In Kobielusz v. Wyoming, the Wyoming Supreme Court ruled that Wyoming’s voyeurism statute does not require proof of “looking,” and that the defendant’s wife had authority to consent to the search of property by police.
The Facts and Procedural History
The defendant, Shaun Kobielusz, was married to his wife P.K., with whom he has two daughters, A.K. and L.K. At some point, he and his wife separated and she moved out of their home with their two daughters. Kobielusz and his wife later reconciled and they moved back into the family home.
One day, while cleaning, P.K found a manual for digital clocks which included cameras. P.K. then searched for and located three clocks. One clock was on a fireplace in the master bedroom. Another clock was found on top of the toilet in a hallway bathroom. The third was located on the toilet in the master bathroom.
P.K. found two memory cards from the hallway bathroom clock and the master bathroom clock. The hallway bathroom clock had captured images of P.K., A.K., L.K., and Kobielusz all using the bathroom and nudity. P.K. gave the memory cards to police. P.K confronted Kobielusz about the videos and he responded that he purchased them to surveil the house in addition to “hopes of getting sneak peaks of [P.K.].” P.K. moved out of the home with A.K. and L.K.
Police confirmed the memory cards contained 121 videos of his family members using the bathroom. Kobielusz also maintained an Amazon account which showed the purchase of the camera clocks. P.K. did not place the clocks in the bathrooms or bedroom, nor did she or their daughters consent to any recordings.
Kobielusz was charged with three counts of voyeurism and was convicted at trial. The defense appealed the conviction arguing there was insufficient evidence to prove the element of “looking” in the voyeurism statute. The defense also appealed the trial court’s denial of the motion to suppress the memory cards arguing that P.K. had no authority to give them to police to search.
The Law
Wyoming’s voyeurism statute (relevant sections are italicized) reads as follows:
(a) A person is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if he, without the consent of the person being viewed, commits the crime of voyeurism by looking in a clandestine, surreptitious, prying or secretive nature into an enclosed area where the person being viewed has a reasonable expectation of privacy, including, but not limited to: (i) Restrooms; (ii) Baths; (iii) Showers; or (iv) Dressing or fitting rooms.
(b) A person is guilty of a felony punishable by imprisonment for not more than two (2) years, a fine of not more than five thousand dollars ($5,000.00), or both, if he:
(i) Commits the offense specified in subsection (a) of this section by knowingly or intentionally capturing an image by means of a camera, a video camera or any other image recording device; or
(ii) Uses a camera, video camera or any other image recording device for the purpose of observing, viewing, photographing, filming or videotaping another person under the clothing being worn by the other person where that other person has not consented to the observing, viewing, photographing, filming or videotaping.
The Court interprets statutes by looking at the plain language of the statute. “If the statute is sufficiently clear and unambiguous, the Court simply applies the words according to their ordinary and obvious meaning.” “A statute is clear and unambiguous if “its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability.” “We must also consider statutory language in pari materia, which means ‘we construe statutes as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statutes on the same subject.’”
When reviewing a trial court’s denial of a motion to suppress, the Court looks for “clear error” in its factual findings. The Court “defer[s] to those findings and views the evidence in the light most favorable to the prevailing party because the [trial] court is in the best position to weigh the evidence, assess the credibility of witnesses, and make the necessary inferences, deductions, and conclusions.”
The Court’s Reasoning – Statutory Interpretation
The Court rejects Kobielusz’s argument that the State must prove he was “looking” under section (a) of the statute, in addition to proving that he “knowingly or intentionally captur[ed] an image by means of a camera, a video camera or any other image recording device[.]”
The Court holds that the element of “looking” in section (a) is satisfied by proof that Kobielusz “knowingly or intentionally captur[ed] an image by means of a camera, a video camera or any other image recording device[,]” as required by subsection (b)(i). The Court goes on to say that:
“[b]oth the “looking” element in subsection (a) and the “knowingly or intentionally capturing an image” element in subsection (b)(i) immediately follow the word ‘by.’ Based upon the arrangement of the words and their connection to each other, the voyeurism statute makes subsection (b)(i) an alternative to or different crime than subsection (a) by requiring a more specific type of “looking.”
Therefore, a conviction under subsection (b)(i) does not require proof of “looking” but rather proof of “knowingly or intentionally capturing an image by means of a camera, a video camera or any other image recording device[,]” plus the other required elements. The Court concludes that since proof of “looking” is not required, that there was in fact sufficient evidence submitted to the jury to support the conviction.
The Court’s Reasoning – Third-Party Consent to Search
The Court holds that P.K. had “common authority” over the memory cards and could, therefore, consent to a search by police. The Fourth Amendment “protects individuals from unreasonable searches and seizures.” The Court notes that “[w]arrantless searches are per se unreasonable unless the search is supported by probable cause or a recognized exception[,]” such as consent.
P.K consented to police searching the memory cards, however, she did so as a third party. The Court emphasizes that “[a] third party who has common authority over or other sufficient relationship to the premises may consent to a search of the premises.” The Court explains a third party’s authority to consent to the search of property by noting that it:
“rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”
The Court reasons that P.K. had the common authority to consent to a search because:
“the memory cards were in the home P.K. shared with Mr. Kobielusz as a married couple and in rooms used and shared by P.K. and Mr. Kobielusz; the memory cards were easily accessible and easily removed from the digital clocks; and P.K. found the memory cards, took control of the memory cards, and used the memory cards because she opened them to determine what was on them. There was no evidence that either the digital clocks or the memory cards were protected by passwords. As soon as P.K. became aware of the existence of the memory cards, she had the same access and control over them as Mr. Kobielusz.”
The Bottom Line
This is a fairly straightforward case on statutory interpretation and denial of a motion to suppress on Fourth Amendment grounds — and the Court got it right and did a good job explaining each issue.
At first glance, it may look like the voyeurism statute outlines two separate crimes with two separate sets of elements. However, section (a) tell us that you commit voyeurism by looking…. Then, the statute tells us in subsection (b)(i) that you commit felony voyeurism by knowingly or intentionally…. The latter subrogates the former. Statute writers don’t make it easy for laypersons, or even lawyers, many times. But a plain reading reveals that “looking” is not required under the felony version of the statute. Or, rather, the felony version provides for a different form of “looking” to be proved.
The trial court made the right call when it denied the defense’s motion to suppress. The Fourth Amendment prohibits unreasonable searches and searches without probable cause or a recognized exception. Consent is an exception — and third-party consent is sufficient if the third party has common authority over the property to be searched or seized. P.K. was Kobielusz’ wife, she lived in their family home and is properly understood to have common authority over almost everything in that house, with some exceptions (like Kobielusz’s cell phone, for instance, which “commands a high degree of privacy”).
To be sure, if the facts inured to the existence of greater privacy concerns in the memory cards, then, perhaps, P.K. may not have had common authority over them to the extent that she could consent to their search by police. I am not sure the Court did the best job articulating the facts as to why P.K. had common authority over the memory cards, but nevertheless, it is difficult to say the memory cards were personal items over which only Kobielusz had control. These inquiries are very fact-dependent, but the this was an easy call.