Nuckles v. State

FINAL COPY

              S20G0492. NUCKLES v. THE STATE.


     MCMILLIAN, Justice.

     Wanda Nuckles was charged with depriving James Dempsey,

an elder person, of essential services and concealing his death. Prior

to her trial on those charges, Nuckles filed a motion seeking to

exclude a video recording captured on a camera concealed in

Dempsey’s room at the residential rehabilitation center where

Nuckles worked, asserting that the recording was inadmissible

under OCGA § 16-11-67 because she did not consent to its recording

as required under OCGA § 16-11-62 (2). The trial court denied the

motion, and Nuckles appealed that ruling to the Court of Appeals,

which affirmed the trial court in an unpublished opinion. Nuckles v.

State, 352 Ga. App. XXV (Case No. A19A1578) (September 30, 2019)

(unpublished). This Court granted Nuckles’s petition for certiorari

on the issue of whether the Court of Appeals erred in determining

that the video recording at issue fell within the exception provided
in OCGA § 16-11-62 (2) (B). Because we agree that the video

recording falls within that exception, we affirm.

      Construed in the light most favorable to the trial court’s factual

findings and judgment,1 the evidence presented at the motion to

suppress hearing showed that in December 2013, following hip

surgery, 89-year-old Dempsey was discharged from the hospital to

the North Atlanta Rehabilitation Center (the “rehab facility”),

where Nuckles was employed.2 Although Dempsey was first placed

in a room on the main floor, he was moved a day or two later to the

portion of the rehab facility housing patients with dementia.

Dempsey’s son, Timothy, who saw his father daily, noticed that

Dempsey appeared “kind of out of it” and asked that a doctor

examine him. After the doctor determined that Dempsey was

extremely dehydrated, Dempsey was transferred back to the

hospital.




      1 See Kennebrew v. State, 

 (

) (2018).
      2 The record contains no evidence regarding the capacity in which
Nuckles was employed at the rehab facility, but Nuckles asserted in her motion
to suppress that she was employed as a licensed practical nurse.
                                      2
     Dempsey returned to the rehab facility on February 7, 2014,

and although his mind was clear, Dempsey was again placed in the

area housing dementia patients because there were no other rooms

available. Dempsey shared his room with a roommate, but there was

a privacy curtain between the areas assigned to the two residents

that was usually drawn. Timothy employed a caretaker to stay with

his father during the day, and Timothy visited in the evenings.

Dempsey related to Timothy that strange things were happening in

his room at night. Dempsey said, for example, that one of the female

residents came into his room and tried to get in bed with him, and a

male resident came into his room unclothed. Dempsey’s personal

items also began to go missing, including his hearing aids and

various toiletry items. Additionally, Dempsey complained about the

care he was receiving, reporting that staff members were sometimes

rude to him and that they would not answer his calls for assistance

in a timely fashion. Dempsey asked Timothy to spend the night with

him, but Timothy was unable to do so because he had to care for his

stepchildren at night while his wife worked.

                                 3
     Instead, Timothy decided to install a video surveillance camera

in order to see what was going on in Dempsey’s room at night, and

he found a camera online that was concealed in a four- to five-inch-

square alarm clock and that would record “24/7” in five-minute

increments onto a memory card. Timothy installed the camera on

February 7 or 8, 2014, placing it on the dresser across from

Dempsey’s bed where it was focused on Dempsey and his belongings.

It did not capture Dempsey’s roommate’s side of the room, and the

roommate only appeared on camera when he came over to

Dempsey’s area. Timothy testified that Dempsey was happy with

the camera because he felt like someone was watching what was

going on. Only Timothy, Dempsey, the private caretaker hired by

Timothy to watch his father during the day, Timothy’s wife, and

Timothy’s stepdaughter knew the camera was there.

