TX3: Dashcam audio of ptf on her porch over her objection cannot be public record

Plaintiffs were the subject of police recordings on her porch during a welfare check. Others sought a public records request for her dashcam recordings and audio of the conversation. Mrs. King was a former member of the Texas legislature and she was detained on her porch, the curtilage, and objected to them being there. She had a reasonable expectation of privacy in the recordings because it was on her curtilage and she didn’t want the police there. Under Texas statute, recordings in a private place are exempt from disclosure. King v. Paxton, 2019 Tex. App. LEXIS 4659 (Tex. App. – Austin June 6, 2019):

The United States Supreme Court has held that “the front porch is the classic exemplar of an area adjacent to the home and ‘to which the activity of home life extends.'” Jardines, 569 U.S. at 7; see also Collins v. Virginia, ___ U.S. ___, 138 S. Ct. 1663, 1671 (2018) (including front porch among “areas adjacent to home” that are “properly considered curtilage”). Accordingly, Mrs. King’s interactions with the police on her front porch occurred within the curtilage of her home. Because the statute expressly includes “a person’s home” as “a location in which a person has a reasonable expectation of privacy,” and the curtilage is considered “part of the home itself for Fourth Amendment purposes,” Jardines, 569 U.S. at 6-7, Mrs. King’s front porch could be a “private space” as that term is defined in the Occupations Code. See Oliver, 466 U.S. at 178-81 (contrasting open fields, where there is no reasonable expectation of privacy, with curtilage, where there is some reasonable expectation of privacy); State v. Betts, 397 S.W.3d 198, 207 (Tex. Crim. App. 2013) (“The curtilage of a house is protected by the Fourth Amendment.”); see also United States v. Jackson, 588 F.2d 1046, 1053 (5th Cir. 1979) (“Whenever government agents enter into the curtilage they necessarily intrude upon the individual’s reasonable expectation of privacy.”); State v. Davis, No. 05-15-00232-CR, 2018 Tex. App. LEXIS 2305, at *9 (Tex. App.—Dallas Mar. 29, 2018, pet. ref’d) (op. on remand) (“There is no question a person has a reasonable expectation of privacy in the home and its curtilage.”); Cooksey v. State, 350 S.W.3d 177, 183 (Tex. App.—San Antonio 2011, no pet.) (“A person has a reasonable expectation of privacy not only in his home, but also in the curtilage of his home.”).

This is not to say that a front porch will always be a “private space” for purposes of Section 1701.661(f). In criminal cases involving police searches on private property, courts have held that a person’s reasonable expectation of privacy in her home and the surrounding curtilage is not absolute and that there are circumstances in which one does not have a reasonable expectation of privacy in those areas. See, e.g., Ciraolo, 476 U.S. at 213-15; Bower v. State, 769 S.W.2d 887, 897 (Tex. Crim. App. 1989) (en banc), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991) (en banc); Sayers v. State, 433 S.W.3d 667, 674-75 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Cooksey v. State, 350 S.W.3d 177, 184 (Tex. App.—San Antonio 2011, no pet.). However, this is not a criminal case. We are not deciding whether the police violated Mrs. King’s reasonable expectation of privacy while searching her front porch for evidence of crime. Rather, the issue is whether, under the circumstances of this case, King’s front porch was “a private space” as that term is defined in Section 1701.651(3) of the Texas Occupations Code. We conclude that it was.

. . .

Although Mrs. King was now outside her home, it is clear from the recordings that she did not want to be there and did not want the officers to be there. Mrs. King can be heard repeatedly telling the officers to “get off of [her] property.” They refused. At the same time, the officers had restricted Mrs. King’s movements by handcuffing her, attempting to make her sit still on a bench on the porch, and refusing to let her go back inside her home without their supervision. It is undisputed that at no point during the incident was Mrs. King free to end the encounter with the police. It is also undisputed that Mrs. King did not want the officers on her porch and wanted them to leave her alone, but the officers refused to leave until she agreed to accompany them to a location where her mental health could be evaluated.

Under these circumstances, we conclude that Mrs. King had a reasonable expectation of privacy on her front porch, making it a “private space” for purposes of Section 1701.661(f) of the Texas Occupations Code. Thus, the audio recordings of Mrs. King’s interactions with the police on the front porch of her home should also be withheld, and the district court erred in concluding otherwise. Specifically, the audio recording of the “S MVR,” beginning at 00:20:35 and continuing until the end of the recording, should be withheld, as should the audio recording of the “J MVR,” beginning at 00:20:15 and continuing until 02:13:00.