It is a crime for anyone who is on someone else’s property without their consent to peek in or to view into a window of an inhabited building or other structure to observe persons who are inside under Penal Code 647(i).
It is also unlawful to invade someone else’s privacy while being lawfully on property but while looking through an opening or peephole to view someone who has a reasonable expectation of privacy or by using a device such as binoculars or cameras to view or take photographs of others with the intent to invade their privacy. These prohibitions are found under Penal Code 647(j).
These statutes are also known as the “peeping Tom” laws. While most offenders are relatively harmless individuals, the act punishes trespassers who are invading the privacy of others who are often trying to enjoy an intimate moment alone or with others.
To prove that you violated PC 647(i), the DA must prove beyond a reasonable doubt each of the following elements of the offense:
- You wandered, delayed, prowled or lingered on the private property of another person
- While you had no authority, consent or other lawful purpose to be on the property
- And looked into, or peeked, into a window or door of an inhabited structure or dwelling on that property
Element of Inhabited Dwelling or Structure
There is no requirement that anyone be in the building or dwelling when you look or peek into it so long as it is being used for habitation.
Element of Wandering, Delaying, Prowling or Lingering
No one wants someone on their property who is not authorized to be there. If you realize you are on someone else’s property without permission or authority, then you must leave immediately. If you remain, you are trespassing. It is not loitering, delaying or lingering if you are just passing through and do not stop and peek through a window or door. You might peek through while continuing to walk but this is not considered a violation under the code unless you were prowling with the purpose of looking for open windows or doorways to peer into. Wandering is the act of walking around private property with no apparent intent or attempt to leave.
Element of Unlawful Purpose
Being on private property without consent could be by accident but a reasonable person would understand the difference between public and private property. You need not have been on private property with the intention of peeking or doing anything unlawful though your presence there is trespassing since you have no reason to be on the property or premises.
While you are there, however, and you decide to stop and look through a window or door just to see what is inside, you are in violation of PC 647(i).
A violation of PC 647(i) is always a misdemeanor. A first offense carries a penalty of no more than 6 months in county jail and/or a fine of up to $1000.
A subsequent offense, though also a misdemeanor, carries up to one year in county jail and/or a fine up to $2000. This also applies if you were peeking in on or invading the privacy of a minor.
Most offenders are placed on summary or informal probation and do not serve any county jail time. The sentencing judge, however, can require that you appear in court at times during your probation to give updates regarding your employment or living situation. You will most likely be ordered to stay away from the property where the offense occurred as well as to not commit this offense anywhere else.
There are always defenses that can be raised to any alleged criminal defense. For this crime, the defenses include:
No Proof of Peeking
You must have been seen peeking or looking into the window or door of an inhabited residence, dwelling or building. If you are caught wandering or loitering on private property or even hiding in a tree or bushes, that is insufficient without more evidence to convict you under this code section.
You were on Public Property
You have to be on private property as an element of this offense. Peeking through the window of an apartment or other inhabited structure while standing or being on public property, or your own property, is not unlawful. If a person’s apartment abuts a public sidewalk and the window is not shaded or is open, looking into it is not an invasion of privacy under this law.
You were not Loitering, Lingering, Prowling or Wandering
If you were passing through on private property and happened upon an open door or glanced into a window but without delaying or lingering, then you have not peeked while loitering, lingering or wandering. If accused of wandering, you may have been lost and were trying to find your way off the property and looked through an open door or into a window while passing through.
Your Purpose or Being on the Property Was Lawful
If you were invited on the property, doing work as a contractor or are a meter reader or surveyor and authorized to be there, then your purpose for being on private property is lawful.
The Structure was Uninhabited
You cannot be convicted of peeking into an abandoned building or former inhabited dwelling where it is clear no one is living there or is being lived in by squatters or homeless individuals.
It is a criminal offense under PC 647(j)(1) to view someone through a small opening into another room with the intent to invade that person’s privacy. The elements of this offense include:
- You looked or viewed through a small opening
- Into another room or its interior
- To observe another person who has a reasonable expectation of privacy
- By the use of a device or instrumentality to assist in the observation, and
- With the intent to invade the privacy of that person
These rooms or their interiors include:
- Dressing rooms
- Tanning booths
- Anywhere else where there is a reasonable expectation of privacy
Devices or instrumentalities include:
- Cell phone camera
- Video camera
- Other camera
This code section has a specific provision at PC 647(j)(2) targeted at those individuals who:
- Surreptitiously photograph in any way or secretly videotape or record another person
- Under or through the clothes of that person
- With the intent to view the undergarments of that person without that person’s consent
- And with the intent to satisfy, arouse or appeal to your lust or sexual desires and invade that person’s privacy
- In a place in which that person has a reasonable expectation of privacy
Under PC 647(j)(3), it is unlawful to:
- Use such cameras or video recording devices in a private room
- To photograph or videotape another person who is nude or partially nude
- Or for the purpose of viewing that person’s undergarments
- Without the individual’s consent
- And who is in the interior of a room such as a bedroom, dressing or changing room or bathroom
- With the intent to invade that person’s privacy
In any of these scenarios, you may have a lawful right to be on that property.
A violation of PC 647(j) is a misdemeanor. The penalties are the same as those for a violation of PC 647(i):
- Up to 6 months in county jail
- A fine up to $1000
- Summary probation
- Periodic court appearances if required to participate in counseling
A second or subsequent offense is county jail time of up to one year and/or a fine up to $2000. This sentence also applies to first offenders if the person being viewed is a minor.
Defenses to this code section focus on whether there is sufficient proof under any of the elements of the crime.
No Reasonable Expectation of Privacy
A person does not always have a reasonable expectation of privacy regardless of what they say. If you are in a public area wearing revealing clothing or nothing at all, you can hardly expect people to not observe you.
No Intent to Invade Another Person’s Privacy
Invading another individual’s privacy also entails doing so to satisfy a sexual desire or to appeal to or arouse your lust or passions. If you do so for some other purpose, such as to see if this person was stealing something, then there is a reasonable alternative explanation that must be accepted by the trier of fact.
There was Consent
Couples do make sex tapes for their own viewing but doing so obviates your later contention that you did not consent to being photographed or taped. Also, someone who purposely undresses or dresses in public view and is aware that he or she may easily be observed has given constructive consent to being photographed.