Gonzalez, Andrew

Gonzalez, a school resource officer, and the school’s vice principal had the teacher and students vacate a classroom to investigate whether students in the class had a vape pen. They found it in a cabinet and discussed planting it in a student’s backpack. Unknown to them, a student had left her cell phone behind to record their conversation. The recording led to a charge against Gonzalez for official oppression. He moved to suppress the recording on the theory that it violated Tex. Penal Code § 16.02, which prohibits the interception of oral communications made with a reasonable expectation of privacy. The trial court agreed and suppressed the evidence.

The State appealed, arguing that any expectation of privacy Gonzalez had during the search was not one society would recognize as reasonable. The court of appeals agreed. Gonzalez could not legitimately claim he had put the public classroom to private use. He had no proprietary or possessory interest in it, and another teacher could have walked in or overheard them from the hall. The court of appeals surmised that classroom cameras with audio could have recorded them. It said that recognizing Gonzalez’s privacy expectation as reasonable would “only serve to shield the exact type of communications at issue here: law enforcement statements … communicating nefarious acts they want hidden from the public.” Police officers, it held, have a diminished expectation of privacy because they occupy a position of public trust and exercise special powers.

Gonzalez argues the court of appeals failed to defer to the trial court’s resolution of the facts and instead conjured up hypothetical ones. He contends he took precautions to protect his and the vice principal’s privacy by clearing the classroom and closing the door. And he disputes that recognizing his privacy interest would run contrary to the Fourth Amendment’s purpose of restraining government conduct, since the intrusion came from a student, not the government.