The Supreme Court of Georgia has ruled that a video recording captured on a concealed camera in a nursing home patient’s room without the knowledge of the nursing home or its staff is admissible at trial under Georgia statutory law.
With today’s unanimous decision, written by Justice Carla Wong McMillian, the high court has upheld a decision by the Georgia Court of Appeals, the state’s intermediate appellate court. Wanda Nuckles, a nursing home employee, had appealed to that court after a DeKalb
County judge denied her motion to suppress the recording when her criminal case goes to trial.
Nuckles had argued the recording was inadmissible because she had not consented to the recording as required under Georgia Code § 16-11-62 (2). But the Court of Appeals upheld the trial court’s ruling, and today the Supreme Court agrees with the intermediate appellate court that
the recording falls within an exception provided under the statute.
Nuckles was an employee at the Northeast Atlanta Health and Rehabilitation Center when in 2013, James Dempsey, 89, was brought to the center following hip surgery. (In her motion to suppress, Nuckles said she was employed as a licensed practical nurse.) While at the center, Dempsey told his son that “strange things” were occurring in his room at night. He said a female resident had come into his room and tried to climb into his bed, and another time, a naked male resident had entered his room. Dempsey’s personal items also began to go missing,
including his hearing aids and various toiletries. Dempsey also complained that the center’s employees were sometimes rude to him and delayed their response to his requests for assistance.
With Dempsey’s permission, the son installed an audio and video recording device in Dempsey’s room. The device was concealed in a clock radio and sat on a dresser across from Dempsey’s bed, showing only his side of the room and his belongings. The only others who were
aware of the recording device were the son’s wife and stepdaughter and the private caretaker the son had hired to watch over Dempsey during the day. The device eventually captured about 400 hours of video footage.
Dempsey died on Feb. 27, 2014 while living at the center. His son, who had seen him a few hours before his passing, requested an autopsy because his father appeared to be fine at that time and his death was unexpected. After viewing the video footage of his father’s final hours,
Dempsey’s son provided it to law enforcement. Subsequently, Nuckles was indicted in DeKalb County of one count of depriving an elder person of essential services and one count of concealing the death of another. Two others were also charged in Dempsey’s death. The
indictment alleged that Nuckles deprived Dempsey of necessary medical services “by failing to initiate and continue [CPR] immediately upon discovering [he] was unresponsive.” All three codefendants were charged with concealing the death of another, with Nuckles and one of her
codefendants alleged to have begun CPR on Dempsey an hour after he had become unresponsive “to create the false impression that they were trying to save [Dempsey’s] life.”
Nuckles filed a motion to suppress the video recording under Georgia Code § 16-11-62 (2), which states it is unlawful for anyone to record the activities of another without that person’s consent “which occur in any private place and out of public view.” The State argued in response
that the recording was admissible because it fell within the “Security Exception” outlined in § 16-11-62 (2) (B), which allows “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 in areas where there is no reasonable expectation of privacy.” Following a hearing, the trial court denied Nuckles’s motion and ruled that the video recordings would be admissible at trial. The trial court found that the video did not occur in a “private place” and Nuckles, therefore, lacked standing to contest the recording. Although the Court of Appeals noted that the trial court applied the wrong definition of “private place,” it affirmed the trial court’s ruling, holding that the recording fell within the Security Exception.
Nuckles subsequently filed a petition for certiorari, asking the state Supreme Court to review the case. The Supreme Court granted the petition to determine whether the video recording fell within the exception. 3 In today’s opinion, the high court begins its analysis by determining the meaning of “occupier of real property” under § 16-11-62 (2) (B). Nuckles argued that Dempsey was not an occupier because he had no control of, or responsibility for, the center, and therefore the Security Exception did not apply. The Court rejected that argument and construed “the term ‘occupier of real property’…to be broad enough to encompass someone like Dempsey, who had the legal right to occupy, and indeed reside in, the area captured on the video recording.” Therefore, Dempsey “had the authority to conduct video surveillance for the purposes listed in the exception ‘in areas where there is no reasonable expectation of privacy.’” Although Nuckles also argued that Dempsey’s room was an area where there was a reasonable expectation of privacy, “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, and thus the trial court properly denied her motion to suppress,” the opinion says.