OPINION
Thе district court found appellant Richard Perez guilty of four counts of interference with privacy under Minn.Stat.
FACTS
The facts of this case are undisputed. In July 2006, appellant’s estranged wife, K.P., contacted law enforcement personnel, indicating to them that she and appellant were in the process of divorce and that during that proceeding K.P. discovered that appellant had altered a picture of K.P. K.P. became suspicious of what else might be on their home computer. She was able to access the computer and in doing so she found video clips that appearеd to be taken by appellant. Those clips included a video of K.P., naked, getting into the bathtub in the bathroom shared by the parties. She stated to the police that she had not given permission to have the videos taken, and that she had discovered a hole in the parties’ bathroom wall capablе of being used for videotaping. Pursuant to a search warrant issued on the basis of KP.’s complaint, the parties’ home computer tower was seized; the police found four video clips of K.P., undressed in the bathroom, and several other clips taken by Perez in public places attempting to film under women’s skirts аnd shorts. Police also documented the existence of a hole between the closet and the bathroom of the parties’ home.
Police sought to arrange a time to speak with appellant at the police department about KP.’s complaint. On the morning of the scheduled appointment, appellant arrived at the parking lot of the police department and stated that he was not going to speak with an officer and would be contacting a lawyer. The officer stated that he could arrange a time to speak with appellant and his lawyer, at which point appеllant said “Sorry, you [know], I was taking [m]eth and I don’t remember much[.] We weren’t having sex anymore and[] I did that for me, nobody else.” The charges upon which appellant was subsequently convicted followed.
Appellant waived his right to a jury trial and agreed to have the matter tried on stipulated facts. Among the stipulated facts presented to the court was the acknowledgment that although the parties’ bathroom was undergoing some reconstruction and did not have sheetrock on the bathroom side of the walls or have a door at the time of the videotaping, there was sheetrock on the opposite side оf the walls and K.P. had hung a shower curtain in place of the door to close off the bathroom. This action of K.P. had afforded her enough seclusion that appellant was required to create a hole in the wall of the adjoining closet to film her.
Appellant argued to the district court that he could not be found guilty of interference with privacy under the statute because, as a matter of law, K.P. did not have a reasonable expectation of privacy when occupying their shared, residential bathroom, due to the fact that they were married at the time of the videotaping. Alternatively, appellant argued that K.P. did not have a reasonable expectation to keep her “intimate parts” private from her husband. The district court convicted appellant on all four counts of interference with privacy, concluding that K.P. did have a reasonable expectation of privacy when alone in the couple’s bathroom and that absent implied or express consent, the parties’ marital relationship did not eliminate her reasonable expectation of privacy. Appellant renews these two arguments on appeal.
Does a spouse have a reasonable expectation of privacy from being videotaped surreptitiously by the other spouse while alone in a shared, residential bathroom?
ANALYSIS
Minn.Stat. § 609.746, subd. 1(d), states that:
A person is guilty of a gross misdemeanor who:
(1) surreptitiously installs or uses any device for observing, photographing, recording, amplifying, or broadcasting sounds or events through the window or other aperture оf a ... place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts ... or the clothing covering the immediate area of the intimate parts; and (2) does so with intent to intrude upon or interfere with the privаcy of the occupant. 1
Appellant does not challenge that there was a surreptitious installation or use of a device for photographing events through an aperture. Instead, he first argues that his conviction must be reversed as a matter of law because his wife did not have a reasonаble expectation of privacy that included an expectation of not being videotaped by him in their bathroom without her knowledge and consent, and therefore the statute is inapplicable to the facts of this case.
Whether a statute has been properly construed is a question of law, subject to de novo review.
State v. Murphy,
In assessing whether a defendant is guilty of interference with the privacy of another under section 609.746, Minnesota law concerning the reasonable expectation of privacy in the search and seizure context is instructive.
