December 8th, 2012

12-year-old Girl Led out of School in Handcuffs for Mistakenly Photographing other Girl in Locker Room 78

By Carlos Miller

A 12-year-old in Texas was led out of school in handcuffs for mistakenly snapping a photo of another girl undressing inside the locker room.

The girl said she was trying to photograph herself and another friend with her iPhone Thursday, thinking she had the reverse lens turned on which allows people to compose themselves in the viewfinder and snap a photo.

However, she had the lens turned outwards when she pressed the shutter, which captured another girl who was pulling down her pants.

The girl who snapped the phone immediately realized her mistake and deleted the photo, even showing the girl whose photo had been taken.

But on Friday, police walked into Channel ISD school near Houston, handcuffed her and walked her out to a police car where she was taken into custody.

She was then suspended for three days and ordered to attend an alternative school for 30 days.

According to ABC 13:

Lawyer Jack Carroll says the law protects the content that’s on your phone. He says the Constitution was violated when investigators took the girl’s phone to look for the picture.

“It’s like having a government official or a police officer look through your diary. You can’t do that without consent or a search warrant,” he said.

But KTRK legal analyst Joel Androphy doesn’t agree, saying the law is different because this occurred on school grounds.

“Like when you enter the airport you give up many of your constitutional rights; when you go into school you give up many of your constitutional rights in regards to search and seizure,” Androphy said.

“They couldn’t find nothing, but they’re still saying that I did it,” the 12-year-old said.

The girl just wants to go back to school. She’s been suspended for three days and is being sent to an alternative school for another 30 days. She and her parents are appealing that assignment to alternative school.


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  • search4beauty

    Where do people get the idea that your rights don’t count at school, an airport or train station?
    When did inalienable stop being inalienable?

    • nrgins

      That’s right. The idea of “giving up your rights” is a lie that TSA propagates. You never give up your rights. You just willingly consent to a search as a basis for getting on the plane. The other option is to leave the airport. But your rights are always your rights. You don’t give up your rights when you consent to a search!

      • John Howard

        Actually, it is also a “crime” to leave a checkpoint to avoid being searched. Many have been arrested for this when they realize they have left something in their carryon bag and attempt to leave the line.

        • Lefim

          Regarding airport searches: The 9th Circuit Court of the United States ruled “… that airport screenings are considered to be administrative searches because they are conducted as part of a general regulatory scheme, where the essential administrative purpose is to prevent the carrying of weapons or explosives aboard aircraft.” (U.S. vs Davis, 482 F.2d 893, 908 (1973)). It was upheld by the 9th, adding: “To judge reasonableness, it is necessary to balance the right to be free of intrusion with society’s interest in safe air travel.” (Pulido-Baquerizo, 800 F.2d 899, 901(1986)) The Davis ruling became the law of the land with Public Law 107-71, the Aviation Transportation and Security Act (2001).

          The concept of an Administrative Search was created by the U.S. Supreme Court (Camara v. Municipal Court, 387 U.S. 523 (1967)) and there is a limit on administrative searches expressed that the government may not use an administrative inspection scheme as a pretext to search for evidence of criminal violations (People v. Madison, 520 N.E.2d 374 (1988)).

          The part of Davis that “[an administrative search is allowed if] no more intrusive or intensive than necessary, in light of current technology, to detect weapons or explosives, confined in good faith to that purpose, and passengers may avoid the search by electing not to fly.” appears written out with the broad latitude TSA is given, and in United States v. Aukai, 497 F.3d 955 (2007) where one cannot just “elect not to fly” and be free of warrantless searches once a “passenger places hand luggage on a conveyor belt for inspection” or “passes though a magnetometer.”

          Some of the legal aspects regarding student cellphone searches in school appear well covered in the previous article (“Miami-Dade School Officials Force Student to Delete Footage of Security Guard Abuse”). No need to repeat it here.

          • IO_IO

            Interesting – and passengers may avoid the search by electing not to fly.” appears
            written out with the broad latitude TSA is given, and in United States
            v. Aukai, 497 F.3d 955 (2007) where one cannot just “elect not to fly”
            and be free of warrantless searches”… So, how may passengers avoid searches, once TSA is covering all the airplanes, buses, trains, bridges, etc. I would assume at that point is becomes an obstruction to the freedom of travel.

          • Lefim

            A piece of Aukai you’ve overlooked is when the passenger is commiting to board the plane by placing hand luggage on a conveyor belt for inspection or passing through a magnetometer to gain access into the secured area of an airport, he/she cannot just change one’s mind at the last minute thus commited and leave the hand luggage behind when it’s about to be scanned or say “forget it” when the magneometer alarms when passing through. The constitutionality of an airport screening search does not depend on implied consent but are regulatory searches, and all that is required is the passenger’s election to attempt entry into the secured area of an airport (United States v. Biswell – 406 U.S. 311 (1972)).