     Dempsey passed away on February 27, 2014, and by that time,

the camera had recorded approximately 400 hours of video. Before

viewing the video from the night of Dempsey’s death, Timothy

contacted law enforcement and requested that an autopsy be

                                 4
performed because Timothy had visited Dempsey the night before

his death, thought Dempsey had been doing well, and found his

death to be unexpected. Later, after Timothy viewed the video from

the camera in Dempsey’s room, he forwarded it to law enforcement.3

      Nuckles was subsequently indicted by a grand jury4 and

charged with one count of depriving an elder person of essential

services under OCGA § 16-5-102 and one count of concealing the

death of another under OCGA § 16-10-31.5 She later filed a “Motion


      3   The record does not contain a copy of the video recording or a
description of what it shows, but the State asserts that the evidence is essential
to its prosecution.
       4 Nuckles was indicted along with two co-defendants, Loyce Pickquet

Agyeman, who was individually charged with felony murder and neglect of an
elder person, and Mable L. Turman, who was individually charged with neglect
of an elder person. All three defendants were indicted on the same charge of
concealing the death of another.
       5 The count charging Nuckles with depriving an elder person of essential

services under OCGA § 16-5-102 alleged that Nuckles deprived Dempsey of
“medical services necessary to maintain [his] physical well-being . . . by failing
to initiate and continue [CPR] immediately upon discovering that [he] was
unresponsive.” The count of concealing the death of another under OCGA § 16-
10-31 alleged that the three co-defendants concealed Dempsey’s death, which
hindered the discovery of whether he was unlawfully killed, alleging as to
Nuckles that she “replaced an oxygen canister in [Dempsey’s] room which was
not functioning properly” and that she and her co-defendant Agyeman “started
performing two-person [CPR] approximately one hour after [Dempsey] had
become unresponsive, to create the false impression that they were trying to
save [Dempsey’s] life.”

                                        5
to Suppress/Motion in Limine” seeking to exclude the video

recording taken in Dempsey’s room, asserting that, because she did

not consent to the video recording, it was made in violation of OCGA

§ 16-11-62 (2).6 That subsection provides that it is unlawful for

     [a]ny person, through the use of any device, without the
     consent of all persons observed, to observe, photograph,
     or record the activities of another which occur in any
     private place and out of public view[.]

OCGA § 16-11-62 (2). Nuckles filed her motion to suppress the video

recording pursuant to OCGA § 16-11-67, which provides: “No

evidence obtained in a manner which violates any of the provisions

of this part shall be admissible in any court of this state except to

prove violations of this part.” The State argued in response,

however, that the video recording was admissible because it fell

within the exception set forth in OCGA § 16-11-62 (2) (B) (the

“Security Exception”), which provides that it is not unlawful

     [f]or an owner or occupier of real property to use for
     security purposes, crime prevention, or crime detection
     any device to observe, photograph, or record the activities
     of persons who are on the property or an approach thereto
     in areas where there is no reasonable expectation of

     6 Nuckles’s co-defendants later joined in the motion.

                                      6
      privacy[.]

      The trial court denied the motion following an evidentiary

hearing, ruling that the video recording did not occur in a “private

place,” under OCGA § 16-11-62 (2), and thus Nuckles lacked

standing to contest the recording. Alternatively, the trial court

found that the video recording fell within the Security Exception.

The trial court concluded, therefore, that the video recording was

admissible.

      The trial court certified its order for immediate review, and the

Court of Appeals granted Nuckles’s application for an interlocutory

appeal.7 After noting that the trial court applied the wrong

definition of “private place,”8 the Court of Appeals affirmed the trial


      7 Following the trial court’s denial of the motion to suppress, all three

defendants initially filed applications for interlocutory review in this Court.
We denied Agyeman’s application and transferred the applications of Turman
and Nuckles to the Court of Appeals based on lack of jurisdiction. Only Nuckles
filed a petition for certiorari in this Court.
       8 At the time that the video recording was made, the statutory term

“private place” was defined in this context as “a place where one is entitled
reasonably to expect to be safe from casual or hostile intrusion or surveillance.”
OCGA § 16-11-60 (3) (2002). However, in denying Nuckles’s motion, the trial
court instead applied the current definition of “private place,” which was
adopted by the legislature in a 2015 amendment. See Ga. L. 2015, p. 1047 § 1.

