Arizona Surreptitious Recording Lawyer

What Is Surreptitious Recording Under A.R.S. § 13-3019?

A.R.S. § 13-3019 makes it a felony to knowingly photograph, videotape, film, digitally record, or by any other means secretly view another person without that person’s consent, in either of two situations. The first is in a restroom, bathroom, locker room, bedroom or other location where the person has a reasonable expectation of privacy, while that person is urinating, defecating, dressing, undressing, nude, or involved in sexual intercourse or sexual contact. The second is broader and catches far more cases than people expect: recording in a manner that directly or indirectly captures or allows the viewing of the person’s genitalia, buttock or female breast, whether clothed or unclothed, that is not otherwise visible to the public.

That second clause is why upskirt and down-blouse allegations are charged under this statute. The person may be fully dressed and standing in a public place; what matters is whether the recording captured a part of the body that was not otherwise visible. Subsection B then makes it a separate crime to disclose, display, distribute or publish a recording made in violation of subsection A.

What Does the State Have to Prove?

1. You acted knowingly. An accidental recording, or a camera running without your awareness of what it captured, is not this offense;
2. You recorded or secretly viewed another person, with or without a device. The statute expressly reaches viewing with no device at all;
3. Without that person’s consent. Consent is frequently the entire fight, and it does not have to be written;
4. One of the two circumstances applied: a location carrying a reasonable expectation of privacy while the person was undressed or in sexual contact, or a capture of genitalia, buttock or breast not otherwise visible to the public.

Notice what the State does not have to prove: any sexual purpose. Unlike voyeurism, motive is not an element of § 13-3019. That single difference is why prosecutors reach for this statute when they cannot prove why a recording was made.

What Are the Penalties for a § 13-3019 Conviction?

Ranges are the first-offense, non-dangerous, non-repetitive terms set by § 13-702(D). A prior felony changes them under § 13-703. Probation is available on these classes for a first offense, and keeping the case on probation rather than prison is often the realistic goal. Every count is a separate felony, and a single device holding several recordings is routinely charged as several counts.

How Is § 13-3019 Different From Voyeurism (§ 13-1424)?

These two statutes cover overlapping conduct and are frequently charged together, but they are not the same offense and they do not carry the same consequences.

The chapter each statute lives in is not a technicality. It is the difference between a judge having discretion to impose lifetime registration at sentencing and the State having to plead and prove an extra allegation to a jury beyond a reasonable doubt to unlock the same power. Read our page on whether voyeurism is a felony in Arizona, and what § 13-1424 requires when the State alleges a purpose of sexual gratification.

Does a § 13-3019 Conviction Require Sex Offender Registration?

No, not automatically. Neither § 13-3019 nor voyeurism appears in the list of offenses that carry mandatory registration under A.R.S. § 13-3821(A). Registration becomes possible in one specific way: under § 13-3821(C) a sentencing judge may order it for a violation of chapter 14 or chapter 35.1, or for any offense where there was a finding of sexual motivation under § 13-118.

Because § 13-3019 sits in chapter 30 rather than chapter 14, the only route to registration on a straight 13-3019 conviction runs through a 13-118 special allegation. Under that statute the prosecutor must file the allegation, and the State must then prove sexual motivation beyond a reasonable doubt, with the trier of fact returning a special verdict on it. Defeating that allegation is a defined, winnable objective even in a case where the recording itself is not seriously in dispute, and it is frequently the single most valuable thing a defense lawyer does in one of these cases.

What Are the Exemptions Under § 13-3019?

Subsection C lists four situations the statute does not reach:

• Posted security recording. Recording for security purposes where notice of the recording equipment is clearly posted in the location;
• Correctional facilities. Recording by correctional officials for security reasons or in connection with an investigation of alleged misconduct on the premises of a jail or prison;
• Law enforcement. Recording by officers pursuant to an investigation that is otherwise lawful;
• Child monitoring devices, as defined in § 13-3001.

The security exemption turns on the posted notice, which is a question of fact that can be investigated and, in the right case, documented with photographs and business records.

How Are Surreptitious Recording Cases Defended?

• Consent. The statute requires the recording to be without consent. Messages, prior conduct between the parties, and the circumstances of the recording frequently show consent that the report never mentions;
• Reasonable expectation of privacy. A recording in a shared or public space may fall outside subsection A(1) entirely, which puts the State to proof on the harder A(2) clause;
• “Not otherwise visible to the public.” If what the camera captured was already visible to anyone standing there, the A(2) clause is not met;
• Knowingly. A phone recording in a pocket, a camera left running, a device shared between people, or cloud sync pulling images onto an account all raise real questions about who knowingly recorded what;
• Who the user was. Device attribution is the weakest link in many of these cases. See how Arizona police investigate these cases;
• The search. Phones and computers are searched under warrants that are frequently broader than the probable cause supporting them, and suppression of the images ends the case;
• The 13-118 allegation. Attacking sexual motivation separately, because that is what controls registration exposure;
• Count consolidation. Reducing a multi-count indictment to a single count changes the sentencing exposure entirely.

If a detective has contacted you and no charge has been filed yet, read what to do when a detective calls before you speak to anyone. The interview is usually the State’s missing evidence in these cases.

How Tamou Law Group Defends A.R.S. § 13-3019 Cases

We start with the two things that decide these cases: what the device actually shows, and what the State can prove about consent and knowledge. We image and examine the evidence independently rather than accepting the forensic report, we test the warrant that produced it, and we treat the § 13-3019 counts and any § 13-1424 voyeurism count as separate problems with separate answers, because they carry different registration exposure.

Where the State has filed a sexual motivation allegation under § 13-118, defeating that allegation is its own objective and we run it as one. A conviction without it is a felony; a conviction with it can be a lifetime of registration. We handle these cases across Maricopa County and statewide from our Scottsdale and Phoenix offices. Related: is it illegal to record someone in Arizona, voyeurism defense, unlawful disclosure of intimate images, and our Arizona sex crimes practice. Call 623-321-4699, 24/7.