            Now constitutionaly issues may arise by the existance of VIPR units setting on highways and in areas of the airport well away from passenger boarding areas. To this humble non-lawyer, it’s appears not part of TSA’s mandate http://tsanewsblog.com/704/news/tsa-makes-its-first-reported-vipr-car-checkpoint/.

          • http://twitter.com/abaduck Mike Ross

            I’d buy into airport security more if they didn’t refuse to let you take boxcutters through security, then sell you duty-free booze *after* you pass through security.

            Would you have a particularly strong preference on whether you were slashed with a boxcutter, or a broken whisky bottle? Ask any emergency doctor on a Saturday night how much damage a broken bottle can do.

            As long as they keep selling them after security – heck, they’ll even sell you glass bottles at your seat on the plane! – the Emperor *has no clothes*. Security theater.

        • nrgins

          In agreement with lefim, and to clarify, I meant that we have the right to leave the checkpoint BEFORE consenting to a search. It is our right to consent or not consent. Once we’ve consented (implicitly, by placing our items on the conveyor belt or walking through the scanner), it’s a different matter entirely. But it’s always our right to consent or not consent. That right isn’t lost simply because we fly.

  • JoyMonsterOfLife

    Reason the police are in the right here:

    1. In the locker room, the girl had a right to privacy.

    2. The girl is 12ish. The image could be child pornography.
    3. The girl that took the picture admitted to taking it. Even if it was by accident, #1 & 2 make this a crime. She has incriminated herself.

    4. The image can easily be “un-deleted”. So it is wise for the girl in the photo to make sure the memory card is not left out in the wild.

    If the image was taken of my daughter, I would want this type of response.

    • AntiJoyMonsterOfLife

      JoyMonsterOfLife, I wanted to say something articulate explaining why it seems like your response may be a bit misguided, but honestly, it is just to late, so let me sum it up by saying you are obviously a complete nitwit who is tragically, intellectually challenged and I would guess a cop….

    • http://twitter.com/Stoutlagger Rob

      Bullshit! You, along with the cops/person(s) that called the cops on this girl, are fucking idiots. Normally I don’t call people out on this forum for speaking their minds, but your comment is just fucking stupid, paranoid, nanny-state, fascist bullshit. There is no point in even trying to sugarcoat it; you’re a dumbass.

    • nrgins

      You are right regarding all the REASONS the police searched the phone. You are not correct in saying they were in the right. Even when there’s suspicion of a crime (as is the case here) police still need a WARRANT to search personal property. They can’t just say, “I believe you committed a crime; others believe you committed a crime; therefore, I’m going to go through your personal property and see if you committed a crime.”

      No, the police have the right to DETAIN her. And they even have the right to secure her personal property, if they think she might destroy it to hide evidence. But to look through her personal information, they need a WARRANT. That’s the way the 4th Amendment works (for as long as we still have the 4th Amendement, that is).

      • scruffylookingnerfherder

        I’m pretty sure they can confiscate and search your cellphone if they articulate how they believe it contains evidence of a crime, esp a felony, and that the circumstances are exigent. Without exigent circumstances and an articulable belief that the evidence will be destroyed, they need a warrant. [Edit: actually, you're probably right that they can confiscate it but NOT search.] But if it doesn’t have a passcode lock, there’s a debate if they even need a warrant.

        The only thing I don’t get is why she was suspended in the first place. There’s clearly a lot more going on that the article, pinac, or any of the pinac commenters have any clue about. E.g., if the suspended girl had a history of bullying, then there’s a damn good chance she was doing the same. Was she approached by the victim and forced to delete it while they were giggling? Or did she delete it and approach the victim to show it was gone? Was it truly an accident?

        I sure as hell don’t know. But I’m even more certain that none of you know, either.

        • nrgins

          And what, exactly, was exigent about this situation? As I said, they certainly could have confiscated the cellphone, yet waited to get a warrant before searching it. Why did they need to search it pre-warrant? Was someone’s life in danger? Or was it just a case of “you’re a kid and I don’t give a fuck what you think”?

          As for passcode lock and not needing a warrant, that would be a kin to saying that if your front door isn’t locked, a cop has the right to enter at will without a warrant. Simply not true.

          [Just saw your edit. (Didn't see it originally because I read your note in the e-mail notification.) OK, we probably agree then. :-) ]

          • scruffylookingnerfherder

            As far as the passcode goes, it’s nothing like walking into your unlocked house. If they can legally search you (have probable cause of a crime), they can look through unlocked items and containers in your possession or immediately accessible. Many jurisdictions call cellphones “containers” that can be searched without warrant. A passcode will slow them down, and help deter fishing expeditions. https://www.eff.org/wp/know-your-rights

            But re-reading the article, this is even worse. There were clearly no exigent circumstances to search the phone because the cop cuffed her the following day after full knowledge there was no offending image on the phone.

    • Difdi

      So your solution is to send a 12 year old girl to prison for 20-30 years for accidentally taking a picture? I hope your daughter gets taken away before your inevitable abuse of her scars her for life.

