“I’ll Be Watching You”: The Florida Voyeurism Offense
The problem of voyeurism has grown exponentially in recent years, as advances in technology make it easier both to spy on others and record their private acts. Two Florida statutes address these problems. F.S. §810.14 creates the offense of voyeurism. Section 810.145 creates three offenses: video voyeurism, video voyeurism dissemination, and commercial video voyeurism dissemination. This article addresses §810.14.
Under §810.14(1), voyeurism occurs when a defendant “[1] with lewd, lascivious, or indecent intent, [2] secretly observes another person [3] when the other person is located in a dwelling, structure, or conveyance and [4] such location provides a reasonable expectation of privacy.” This article analyzes these four elements and concludes that, while the offense is reasonably well defined, it is underinclusive in two ways. First, by limiting the offense to defendants who act with lewd intent, the statute allows voyeurs motivated by other purposes to go unpunished, even if they invade another’s privacy as egregiously as those with lewd intent. Second, the offense is limited to victims who are “located in” a dwelling, structure, or conveyance, with “dwelling” and “structure” defined as including the curtilage. But one may have a reasonable expectation of privacy when on property outside the curtilage. In limiting its protection to victims located within the curtilage, the statute leaves unprotected some persons whose reasonable expectations of privacy are violated by voyeurs.
The other potential problem with §810.14(1) is the meaning of the phrase “reasonable expectation of privacy,” which is not defined in the statute. While that phrase is well-known in Fourth Amendment law, that body of law should not be incorporated wholesale into §810.14(1). There are significant differences in the two contexts. The Fourth Amendment draws a balance between individual privacy interests and state interests in public order. Voyeurism statutes seek to protect privacy interests from encroachment by fellow citizens. The proper balance to be struck in these two contexts may be different; we may find reasonable certain activities done by police acting in their official capacity while condemning the same activities when done for private motives. This must be born in mind when determining whether an expectation of privacy is reasonable in voyeurism cases. The test to be used in voyeurism cases should be something like this: A reasonable expectation of privacy is violated when the defendant views the victim in a manner she reasonably believed he would not view her.2
There are no reported Florida decisions addressing §810.14(1). Relevant cases from other courts interpreting their own voyeurism statutes will be noted below. As to the elements of the Florida offense:
“Lewd, Lascivious, or Indecent Intent”
T he voyeurism offense is limited to defendants who act with lewd intent, but privacy interests can be invaded by peepers acting for other purposes. The privacy of a victim being secretly observed in a bathroom is violated regardless of whether the peeper is conducting research on how women behave in bathrooms, getting amusement from the faces she makes while putting on makeup, or scratching some perverse sexual itch.
The analogous element in §810.145(2) is “[for] amusement, entertainment, sexual arousal, gratification, or profit, or [to] degrad[e] or abus[e] another person….” Other states also use broader mental elements in voyeurism statutes, e.g., “secretly or furtively peep…without just cause”3 and “for the purpose of spying upon and invading the privacy of the person observed.”4 These elements may be overinclusive to the extent they outlaw valid surveillance activities. Exceptions for such activities are often made in these statutes.5
This element should not pose any interpretive problems for Florida courts, but the legislature should consider expanding this element to ensure that unreasonable invasions of privacy are outlawed regardless of the defendant’s motive.
“Secretly Observes Another”
O ne court said a “secret” observation is one that is 1) “done or undertaken with evident purpose of concealment”; or 2) “constructed so as to elude observation or detection.”6 A second court defined “secret” as “spying upon another with the intention of invading her privacy.”7 Courts in other jurisdictions reject the argument that “one cannot ‘secretly peep’ [from] a public or semi-public place”:
“[S]ecretly” relates to the intent …to invade a [victim’s] privacy, not whether people might be able to observe the [defendant] peeping….“[S]ecretly” is defined from the victim’s perspective, not from the perspective of the one who is peeping…. Just because defendant was “peeping” in a semi-public place does not negate the element of secrecy….8
This element should not present any significant interpretive difficulties.
“The Other Person is Located in a Dwelling, Structure, or Conveyance”
Section 810.14 is located in the same chapter as the offenses of burglary and trespass. The statutory definitions for dwelling, structure, and conveyance used for those offenses also apply to the voyeurism offense. Under those definitions, both “dwelling” and “structure” include the curtilage.9 Thus, backyard sunbathers are protected by the statute if they are within the curtilage and have a reasonable expectation of privacy there.
