These consolidated cases arise out of police electronic surveillance of a men’s rest room at a highway rest area. The surveillance was conducted pursuant to a search warrant which contained the following authorizations:
"A. Beginning at October 25, 1978 at 10:00 P.M. the visual and audio communications may be recorded as described herein.
"B. Communications between unknown males which are expected to be in the nature of solicitations for sexual activity. Further, any and all sexual activities performed between the males in the mens room of the next area located at the rest area on US-131 south of 'D’ Avenue in Alamo Tоwnship, Kalamazoo County.
"C. Said conversations may include the statements of other persons present at the same time and place.
"D. Recording of these acts and conversations will be accomplished by the use of video and audio equipment located in the mens room at the rest area рreviously described in Section B.
"E. Said recordings shall terminate on November 1, 1978 at 11:59 P.M.”
As a result of the surveillance, some 40 persons including these six defendants were arrested and charged with gross indecency between males, MCL 750.338; MSA 28.570. Each defendant herein moved to suppress the evidence obtained through the surveillancе. In Medema, the circuit judge suppressed the evidence after holding that defendant had a reasonable expectation of privacy in the place searched, that there was not probable cause to issue the warrant, and that the warrant did not describe the things to be seized with suffi *82 cient particularity. In Dezek, the circuit judge suppressed thе evidence after holding that there was no statutory authority for a warrant authorizing video surveillance and that defendant was not "forthwith” served with a copy of the warrant as required by MCL 780.655; MSA 28.1259(5). In Thompson, the circuit judge declined to suppress the evidence after holding that defendant had no reasonable expectation оf privacy in the place searched. In Petruska, Kelly, and Pletcher, the circuit judge held that defendants had a reasonable expectation of privacy in the place searched but declined to suppress the evidence after holding that the search was conducted pursuant to a valid warrant. The people аppeal of right in Medema and Dezek, while defendants appeal by leave granted in Thompson, Petruska, Kelly, and Pletcher.
I
The initial question we must address is whether defendants had a reasonable expectation of privacy in the place searched. See
Katz v United States,
"[T]he 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.”
In concurrence, Justice Harlan observed:
"[TJhere is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of *83 privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.’
"The critical fact in this case is that '[o]ne who occupies it, [a telephone booth] shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to аssume’ that his conversation is not being intercepted. * * * The point is * * * that it is a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.” Id., 361.
Testimony revealed that the men’s rest room subject to the search warrant was a large room with one door leading to the outside. Within the room were several urinals and wash basins and four toilet stalls. The stalls were constructed of solid partitions elevated from the floor approximately 8-12 inches. The partition did not extend to the ceiling, but a five-foot eleven-inch man could not pеer over its top. At the front of each stall was a door of the same height as the side partitions. The doors had been designed with latches, but the latching devices were broken or missing. Persons using the stalls, including defendants, would usually use small rolls of toilet paper wedged into the door cracks to hold the doors closеd. A hole had been created in the common side partition between two of the stalls. The hole was approximately six inches in diameter (as stipulated by the parties in three of the cases; the only testimony concerning the size of the hole disclosed that it was six inches in circumference). It was located about waist high. It was alleged that the illegal acts were committed by one participant placing his penis through the hole while standing in one stall and the occupant of the other stall performing fellatio upon him. Surveillance of the two stalls was accomplished by *84 installation of a needle-point video camera lens in the ceiling above the stalls. The lens was directly connected to a video camera situated above the ceiling panels which was connected by cables to a video tape recorder and a video monitor. The recorder and monitor were located in a room separate from the men’s rest room. The audio surveillance was concentrated on the same two stalls but picked up most sound within the room. The video monitor provided continuous video and audio coverage of all activity within the two stalls. The sound was not recorded, but the video recorder was turned on by the officers when they observed through the monitor that sexual activity between males was about to occur in the stalls.
We hold that the bathroom stalls here, like the telephone booth in
Katz,
were temporarily private places whose momentary occupants’ expectations of privacy are recognized by society as reasonable. See
Bielicki v Superior Court of Los Angeles County,
57 Cal 2d 602; 21 Cal Rptr 552;
Some jurisdictions, while unprepared to recognize a reasonable expectation of privacy where dеfendant’s activities were viewed from a common area of a rest room, nevertheless have indicated that such an expectation of privacy exists under other circumstances. See Buchannan, supra, and Moore v Florida, 355 So 2d 1219 (Fla App, 1978). In this case, reliance upon the visibility of defendant’s activities from the common area of thе rest room or through the hole to the adjacent stall is misplaced. In Katz, supra, the government argued that defendant placed the telephone calls which were recorded by the police from a glass telephone booth in which defendant was visible to the public. The Court rejected that argument, noting that defеndant sought to exclude intruding ears rather than intruding eyes when he entered the booth. Thus Katz recognized that an expectation of privacy may be partial and yet receive constitutional protection. A stall such as that at issue here obviously does not afford complete privacy, but an occupant of the stall would reasonably expect to enjoy such privacy as the design of the stall afforded.
