Spouse’s Expectation of Privacy Extends to Protection from Other Spouse’s Surreptitious Videotaping Through Bathroom Peephole

State v. Perez, Minn.Ct.App., 3/9/2010.  Mr. Perez’s estranged wife, K.P., discovered that Mr. Perez had been videotaping her, naked, getting into the bathtub in the bathroom that the two shared at the time.  The state charged Mr. Perez with interference with privacy under Minn.Stat. 609.746.1(d) for videotaping K.P. without her knowledge while she undressed in their shared, residential bathroom.

Mr. Perez argued that K.P. did not have a reasonable expectation of privacy when she occupied a residential bathroom with her husband, or that she had no reasonable expectation of privacy because of the marital relationship.  Here’s what the statute says:

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 of 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 privacy of the occupant.

The appellate court concludes that K.P.’s reasonable expectation of privacy extended at least to protection from Mr. Perez’s surreptitious videotaping of her through a peep hole into the bathroom.  The court affirms his convictions.

Pattern Jury Instruction on “Probable Cause” Incorrectly States the Law.

State v. Koppi, Minn.Ct.App., 3/9/2010.  An officer stopped Mr. Koppi because Mr. Koppi was speeding and appeared to be accelerating away from the squad car.  As he approached Mr. Koppi’s truck the officer smelled alcohol coming from Mr. Koppi and noticed that his eyes were bloodshot.  The officer asked Mr. Koppi to perform field sobriety tests but he refused.  The state charged Mr. Koppi with test refusal.

At trial, Mr. Koppi complained that the jury instruction that defined probable cause, CRIMJIG 29.28, provided a subjective, rather than an objective definition of probable cause.  The trial court gave the instruction anyway. 

The requirement to submit to chemical testing is triggered when an officer has probable cause to believe that the person driving is impaired.  Here’s the jury instruction on the probable cause element of test refusal:

‘Probable cause’ means that the officer can explain the reason the officer believes it was more likely than not that the defendant drove, operated or was in physical control of a motor vehicle while under the influence of alcohol.

Probable cause exists when an objective inquiry and review of the totality of the circumstances says it does.  A proper jury instruction must inform the jury that there must be an objective basis for the officer’s belief that probable cause exists.  The problem with the pattern instruction is that it does not expressly state this law, and it fails to require that the officer explain the reason for his belief by reference to objective facts and circumstances.  The trial court committed error by giving the pattern instruction, but, alas, this error was harmless.

The appellate court does not say what a correctly worded probable cause instruction looks like.

A Defendant’s Pre-counseled, Pre-arrest, Pre-Miranda silence in Response to Police Interrogation is Not Admissible in State’s Case in Chief.

State v. Borg, Minn.Ct.App., 3/9/2010.  To celebrate her eighteenth birthday, M.W. and friends, which included Mr. Borg, partied and gambled at a nearby casino, then retired to a motel room for a sleepover.  M.W. claimed that some time during the remainder of the night Mr. Borg had unwanted sex with her.  The state charged Mr. Borg with third degree criminal sexual conduct.  Mr. Borg claimed that the sex was consensual.  The jury rejected this defense and convicted him.

Before the state arrested Mr. Borg a police investigator sent him a letter in which the officer asked to speak with him.  Mr. Borg did not respond to the letter.  This same officer telephoned Mr. Borg, who declined to speak with the officer and invoked his right to counsel.  Over defense objection, the trial court permitted the state to introduce testimony about the letter and the lack of response to it, and allowed the state to do so before Mr. Borg took the witness stand.

The appellate court concludes that evidence of Mr. Borg’s pre-counseled, pre-arrest and pre-Miranda silence is not admissible in the state case in chief.  The court also concludes that the admission of this evidence was not harmless.  Re-do.

A Defendant May Be Convicted & Sentenced Both For Burglary with Assault and Assault 3.

State v. Holmes, Minn.S.Ct., 2/25/2010.  Andre Williams reported to the police that Mr. Holmes had broken into his home and assaulted him.  Mr. Williams’ daughter was also in the home.  The state charged Mr. Holmes with first degree burglary with assault and with third degree assault.  The jury convicted Mr. Holmes of both courts; the trial court sentenced him to 78 months on the burglary and a concurrent 21 month sentence on the assault.

Mr. Holmes complained that the trial court court not convict and sentence him for both the burglary and the assault.  Minn.Stat. 609.585 says, however, that “a prosecution for or conviction of the crime of burglary is not a bar to conviction of or punishment for any other crime committed on entering or while in the building entered.”  The appellate court applies an “elements” test by which to determine whether the third degree assault is “any other crime” or not.  Third degree assault requires proof of different statutory elements than does burglary, specifically, “substantial bodily harm.”  That means that assault in the third degree is one of those “any other crime[s]” for which a burglary may be convicted and sentenced in addition to the burglary.