The defendant must observe the victim while she “is located in” the dwelling, structure, or conveyance; if she is outside one of these locations, there is no offense . The defendant’s location is irrelevant. Section 810.14(1) applies even if the defendant is lawfully within the location (along with the victim) when the observation occurs. Whether §810.14(1) applies when the defendant and victim lawfully share a location is determined by the reasonable-expectation-of-privacy element of the offense (discussed below).
This “located in” limitation, coupled with the definitions of dwelling and structure that include the curtilage, seems to incorporate into §810.14(1) the Fourth Amendment concept of “open fields.” The Fourth Amendment does not apply to open fields, even if such fields are private property and the occupant exhibits a desire for privacy by posting signs or erecting fencing . The Fourth Amendment applies only to “persons, houses, papers, and effects” and, while “houses” includes the curtilage, it “does not extend to the open fields[;] the distinction between a person’s house and open fields ‘is as old as the common law.’”10
But one can have a reasonable expectation of privacy on land outside the curtilage.11 The privacy rights of backyard sunbathers should not depend on whether they are within some line, often invisible, that the common law developed for defining the offense of burglary. While the concept of curtilage is a handy device to determine when a burglary or trespass has occurred — the thrust of these offenses being the physical intrusion on another’s land — it is ill-suited to the task of determining when privacy has been violated by voyeurs who may be outside not only the curtilage but also the other perimeters of the property.
Limiting the voyeurism offense to acts that occur within a curtilage leaves some victims unprotected in situations in which recognized social norms were violated. While this element may not cause serious interpretive problems, it is underinclusive.
“Location Provides a Reasonable Expectation of Privacy”
“Reasonable expectation of privacy” is not defined in §810.14. For the video voyeurism offenses created by §810.145(2), the phrase “place and time when a person has a reasonable expectation of privacy” is defined in §810.145(1)(c) as “a place and time when a reasonable person would believe that he or she could fully disrobe in privacy, without being concerned that the person’s undressing was being viewed, recorded, or broadcasted by another….”
This definition should not be used in §810.14(1). Section 810.14 was enacted in 1998, §810.145 in 2004.12 The legislature did not note §810.14 when it enacted §810.145. Section 810.145(1) says its definitions apply to “this section,” i.e., §810.145. When the legislature wishes to apply definitions to all sections in a chapter, it uses the phrase “[a]s used in this chapter” (as it did in §810.011). Thus, the legislature did not intend for the §810.145 definition to be used in §810.14.13
Further, using the §810.145 definition in §810.14(1) cases unduly restricts the scope of §810.14(1). The §810.145 definition requires that, when the voyeurism occurred, the victim was in a place where she “reasonably believed that she could fully disrobe in privacy.” This “fully disrobe” element is troublesome. Suppose the victim is sitting at her desk at work and the defendant is peering, through a hole in the wall, at her crotch (which is hidden from casual view by the desk). Or consider the restaurant hostess standing at her station, ready to seat customers, who does not realize that the louvered vent on the floor is being used, not for air circulation, but by the owner to peer up her skirt from the basement. Both victims have reasonable expectations of privacy under their skirts; however, neither can reasonably believe they “could fully disrobe in privacy” in their current locations.
Using the §810.145 definition, a defendant could not be prosecuted under §810.14(1) in cases like these. But one may have a reasonable expectation of some privacy in a location even though one does not reasonably believe one could fully disrobe in privacy at the place and time. Thus, the §810.145(1) definition is underinclusive.
“Reasonable expectation of privacy” is a well-recognized Fourth Amendment concept. In that context, it involves “a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?”14 Conversely, “[w]hat a person knowingly exposes to the public…is not a subject of Fourth Amendment protection.”15 But some courts in other states say the Fourth Amendment case law should not be used for voyeurism statutes:
[T]he [Fourth Amendment] concept of reasonable expectation of privacy embodies a balance between society’s interest in law enforcement and the privacy interest asserted by the individual….[T]he…purpose of [a voyeurism statute is] to penalize individuals who…invade the privacy of [others], when the offenders have no legitimate reason for doing so. A balancing of society’s interest in law enforcement against the depicted person’s interest in privacy is not a relevant standard in this context because law enforcement is not the invader of the depicted person’s privacy….16
These are cogent comments, but the Fourth Amendment cases may be helpful in voyeurism cases, as long as we recognize the different interests involved in the two contexts. The privacy interest of defendants (in Fourth Amendment cases) and victims (in voyeurism cases) are similar, if not identical; neither wishes to be spied upon by others without their consent when they are in locations that are, in some sense, “private.” The competing interests are different: The state’s interest in maintaining public order versus an individual’s interest in viewing what one pleases. The difference in these two interests may result in a different balance being struck as to what is permissible.
