabinow grave concerns about electronic surveillance State,4 my judg itz wrote Smith v. "ln technologies right and their effect on "the ment, preferable it is to entrust the decision when, persons to determine for themselves scrutiny to invade how, citizens' and to what extent information about judicial police neutral officials rather than them is communicated to others."8 operating officers-even officers under today court's decision odds with both great Quoting self-restraint." logic language U.S. Su of Glass. The Glass preme opinion in Court's McDonald v. United opinion emphasized high placed "the value speech society," ates,5 our but it did not there St Chief Justice Rabinowitz contin ued: constitutionally abandon our mandated (1984), § 2. See Alaska Const. art. the Montana Court excluded videotapes from evidence of defendant's conver- Rohde, (internal officer, 3. Woods & 565 P.2d at 148 sation with an undercover and in State v. omitted). quotations Siegal thermo-imaging it found that warrantless marijuana-growing operation indoor con- (Alaska 1973). P.2d stituted an unreasonable 281 Mont. 250, search. (1997), grounds 934 P.2d 176 overruled on other 451,. 5. 335 93 L.Ed. 153 Kuneff, 291 Mont. 970 P.2d 556 (Alaska 1973) State, 6 Smith v. 510 P.2d . Glass, Westin, (quoting 8 P.2d at 880 Alan F. . (Rabinowitz, dissenting) J., McDonald, Privacy and Freedom 7 191); 455-56, 335 U.S. at see also ("The Rohde, & P.2d Woods at 149 conclu (Alaska Page, 9. State v. 932 P.2d imposition sion that the is reasonable should not 1997) (Matthews, dissenting) (arguing that a very persons agency be drawn are the who speech concern free was the central rationale deprivation rights.") (quoting for the Keller v. Glass). surveillance, too, Video threatens ac- (Alaska 1975)). State, Amendment, protected by tivities the First in- cluding assembly, writing, symbolic speech. Glass, (Alaska 1978). 7. 583 P.2d 872 we cited (protecting See U.S. Const. amend. I freedom of that, approval holding with a Montana case un- speech, press, freedom of the and the privacy provi- der Montana's state constitutional peaceable assembly); see also Tinker v. Des sion, reasonably expected privacy defendants Dist., Indep. Community Moines Sch. from audio broadcast conversation, of their de- 503, 505-06, 733, 89 S.Ct. spite they public parking the fact that were in a (First protects right to Brackman, wear black (citing Id. at lot. 878 State v. 178 conflict); protest armbands to school to Vietnam (1978)), 105, Mont. 582 P.2d 1216 overruled by (Alaska 774 P.2d Tait, 185, Johnson v. 186 n. 3 Brown, State v. 232 Mont. 755 P.2d 1, 1364 1989) (Hell's Angels protected symbol- emblem is More recent Montana cases have found speech). expres- protection technological- ic The concern for freedom broad warrantless case, ly applicable aided surveillance under the state constitution. sion Glass is therefore to this Solis, 310, In State v. 214 Mont. 693 P.2d 518 as well. moment than the use of that greater societal personal priva protection "the concern for against unwarranted intrusion cy dignity evidence to obtain conviction.16 These fact, opinion the Glass by paramount regardless the State.10 remain values very spoke It of "[the concern: built on this or the character of the facts of case ... monitor impact of warrantless Frankfurter ex defendant. - As Justice corrosive security11 and twice ing on our sense history plained, summary a fair to "Jt right at issue the case as defined the liberty say safeguards of have fre 12 "right let alone." to be forged