The defendant herein, Angie Diaz, and her codefendant Patricia Humphrey were arrested on June 2, 1975 and accused of the crimes of assault in the third degree and petit larceny, in violation of sections 120.00 and 155.25 of the Penal Law. After a preliminary hearing, the court dismissed the first of these charges, holding over the second one for trial.
The District Attorney and defense counsel have stipulated to the following facts:
Carol Mundy, an employee of Gimbel’s Department Store, is a "special patrolman” whose responsibility is to prevent the theft of merchandise from the store and to apprehend persons who commit, or attempt to commit, larcenous conduct. Her duties, which are substantially the same as that of any other security officer who is not a "special patrolman,” are performed in an undercover capacity. On June 2, 1975, at approximately 4:00 p.m., she observed the defendants shopping and talking together. She saw defendant Humphrey take a scarf,
The defendant now moves to suppress the visual observations of Ms. Mundy, as well as all testimony and physical evidence derived therefrom, on the grounds that they constitute an unlawful search and seizure prohibited by the Fourth Amendment of the United States Constitution.
The Fourth Amendment, it must be noted, applies only to acts committed by officials or agents of the government and not to those undertaken by private persons (Burdeau v McDowell,
Therefore, it is necessary to examine the question of whether the visual surveillance of customers who are in a closed fitting room of a retail establishment involves a search within the meaning of the Fourth Amendment. The United States Supreme Court has, on numerous occasions, declared that the intention of the Fourth Amendment is to shield people from unwanted intrusions into their privacy (Jones v United States,
The leading authority on the subject of search and seizure and the right of individual privacy is Katz v United States (supra). In that case, the government, at trial, was permitted to introduce evidence of telephone conversations at the defendant’s end of the linei, which were overheard by F.B.I. agents who had attached an electronic device to the outside of the telephone booth from which the defendant placed his calls. The Supreme Court reversed the conviction, asserting that the Fourth Amendment protects people, not places. According to the court, what a person knowingly exposes to the public, even in his home or office, is not subject to constitutional safeguard, but that which he seeks to preserve as private, even in an area accessible to the public, may be so protected. Thus wherever "a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures” (p 359). This is no less true in a telephone booth than in a business office, a friend’s apartment, or in a taxicab. Further, the Fourth Amendment extends not only to the seizure of tangible items, but also to the recording of oral statements that are overheard without any technical trespass, since the reach of this amendment does not turn on the presence or absence of actual physical intrusion into any given enclosure. In short, the Supreme Court announced the principle that the protection afforded by the Fourth Amendment depends on an
Courts have uniformly interpreted Katz v United States (supra), to apply to visual observations, as well as conversations which are overheard by means of electronic eavesdropping devices. The legality of a particular search is determined by whether the person involved possesses a reasonable expectation of privacy under the circumstances of that case. For instance, where the defendants’ second floor apartment window was not curtained and plants resembling marijuana could be seen in the window, the defendants did not have a reasonable expectation of privacy, so that the detective’s use of binoculars from his automobile in a parking lot across the street did not amount to an illegal search of the apartment (State v Manly, 85 Wn2d 120; see, also, Commonwealth v Hernley, 216 Pa Super Ct 177; Turner v State,
Therefore, the defendant did not have a reasonable expectation of privacy where items were observed through the uncurtained part of a large picture window adjacent to the front door of her apartment (People v Becker, — Col —;
In People v Farenga (
There also exists an "open-fields” doctrine based upon Hester v United States (
Where law enforcement officers have gained entry to a building by means of a trespass, surveillances made in the course of that trespass constitute an illegal search. In People v Terrell (
While there do not appear to be any cases specifically relating to the right to privacy in fitting rooms, the nearest authority is a series of cases which deal with the legality of observations of public restrooms. In People v Metcalf (22 Cal App 3d 20) the court, in declaring that a police officer’s testimony as to matters seen from behind a louvered door in a service closet adjacent to a department store should have been suppressed, cited a California statute proscribing the installation or maintenance of two-way mirrors in any restroom, toilet, bathroom, washroom, shower, locker room, fitting room, motel room or hotel room as indicating a public policy against such clandestine surveillance. In People v Triggs (8 Cal 3d 884), the court held that the expectation of privacy possessed
This court does not discern much distinction between the privacy which people have a right to expect in public restrooms from that which they hope to find in fitting rooms. As in the case of restrooms, the fact that the fitting rooms in Gimbel’s Department Store were not totally enclosed does not render the surveillance by Ms. Mundy as one made in plain view, since the expectation of privacy is not determined by whether or not the rooms happen to be totally enclosed. What is crucial here is the nature of the activity involved and whether an individual engaged in that activity may reasonably believe that he may perform it in private. The People argue that the crime of shoplifting has been frequently discussed both in print and on television, and that, therefore, it is inconceivable that a person who shops at Gimbels is unaware of the possibility that his or her every move is being scrutinized, particularly in view of the numerous indications there are of customer surveillance. Uniformed guards are posted at entrances and exits; mirrors and sometimes even cameras are in plain view on the store floors; and checkers count the number of articles being brought into the fitting rooms. Thus, for the defendants to have believed that Gimbels would secure every inch of its property through use of sophisticated devices and personnel, but leave one area completely unguarded is ridiculous, the People contend.
The court does not agree. While it is true that there has been a great deal of publicity about the difficulties encountered by Gimbels and other stores in dealing with the problem of theft, this does not mean that people using fitting rooms do not have an expectation of privacy. The function of a fitting room is, after all, to provide a place where a customer can try on items of clothing in private, undisturbed from the observation of others. Simply because a person suspects that there is a possibility that someone may be looking in does not negate the expectation of privacy. Certainly Gimbels, or any other business, has a real interest in protecting itself against theft.
The People also contend that, regardless of the issue of defendant’s reasonable expectation of privacy, Ms. Mundy had probable cause to search in the instant situation in that she saw defendant Humphrey place a scarf in her knapsackj which she removed when approached by a sales clerk. At most, the defendants’ conduct is suspicious and equivocal, which, without more, does not justify a search. (People v Brown,
Consequently, the defendant’s motion to suppress the visual observations of Ms. Mundy, as well as all testimony and physical evidence derived therefrom, is granted.