An example is the investigative technique known as the knock-and-talk. Unless steps are taken to revoke the consent, e.g., fencing, “no trespassing” signs, it is assumed that a dwelling’s occupant implicitly consents to allowing anyone (including police) to approach the front door and knock for the purpose of talking to the occupant. Thus, officers using “a recognizable pathway to the front door” may “enter the property…and knock on the door,” and “the resident does not have a reasonable expectation of privacy in what is plainly viewed from the vantage point of a temporary visitor who walks along the pathway or stands at the doorway,” including what may be seen through windows on the door or the front of the house.17 Given this rule, one might say the occupant has no reasonable expectation of privacy regarding what can be seen inside the home by someone approaching (by a recognizable pathway) and then standing in the front door area.
Does this mean enterprising voyeurs can walk up and down the street, perhaps as darkness approaches, silently going up to front doors with peeled eyes, looking to catch a glimpse of whatever flesh might be available through blinds not fully drawn? The average citizen would find that such actions violate legitimate expectations of privacy, and the motives of the person approaching the front door would be relevant here. While officers do not need a reasonable suspicion or probable cause to do a knock-and-talk, we might assume that on-duty officers would not simply go to a person’s home on a whim; they presumably have some legitimate law enforcement reason to do so, even if it is just to check out an anonymous tip. The voyeur may do exactly what the officer does, but his motive is quite different. Thus, the fact that the voyeur, if he were an officer, would not be violating the occupant’s Fourth Amendment rights should not immunize his actions under §810.14(1).
Although there are distinctions in the two contexts, the Fourth Amendment reasonable expectation test has a degree of both certainty and flexibility that may be useful in voyeurism cases, given the onrush of new technology and the remorseless ingenuity of those who would exploit it for voyeuristic purposes. The Fourth Amendment cases can provide guidance in voyeurism cases, and the objective component of the reasonable-expectation test ensures that social norms will be considered and respected when determining the scope of the voyeurism offense. Further, the alternatives to the Fourth Amendment test used by courts and legislatures for voyeurism cases are unsatisfactory.
Several such tests have been proffered. One court suggested 1) “circumstances that invade the privacy of [the victim], when the offenders have no legitimate reason for doing so”; and 2) a “[reasonable] assumption that [the victim] is secluded from the presence or view of others.”18 The first test is workable, although we still must determine when privacy is invaded and when the invader has a legitimate reason for doing so. The second test has problems. People at home with family or friends cannot assume they are “secluded from the presence or view of others”; the family or friends are both present and viewing. With invited guests and family, we assume the risk that they may see or hear things that would otherwise be private, but we still expect that they will not secretly peep at us in the bathroom. People in public restrooms, locker rooms, etc., know that others are, or may be, present and viewing, but they still reasonably expect that unseen others will not spy on them through a two-way mirror. A better test here is something like “secluded from the presence or view of uninvited or unexpected others, and invited others who exceed the implied limits of the invitation.”
Two state voyeurism statutes define the phrase “[p]lace where he or she would have a reasonable expectation of privacy” as “(A) a place where a reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being photographed or filmed by another; or (B) a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance.”19 The problems with a disrobe-in-privacy test were discussed above.20 Two other states define “private place” using this casual-or-hostile definition with additional language: “a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or substantial group of the public has access.”21
This casual-or-hostile test has problems. The exemption for places where “the public has access” seems to exclude public restrooms, changing rooms, etc., depending on what we mean by “has access.” The public generally has access to a toilet stall in a public restroom; but does the public still have access if someone is in the stall with the door closed and latched? Social norms say one should not enter a stall that is already occupied, but there is no law against it (other than, possibly, the voyeurism law itself, which is the law whose scope we are trying to determine). What if one is in the restroom but outside the stall? The public always has access there. Does this mean that someone in this “public” part of the restroom, or in a gym locker room, has no reasonable expectation that someone will not peep through a hole in the wall?
Even without this public-has-access proviso, the casual-or-hostile-intrusion-or-surveillance test is cumbersome and complex. There are four separate tests here: casual intrusion, casual surveillance, hostile intrusion, and hostile surveillance. Must all four tests be met before a reasonable expectation of privacy is shown? Someone in a tanning booth with a broken door latch may reasonably expect there will be no “hostile surveillance,” but “casual intrusion” is possible if someone accidentally opens the door. Does this mean there is no reasonable expectation of privacy in that area? Or does it mean there is a reasonable expectation because one need only establish one of the tests to prove that?