in involv quently been controversies so, very people. while we ing not nice And opinion in even intimated Glass Our defrauder, holding apply to video shabby specific Glass's are concerned here with suggested in the We we must deal with his case context well as audio surveillance. privacy provision constitutional that Alaska's really great expressed themes what are 7 Following by the Fourth Amendment."1 to may enacted "out of a concern have been governmental use protect against extensive themes," "great precedent, those our own 3 techniques."1 We of electronic surveillance Court, and that of the U.S. approval v. with Dietemann also mentioned rights government violated Lindalee Cowles's Time, Inc., privacy case in a common-law by subjecting surreptitious her to and war- volving surreptitious photography and both workplace. in the rantless video surveillance 4 analysis in recording;1 that case audio exclusively images concerned visual almost II. THE PRESENCE OF COWORKERS capacity deviceswith their and "electronic IN CLEAR- COWLES'SWORKPLACE upon most inti [an individual's] . intrude HER REA- LY DEFEAT DOES NOT activities, personal expose his most mate PRI- SONABLE EXPECTATION OF 5 public gaze."1 characteristics VACY. electronic surveillance Warrantless secret provi and federal search and seizure State deeply agents violates law enforcement people, places."18 have protect not We sions constitutionally protected values. held and "(wherever be, recognized that a man (Glass, recognized in "we exclude As we entitled to know that he will remain he is [gathered unconstitutional evidence from unreasonable and seiz pre free searches the transcendent values means] because 9 depend on an of ures."1 This does guarantee constitutional served Glass, State, Rohde, why (explaining "more Dep't 583 P.2d at 878 Labor 16. 10. Woods & Inc. v. 1977) a conversation is not neces- (Alaska reliable" evidence of (extending 148 138, 565 P.2d protection alone). commercial search and seizure admissible for that reason sarily (internal omitted). quotations property) Rabinowitz, 56, 69, U.S. 17. United States v. 339 Burr, (quoting 486 at 877 Holmes v. 11. 583 P.2d 430, (1950) (Frankfurter, 70 S.Ct. 94 L.Ed. 653 J., 55, 1973) (Hufstedler, (9th dis- F.2d 65 Cir J., California, dissenting), v. overruled Chimel senting)). L.Ed.2d 685 752, 2034, U.S. 89 S.Ct. 23 395 State, 127, (1969), quoted McCoy v. 491 P.2d 876, 880. Id. (Alaska 1971) (Rabinowitz, concurring in 139 part). part dissenting 513, Roy, (quoting Haw. at 879 State v. 1066, (1973)). P.2d States, v. United 18. See Katz L.Ed.2d 576 Id. at 880-81. Cir.1971) (Alaska (9th (quoting 872, 875 Glass, F.2d 583 P.2d Katz, 1978) U.S. at Digest Ass'n, 4 Cal.3d Briscoe Reader's 507). Cal.Rptr. See also implies protection from search Glass Torres, (7th 751 F.2d 875 Cir. general, United States and electronic surveil- and seizure in case, Judge Posner observed: In that people purely particular, lance in extends holding audio (or public locations. the in-house [SJecretly televising people taking still or unconstitutional, cit- them) that case we surveillance in they moving pictures while are in that, holding approval case ed with a Montana private place they an even what think is a privacy pro- state constitutional secretly under Montana's greater privacy than re- intrusion on vision, reasonably expected privacy defendants cording conversations. their conversation, de- of their from audio broadcast Id. at 878. 1178 subsequent physical applying location or on her status As cases Katz make