      • Kylejack

        The court will determine a verdict and sentence. Yes, she should face consequences for this clearly intentional act.

        • Fotaugrafee

          “Clearly intentional”? A bit judgmental, aren’t you? Are you a dumbass? Wait, I think I have the answer…

          • ExCop-LawStudent

            In law, intentional means that it was a conscious desire to do something, like trip the shutter of a cellphone camera, hence, “clearly intentional.”

      • Name

        That is up to the prosecutor and the court system to decide. It is not up to the school to decide what is and is not child pornography, or what laws should and should not be applied.

    • Jon Quimbly

      All sorts of problems in this case – opportunities for the girl’s parents to go after the PD and school administrators, as well they should.

      The alleged perp is a minor. If there was any communication between her and the police, without her parents or a lawyer present, that would present an obstacle for the prosecution. If the police coerced her into producing her phone or memory card, or into confessing, without her parents or a lawyer present, they’ve got trouble.

      Based on the poorly-written ABC story, it sounds like the police knew the image was probably not C.P. even before they took her into custody, as in most jurisdictions that requires nude genitalia. So when the girl in the deleted image told administrators and the police she had just taking down her pants, but presumably not her underware, that should’ve made them stop.

      Granted the police should’ve investigated, but without a subpoena or a legal guardian present for the production of the card or phone, they’ve left an opening for the parents. Then again, the ABC article lacks much detail of this kind.

      • http://twitter.com/Stoutlagger Rob

        I agree with everything you said, except for the part where you say “Granted the police should’ve investigated”. I don’t think the police should have been involved in this at all. If the school personnel couldn’t handle a simple issue like this, and realize that it was completely accidental, they don’t need to be in the business of caring for children. The only thing I see wrong here, is that a 12yo girl has an iphone.

    • lberns

      You are a rotten piece of shit

    • scruffylookingnerfherder

      And here are reasons why the police were wrong:
      1. The offending image was immediately deleted
      2. No mens rea – intent to commit a crime
      3. No reason to cuff a student unless arresting on the spot
      4. Internal school affair, unless the school believes a crime was committed
      5. The image is very unlikely to be child pornography
      6. Even if CPorn, there was no abuse of children involved in creating it
      7. Last I heard, iPhones don’t have memory cards and it’d be unlikely to recover it
      8. No images were found, yet the girl was still suspended

      If the image was taken BY your daughter, would you still want this type of response?

      • ExCop-LawStudent

        May not if by my daughter, but if it were taken OF my daughter, yes, this is exactly the type of response that I would want. Or if it were taken of your daughter, or anyone else’s daughter.

        As to your reasoning on why the police were wrong?

        1. It is not material if the image was deleted, the offense was complete once the photo was snapped.

        2. Improper photography has a mens rea of intentionally, as in she “intentionally” took a picture in a locker room–mens rea was clearly met.

        3. Handcuffing is normal when someone is arrested.

        4. Not material, the school is not the complainant, the victim’s parents are. A school does not get to decide what crimes can be reported to the police.

        5. Not material, this case has nothing to do with child pornography.

        6. Not material per above.

        7. The photo may still be recoverable, thus the phone is evidence.

        8. The charge does not fall on whether the images were deleted or retained.

        • scruffylookingnerfherder

          Look at the itemized list I was addressing who claimed it was child pornography. That was not me. I brought up mens rea because intent is usually required for invasion of privacy charges.

          I was not aware of your #2, and I’m skeptical. The intent to invade privacy was not there. I carry a camera all the time. Are you saying intent to take a picture is the same as intent to invade privacy if you could possibly be in a situation to invade privacy? I often shoot from the ground. Are you saying that establishes mens rea for illegal upskirt photos when some idiot walks in front of me? What if my camera is turned on and I pick it up off the ground, accidentally snapping an illegal upskirt photo? Are you saying because my camera was resting on the ground and turned on, that establishes intent to invade privacy? I cannot believe that concept of intent applies to merely the means, and not the intent.

          On #3, I read the summary at the top before realizing she was cuffed and arrested the following day. The summary looks like she was cuffed and detained, but not arrested. So, yeah, cuffing is normal on arrests.

          On #4, she was still suspended on a complaint by the parents with no evidence.

          On #8, This is immaterial to arrest and charges. She was suspended without evidence of violating the school policies.

          Lastly, no, if it was my daughter being photographed I would absolutely not want this response unless I believed it was intentional by the photographer, and all signs point to unintentional. Same with your daughter, and everyone’s daughter. In other words, I completely and wholeheartedly disagree with you.

          Arresting and punishing kids for taking responsibility for their own mistakes is absolutely stupid, and I believe those who agree with such arrests are largely responsible for the ethical, moral, bloated government, and incarceration issues our country is facing today. It is teaching our next generation that we should avoid taking responsibility and hide evidence. None of this would’ve happened if the 12yo girl and her friend said nothing and left the image on the phone, and that’s a bad lesson to teach.