                                        7
court’s ruling, holding that “even if Dempsey’s room was a ‘private

place’” under OCGA § 16-11-62 (2), the recording fell under the

Security Exception because it was installed for the purpose of

determining who was entering the room, whether someone was

stealing Dempsey’s belongings, and whether the rehab facility

employees were neglecting him. The Court of Appeals did not

address whether Nuckles was “an owner or occupier of real property”

or whether his room was an area “where there is no reasonable

expectation of privacy.” Following the decision of the Court of

Appeals, Nuckles filed a petition for certiorari, which this Court

granted to consider the issue of whether the video recording fell

within the Security Exception.9


That amendment changed the definition of “private place” to “a place where
there is a reasonable expectation of privacy.” OCGA § 16-11-60 (3). The trial
court found that because Nuckles had no reasonable expectation of privacy in
Dempsey’s room, it was not a private place. In reaching its alternative holding
that the video fell within the Security Exception, the trial court assumed that
Nuckles had a reasonable expectation of privacy and based its holding on a
determination that the recording was made for security purposes, which
brought it under the Security Exception.
      9 Generally, the first step in determining whether the video recording

was made in violation of OCGA § 16-11-62 (2) would be to consider whether it
was made in a “private place,” as that term was defined at the time of the

                                      8
      1. In analyzing this issue, “we first look to the text [of OCGA §

16-11-62 (2) (B),] because a statute draws its meaning from its text.”

Crowder v. State of Ga., 

 (2) (

) (2020)

(citation and punctuation omitted). The text of the Security

Exception sets out the following requirements for its application: (1)

the video recording must be made by “an owner or occupier of real

property”; (2) “to use for security purposes, crime prevention, or

crime detection”; (3) with a device “to observe, photograph, or record

the activities of persons who are on the property or an approach

thereto”; (4) in an area “where there is no reasonable expectation of

privacy[.]” OCGA § 16-11-62 (2) (B).

      Nuckles does not contest that the video recording in this case

met the second and third of these requirements, that it was made

for security purposes to record the activities of persons on the

property. However, she takes issue with the first and fourth



recording. See Major v. State, 

, 147 n.1 (

) (2017)
(applying version of statute in effect at time incident took place). However, the
Court of Appeals confined its holding to the Security Exception, concluding
that the recording fell within the exception even if Dempsey’s room were a
“private place” under the statute, and our review is limited to that holding.
                                       9
requirements. Nuckles contends that the exception does not apply

because Dempsey was not an owner or occupier of real property and

the recording took place in a patient’s room, which is an area where

there is a reasonable expectation of privacy.

     2. With regard to her first contention, Nuckles argues that the

phrase “owner or occupier of real property,” regardless of its context,

is a legal term of art referring only to a person who has ultimate

control over the property and is responsible for its maintenance,

protection, and guests. Because Dempsey had no such control of, or

responsibility for, the rehab facility property, Nuckles asserts that

he was not an owner or occupier of real property and the Security

Exception does not apply.

     We begin our analysis of whether the Security Exception

applied to the video recording in this case by considering         the

meaning of “owner or occupier of real property” under OCGA § 16-

11-62 (2) (B). In doing so, we must look to the text of the statute,

affording it “its plain and ordinary meaning, viewed in the context in

which it appears, and read [it] in its most natural and reasonable

                                  10
way.” Carpenter v. McMann, 

 (

) (2018)

(citation and punctuation omitted; emphasis supplied). See also

Deal v. Coleman, 

 (1) (a) (

) (2013).

      Because the State does not contend, and the record contains no

evidence showing, that Dempsey had any ownership interest in the

rehab facility,10 we limit our consideration to whether Dempsey was

an “occupier of real property” under the statute. In that regard, it is

clear that Dempsey’s room in the rehab facility must be considered

“real property” under Georgia law because it is part of a building

affixed to realty. See Fayette County Bd. of Tax Assessors v. Ga.

Utilities Co., 

 (1) (

) (1988)

(“Under our law, real property includes not only the land but all

improvements thereon.” (citing Simpson v. Tate, 

(1) (

) (1970)). See also Black’s Law Dictionary 1218 (6th

ed. 1990) (defining “real property” at the time the legislature


      10 See, e.g., OCGA § 16-1-3 (10) (defining the term “owner” as used in

Title 16 as “a person who has a right to possession of property which is superior
to that of a person who takes, uses, obtains, or withholds it from him and which
the person taking, using, obtaining, or withholding is not privileged to
infringe.”).
                                       11
adopted the Security Exception as “[l]and, and generally whatever

is erected or growing upon or affixed to land”).