individual's court, however, clear, workplace. in the con an individual such as Cowles can rea- protection depends sonably privacy workplace. expect cludes that constitutional her on whether an individual shares her work Supreme applied The U.S. Court the Katz space, holding public nature of that "the workplace to the v. standard O'Commor deny the critical factor" [is] Cowles' office majority Ortega.24 A of that Court found protection.20 ing her Fourth reasonably expect pri that a defendant can holding This runs afoul of clear Su U.S. office, vacy open in her even if that office is precedent insupportably preme Court decision, people.25 today's to other this on their discriminates between citizens based quotes plurality opinion court O'Connor's as workplace status. 27 legal authority.26 quoted language But the suggests that the The court fact, holding; it is O'Comnor's con decision in Katz v. United States21 Court's only holding flicts with the for which O'Con- protection limits search and seizure legally mor stands: the narrow rule endorsed loc But Katz created no such ations.22 concurring Antonin Justice Scalia as the contrary limitation-to the it stated: fifth vote.28 Justice Scalia's concurrence ex knowingly exposes person What a pressly disputed plurality quot standard office, public, even in his own home or is majority. ed this court's He wrote that pro not a of Fourth Amendment wrong the standard "must if it be leads to preserve tection. But what he seeks to present the conclusion on the facts that if

private, even in an area accessible to the Hospital officialshad extensive work-related public, may ^[23] constitutionally protected. Fourth Amendment reasons to enter Dr. protection Ortega's existed. office no It is support privacy protected by The Katz standard does not the Fourth Amendment, not solitude."2 To illustrate Rather, holding. supports court's a conclu- that, location, Amendment, regardless sion of her indi- the reach of the Fourth Justice reasonably expects pri- hypothetical vidual who seeks and Scalia described a defendant vacy protected by very Fourth Amendment. much like Lindalee "[TJhe Cowles: see- spite they public parking Op. the fact that were in a 26. See at 1171. Brackman, (citing lot. See id. at 878 105, Mont. 582 P.2d 1216 See also State government may "[Slome offices be so Bonnell, 124, 75 Haw. 1265, employees expec- to fellow or that no (1993) ("a person has a 'halo' of wherev- O'Connor, tation of is reasonable." 718, goes protectable right (pluralityopinion}. er he and can invoke a U.S.at 107S.Ct.1492 may legitimately wherever he be and reasonably expect governmental freedom from fragmented "When a court decides a case and intrusion"). single explaining enjoys no rationale the result Justices, holding the assent of five 'the Op. position court be viewed as that taken judgment those Members who concurred in the 507, 347, 21. 389 U.S. 19 L.Ed.2d 576 grounds.'" on the narrowest Marks v. United (1967). States, 188, 193, 990, 430 U.S. 97 S.Ct. (1977) (quoting Gregg Georgia, L.Ed.2d 260 Op. at 1171-1172. 153, 15, 2909, 428 U.S. 169 n. 96 S.Ct. Stewart, Powell, (1976) (opinion L.Ed.2d 859 Stevens, added) JJ.)). (emphasis City Id. at See also Feliciano v. S.Ct. 507 Cleveland, (N.D.Ohio 1987) F.Supp. (citations omitted). (noting aspects those of O'Comnor in joined plurality which Scalia have "the 24. 480 U.S. 107 S.Ct. 94 L.Ed.2d 714 Court"), weight abrogated of a decision of grounds by Treasury Employees other National Raab, 656, 671, Union v. Von 489 U.S. 25. See id. DeForte, Mancusi v. 103 L.Ed.2d 685 368-69, (1968), the court established that defendant who single large shared a office with several cowork O'Connor, 480 U.S. at 107 S.Ct. 1492 (internal ers (Scalia, had a reasonable concurring judgment) omitted). quotations was defeated search the office. citations frequently retary working ... in an office limited to a view from the box-office wind O'Connor, ow.35 Katz Under both employees protected by ... other is entered of that office against protected by unreasonable searches at Cowles's her desk is sup government.30 Justice Scalia Fourth Amendment.36 position by ported his reference to Mancusi only conclusion that This court's inhabit DeForte, holding that the Fourth a case private protected of ants offices in protected a defendant an of particularly warrantless surveillance is dis fice shared with coworkers.31 Justice Sea- turbing effectively because it ties a defen rule for which lia's narrow rule-the O'Con- rights dant's constitutional to her economic government employees mor stands-is that Following the status. standard articulated protection in lose Fourth Amendment today, in executives offices will be situations as that in which the "such unusual protected, but clerical workers shared public office is to unrestricted access." spaces dispro work will not. This rule will Following Supreme this 32 U.S. Court women, portionately represent affect who Constitution, interpretation of the Federal secretaries, receptionists, 99% of 96% of 91% presence of coworkers did not Cowles's bookkeepers, and 77% of cashiers.37 The privacy expectation.33 defeat her impact greater of this rule is still for Afri O'Comnor, legally binding rule from women, likely can-American who are more then, enjoy government that workers support work administrative or service privacy in the of positions any jobs.38 than other The court coworkers; regardless presence fice of the why principled offers no reason constitutional their remains reasonable unless protection privacy, which we have defined public has unrestricted access to the preserving as "the individual's interest his clearly public office.34 The did not have un dignity being,"3 essential as a human restricted access to Cowles's office. Her of depend upon an individual's status in the space, fice was enclosed access workplace. was restricted a door with combination lock, suggest nearly The record does not Chief Justice Rabinowitz raised a physically objection in members of the ever en identical his dissent from Smith v. State.40 The court held that individuals rather, space; tered the access was (1st Cir.1997). Op. Interestingly, 30. at n. Vega-Rodriguez holding depended on the fact 368-69, 31. 