          • ExCop-LawStudent

            I understand that you are skeptical, but I can assure you that in most
            jurisdictions, a court would find that there was clear intent. In
            Texas, “a person acts intentionally, or with intent, with respect to a
            result of her conduct when it is her conscious objective or desire to
            cause the result,” Nadal v. State, 348 S.W.3d 304, 310 (Tex. App. 2011),
            petition for discretionary review refused (Apr. 25, 2012). In other
            words, when she tripped the shutter button inside the locker room, it
            was an intentional act, or with intent. She wanted to take a picture in
            a prohibited area, and she intentionally tripped the shutter to take
            the picture. That is intentional, and it is not vague, but is black
            letter law.

            On #4, just from what has been published, there is
            plenty of evidence. The girl herself stated that she took a photo in
            the locker room. The victim was shown that the photo was deleted. All
            of this is evidence.

            On #8, the school policies prohibit
            felonious conduct on school grounds, and prescribes mandatory placement
            in an alternative school, after suspension, for violation of that
            policy. She was arrested for juvenile delinquency based on a felony.
            That, with the evidence noted above, is more than enough to support the
            school’s decision.

            I disagree that all signs point to it being
            unintentional – on the contrary, I find that all signs point to it being
            intentional. First, school policy prohibits the use of smart
            phone/cameras at all during school hours. Students are allowed to have
            them, but they must be turned off (not silenced, but completely powered
            down). Second, as I’ve already stated, the image the lens sees is shown
            on the screen, so I find it doubtful that the girl did not know exactly
            what she was taking a picture of. Third, if, assuming for the sake of
            argument only, that it was an accident, why did she make a point of
            informing the victim that her picture had been taken?

  • Johnathan Doe

    I have a hard time believing the girl who took the photo. It would be highly unlikely that it just so happened she accidentally touched the shutter button as the exact same time the lens was pointed at the other girl. To claim she was going to take a photo of her and another girl, yet didn’t notice she hadn’t switched the lens seems odd to me. I guess that as she held the phone outward, she could have accidentally hit the shutter button instead of the reverse cam lens button, maybe.

    Either way, just because an actor in an incident claims something verbally doesn’t mean that is really what happened. Criminals lie constantly, and I don’t see why this girl should be given some sort of pass and we should just take her at her word. Plenty of teenagers are complete narcissist, bullies, and pathological liars. This is the path our country is taking, so I can’t take the word of a teenager as 100% truthful and factual.

    I agree the cops were wrong to look for the photo without a warrant. They should have confiscated the phone and obtained a warrant to search. Clearly they would have found the picture, and I believe the angle of which could be very telling in determining if the photo was snapped on purpose or inadvertently. As far as handcuffing and arresting on the spot, I wouldn’t have done that. Just notify the parents and tell them the prosecutor or police will be contacting them with the outcome of the criminal investigation. As far as being suspended, no cameras should be allowed in a school locker or bath room, no exceptions. This is just something new, as more and more kids have phones, and almost all phones now coming with fairly decent cameras.

    • Difster

      She deleted the picture and showed the girl who’s picture that she took that it was deleted. Seems to me that if it wasn’t an accident, she wouldn’t have announced she did it, she would have kept it to herself.

      Aside from that, if a 12 year old decided to take a picture of another girl that way, it was a prank and did not likely carry criminal intent.

    • Art clark

      “I don’t see why this girl should be given some sort of pass and we should just take her at her word.”

      I wish people would read the article carefully before commenting. They didn’t just “take her at her word”. The police DID get the phone and searched it, as you yourself stated in your comment, and did not find anything, contrary to your comment “clearly they would have found the picture. FAIL. So if the search had been legal, the picture would have suddenly appeared? Compared to your twisted logic, a corkscrew looks like a long finishing nail.

      But they still arrested her, perp walked her in front of her peers, and punished her severely.

      And if you think the school should ban phones in the locker room then great, let them do it. But in this case, they hadn’t done it yet, so it has nothing to do with the discussion about this article or the decisions and actions of the administrators, and the girl in question broke no rules in having it there.

      And, “Johnathan”, you are the same kind of person as inane administrators who cause these kind of reported bruhahas all over the country with their discernment-free, knee-jerk reactions. You actually called this girl a criminal! You said because some can’t be trusted, she is guilty by association. Those kind of statements aren’t just poor logic; they are deliberate, immoral, and loathesome.

  • John Howard

    We don’t give up our constitutional rights, the government rips them from us.

  • Jefft90

    Deep breaths people.

    First the 12 year old girl was
    in clear violations of school rules.

    Using any device that permits recording the voice or image of another in any way that either disrupts the educational environment, invades the privacy of others, or is made without the
    prior consent of the individuals being recorded is prohibited. Electronic
    equipment is subject to search in the event school administrators believe
    reasonable suspicion exists to support the search.

