ME: No reasonable expectation of privacy against recording sex acts in Kennebuck Zumba Studio case

Maine interprets its invasion of privacy statute involving the alleged recording of sex acts between a prostitute and her customers in the Kennebunk Zumba Studio prostitution case holding that there is no expectation of privacy when one is with a prostitute since it’s a crime. The state argued for a Fourth Amendment reasonable expectation of privacy analysis which the court did not find appropriate. State v. Strong, 2013 ME 21, 2013 Me. LEXIS 20 (February 15, 2013)*: Although the State urges us to construe 17-A M.R.S. § 511(1)(B) (2012) in light of the Fourth Amendment jurisprudence addressing unreasonable searches and seizures, that body of law provides little guidance. Nowhere in section 511 is there any indication that the Legislature intended to make the rights protected by the statute coextensive with the rights protected by the Fourth Amendment. In addition, there is no logical correlation between the Fourth Amendment and the circumstances addressed by section 511, when, for example, many persons who could expect to be safe from surveillance within the meaning of the statute might nonetheless lack standing to assert Fourth Amendment rights. See State v. Fillion, 2009 ME 23, ¶ 13, 966 A.2d 405 (observing that a defendant who asserts a violation of the Fourth Amendment occurring at a location belonging to or controlled by a third person must demonstrate that he or she had a reasonable expectation of privacy based on several factors, including the defendant’s possession, ownership, or prior use of the property; the legitimacy of the defendant’s presence on the property; the defendant’s ability to exclude others from the property; the defendant’s access to the property if owned by another who is not present; and the defendant’s subjective expectation of privacy).