OR: Entering a locked restroom to arrest defendant invaded his privacy; a restroom is his “bastion of privacy”

Police entering a locked restroom to arrest defendant invaded his privacy; “a restroom is his ‘bastion of privacy.'” State v. Holiday, 258 Ore. App. 601, 310 P.3d 1149 ( 2013):

While “[n]o one has a constitutional privacy interest that shields him from all forms of scrutiny,” id. at 460-61, we have also recognized that, although “every man’s house is his castle,” State v. Jordan, 288 Ore 391, 396, 605 P2d 646 (1980), a restroom is his “bastion of privacy,” Casconi, 94 Ore App at 461 (internal quotations marks omitted). We have also held that the clandestine police surveillance of the inside of a public restroom is an invasion of the people’s freedom from scrutiny. See id.; Owczarzak, 94 Ore App at 503-04. It is clear, therefore, that defendant was protected from certain forms of warrantless police scrutiny while he was occupying the public restroom. The question remains, however, whether defendant was protected from that scrutiny in “the particular context” in which it occurred. Meredith, 337 Ore at 306.

Here, the act that defendant characterizes as a search was police using a key to unlock and open the door to a public restroom after spending a few minutes pounding on the door and telling defendant that he had to come out because he was under arrest. The particular context that the state points to in defense of its argument that defendant had no constitutionally protected privacy interest is that defendant was not using the restroom for a “private purpose.” We are uncertain as to what, exactly, the state means by “private purpose.” If it means that defendant was not using the restroom for its intended purpose, then the argument cannot be reconciled with Casconi, 94 Ore App at 459, or Owczarzak, 94 Ore App at 502, where we held that the defendants had protected privacy interests while they were in the restroom masturbating. If, on the other hand, the state means to argue that defendant has no privacy interest because the purpose of his being in the restroom was not “private,” that argument cannot be reconciled with the facts or with the state’s theory of the case—that defendant entered the bathroom precisely to achieve privacy, that is, to achieve freedom from the necessity to confront Albertson. In sum, we conclude that, even if the state had not introduced the “no search” argument for the first time on appeal, the argument would fail on the merits. The state did not establish that, when the police unlocked and opened the door to the public restroom in which defendant was located, they did not interfere with a protected privacy interest. That police action, under the circumstances of this case, was a search.