     We turn next to the meaning of “occupier” in the term “occupier

of real property” under the Security Exception. Unlike the term

“private place,” “occupier” is not defined in this context under OCGA

§ 16-11-60. Likewise, OCGA § 16-1-3 does not provide a definition of

“occupier,” as opposed to the term “owner.” But giving the term

“occupier” its ordinary, natural, and most basic meaning, it is

defined as one who occupies, and in the context of the Security

Exception, one who occupies real property. When the General

Assembly adopted the Security Exception in 2000, the term “occupy”

was commonly defined in such a context as “to take possession of [or]

inhabit,” Webster’s New Dictionary 204 (1997); “to dwell or reside

in,” American Heritage Dictionary 1215 (4th ed. 2000); and “to have,

hold, or take as a separate space[,] possess[, or] reside in[,]” Random

House Webster’s College Dictionary 914 (2d ed. 1999). These

definitions also comport with the definition of “occupier” in Black’s

Law Dictionary, which at the time identified that term as

                                  12
synonymous with “occupant,” and defined “occupant” as a “person in

possession” or “one who has actual use, possession or control of a

thing.” Black’s, at 1078-79.

      Accordingly, giving the phrase “occupier of real property” its

natural, ordinary meaning in the context of the statute, we conclude

that Nuckles’s proposed definition is too narrow, as it limits the

phrase’s meaning to only someone with control and responsibility for

the real property and excludes anyone who otherwise has the legal

right to stay on, or lawful possessory rights in, the property.11

      Instead, we interpret the term “occupier of real property” as

used in OCGA § 16-11-62 (2) (B) to be broad enough to encompass

someone like Dempsey, who had the legal right to occupy, and



      11 In support of this argument, Nuckles cites several statutes that employ

phrases similar to “owner or occupier of real property.” See also OCGA §§ 2-6-
39 (b) & (c) (addressing authority of soil and water conservation supervisors to
enter land); 16-11-38 (prohibiting wearing a mask on another’s property
without written permission); 36-72-4 (prohibiting the disturbance of a
cemetery without a proper permit); and 51-3-1 (addressing premises liability).
However, she fails to show how the legislature’s use of similar language in
these statutes, each addressing different subject matters, supports her
asserted definition of “owner or occupier of real property” under the Security
Exception.

                                      13
indeed reside in, the area captured on the video recording. The

evidence at the hearing showed that Timothy signed paperwork in

connection with Dempsey’s admission to the rehab facility,12 and the

facility received payment for the services and accommodations it

provided to Dempsey, both from insurance and from his family.

Dempsey moved into the facility for the second time on February 7,

2014, and stayed in the same room until his death on February 27.

He stored his personal items in the room, including clothes,

toiletries, a blanket, and photographs. Under these circumstances,

Dempsey must be considered an occupier of real property within the

meaning of the Security Exception, with the authority to conduct

video surveillance for the purposes listed in the exception “in areas

where there is no reasonable expectation of privacy.”13


      12 This paperwork is not included in the record, and no other description

of those documents is provided.
      13 Although Nuckles asserts that under Starr v. Emory University, 

 (

) (1956), Dempsey was merely an invitee, not an
occupier, of the rehab facility, that case has no application here. In Starr, the
plaintiff, a hospital patient, slipped and fell in the central aisle of an eight-bed
hospital ward, in which she had a bed, and she brought suit against the
hospital for her injuries. See 

. The Court of Appeals only
considered the issue of whether the hospital had potential liability for the

                                        14
      3. Nuckles argues, however, that Dempsey’s room was an area

where there was a reasonable expectation of privacy, and thus the

Security Exception does not apply to the video recording in this case.

Nuckles asserts that “a reasonable expectation of privacy” should be

determined by the “area” or place where the recording is made, not

by the personal expectation of privacy of any individual in that

location, and she asserts that a patient’s room is clearly a place

where there is a reasonable expectation of privacy.

      This Court has not yet considered the meaning of “reasonable

expectation of privacy” in the context of OCGA § 16-11-62 (2) (B),

but in addressing other provisions of OCGA § 16-11-62 (2), we have

previously “looked to Fourth Amendment jurisprudence as a guide

when interpreting the scope of privacy protected by [the statute].”