392 U.S. at 88 S.Ct. 2120. affected the surveillance disclosed-'"the workers were on clear notice from the outset" of (emphasis 480 U.S. at the video surveillance. Id. at 180. The court added). involving "caution[ed], however, that cases cameras, covert use of clandestine or cases in- leading 33. The treatise on Fourth Amendment electronically-assisted eavesdropping, volving - analysis, pointing law reinforces out quite story." another Id. at 180 n. 5. very important recognize majori that a "[it [U.S. Court] subscribes to a ty Bureau, Labor, 37. Women's U.S. Twen- Dep't employee's somewhat broader notion of a ty Leading Occupations Employed Women justified privacy expectations workplace in the (March 2001) expressed by plurality]." Wayne [than <http://www.dol.gov/dol/wb/public/wb-pubs/ LaFave, R. Search and A Treatise on the Seizure: 20lead99.htm>. 10.3(d), (3d § Fourt Amendment at 482 h ed.1996). Bureau, Labor, Dep't 38. Women's No. Working Women, Facts Black Women 97-1, O'Connor, in the Labor Force Glass, Alan Wes 583 P.2d at F. below, partial visibility 35. As discussed tin, Privacy and Freedom area Cowles's desk from outside expec- box office does not defeat her reasonable (Alaska 1973). 510 P.2d 793 The New Jersey type tation of from the of surveillance Supreme Court cited Chief Justice Rabinowitz's employed in this case. holding that curbside trash searches dissent its Jersey Vega-Rod- 36. The court cites without discussion violate the New Constitution. See Co., riguez Telephone Hempele, A.2d v. Puerto Rico 110 F.3d 174 120 N.J. disposed dumpster private denying of trash in a common ecutives in who offices but it to reasonably expect police typing pools. could not that secretaries garbage.41 But would not search their Chief IIL. THE PARTIAL VISIBILITY OF disagreed major with the Justice Rabinowitz COWLES'S WORKPLACE ity's holding as it discriminates "insofar be A THROUGH BOX OFFICE WIN- privacy occupy of citizens tween DE- DOW CLEARLY DOES NOT ing single family dwelling, living a and those FEAT HER REASONABLE EXPEC- multiple dwelling places."4 unit He ex TATION OF- - PRIVACY - FROM plained: OVERHEAD - VIDEO - SURVEIL- my unjusti opinion, such a distinction is LANCE. being arbitrary fiable as either or ultimate ly grounded upon impermissible economic partially Cowles's desk was visible to the discrimination.... Nowhere the text of public through a customer service window.45 amendment, I, the fourth article section 14 fact, Based on this the court concludes I, proviso, or article is the "for section expectation no pri had reasonable Cowles _... property only." owners To make the vacy ceiling-mounted from video surveillance amendment, protection of the fourth article police. This conclusion is at odds with I, I, depend section 14 or article section precedent our own and with that of other upon the economic status of an individual state and federal courts. Because video sur is, my opinion, unacceptable. . The particularly intrusive, veillance is and be appropriate analytical point focal should be cause it far expecta exceeds the reasonable appellant's expectation priva reasonable people in tions of all but the most view, cy. my expectation such will re locations, agree numerous courts that war- constant, regardless ap main of whether police rantless surveillance violates defen pellant's living unit is situated itself on rights. dants' spacious a multi-acre estate or stacked upon in a ... others crowded tenement Not, Warrant, May A. Police Without a city.[43] the inner Use Means Surveillance In- More The individual's reasonable trusive than Those Which Defen- police from video surveillance should Reasonably Expects dant Public from similarly remain constant whether she works Observers. in a office or a crowded common space. protected by "It is completely open Even in an area I, public-which Fourth Amendment [and article sections Cowles's office was not-citi Constitution], intrusive, 14 and 22 of the protected Alaska not zens warrant- gravely solitude." The court Again, errs less searches. the standard is the recognizing protection constitutional for ex defendant's incriminating would also have discerned the Smith, 510 P.2d Taketa, acts. See United States v. 923 F.2d (9th Cir.1991) (treating against intrusiveness (Rabinowitz, C.J., dissenting). 510 P.2d at 805 personal dignity finding as reason for search case); unreasonable in video surveillance Bonnell, 75 Haw. 856 P.2d (1993) (same). 480 U.S. at O'Connor, 730, 107 S.Ct. 1492 A witness testified that Cowles's desk (Scalia, concurring). desktop was 12-13 feet from the window and her partially obscured from view. He indicated