    The
    instructional day begins when the 1st period tardy bell rings and ends when the afternoon dismissal bell rings. The instructional day will extend through detention hall and tutorials, when
    appropriate.
    • First
    Offense – District personnel shall confiscate the cell phone/device and turn it
    in to the appropriate administrator. The device may be released to the
    parent/guardian after a 24-hour waiting period, an administrative conference,
    and payment of an administrative fee of $15 cash, as authorized by the Texas
    Education Code [TEC-37.082 and School Board Policy]. In addition, if a student
    is disrespectful or refuses to release the cell phone a Level II or higher
    disciplinary action as outlined in the Student Handbook may be taken.

    Second, The Supreme Court ruled students
    have reduced expectations of privacy in school.( New Jersey v. T.L.O)

    The tricky part is how the school interacts with law enforcement. We don’t have much to go on with this case, but the school is probably in the clear.
    Now why and how the police acted would determine whether or not the student’s
    rights were violated. Essentially theschool is supposed to act as a neutral party with its only concern being the educational environment for all of its students, neither helping nor hindering
    law enforcement.

    • Difdi

      I can post a sign on my fence saying “trespassers will be violated” but if I actually try to grope a trespasser I’ll wind up in prison.

      Posting a sign or creating a policy that disagrees with statutes or the constitution results only in an unenforceable null & void policy sign.

      • Jefft90

        I see so if you take your 8 year old daughter too school against her wishes you would be guilty of kidnapping rignt?

        • Fotaugrafee

          Are you (the parent) the legal custodian of the child? If the answer is yes, your question is moot & you’re a dumbass for asking it.

          • Jefft90

            Wow nice Ad Hom attack. Okay so you agree that minor’s rights diminish in relationship to a custodial adult. Now even a ” dumb ass”
            like you can see that schools have special authority over children
            under their care and are not limited by restrictions that would apply to other
            adults or the police.

          • Art clark

            Wow nice Ad Hom attack.

  • Difdi

    Child pornography laws are strict liability. Intent doesn’t matter, only whether you created/possessed/distributed naked pictures of a minor. And the girl did tell people she had taken the picture.

    That being said, Mr. Androphy has apparently not read any Supreme Court decisions on student rights, in his studies to become a legal “expert”. Tinker vs Des Moines being the most quotably famous one.

    • nrgins

      OK, just to play devil’s advocate here – suppose I’m at the playground, taking pictures of my child. As I’m about to snap the picture, another child walking into my frame and pulls down their pants, exposing their genitals. I’ve just created child pornography, even though it wasn’t my intent. Am I liable?

      • KenBankers

        Yes with the way the law is writen you are.

      • Difdi

        Yes. They call it a strict liability offense for a reason. That’s how badly the laws are written, they don’t take into account things like accidents, a lack of intent to break the law or even little kids playing with cameras.

      • http://www.facebook.com/sharky1953 Howard Joey

        naked is not porn of any sort! oh hell people are so damn stupid!

    • Jon Quimbly

      Also, C.P. is limited to exposed genitalia. From the ABC article, it sounds as though that didn’t occur.

      • Nemo

        Exposed genitals? Don’t bet your freedom on that one. Last I heard, they were going after Rule 34 cartoon characters under CP laws, so I don’t expect that a side pose would save you, and maybe not even underwear…

    • http://twitter.com/abaduck Mike Ross

      1. There’s no strict liability if there’s no *knowing* possession. Otherwise I could blow you up by (for instance) emailing you something naughty while you were on vacation, then tipping off.. a hundred ways that could be done. I’m a hacker (sensu strictu) – I must have a couple of hundred assorted disk drives lying around and I’ve no idea what’s on most of them. They were bought on ebay, came with old systems I rescued, various other sources. If there turned out to be anything illegal I couldn’t possibly be liable.

      2. Child pornography is irrelevant; the picture would have been equally illegal if taken of an adult in a locker room – peeping tom laws; expectation of privacy.

      3. I suspect BS on the accident, but unwilling to call it; she would have been holding the phone out with the screen facing *away* remember, with what she thought was the taking lens pointing at herself and her friend. Bit careless not to check what lens you’re using before you do that, but *could* be accidental.

      • Difdi

        1. And yet, that’s not what the law says. You actually could blow people up that way. If intent mattered for a conviction, it would not be a strict liability law.
        2. Being a peeping tom is usually a gross misdemeanor. The lightest child pornography sentence is a felony.
        3. Strict liability offense. Accidents, lack of intent or being stupidly immature and/or too young to even know boys and girls have different parts is irrelevant. Was a picture taken of a naked kid? Yes, it’s a bad law…but it was enacted for the chiiiiiildren!

        • http://twitter.com/abaduck Mike Ross

          I don’t believe you. A significant percentage of homes must have pictures of naked kids – their own! And what are nudists supposed to do, not take any vacation pics? Talk sense… nudity =/= pornography, nude =/= lewd. If the law was written as broadly as you imply, it would NEVER pass strict scrutiny.