II
Since we hold that defendants had reasonable expectations of privacy in the place searched, and since no exigent circumstances are proffered for our consideration, thе admissibility of the evidence turns on whether the district judge erred in issu *86 ing a search warrant. The judge issued the warrant based on affidavits of three members of the Kalamazoo County Sheriffs Department. Relevant portions of those affidavits are reproduced below. One affidavit provided:
"(3) That the affiant was informed of men sоliciting for immoral purposes and suspected homosexual activity at the US-131/ 'D’ Avenue rest area, Alamo Township, County of Kalamazoo, State of Michigan.
"(4) That on October 22, 1978, the affiant was informed of an investigation to locate, indentify, and arrest persons soliciting for and involved in homosexual acts at the US-131/ 'D’ Avenue rest area. That during the course of the investigation, two men were apprehended in the act of committing gross indecency and subsequently charged.
"(5) That on October 24, 1978, the affiant was part of a team of officers assigned to investigate alleged homosexual activity to include soliciting for immoral purрoses and homosexual acts at the rest area on US-131 at 'D’ Avenue. That upon entering the mens room the affiant observed men loitering in stalls and the mens room proper. One of the men fit the description of a male subject loitering in the mens room on October 22, 1978. That an unidentified male asked the affiant to aсcompany him to his car. That the same men entered the restroom on numerous occasions, returning to their cars; not starting the motors. Further, the same subjects were seen walking in the parking lot and spending hours at the rest area. That while in the mens room, a male solicited the affiant for immoral purposes and was subsequently arrested and charged in a complaint and warrant for soliciting for immoral purposes, pleading guilty to the charge in the 8th District Court on October 25, 1978.”
A second affidavit provided:
"(2) That as a Shift Commander he was informed of criminal activity in the County. That he was further *87 informed men have been loitering in the mens room and parking areas at the US-131/ 'D’ Avenuе rest area, Alamo Township, Kalamazoo County. Further, there was information two men were seen leaving a stall located within the mens restroom at the rest area on October 18, 1978. Further, has received information that men have been soliciting for and involved in homosexual acts.
"(3) That on October 22, 1978, with the backgrоund information the affiant initiated an investigation into alleged homosexual activity. At approximately 10:00 date, the affiant entered the mens room at the US-131/ 'D’ Avenue rest area making himself familiar with the interior of the mens room. The affiant observed a hole in the partition separating stalls #1 and #2, approximately waist high.
"(4) That while in the rest room, the affiant observed two stalls occupied and both occupant’s feet facing forward. After pretending to leave the mens room, the affiant observed both sets of feet facing the hole in the partition and smacking, sucking type sounds coming from both booths. Upon investigating further he observed two males committing a homosexual act. Both subjects were subsequently arrested and warrants were authorized for gross indecency between males. Further, the affiant has observed several of the same men and vehicles at the rest area on October 22, 1978 and October 24, 1978.”
The third affidavit provided:
"(2) That as part of his regular duties he is briefеd on criminal activities in the County. That as part of this briefing your affiant was informed there were men loitering in the mens room at the US-131/ 'D’ Avenue rest area in Alamo Township, Kalamazoo County. Further, there was information that illegal sex acts were being performed between males in the rest room.
"(3) That as part of your affiаnt’s regular duties, he has gone out to the US-131/ 'D’ Avenue rest area to determine whether there are any illegal activities going on. Your affiant has observed numerous local residents *88 loitering in the rest area. The residence of these persons were learned by obtaining drivers licenses from these persons. These persons were told not to loiter in or about the rest areas.
"(4) These activities were witnessed by this officer in May, 1978, while I was assigned to the 11:00 PM to 7:00 AM shift. During the month of May, 1978, there were numerous times when the same individuals were asked to leave the rest area.
"(5) Further, your affiant states that the same type of activity as listed in paragraphs #3 and #4 were witnessed while on the 11:00 PM to 7:00 AM shift in August, 1978.”
In
Aguilar v Texas,
In addition to this defect in the underlying affidavits, we cannot say that the warrant limited
*89
the search to "precise and discriminate circumstances” as required by the Court for wаrrants authorizing electronic surveillance in
Berger v New
York,
In
People v Nieves,
*90 III
Evidence which is the product of an illegal search is inadmissible as "fruit of the poisonous tree” unless the connection between he lawless conduct of the police and the discovery of the chаllenged evidence is so attenuated as to dissipate the taint.
Nardone v United States,
In view of our resolution of the foregoing issues, we need not address the other issues raised by appellants. The decisions of the circuit court in Medema and Dezek are affirmed. The decisions of the circuit court in Thompson, Petruska, Kelly, and Pletcher are reversed, and the cases remanded for further proceedings consistent with this opinion.