Courts have applied these different definitions in a variety of voyeurism cases. All courts agree that we may have a reasonable expectation of privacy even though we are partially exposed to others. We need not seal ourselves in a “view-tight” location, “shut…off from fresh air, sunlight and scenery,”22 t o get protection from unwanted peepery.
As to dwellings, courts have found reasonable expectations of privacy were violated when the defendant 1) peered with binoculars from the street into the partially opened curtains of a second-floor apartment;23 2 ) stood on a public landing outside an apartment front door and peered into a decorative window on the upper part of the door, which was above eye-level for an average-sized person;24 and 3) peered into a bedroom window, even though the blinds on the window, which were drawn shut, “lacked six to [10] inches of reaching the window sill.”25 Another court affirmed a conviction when the defendant peered from the second-floor window of his home into the second-floor bathroom window of the house next door. Although the victims knew that a person could see in their window from the defendant’s second floor, they reasonably believed the defendant’s home was unoccupied. Thus, “they reasonably believed that no one could see into their bathroom.”26 This court also rejected the defendant’s argument that his actions were lawful because he “had a right to be” where he was when he observed the victims.27
The fact that defendant and victim live together, or engage in intimate acts, does not extinguish all reasonable expectations of privacy. The victim may voluntarily expose herself to the defendant but she still has a reasonable expectation that she “will not be [secretly] recorded in the nude.”28 Similarly, “the fact that [defendant] has often consensually seen his wife in a state of undress [does not] mean[] that his [secret] observation and videotaping…cannot be an invasion of her privacy….”29 A victim may have a reasonable expectation of privacy in places like the bathroom or bedroom, even though she knows the defendant (with whom she lives) regularly peeps at her (without her consent) as she dresses, showers, etc .30
We also have some reasonable expectations of privacy in semi-public locations. With public toilet stalls, there is “no reasonable expectation of privacy concerning what can be seen below the level of the stall partition [because] it is a common enough practice to bend down to check for a pair of feet”; but placing a hand-held mirror below that partition to see into the adjoining stall crosses the line. 31 A public restroom “is open to the public in the sense that any[one can] use it,” but:
the occupant who uses the bathroom and closes and locks the door…may “reasonably expect to be safe from casual or hostile intrusion or surveillance.”…[T]he simple fact that many people are allowed to use the restroom does not make it any less private when one person is occupying it and has locked the door to prevent the entry by others.32
There may be a reasonable expectation of privacy with regard to men’s room urinals if “the partitions and the user’s body create a space in which the user would…expect to be free from even incidental observation [because] that space [was] shielded from the public’s view by partitions and the user’s body….”33 Also, in a store changing room, one would “reasonably expect[] to be safe from uninvited intrusion while changing clothes.”34 While “practical necessity [requires] members of the same sex [to] share locker rooms to change clothes or use common showers at gyms or fitness facilities,” people using such facilities “reasonably expect that they will not be photographed in the nude….”35
It has also been held that a woman with Alzheimer’s had a reasonable expectation of privacy, at least with respect to being secretly photographed under her blouse, in a nursing home dining room, even though that area was open to staff and other residents:
A private nursing home is not a purely public place analogous to a shopping mall….[T]he nursing home was the residence of the victim….[A] purpose of the nursing home, relied on by the families of the vulnerable residents, was to protect them from casual or hostile intrusion or surveillance.36
Two cases affirming convictions for “upskirting” should also be noted here. Upskirting refers to secretly photographing or recording up a woman’s skirt. This problem is expressly dealt with in §810.145(2)(c). Affirming a conviction for upskirting under its statute, one court said that, even though the victim was wearing a short skirt, she “wore [it] pulled down below her waist and…it did cover her undergarments from general public view. ”37 Thus, she reasonably “believe[d] that her tiny skirt shielded her undergarments from…the prying eyes of the public,” even though “a small child or a midget or a voyeur with a low-held, up-tilted camera could actually breach her privacy guard and gain a glimpse of [her underwear].”38 Another court affirmed a conviction for upskirting when the victims:
wore skirts that covered their underwear and thighs[, which] put the public on notice that they intended to keep the covered areas private, and their expectation of privacy was reasonable, [even though the defendant] went to extraordinary lengths to position himself and his camera so that he could peer up the[ir] skirts.39