  • Kylejack

    I call B.S. The iPhone displays on the screen what picture is being taken. If it was reversed she would see herself. She was violating the other girl’s privacy.

    • Clark

      Don’t forget that if the girls wanted a good picture of themselves, they would have had to use the forward-facing camera as the screen-side camera is only 0.3, or 1.2 Megapixels vs 5 or 8 respectively. So they could not have been looking at the screen if they were using the higher-resolution camera for the best picture. Not only that, but if the iPhone were an original, or 3G, or 3GS, there is no front camera anyways so the screen COULD NOT be facing the girls had they wanted a pic with that model.

  • Guest

    You don’t need a warrant if the girl freely gave up her phone in the first place. There is no law against asking her for the phone. If she had refused, that is when you may need a warrant. Seeing as how this girl would benefit from the destruction of the phone, there was reason enough to seize the phone. All that is moot since she freely gave it up.

  • Fotaugrafee

    Ahhh, the people of Texas showing their ignorance again.

    I don’t exactly sympathize with the story itself, but I want to beat MR. Androphy upside his head with a 2×4 for his lack of education on photographer’s rights.

    • ExCop-LawStudent

      This is not a photographer’s rights issue. First, the girl was not in a public forum, she was in a locker/dressing room, where those present do have a reasonable expectation of privacy. Second, New Jersey v. T.L.O., 469 U.S. 325 (1985) sets the standard at reasonable suspicion in schools, which the school likely met. Third, the offense is likely not Child Pornography, but Improper Photography, Tex. P. Code Sec. 21.15(b)(2). All that offense requires is that a photo be taken inside a dressing room and it invades the privacy of the victim. It is a felony offense (up to 2 years). The statute is designed to address upskirt/voyeur-type photography, which is what this appears to be.

      You also have to ask whether the girl gave consent to take and search the cellphone, and what statements she made to school officials.

      As a juvenile, she will be handled in the juvenile system. She will be able to raise a defense of accident, which could negate the mens rea of the offense.

      • Fotaugrafee

        Mr. Androphy didn’t address the issue as a “locker/dressing room”, he addressed it as as “school grounds”. There is a serious difference between the two, maybe he should consider his wording in the future before making a public statement, yes?

        I have a hard time believing that a 12y/o is going to be charged with a felony for such a miserable “crime” when they can’t even prove her intent.

        • ExCop-LawStudent

          Actually, she won’t be charged with a felony. Juveniles in Texas can only be charged with Juvenile Delinquency (Juv. Del.) or Conduct Indicating a Need for Supervision (CINS). This would be Juv. Del. based on the underlying felonious conduct.

          As to proving intent, to prove intent would be determined on what was said and to whom. It is a question of fact for the jury to determine.

          All they have to show is that she intentionally took the picture (by pressing the shutter button), and that she intended to violate the privacy of the victim (by pointing the camera at the victim in a locker room). I don’t buy the girls story that it was an accident, as both others and I have noted, the screen of the phone shows the image from the lens–and yet she still snapped the picture.

          Has anyone here thought of the poor 11 or 12 year old victim?

          As for Mr. Androphy, the locker room is within “school grounds” and that is what is relevant to the seizure of the cellphone and the search of its contents. I don’t agree with what he said, but I understand the reason and the basis for his statement. He is saying the standard is different on school grounds–it is reasonable suspicion according to his reading of TLO, and although I disagree with his reasoning, it is legally sound.

          • Clark

            “as both others and I have noted, the screen of the phone shows the image from the lens–and yet she still snapped the picture.”

            Unless they were intending to use the better and front-facing camera and thus took the violating picture with the lower-resolution (if it was even on this particular phone) screen-side camera. I noted this a few posts down in response to Kylejack.

          • Clark

            Ok, for my conjecture to be true, I guess the screen-side camera would have had to have been present, otherwise, there would only be one camera.

          • Art clark

            “Conjecture” being the operative word.

  • http://www.facebook.com/james.lightfoot2 James Lightfoot

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    This does not say one must consent to a search in order to travel or go to school or participate in government or commerce. It says that no one may be search except with a warrant issued upon probable cause. The person who suspects them must specifically identify what crime they suspect has been committed and what evidence they are looking for. In this case, I believe probable cause existed for a search. The girl whose picture was taken has a reasonable suspicion that an unlawful photo had been taken of her when she had a reasonable expectation of privacy. When she filed charges, the police had a reason to search the phone and find out if that picture, and only that picture was still in the phone’s memory. Anything else that was on the phone is not material to the allegation at hand and cannot be used as evidence against her. It still requires a search warrant and the girl is still entitled to due process and the presumption of innocence until proven guilty in a court of law. We surrender our rights far too easily. We should not surrender the rights of our children. If we don’t stand up for their rights, they will never learn to stand up for themselves.