45. The court below found that Cowles's incrimi every- that a member of could not see nating public. activities were visible to the thing recorded the camera without simulta- State, (Alaska App. Cowles v. neously looking through the box win- both office 1998). But the record dow and the around indicates detail door the corner from the captured by surpassed the camera that which window. The record does not reflect whether the any member of the could have seen. This door and window were when the surveil- conducted, intrusive focus is relevant to Fourth although they typical- lance was were analysis public's gaze ly open during even if less-intrusive business hours. should reason First, the defendant uniquely privacy. Where lance intrudes on 4 observation, govern police monitoring by poses hidden ably expect public cameras may engage special personal dignity, security, in observation of sort. threat ment does presence Second, observers privacy. But hidden cameras give government unlimited license not expectations violate reasonable intrusive modes of surveillance. pursue more matter, practical because an individual does repeatedly has ar Court reasonably expect sustained observation Thus, ticulated this standard. vantage point Katz from a where no human would glass phone booth could defendant inside a reasonably be. Courts have drawn on both seen, reasonably expect but not to be conceptions expec- of defendants' Similarly, a merchant who invites heard.47 tation to conclude that hidden goods is constitutional to view his by police surveillance video violates constitu- using ly protected police from more intrusive rights. tional techniques "seeing them as a customer for 8 ordinarily In would see them."4 its [not] police Seeret video surveillance is term, recent the Court reaffirmed this most uniquely dig- to individual offensive passenger principle, holding that a bus who nity privacy. passengers employ knew that other or bus luggage nev might ees handle his soft-sided a far Video surveillance is more intrusive reasonably expected privacy from a ertheless mode of than observation Cowles could rea agent "feelfling] bag in law enforcement sonably expected have from her coworkers 9 exploratory rulings These re an manner."4 public. opinionin or the Our own Glass rec single may citizens flect a consistent rule: ognized that electronic warrantless surveil reasonably expect privacy from intrusive impact ... lance has a "corrosive on our observation, if government modes of even 0 security."5 involving sense of cases vid engage they expect members of the to surveillance, eo have found courts in less intrusive observation. "unarguable television surveillance exceedingly inherently ... in intrusive B. Is Secret Overhead VideoSurveillance discriminate, grossly and that it could be a More Intrusive Mode Observation personal privacy un abused-to eliminate Reasonably than Have Cowles Could 1 in modern nations."5 derstood Western Expected the Public or Her Co- Appeals for the recent words of the Court of workers. Cireuit, the Ninth video surveil "[hlidden investiga lance is one of the most intrusive recognized Courts have two related but ways to law enforceme distinct in which video surveil- tive mechanisms available secret Borough Quinto, States, 334, 339, Juneau v. 684 49. Bond v. United 529 U.S. 120 See City 127, (Alaska 1462, P.2d 129 146 L.Ed.2d 365 States, 347, 352, 389 U.S. v. United Katz Glass, (quoting P.2d at 877 Holmes v. 583 507, 88 S.Ct. L.Ed.2d 576 (Hufstedler, (9th Cir.1973) Burr, 55, 486 F.2d J., dissenting)). Sales, 319, Inc. v. New 442 U.S. Lo-Ji York, 329, (1979) 2319, S.Ct 60 L.Ed.2d 920 (where pay justice issuing town warrant did not Bonnell, 1265, 51. State v. 75 Haw. wrappers from for films he viewed and removed Torres, States v. United material, seeing print as a he "was not them (7th 1984); Cir. see also United F.2d them," customer would see and there ordinarily Cuevas-Sanchez, (5th States v. 821 F.2d Amendment); see also fore violated the Fourth Cir.1987) (adopting gov constitutional standards Macon, 472 U.S. Maryland surveillance)); erning valid warrants for video (1985) (in investiga vice Thomas, (Ind.App. 642 N.E.2d tions, government agent, in the same man "[a] 1994) right (Department of Natural Resources's may private person, accept ner as a an invitation inspect premises did not con concessionaire's may upon premises enter to do business and surveillance). install hidden video fer very purposes contemplated by the occu for the States, pant") (quoting Lewis v. United 206, 211, 17 L.Ed.2d quoted Judge nt."52 The court Kozinski's defendants reasonably expect over "every considering flight statement court observation law enforcement offi airplanes video can helicopters, [that] issue has noted surveillance cers or because if is extraordinarily result serious intrusions routine members see the during same view air travel.56 But it was not personal privacy.... into If such intrusions permissible, they justified possible ever must be or even routine for members of the extraordinary showing of need."53 to view Cowles's desk as did the Surreptitious recording clearly investigators video more through their video camera. ordinary public gaze than intrusive which did not have access to the box- position might defendant Cowles's ex ceiling. suggests office The record such, pect. beyond range As it is public looking members of the in the window agents activities which law enforcement past piles not even have been able to see warrant, may, engage. without a paper on the