See State v. Cohen, 

 (2) (b) (

) (2017)

(citing Burgeson v. State, 

 (3) (d) (

)



plaintiff’s injuries and thus whether the trial court properly sustained the
hospital’s general demurrer to plaintiff’s complaint. See id. at 866. The court
did not address the issue of whether the plaintiff had any rights to the area
based on a legal occupancy of a bed in the ward.

                                      15
(1996); Quintrell v. State, 

 (1) (

) (1998)). Although in Cohen, some Justices questioned whether

it was appropriate to apply Fourth Amendment law to the portion of

the statute at issue in that case,14 we find that Fourth Amendment

precedent is particularly instructive for our consideration of the

meaning of “a reasonable expectation of privacy” under the Security

Exception because that phrase had developed into a term of art

relating to privacy rights by the time the Security Exception was

enacted.

     As Presiding Justice Nahmias explained in his concurring

opinion    in   Cohen,     Fourth    Amendment        jurisprudence      was

revolutionized “[w]hen in December [1967] the United States

Supreme Court ushered in a new standard for determining the reach


     14  See Cohen, 

 (Nahmias, J., concurring specially)
(questioning the application of Fourth Amendment precedent to the pre-2015
definition of “private place,” because the legislature adopted that definition
before the Fourth Amendment opinions upon which the majority relied were
issued); 

 (Grant, J., concurring specially) (questioning the
application of Fourth Amendment precedent to that definition because the
precedent was not in place when the legislature adopted the definition; the
Fourth Amendment addresses only governmental interference with privacy
rights, while the scope of the statute is not so limited; and the Cohen case
involved a private actor).
                                     16
of the constitutional privacy protection and first used the term

‘reasonable expectation of privacy’ in Katz v. United States, 

 (

, 19 LE2d 576) (1967) (Harlan, J., concurring).”

Cohen, 

. Although courts originally analyzed the

privacy rights protected by the Fourth Amendment under principles

of common law trespass to property, the United States Supreme

Court’s decision in Katz and its progeny “deviated from that

exclusively property-based approach[,]” and Justice Harlan’s

concept of “a reasonable expectation of privacy” became equated

with the principle that “the Fourth Amendment protects people, not

places.” United States v. Jones, 

 (II) (A) (

, 181 LE2d 911) (2012) (citation and punctuation omitted).

     The General Assembly adopted the Security Exception in 2000,

see Ga. L. 2000, p. 876, § 2, more than 30 years after courts began

recognizing that the phrase “reasonable expectation of privacy”

signaled an individualized approach to privacy rights under the

Fourth Amendment. “The primary determinant of a text’s meaning

is its context,” and “[f]or context, we may look to other provisions of

                                  17
the same statute, the structure and history of the whole statute, and

the other law—constitutional, statutory, and common law alike—

that forms the legal background of the statutory provision in

question.” Gray v. State, 

 (2) (

)

(2020) (citations and punctuation omitted). Thus, we presume that

the General Assembly was aware of this jurisprudence when it chose

to employ that language in the exception. See id.; Davis v. Kaiser

Foundation Health Plan of Ga., Inc., 

 (

) (1999).

     Applying that jurisprudence to this context, we conclude that

the reasonable expectation of privacy under the Security Exception

must be considered in light of the individual expectations of the

persons in the area where the video recording occurred and not, as

Nuckles argues, solely based on a classification of that area. This

determination must be made based on the timing and circumstances

under which the individual was recorded. Therefore, courts must

consider an individual’s status in relation to the location, as one

person present in a particular area may have a reasonable

                                 18
expectation of privacy, while another person may not. See, e.g.,

Smith v. State, 

 (3) (

) (2008) (The

registered guest of a hotel room has an expectation of privacy in that

room, but whether a guest of the renter has the same protection is

determined based on the guest’s status: if only a casual visitor, as

opposed to an overnight guest, the guest does not have the same

expectation of privacy as the renter.).

