Or: Officers didn’t violate def’s privacy by looking under bathroom stall door to see him masturbating

Officers did not violate defendant’s privacy rights in looking under the door from 5′ away to see that he was masturbating and ordering him out. The officers’ look violated no “social norms or [did it] significantly impair defendant’s interest in freedom from scrutiny.” State v. Wilson, 291 Ore. App. 581, 2018 Ore. App. LEXIS 533 (May 4, 2018):

Applying that same analysis to the particular facts of this case, we conclude that defendant did not have a protected privacy interest under Article I, section 9, while lying on the floor of a public restroom stall that had a 12-inch gap between the stall partition and the floor. Marks and Troppe observed defendant’s conduct from a lawful vantage point—the common area of a public restroom. The officers were able to see defendant lying on the floor inside the stall upon entering that area. Defendant’s prone position instantly drew the officers’ attention. From several feet away, Marks and Troppe bent over at the waist to a 90-degree angle, each for a brief moment, to better see defendant under the stall door. Both immediately saw defendant masturbating with his genitals exposed. The officers made no special or extraordinary efforts to see defendant inside the stall. As in Corra, where it was not constitutionally significant that the officer who observed the defendant’s criminal behavior happened to be too short to see over a fence that a taller officer or passerby could have seen over unaided, here it is not constitutionally significant that Marks and Troppe happened to be too tall to see under the stall door without bending at the waist. As the trial court found, a shorter adult or a child who entered the restroom would have seen defendant masturbating on the floor without any effort whatsoever.

Nor did the officers’ conduct offend social norms or significantly impair defendant’s interest in freedom from scrutiny. See Castillo-Salgado, 186 Ore. App. at 611 (police officer did not conduct a search by inclining his head to peer through blinds on a motel room window, in part because that conduct did not offend social norms). Defendant argues that the officers’ conduct violated “social and legal norms.” In support, defendant relies primarily on State v. Fortmeyer/Palmer, 178 Ore. App. 485, 37 P3d 223 (2001). There, we determined that the police violated the defendants’ right to privacy after an officer obtained a neighbor’s permission to access a common area outside the defendants’ residence and observed unlawful activity by kneeling down at the defendants’ basement window and peering through a crack between a door panel leaned against the window on the outside of the building and a piece of cardboard covering the window on the inside of the building. In that case, we were particularly persuaded by the fact that the officers made deliberate efforts to overcome the defendants’ own obvious and deliberate efforts to prevent their private activity from being viewed. 178 Ore. App. at 491-92 (noting that it was “uncommon” and socially “unacceptable” to kneel down and lean one’s head against a window of a private residence to see through a gap in cardboard placed to block off the interior from view). See also State v. Gabbard, 129 Ore. App. 122, 126, 877 P2d 1217, rev den, 320 Ore. 131 (1994) (“Article I, section 9, protects a privacy interest in land outside the curtilage of a person’s dwelling, if the person manifests an intent to exclude the public by erecting barriers, such as fences or signs.”).

By contrast, as the state suggested during the suppression hearing in this case, it is not uncommon that someone entering a public restroom may quickly bend or tilt their head to see if a toilet stall is occupied. Here, the officers’ brief glance under the stall door was not “suspicious, uncommon, and unacceptable in our society.” See Fortmeyer/Palmer, 178 Ore. App. at 492 (describing that standard). The officers did not look under and up the stall partition but bent at the waist from several feet away. Nor did defendant in this case make any particular effort to conceal his conduct or otherwise ensure his privacy while lying on the floor inside the stall. In fact, although defendant was inside the stall with the door closed, which typically secures a protected right to privacy, he nevertheless exposed himself to the common area of the restroom when he lay down on the floor and, as noted above, someone shorter than Marks and Troppe who entered the restroom could have seen defendant exposing his genitals on the floor inside the stall without bending. As a result, even if defendant may have had a subjective belief that his actions were private because he was in a locked restroom stall, the officers did not objectively impair his interest in being free from scrutiny when they briefly leaned over while in the restroom’s common area and saw what another person could have also seen unaided.

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