desk to observe all of the incriminating captured tape, activities in 2. Secret overhead video surveillance cluding desktop activities such as Cowles's violates reasonable ex- defendants' writing deposit receipt. on the cash pectations because it of if Even intermittent observation gives police that information defen- ceiling vantage point possible, from the were reasonably expect dants do mot to applying case law Ciraolo indicates that war- expose observers. rantless overhead video surveillance would Surreptitious overhead video surveillance still violate the Fourth Amendment. by police expec- violated Cowles's reasonable Cuevas-Sanchez, United States v. the Court tation of because it exceeded her Appeals of for the Fifth Circuit faced this reasonably expected public in its observation question: fly-over "Ciraolo teaches us that a duration, focus, proximity, vantage point. 1,000 plane at feet does not intrude involving Cases aerial observation of defen- upon daily people; the existence of most we property dants' confirm that a defendant must now determine whether a camera moni may expect public gaze the without reason- toring person's backyard all of a activity 57." ably expecting unblinking the lens of a video appeals opined does The court of camera close overhead. any type Ciraolo does not "authorize[ ] of Supreme cases, just Two U.S. Court type surveillance whatever because one California Riley,55 v. Ciraolo54and Florida v. hold minimally-intrusive aerial observation is 450-51, (plurality (9th id. at See 109 S.Ct. 693 222 Nerber, United States F.3d 603 Cir.2000). votes) (O'Connor, holding, four and 452-55 Ciraolo, 213-14, concurring); 476 U.S. at 106 Koyomejian, United States v. 970 1809; see also Katz, 389 U.S. at (9th Cir.1992) (Kozinski, J., F.2d con (a S.Ct. 507 defendant loses Fourth Amendment (alterations curring) original)). in See also protection only "knowingly for activities he ex- George description Orwell's of video surveillance poses public.... to the But what he seeks to from 1984: preserve private, even in an area accessible to The telescreen received and transmitted simul- public, constitutionally protected.") be made, taneously. Any sound that Winston (citation omitted). Thus, exposing activity an very whisper, above the level of low would be sky ceiling knowing or overhead constitutes it; moreover, picked up by long so as he re- exposure public only if the can mained within the field of vision which reasonably expected occupy vantage commanded, plaque metal he could be seen as point. way well as heard. There was of course no you knowing being whether were waiched at (5th Cir.1987) (holding 57. 821 F.2d any given moment. video surveillance was a search for Fourth Orwell, George (quoted in Cuevas- purposes, Amendment but that the warrant ob- Sanchez, 821 F.2d at n. valid). by police Riley, tained In Florida v. approved the court closer observation from 54. 476 U.S. 90 L.Ed.2d 210 feet, Ciraolo, ruling depended but as in on the fact that a member could see 55. 488 U.S. the same view. U.S. at 449-50, Riley, 109 S.Ct. 693. government possible." It concluded that in workplace rantless video surveillance engage in warrantless video agents could not expectations violated workers' reasonable "potentially indis surveillance because this privacy, despite the fact that the workers did intrusive method of sur- criminate and most not have offices. And in State v. comparable was not to the routine veillanee" Bonnell, explicit the Hawaii Court in discussed Céraolo.59 observations ly "exceedingly relied on the na intrusive" court, applying federal consti A California concluding ture of video surveillance that a law, governing tutional arrived similar employee hidden camera breakroom specifically addressing principles without vid expectations violated workers' reasonable Romo.60 The People eo surveillance majority privacy.65 recognizes sig Ciraolo, that, a defen court indicated under opinion, nificance of Thomas in its but mis dant's construes both Takete and Bommell All might agents law enforcement be violated apply legal principles three cases the clear using hovering property her or electron over outlined above to conclude that surveillance ic aids to observation.61 The reasonableness of the sort used this case is unconstitution stated, observation, overflight the court al. depends part on the duration and altitude Following this stan observation.62 Thomas, state officials installed a video dard, from close over sustained observation register park camera above cash of a likely to the Fourth head is more violate concession store and recorded the clerk's passing than would observa cash The transactions.66 Indiana Court of a in an air tion of law enforcement officer Appeals applied both state and federal case, government craft. this the observed search and seizure law to conclude that the non-public vantage point im Cowles from a reasonably expected privacy, clerk and mediately period over her head for a tape therefore the .67In was inadmissible so hours, uniquely and it used intrusive surveil doing, recognized points it all of the of law technology lance to do so. This action was a search; warrant, in the absence of a it was discussed above: workers do not lose their unconstitutional. publicly even a accessible workp lace,68 uniquely video in IV, FEDERAL AND PERSUASIVE - surveillance,69 prolonged trusive mode of and THAT STATE AUTHORITY HOLDS vantage point observation from an overhead IN WORKERS - - SEMI-PUBLIC "grossly intrusive."7 HAVE A WORKPLACES REASON-