    • Happy_Tinfoil_Cat

      Once reported, true or false, any teacher or administrator is required by law to contact the police. They must report the incident immediately. Common sense is not allowed as too many teachers have abused children and can’t be trusted, so it’s taken out of their hands. This starts a chain reaction of legal consequences started by a hair-trigger.

  • Fred

    Wow. Fire up the popcorn maker on this discussion! Heck, let’s throw some fuel on the fire:

    FACT: you don’t always need a warrant! See http://www.nolo.com/legal-encyclopedia/search-warrant-basics-29742.html for a relatively decent explanation.

    Not long ago Carlos relayed a good explanation on how phones/cameras could be confiscated in some cases without a warrant. I believe he specifically mentioned Child Porn. Guess what? He was right!

  • ExCop-LawStudent

    After reading all of the comments, one point needs to be emphasized.

    THIS IS NOT A CHILD PORNOGRAPHY CASE.

    As I noted below, it is likely Tex. P. Code Sec. 21.15, Improper Photography or Visual Recording.

    You can’t take pictures of anyone in a dressing or locker room, where they have a reasonable expectation of privacy. It has nothing to do with exposed genitalia or the intent to sexually arouse. This is simply about the fact that you cannot take locker room photos.

    “The State may lawfully proscribe communicative conduct that invades the substantial privacy interests of another in an essentially intolerable manner.”

    Ex Parte Nyabwa, 366 S.W.3d 719, 724 (Tex. App. 2011), opinion reinstated (Mar. 28, 2012), opinion withdrawn and superseded, Ex parte Nyabwa, 14-11-00250-CR, 2012 WL 378220 (Tex. App. Feb. 7, 2012), petition for discretionary review refused (Mar. 28, 2012), opinion withdrawn, Ex Parte Nyabwa, 366 S.W.3d 710 (Tex. Crim. App. 2012) and petition for discretionary review refused, 366 S.W.3d 710 (Tex. Crim. App. 2012).

    This is simple common sense. As someone else noted, a phone shows what the lens is seeing when you snap the picture. It is easy to see that probable cause can exist on this.

    Besides, unless the girl has been in a lot of trouble, she’ll likely get some form of probation.

  • http://www.facebook.com/people/Jerri-Lynn-Ward/1483004068 Jerri Lynn Ward

    What kind of people think that a victimless act (the picture was deleted and not broadcast) without intent, committed by a child in a school justifies action by police handcuffing a little kid and taking her to a courtroom? If nothing else convinces you to get your kid out of a government school, this should. Look at the comments. They support criminalizing immaturity. Get your kids out of the hands of stupid people. Homeschool them.

    • ExCop-LawStudent

      If it were my daughter that had been photographed in a dressing room, I very much doubt that she would find that it was a “victimless” crime.

      The very act of taking the photograph is the crime, not the distribution of it afterwards.

      Maybe Carlos could state his views on taking photographs in locker rooms – I somehow doubt that he would find it appropriate.

  • randomerest

    Wow, if you can sue over this type of thing, is there any lawyers that would want to make a quick buck? When I was in high school not to long ago, we had a person of the sheriff’s department (not a uniformed police officer) who would grab people because they had what looked like bulky items in their pants and would then search all of their pockets. All phones would then be given to our vice principal, principal, and pretty much all office staff. They would then play with teh phones by going into them. How we would know would be by unread text messages or they would just talk about it. ( we had other students in the office as workers). On one occasion the secretary was trying to open the phone since it has a password on it and dropped it into her glass of tea on her desk. Officers there said we did NOT have any rights as we were underage and on private property… I have since learned of my rights and proudly practice them everyday. I look forward to the school that tries this same stuff on my children one day!

  • Jimdotcom

    Actually in NYS it’s against the law to take a camera into a locker room. The YMCA I attend provides small lockers in the lobby area for such things as wallets, cameras and the like. On a couple of occasions I forgot and left my IPOD in my shirt pocket, and made sure I left it there so no one saw it.

  • TekMunky

    It’s calmed down a bit on this note, but I think it needs to be pointed out that the article does not say who reported the incident to the school. It’s possible that the girl whose picture was taken reported it, but it’s just as likely that a teacher heard some kids talking about it, didn’t get the facts and reported it to the school administration, who then took a well-intended zero tolerance policy and used it to blow the incident out of proportion in an CYA move that throws an innocent kid under the bus.

    Maybe what happened was technically illegal (That’s up to the judicial system at this point. It was certainly against school rules). But that doesn’t mean that the school needs to wreck a kid’s childhood over a mistake just because the rules say so. Nobody would have even known anything was amiss if she hadn’t been up front about trying to do the right thing. And we wonder why kids are learning not to own up to their mistakes at such a young age…

    Zero Tolerance: the politically correct term for zero thought, zero common sense. — Randy Cassingham

    • Jefft90

      Tek

      It appears that the parent of the girl whose picture was taken is the one who notified police so that should put a different spin on most peoples reactions. Regarding your comment about kids owning up to thier mistakes. The rules for the school are

      Using any device that permits recording the voice or image of another in any way that either disrupts the educational environment, invades the privacy of others, or is made without the prior consent of the individuals being recorded is prohibited. Electronic
      equipment is subject to search in the event school administrators believe
      reasonable suspicion exists to support the search.

