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Weintraub v. State

Court of Appeals of Georgia, Third Division

October 31, 2019

WEINTRAUB
v.
THE STATE.

          DILLARD, P. J., GOBEIL and HODGES, JJ.

          Gobeil, Judge.

         Joshua Weintraub, who faces prosecution for a single count of family violence-simple battery, filed a motion in limine to preclude the State from tendering a cell phone recording[1] of a dispute he had with his pregnant wife, arguing that the recording is inadmissible under OCGA § 16-11-62, Georgia's Eavesdropping Statute. The trial court denied the motion. We subsequently granted Weintraub's application for interlocutory review, and the instant timely appeal followed. For the reasons that follow, we vacate and remand the case with direction.

         "A trial court's ruling on a motion in limine is reviewed for abuse of discretion." Carver v. State, 324 Ga.App. 422, 423 (750 S.E.2d 735) (2013) (citation and punctuation omitted). "[I]n reviewing the denial of a motion in limine, this Court must construe the evidence most favorably to the upholding of the trial court's findings and judgment, and we cannot reverse a trial court's ruling absent an abuse of discretion." Brown v. State, 316 Ga.App. 137, 139 (1) (728 S.E.2d 778) (2012) (citation, punctuation, and footnote omitted). "The trial court's application of the law to the undisputed facts is subject to de novo review." State v. Barnard, 321 Ga.App. 20, 20 (740 S.E.2d 837) (2013) (citation and punctuation omitted). So viewed, the relevant facts show that in January 2018, Kenneth Jeter was temporarily staying with Weintraub and his wife, Rebecca Weintraub ("Rebecca"), in the Weintraub's two-bedroom apartment. Jeter worked at a Long John Silver's restaurant and Weintraub was his manager. Jeter did not have his own room in the Weintraub's apartment. Rather, he slept on the couch in the living room.

         Jeter had been staying with the Weintraubs for the three weeks leading up to the incident at issue here while he looked for a place of his own. During this period, Jeter slept at the residence nightly and kept the belongings he "had on [him]" there, including bags of clothing, toiletries, and other possessions that he kept by the couch. Jeter was not named on the lease for the Weintraub apartment, did not pay rent or utilities, did not receive his mail there, and did not have any furniture in the home.

         On January 11, 2018, Jeter was sitting on the couch in the living room and texting with his girlfriend on his cell phone.[2] Weintraub and his wife, who were also in the living room, began arguing. At some point, Jeter decided to record portions of the argument between the Weintraubs, which Jeter described as amounting to "[v]erbal abuse." Jeter also feared that the argument might "become physical." Specifically, Jeter testified as follows:

When I was sitting on the couch, I was texting my girlfriend at the time and just regularly talking. Whenever I saw the opportunity to take that recording, I just kind of lifted up my phone to where it was viewable but not noticeable.

         Jeter clarified that he did not try to hide his phone by placing it in a corner or covering it with a cushion or blanket. He continued to hold his phone as if he was texting while he recorded the interaction between Weintraub and his wife in the living room. Jeter did not know if his phone was noticeable because he was holding his phone in front of his mid-section, but "[i]t wasn't like [he] was trying to hide it." Jeter stated that neither Weintraub nor his wife asked him to record the interaction or consented to being recorded, and neither of them gave Jeter any indication that they were aware that he was recording them on his phone. Moreover, Jeter did not tell the couple after the fact that he had recorded the interaction. Jeter indicated he previously had recorded the Weintraubs in their home. Specifically, he described that on "days when everything would be okay, and . . . we would just be joking around and having a good time," he would "pull out [his] camera and start recording the funny things we would say or jokes we would be making and stuff like that."

         Jeter intended to give the recording to the police "in case things got bad and the law got called out there." Jeter called 911 later that night to report that Rebecca appeared to be experiencing labor pains.[3] He then called the police the following morning and met with them to show them the videos he had captured on the cell phone.

         Weintraub was later charged by accusation with one count of family violence-simple battery, which alleged that Weintraub "did unlawfully . . . intentionally make contact of an insulting and a provoking nature" with his wife.[4] Weintraub filed a motion in limine, challenging the admissibility of the cell phone recording. According to Weintraub, because neither he nor his wife had consented to being recorded within the privacy of their own home, the audio recording was inadmissible under OCGA § 16-11-62 (1). He further asserted that the video portion of the recording should be excluded because Jeter did not have the consent of all the persons observed and none of the exceptions provided by OCGA § 16-11-62 (2) (A) - (D) applied because, as relevant here: (1) Jeter was not an owner or occupier of the property, (2) the apartment where the recording took place was not Jeter's residence, (3) Jeter was not attempting to prevent a crime, and (4) the Weintraubs had a reasonable expectation of privacy in their own living room.

         At the hearing on Weintraub's motion in limine, the State played a recording of two 15-second clips taken from Jeter's cell phone. As noted by the trial court, the recording depicts "Weintraub as speaking in a loud, harsh tone of voice and using obscene language while standing in close proximity to [Rebecca]." The recording does not show any physical contact between Weintraub and his wife.

         The trial court denied Weintraub's motion in limine to exclude the cell phone footage, construing the recording as separate audio and video recordings. First, the court ruled that the audio portion of the recording was admissible, finding that "recording with an exposed smartphone [does not] constitute[] recording 'in a clandestine manner, '" as contemplated by OCGA § 16-11-62 (1). Specifically, Jeter was holding his phone in the same manner as if he was sending a text message, and although neither of the Weintraubs consented to or knew that they were being recorded, "either of them would have been able to see the smartphone had they been looking for it." Next, the trial court concluded that the video portion of the recording was admissible, holding that (1) Jeter was an "occupier" of the apartment, as he had been invited to stay at the property, and recorded the argument between the Weintraubs for the purpose of crime prevention pursuant to OCGA § 16-11-62 (2) (B); and (2) Jeter was a "resident" in the apartment and the activities he recorded were within the curtilage of the residence and the recording was made for the purpose of crime prevention pursuant to OCGA § 16-11-62 (2) (C).[5] The court further noted that "because Mr. Jeter was invited to stay at the property and sleep in the living room by the Weintraubs[, ] [t]he Weintraubs did not have a reasonable expectation of privacy with respect to Mr. Jeter and his activities." The court certified its order for immediate review, and we subsequently granted Weintraub's application for interlocutory review. The instant appeal followed.

         Georgia's Eavesdropping Statute provides that "[n]o evidence obtained in a manner which violates any of the provisions of [the Eavesdropping Statute] shall be admissible in any [Georgia] court[.]" OCGA § 16-11-67. Code Section 16-11-62, formerly Code Ann. § 26-2002, was enacted in 1967. The legislature defined the purpose of the statute as follows:

It is the public policy of this State and the purpose and intent of this Chapter to protect the citizens of this State from invasions upon their privacy. This Chapter shall be construed in light of this expressed policy and purpose. The employment of devices which would permit the clandestine overhearing, recording or transmitting of conversations or observing of activities which occur in a private place has come to be a threat to an individual's right of privacy and, therefore, should be prohibited. It is further the purpose of this Chapter ...

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