ABLE EXPECTATION OF PRIVACY Appeals The for the Ninth Court of Circuit FROM - SECRET - GOVERNMENT reached a similar conclusionin Taketa.71 In VIDEO SURVEILLANCE. case, agents federal installed hidden In both v. Thomas63 and ceiling State United video camera in the of defendant re Taketa,64 Thomas O'Brien's office.72 The camera concluded that war- States courts 58. 821 F.2d at 251. 65. 75 Haw. Id. at 250-51. 66. 642 N.E.2d at 242. Cal.App.3d Cal.Rptr. 67. See id. at 247. (holding overflight observation was not a right occupy search because the aircraft had a 68. See id. at 244-45. public vantage point, flight its and the was nei- intrusive). ther unreasonable nor at See id. 61. See id. at 805. 70 . at

62. See id. (9th Cir.1991). (Ind.App.1994). 71. 923 F.2d 665 63. 642N.E.2d240 (9th Cir.1991). 64. 923 F.2d 665 72. See id. at 669. held, "silent, incriminating footage of both Taketa court both because the

corded O'Brien unblinking coworker, lens the camera was intrusive" David Taketa. The and the surveillance violated court concluded that as no human search of the office could have rights been, of both men.73 the Fourth Amendment and because the "video search was straight directed These fac [Taketal]."8 Taketa, majority characterizes As tors are identical in the case now before us. expecta Taketa court found Taketa's "because tion excluding a third Yet case video evidence place private nature of the where the Bonnell, today, like that at issue place videotaping took time when explicitly "exceedingly relied on the intru plainly it occurred."7 But Taketa does sive" nature of video surveillance reading; support not the Taketa court this personal, pri defendants' non-location-based repeatedly pri explicitly and named as the vacy rights ruling.81 as bases for the mary two factors dis bases for its decision Hawaii Court Bonnell also relied length in intru cussed at this dissent: non-public on the nature of the surveilled sive nature of video surveillance and space-an employee breakroom-as an ele personal privacy rights, locus of even But, ment of its decision.82 like the Ninth non-private places. The Taketa court cited Taketa, strongly emphasized Cireuit principle Katz for "the Fourth personal privacy rights: person "A has a protects people places"; goes 'halo' wherever he and can holding expressly upon its] then "base[d protectable right invoke a wherev Katz, upon recognition [the court's] may legitimately er he be."8 And it dis exceptional intrusiveness of video surveillance." suspicion cussed in no uncertain terms majority appar 76 This court's with which the court viewed video surveil ently ignores unambiguous language in lance, concluding that such surveillance is its discussion of Taketa.77 taping more intrusive than audio and that this intrusiveness was an factor essential analyzing Taketa's to freedom analysis.84 Fourth Amendment The court surveillance, from secret video the Taketa explicitly grounded its decision in "the same emphasized court decision was its based factors as those considered the Taketa personal privacy rights, on Taketa's and not implied court."85 The court also that be merely privacy.78 on location-based It noted stake, privacy right cause of the individual "persons may temporary create zones of might the outcome of the case have been the they may within which not reason if the same even defendants were not ably videotaped be ... even when that zone general priva room. "Whatever the place they normally is a do not own or con cy may trol, interest the defendants or not they might and which not be able room," have had in the reasonably challenge break the court a search at some other time or other wrote, some means.79 This "they objectively had an actual and violated, individually expectation privacy against rooted was reasonable be 73. See id. at 678. 78. 923 F.2d at 677. Op.