See State v. Ulmer,
We recognize that none of the Minnesota cases addressing a reasonable expectation of privacy involved that expectation in the context of a marital relationship. The Iowa Supreme Court, however, recently considered a case that has facts similar to those here. While arising in the context of a civil action, the Iowa case is nonetheless instructive. In
In re Marriage of Tigges,
[N]othing in ... common law suggests that the right to privacy is limited to unmarried individuals. When a person goes into the privacy of the bedroom, he or she has a right to the expectation of privacy in his or her seclusion.... As a spouse with equal rights to the use and access of the bedroom, it would not be illegal or tortious as an invasion of privacy for a spouse to open the door of the bedroom and view a spouse in bed.... However, the videotaping of a person without consent or awareness when there is an expectation of privacy goes beyond the rights of a spouse.
Clayton,
We find the ratiоnale expressed in the Iowa and Texas cases sound, their reasoning persuasive, and their factual scenarios strikingly similar to those in this case. Although here reconstruction involving the bathroom had caused the door of that room to be removed, K.P. demonstrated a subjective, reasonable, expectation of privacy when she hung the shower curtain. While the condition of the bathroom may not have assured privacy from being overheard or from having appellant enter the room, it did assure privacy from being videotaped by him when she was alone in the room and unaware of any intrusion.
The basiс question we must answer here is not whether appellant had a right to enter the bathroom while K.P. was there. If he had entered, K.P. would have been aware of that entry, and she might have acquiesced in appellant’s presence or she might have asked him to leave. Her expectation of privaсy might have been intruded upon, but she would have been aware of that intrusion and been able to address it. While knowledge of appellant’s presence in the bathroom might have tem
Appellant next argues that even if the fact that he and K.P. shared the bathroom in their home is not enough to preclude his convictions, the fact that he has often consensually seen his wife in a state of undress in the past means that his continued observation and videotaping without her knowledge cannot be an invasion of her privacy, and cannot, therefore, constitute a violation of the statute. Under the facts of this case, we find no merit to this argument.
2
Indeed, for this court to do so would be tantamount to stating that a spouse indefinitely and irrevocably consents to intrusion such as occurred here — knowingly and unknowingly — by the other spouse without limitation. Even in marriage, consent can be bounded. The courts in
Tigges
and
Clayton
concluded that a spouse does not have an absolute right to videotape the other spouse without his or her knowledge of and consent to that activity.
Tigges,
K.P. did not know she was being videotaрed in the bathroom and did not consent to being recorded surreptitiously. As already noted, appellant’s argument that his past consensual observation of K.P. forfeited her reasonable expectation of privacy from him in the future is fatally flawed. A spouse does not lose all claims to privacy through previously sharing some intimate information, activity, or viewing with the other spouse. Federal law recognizes the reasonable expectation of privacy spouses have in their phone conversations and creates a civil action for unauthorized wiretapping by one spouse оf the other.
Kempf v. Kempf,
Finally, to the extent appellant argues that the legislature did not intend the offense of interference with privacy to include conduct between spouses and that he must, therefore, be exempted from the reach of the statute, we disagree. The language of section 609.746, subdivision 1(d), is free from any ambiguity. There is no spousal exception set forth in that language. When the legislature wishes to create an exception to a criminal offense, it leaves no doubt as to the legislative intent.
See e.g.
Minn.Stat. § 609.349 (2008) (creating exception to some criminal-sexual-conduct offenses if complainant is actor’s legal spouse and couple is not in process of separation or divorce);
cf. Annandale
DECISION
Appellant’s wife had a reasonable expectation of privacy from being surreptitiously videotapеd by him while she was alone in their shared bathroom. The district court properly convicted appellant of interference with privacy under Minn.Stat. § 609.746, subd. 1(d), on proof beyond a reasonable doubt that he videotaped his wife while she was alone and undressed in their bathroom without her knowledge or consent.
Affirmed.
Notes
Rеtired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
. Appellant was charged under the 2006 version of this statute, but the current version of the statute is the same. See Minn.Stat. § 609.746, subd. 1(d) (2008).
. We recognize that in the context of a marriage relationship, the reasonable expectation of рrivacy a spouse has turns on the facts of each case. There is nothing in the record before us to indicate that appellant and K.P. had a practice of surreptitious installation of videotape devices, undisclosed or non-consensual videotaping in an area where reasonable expectation of privacy was apparent, and subsequent acceptance of and agreement with such practice. We decline to engage in conjecture here concerning the effect evidence of such practice would have on subsequent cases.