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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)