74. 79. Id. at 677. 80. Id. at 677. States, at 676 Id. United Katz 347, 350, U.S. 88 S.Ct 81. 75 Haw. 856 P.2d 1276-77 id. at 1275. Id. at 677. omitted). (quotation Id. support 77. Two cases draw which on Taketa majority's discussion above and conflict with the 84. See id. at 1277. Nerber, See United States v. interpretation. (9th Cir.2000); Bonnell, F.3d Haw. 1266-67 expectation privacy; in it." it certain ing taped diminished today's ruling ly support specific not does Thomas, Taketa, squarely all and Bonnell may surreptitiously, and without a police police surveil- claim that support Cowles's videotape anyone who handles an warrant rights camera violated her hidden lance employer's cash. All and seizure. against unreasonable search straightforward legal apply cases three Second, from the court relies on a footnote by the established standards treatise,91 discussing LaFave's Professor today court offers seant Because the Court. case, In that v. Donato.92 United States conclusion, I authority opposite can- for the however, upheld district court a federal holding. agree with its employee's mint locker search of a federal regulations permitted because federal V, THE SUPPORTS NO AUTHORITY authority law or other the search.93 No case THAT ASSERTION COURTS supports proposition the novel em FOR RESPONSIBILITY COWLES'S fiduciary duty ployee's should reduce her HAVE HANDLING CASH SHOULD police reasonable HER EXPECTATION DIMINISHED desk; adoption at her the court's surveillance OF PRIVACY. groundless. unprecedented rule is of this "the fact that Cowles The court states that handling employer's her entrusted with VL CONCLUSION bearing on the rea cash is a relevant factor privacy." of Cowles's sonableness O'Commor,people who Katz and Under may certainly be While this factor 87 work with quarters work in shared or who legal analysis of surveillance relevant still have Fourth by employers, not relevant conducted precedent no or rights. The court offers by police. carried out

when surveillance is argument stripping Alaskans principled majority legal au Although offers two rights. Nor does the court address of these supports the position, for its neither thorities limiting scope police rulings other workplace responsibili assertion that court's surveillance, specifically searches employee's ty increase an for cash should videotaping holding secret that warrantless police surveillance. expectation of Today's hold- of workers is unconstitutional. dramatically rights of Alas- ing restricts First, Treasury court cites National occupytheir own offices: It do not kans who Raab, a case hold Employees Union v. Von monitoring that secret video establishes drug testing Ser ing that of U.S. Customs among their employees Von Raab vice is reasonable.88 support I this conclu- expectations. cannot operational in dicta that realities states respectfully dissent. sion and therefore require workplace can render elsewhere be unreason ments that would requirements physical fitness

able-such personal military daily searches for or operational Mint But "these workers.89 rarely employee's ex

realities will affect privacy." Raab nowhere pectations of Von implies sweepingly broad

states or even anyone with cash has a who works

rule omitted). (internal quotations

86. Id. 90. A LaFave, Search and Seizure: Op. 91. R. Wayne § 8.6, at 823 on the Fourth Amendment Treatise ed.1996). (3d n. 86 1384, 103 656, 677, (1989); Op. at 1173 n. 2 L.Ed.2d 685 see (E.D.Pa.1967). 269 F.Supp. id. at 923-24. id. at 671.

Case Details

Case Name: Cowles v. State

Court Name: Alaska Supreme Court

Date Published: Jun 8, 2001

Citation: 23 P.3d 1168

Docket Number: S-8831

Court Abbreviation: Alaska