The common thread in all these cases may be summarized using the language emphasized in the two upskirting cases: We have a reasonable expectation that others will not go to extraordinary lengths to view what we wish to keep hidden from general public view. In some cases, this may mean the entire body, as when we are home behind drawn blinds (even if someone coming right up to those blinds could, by intense focus, peer through a crack). In other cases, this may mean only certain parts of the body, even if we have exposed other parts of the body to view by some or all of the general public. Three Fourth Amendment cases that disapproved the police use of high-powered telescopes provide further guidance. In the first case, the court said: “[W]hat a person knowingly exposes to the public is not the subject of fourth amendment protections….But the public to whom something is knowingly exposed must be ‘ the ordinary run of people, not those who happen to possess powerful and sophisticated devices and the curiosity to use them to spy on their fellows.’”40 In the second case the court noted: “[W]hile a defendant may have waived a reasonable expectation of privacy as to certain persons, he has not necessarily waived that right as against other sources.”41 The third court said, “a person, by opening his curtains, [does not] thereby open[] his person, house, papers and effects to telescopic scrutiny….”42
Conclusion
Distilling the principles in all these cases, the rule in voyeurism cases should be something like this: A reasonable expectation of privacy is violated when the defendant views the victim in a manner she reasonably believed he would not view her. While we cannot expect privacy regarding what we knowingly expose to the casual glance of the general public or the ordinary run of people who are going about their lives in an expected and socially acceptable fashion, we can reasonably expect that others will not make extraordinary — unreasonable, unexpected, unseen, unknown — efforts to view what we take reasonable steps to keep hidden. We may voluntarily expose ourselves, or parts of ourselves, to the view of certain known or expected others, or to general public viewing from certain vantage points. This does not mean we intend to, and expect to, be viewed by any and all others who devise extraordinary methods to view us, from all vantage points or angles.
Thus, whether a reasonable expectation of privacy has been breached is determined by all the circumstances of the case, not by the mechanical application of rules developed in the Fourth Amendment context (although that body of case law may provide a good starting place for analysis). The inquiry is, at least in part, objective, but it is not abstract. The factfinder must decide whether, given accepted social norms of behavior, a reasonable person would have expected to be viewed in the manner the victim was viewed by the defendant. It may be hard to formulate the test in any more concrete terms, but deciding what is reasonable in a particular case “is the type of common-sense determination that juries routinely make.”43
In sum, §810.14(1) is a reasonably well-drafted statute that should not present any serious problems of interpretation. The statute is underinclusive in the two ways noted above, and the meaning of reasonable-expectation-of-privacy needs to be fleshed out. At the least, the statute is a good start toward providing Florida citizens with solid protection against unreasonable invasions of privacy.
1 The Police, Every Breath You Take, Synchronicity (1983).
2 For simplicity, this article will use male pronouns for defendants and female pronouns for victims. The defendants were males in all the voyeurism cases cited in this article; the great majority of victims were female.
3 Va. Code Ann. §18.2-310A (2013).
4 Mich. Comp. Laws Ann. §750.539a(3) (2013); see also Ga. Code Ann. §16-11-62(3) (2013) (“for the purpose of invading the privacy of others by…secretly observing their activities”); Minn. Stat. §§609.746(a)(3), (b)(3), and (c)(2) (2013) (“intent to intrude upon or interfere with the [victim’s] privacy”).
5 E.g., Minn. Stat. §609.746(f) (2013).
6 Gilmer v. State, 955 So. 2d 829, 834 (Miss. 2007).
7 Matter of Banks, 244 S.E.2d 386, 390 (N.C. 1978).
8 State v. Ferebee, 2004 WL 835773 at *4 (N.C. Ct. App. 2004) (citation omitted). Another court rejected the defendant’s argument that “he could not have been acting secretly…if others saw him” because, if the “secretly viewed” element “require[d] proof that no one observe the ‘peeping tom,’ [then] the arrest of the ‘peeping tom’ caught in the act would necessarily disprove an element of the crime.” Morales v. Commonwealth, 525 S.E.2d 23, 25 (Va. Ct. App. 2000).
9 Fla. Stat. §§810.011(1)-(3) (2013); Fla. Std. Jury Instr. (Crim.) Voyeurism.
10 United States v. Dunn, 480 U.S. 294, 300 (1987) ( quoting Hester v. United States, 265 U.S. 57, 59 (1924)).
11 Recognizing this, some courts reject the open-fields doctrine under state constitutional search-and-seizure provisions. E.g., State v. Cada, 923 P.2d 469 (Idaho Ct. App. 1996); State v. Bullock, 901 P.2d 61 (Mont. 1995).