      So the young girl was inviolation of school rules from the very begining likley with her parents knowledge. Perhaps the reason kids don’ t own up to thier mistakes is becasue thier parents teach them rules don’t matter and someone else is responsible for thier mistakes.

      • TekMunky

        I did point out that her use of the phone was against the rules. As such, she should have to face the consequences of that. However, that does not mean that she’s a total criminal. Just like speeding on your way to work doesn’t mean that you’re more likely to want to pull a hit and run. The two just don’t equate. She should be punished for using a phone in school, but for the rest, they just need to leave her alone and get over themselves.

    • Jefft90

      Tek, using the phone during school hours was against school rules. Kids are learning not to take responsibility for their mistakes because they are being taught by their parents that rules can be ignored and they should not be punished when they break them because it is always someone else fault for their own actions.

      • byoung328

        The charge she is facing is a State Felony. If she’s convicted she’ll likely be put into the juvenile system for two years and face up to a $10,000 fine. Basically her life will be over when she’s 12. The parents will be paying legal fees out the nose to keep their daughter out of jail. The school has already issued a suspension therefore enforcing their cellphone rule. That’s not the issue at all. The issue here is this has turned into a very serious life changing criminal matter.

        • ExCop-LawStudent

          She is being charged with juvenile delinquency. The adult penalties do not apply. A 12-year-old in Texas cannot be charged as an adult. She’ll likely get probation and not be incarcerated in the juvenile detention system.

  • Jefft90

    Okay boys and girls we have an update, as Excop suggested, improper photography was the charge and as others have suggested the police were involved as a result of the other girls parents filing a complaint.

    The 12-year-old said she immediately deleted the photo and it was
    never emailed or posted.

    Her mom said the situation should have ended there.
    Next thing, I get a phone all saying she was arrested and the parents are pressing
    charges, and the officer came to the school and he arrested her,” the mom
    said.

    “They took me to the cop car and told me to put my hands behind my
    back,” the 12-year-old said.

    The Harris County Precinct 3 Constable’s Office says the girl was charged with
    improper photography.

    http://www.myfoxhouston.com/story/20292970/2012/12/07/mom-fuming-after-12-year-old-arrested-for-improper-photography#ixzz2EiMOblrF

    Now this development raise some interesting questions

    1 For all the commenter’s who ranted against the heavy handed actions of the police or the school, does your opinion change now that they were responding to an apparent legitimated complaint by a concerned parent?

    2. Why is it that the first article from ABC dated after the Fox article failed to mention the other parents pressing charges?

  • ts

    If children are allowed to have phones in schools then they should be able to call the police any time they think a crime has been committed. Just let the cops sort it all out. Right? Cops, courts and jails should be the new classrooms. Why do we even have Teachers? Why are kids in school? To learn??? NO! To teach them a lesson! Little Johnny pushed me on the playground. ASSAULT!!! Jenny took a bite of my french fries. THEFT!!!!

    You guys are a piece of work. Give her a 500 or a 1000 word essay on why she should’t take a camera into the locker room, or clean the locker rooms for a week or something. Police? Jeeezzzzuuuusss.

  • jeanne

    THis is craziness

  • Jefft90

    We have some new information

    “Next thing, I get a phone all saying she was arrested and the parents are pressing charges, and the officer came to the school and he arrested her,” the mom said.
    “They took me to the cop car and told me to put my hands behind my back,” the 12-year-old said.

    I’d say this is akin to a child being kicked out of school for buying an aspirin,” attorney Jack Carroll said. “It reminds me of the overreactive, overzealousness by school districts.”

    The Harris County Precinct 3 Constable’s Office says the girl was charged with improper photography.

    http://www.myfoxhouston.com/story/20292970/2012/12/07/mom-fuming-after-12-year-old-arrested-for-improper-photography

    So ExCop was right about the
    charges and others were right that the parents of the other girl may have
    contacted police. Which leads me to 2 question

    1. Will the various commenter’s who complained about heavy handed tactics by
    police and school officials soften their stance since they acted after a legitimate complaint
    by the parents

    2. Why was this pertinent information regarding who called the police left out
    of the ABC story Carlos linked to. The fox story is actually dated before the
    ABC one and they both contacted the same lawyer for comment

  • http://twitter.com/eckert_ryan1 Ryan

    Hey – this is 1 count of child porn production. That creepy pedo should be in jail.

  • Brad

    Since this is no Longer the United States of America, anyone living in this country do not have any rights anymore

  • carly

    if the photo is deleted how is there still evidence?????

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