PA: Babysitter had no REP she wouldn’t be recorded on nanny cam

An audio recording on a nanny cam evidencing an assault on the children should not have been suppressed. The babysitter had no reasonable expectation of privacy in the home of the children she was “caring” for. “That is to say that the expectation that a childcare worker is going to be recorded in their employer’s home is so ubiquitous in our society that we have a name for it.” i.e., nanny cam. Commonwealth v. Mason, 2021 Pa. LEXIS 1258 (Mar. 25, 2021) (concur; dissent1, dissent2):

Contrary to Appellee’s position and in support of the Commonwealth’s interpretation of the Wiretap Act, this Court has held that, to establish a violation of the Wiretap Act, the claimant carries the burden to demonstrate, inter alia, that she possessed an expectation that the communication would not be intercepted and that her expectation was justifiable under the circumstances. See Agnew, 717 A.2d at 522 (explaining that “to establish a prima facie case under the Wiretap Act for interception of an oral communication, a claimant must demonstrate: (1) that he engaged in a communication; (2) that he possessed an expectation that the communication would not be intercepted; (3) that his expectation was justifiable under the circumstances; and (4) that the defendant attempted to, or successfully intercepted the communication, or encouraged another to do so”); see also Grove, 161 A.3d at 901-02 (citing Agnew, supra, for the proposition that a “claimant alleging [a] Wiretap Act violation must show[,]” inter alia, “that he possessed an expectation that the communication would not be intercepted [and] that his expectation was justifiable under the circumstances”). Placing this burden on defendants is consistent with the plain language of the Wiretap Act and comports with common sense, as the Commonwealth would have no incentive to demonstrate that a defendant has a justifiable expectation that her oral communication would not be intercepted, and the Wiretap Act does not require the Commonwealth or any other party to prove a negative, i.e., that the claimant did not have a justified expectation that her oral communication would not be intercepted under the circumstances of the case.

Thus, for Appellee’s motion to exclude to succeed, she carried the burden of presenting evidence to establish that, under the circumstances of this case, she possessed a justifiable expectation that the oral communications, which were captured by the nanny cam in the Valle children’s bedroom, would not be intercepted. Appellee failed to meet this burden. Indeed, the only evidence Appellee submitted at the suppression hearing was her brief testimony recounting her version of the conversation that took place between her and Valle regarding the lip injury suffered by one of Valle’s daughters. N.T., 5/24/2018, at 24-25. Appellee’s testimony is woefully insufficient to demonstrate that she had a justifiable expectation that her oral communications would not be intercepted under the circumstances presented in this case.

Further, absent demonstrable circumstances to the contrary, we believe it is objectively reasonable to conclude that persons in Appellee’s position do not have a justifiable expectation that their oral communications will not be subject to interception while they are in a child’s bedroom. Notably, the use of recording devices in homes as a means for parents to monitor people hired to care for their children have become so commonplace that these devices are often referred to as “nanny cams.” That is to say that the expectation that a childcare worker is going to be recorded in their employer’s home is so ubiquitous in our society that we have a name for it. Indeed, as observed above, Appellee used this term throughout her motion to suppress to describe the recording device used by Valle. See, e.g., Appellee’s Pre-Trial Omnibus Motion, 4/16/2018, at ¶6 (“The underlying evidentiary basis for the charges is primarily a secretive audio and video recording from a hidden camera commonly referred to as a ‘nanny cam.'”).

For these reasons, we hold that: (1) Appellee failed to establish that the audio recordings captured by Valle’s nanny cam constitute an “oral communication” as defined by the Wiretap Act, insomuch as Appellee did not demonstrate that she had a justifiable expectation that her oral communications would not be intercepted by a device located in the Valle children’s bedroom, see 18 Pa.C.S. § 5702 (defining “oral communication” as “Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.”); and (2) a nanny does not have a justifiable expectation that her oral communications will not be intercepted in the bedroom of a child in her care simply because the nanny is an employee and guest of the homeowner. Because the Superior Court reached a contrary result, we reverse the portion of that court’s judgment which affirmed the trial court’s suppression order. We further remand this matter for proceedings consistent with this opinion.