12 C h. 98-415, §2, Laws of Fla.; Ch. 2004-39, §1, Laws of Fla.
13 The standard jury instructions recognize this. Fla. Std. Jury Instr. (Crim.) Voyeurism.
14 California v. Ciraolo, 476 U.S. 207, 211 (1986) (citation omitted).
15 Id. at 213 (citation omitted).
16 State v. Nelson, 718 N.W.2d 168, 176-78 (Wisc. Ct. App. 2006) (emphasis added); accord People v. Schreier, 1198-99, 909 N.Y.S.2d 885, 890-91 (N.Y. Co. Ct. 2010). Other courts look to the Fourth Amendment case law for guidance in voyeurism cases. People v. Abate, 306 N.W.2d 476, 478 (Mich. Ct. App. 1981); State v. Ulmer, 719 N.W.2d 213, 215 (Minn. Ct. App. 2006).
17 Powell v. State, 120 So. 3d 577, 584 (Fla. 1st DCA 2013).
18 Nelson, 718 N.W.2d at 176, 178.
19 Vt. Stat. Ann. 13 §2605(a)(5) (2013); Wash. Rev. Code Ann. §9A.44.115(4)(c) (2013).
20 See also Miss. Code Ann. §97-29-63(1) (2013) (voyeurism statute applies to “a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy”); Vt. Stat. Ann. 13 §2605(a)(3) (2013) (reasonable expectation of privacy means a person “would believe that his or her intimate areas would not be visible to the public, regardless of whether that person is in a public or private area…”).
21 Del. Code Ann. 11 §1337(a) (2013); Mich. Comp. Laws Ann. §750.539a(1)(2013).
22 State v. Ward, 617 P.2d 568, 573 (Hawaii 1980).
23 Gilmer, 955 So. 2d at 834-35.
24 Schreier, 909 N.Y.S.2d at 890-91.
25 State v. Bivins, 136 S.E.2d 250, 250 (N.C. 1964).
26 Nelson, 718 N.W.2d at 172.
27 Id. at 182; see also Snider v. State, 516 S.E.2d 569, 571 (Ga. Ct. App. 1999) (rejecting argument that defendant could not be convicted of voyeurism “because he was standing in his own backyard” when he viewed the victim in rooms of the home they shared).
28 Jahnke, 762 N.W.2d at 700 (defendant secretly videotapes girlfriend during sex at home); accord, Lewis v. LeGrow, 670 N.W.2d 675, 685 (Mich. Ct. App. 2003); State v. Perez, 779 N.W.2d 105 (Minn. Ct. App. 2010).
29 Perez, 779 N.W.2d at 110.
30 Davis, 2011 WL 1226886 at *1-2; see also Snider, 516 S.E.2d at 571; Kelley v. State, 503 S.E.2d 881, 885 (Ga. Ct. App. 1998).
31 State v. Million, 578 N.E.2d 869, 871 ( Ohio Ct. App. 1989).
32 Thompson v. State, 2007 WL 594542 at *2 (Del. Super. Ct. 2007); accord Abate, 306 N.W.2d at 478-79.
33 Ulmer, 719 N.W.2d at 215.
34 State v. Martin, 658 P.2d 1024, 1027 (Kan. 1983), abrogated on other grounds, State v. Berreth, 273 P.3d 752 (Kan. 2012).
35 State v. Dennison, 2012 WL 1580610 at *4 (Ohio Ct. App. 2012).
36 State v. Larson, 2003 WL 22766043 at *3 (Wash. Ct. App. 2003).
37 People v. Garcia, 2008 WL225024 at *4 (Cal. Ct. App. 2008) (emphasis added).
38 Id.
39 State v. Boyd, 155 P.3d 188, 193 (Wash. Ct. App. 2007) (emphasis added).
40 State v. Barnes, 390 So. 2d 1243, 1244 (Fla. 1st DCA 1980) (emphasis added) (citation omitted).
41 State v. Kender, 588 P.2d 447, 451 (Hawaii 1979).
42 Ward, 617 P.2d at 573.
43 Nelson, 718 N.W.2d at 182.
Richard Sanders graduated from the University of Pennsylvania Law School in 1982. He currently works in the appellate division of the 10th Circuit Public Defender’s Office.