     Also, whether an individual has a reasonable expectation of

privacy may depend on factors such as the conduct occurring, or

other people present, at the time of the recording. See, e.g., Katz, 

 (“What a person knowingly exposes to the public, even

in his own home or office, is not a subject of Fourth Amendment

protection.”); Bowling v. State, 

 (2) (a) (

) (2011) (where defendant’s medical exam was conducted in the

presence of law enforcement officers, he could not claim an

expectation of privacy in his medical records to the extent that they

contain information disclosed in the officers’ presence). See also

Friedenberg v. School Bd. of Palm Beach County, 

, 1105

                                  19
(V) (A) (11th Cir. 2018) (“The expectation of privacy is real and not

insubstantial, but expectations will differ as context changes,”

noting the United States Supreme Court’s express recognition that

in a work environment “that is ‘regulated pervasively to ensure

safety’ there are lessened expectations of privacy”) (quoting Skinner

v. R. Executives’ Labor Assn., 

 (III) (C) (

, 103 LE2d 639) (1989).).

     Therefore, regardless of whether Dempsey or others had an

expectation of privacy in the area recorded, we must determine

whether Nuckles had a reasonable expectation of privacy in that

area at the time of the recording. Dempsey’s room was part of

Nuckles’s workplace, and although courts have recognized that

under the Fourth Amendment, “[w]ithin the workplace context, . . .

employees may have a reasonable expectation of privacy against

intrusions by police,” Tidwell v. State, 

 (1) (

) (2009) (quoting O’Connor v. Ortega, 

 (II)

(

, 94 LE2d 714) (1987)), the recognition of such a

reasonable expectation of privacy generally has been limited to

                                 20
areas over which an employee had exclusive authority, including

areas where an employee kept his or her personal belongings. See

O’Connor, 

 (II) (state hospital employee had a

reasonable expectation of privacy in his desk and file cabinet where

the desk and file cabinet in question were used exclusively by the

defendant, he regularly kept personal items in them, and there was

no regulation or policy discouraging employees from storing

personal items in their desks and file cabinets); Tidwell, 

 (1) (holding that defendant had a reasonable expectation of

privacy in a wooden locker he maintained just outside his workplace

sleeping quarters); Harper v. State, 

 (2) (

) (2008) (defendant had reasonable expectation of privacy in her

desk at work). Thus, the Supreme Court has held under the Fourth

Amendment that “the question whether an employee has a

reasonable expectation of privacy must be addressed on a case-by-

case basis[,]” considering “[t]he operational realities of the

workplace.” O’Connor, 

 (II).

     The evidence presented at the hearing demonstrates that

                                 21
Nuckles never exercised exclusive control over Dempsey’s room and

never used it for personal reasons. She testified that she did not pay

any rent for the use of the room; she never slept or changed clothing

there; she never used Dempsey’s bathroom; and she never kept her

personal items in his room. Instead, it appears that Nuckles was

engaged in her work duties at the time the recording was made, and

there is nothing to suggest that she would not have been subject to

supervision or observation by other rehab facility employees in the

performance of her duties. In fact, Nuckles was charged along with

two other co-defendants who apparently also were in Dempsey’s

room at the time of the video recording. Under these circumstances,

we conclude that the State carried its burden of showing that

Nuckles had no reasonable expectation of privacy in the area

captured on the video recording at the time she was recorded,15 and

thus the trial court properly denied her motion to suppress.

     Judgment affirmed. Melton, C. J., Nahmias, P. J., and Boggs,
Peterson, Bethel, and Ellington, JJ., concur. Warren, J., not

     15 See Philpot v. State, 

 (

) (2016) (the State

has the burden of establishing the admissibility of evidence challenged by a
motion to suppress).
                                     22
participating.



                    DECIDED DECEMBER 21, 2020.
     Certiorari to the Court of Appeals of Georgia — 352 Ga. App.
XXV.
     Gerard B. Kleinrock, for appellant.
     Sherry Boston, District Attorney, Deborah D. Wellborn,
Jeanne M. Canavan, Maria O. Banjo, Jason M. Rea, Assistant
District Attorneys, for appellee.
     Arnall Golden Gregory, Jason E. Bring, Glenn P. Hendrix;
Gautreaux Law, Jarome Gautreaux; Caleb F. Walker; Warshauer
Law Group, Lyle G. Warshauer, amici curiae.




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