*1 Dist., Five. Jan. No. 29504. Second Div. 1977.] [Crim. PEOPLE,
THE Plaintiff Respondent, FREEMAN, Defendant DONALD HOWARD Appellant. *2 Counsel Goldin,
Goldin & Alan Saltzman and Martha Goldin Defendant and Appellant. Amici Curiae on as Okrand, Mark D. Rosenbaum Jill Jakes and
Fred behalf of Defendant Appellant. Ross, Pines,
Burt and Peter Alan City City Attorney, Attorney, Deputy for Plaintiff and Respondent.
Opinion an
STEPHENS, J. This case is us order the before following certifying this from of the matter to court the Appellate Department Court, Los Angeles County. facts of a
The statement of consists stipulation:' facts the to the “The following incorporated parties stipulated statement: settlement engrossed
“ with to warrant arrest warrant no search or ‘The officers had respect he was arrested. or the where the defendant “ bookstore, 17, 1975, entered an adult the officers ‘On September and to for 647(a) arcade at the rear “check has movie suspects which consists series The movie arcade inside the location.” juveniles are on The booths enclosed the booths. booths about size telephone walls, side there is a on the fourth three sides solid or and partitions, curtain tacked the The booth curtain over front of the booth. hanging booth can use the and not slide on a rod. one the does Only person top motion time, the at a both because booth is small and because pictures inches inches viewed a small about are through glass pane X at a time. the can be in dimension one face front glass pane only “ The booths will introduced. booths be ‘Photographs customer to The darkened motion permit viewing pictures. $0.25 or time. booth for two three minutes’ viewing pays did ‘The defendant to be alone in the booth and expected expect his to be main- walk in uninvited. He somebody expected No could the front of defendant’s tained. member see curtain, feet his hands or face could be (His without body opening above the floor where the beneath the curtain for a few inches seen to let one does not was floor.) curtain meet booth only designed it at time. use “ ‘The “checked” the booth officers each premises by going if the curtain aside to see “criminal” was on. The pushing anything going officers knew about the defendant before nothing they opened no curtain and had about information him.
“ ‘The had officers no information as to who was in the defendant’s booth before he was arrested.
“ ‘The officers’ towas check to see could discover purpose they in crime. the curtains of booth anybody engaging They opened that purpose.’ *4 additional, “An oral was that films are stipulation ‘sexually explicit ” in these booths.’
displayed We the written as the Alarcon substantially adopt opinion Judge court, of this thereto some minor excisions.1 opinion adding changes “The court trial denied the defendant’s motion to the suppress the observations of officer. Our to task is determine whether the arresting evidence fails the trial court’s decision. The trial court found support that officer’s were made in observations ‘a and therefore public place’ no search occurred. The uncontradicted this facts in case the trial support that the observations were made in a judge’s finding public place. [Our] research has not revealed case observations made reported involving into a curtained booth at a movie arcade.... public
“Our Court has clear in provided guidance Supreme determining whether the which was searched within the of the comes place protection I, Fourth Amendment or section article 13 of California Constitu- tion.
“In
v. Dumas
requires is all but absolute. Such have been held inviolate from society places warrantless search such emergencies overriding magnitude, except as of a felon of action pursuit fleeing necessity [citation omitted] for the of life or Certain other preservation property [citations omitted]. which, with them an carry places although considerable, is less intense and insistent. These be searched places may cause alone under circumstances of less upon probable demanding Still other sites are as so in nature that searches regarded urgency. public without of cause or This justifiable any particular showing exigency. arises not from the hierarchy protection application differing locales, constitutional standards to various but rather from an application standard of reasonableness to all in accordance with a single places fundamental that a intrusion into one domain understanding particular of human existence threatens while the same seriously personal security, ” intrusion into another domain does not.’ Dumas,
“Thus, in the California Court from excluded rule ‘sites so in nature that application exclusionary *5 searches without of cause or justifiable any particular showing Dumas, v. at exigency.’ 882.) (People supra, p. “The to the trial was whether a booth question presented judge factual the owner of arcade is the
curtained a movie by type public place referred to in Dumas which can be searched without a warrant. It the which seems clear that those movie arcade were quite portions all used would come within the The by patrons public-place exception. novel this is whether the fact the that owner question presented by appeal curtained off certain booths for the private enjoyment sexually explicit films converts such into sites not to the While not a places open public. case involving a search and seizure question, In re Steinke [1969] 2 569 is informative on the Cal.Rptr. private [82 versus nature of those which have been public portions public place enclosed the owner for In the Steinke purposes privacy. patron’s case was arrested on a warrant her with petitioner charging another at a masturbating massage parlor. petitioner contended that ‘since the acts took in a closed room within alleged were not lewd acts committed in a massage they parlor, public place or a to the or a view’ at place open public place exposed public The court held in Steinke that ‘A room within the confines of a 572).
429 not, does while said business, is for massage public parlor parlor open lose its character as a to the when the doors of the “place open public” room are closed for the within the purpose administering massage of its walls.’ {Id., 576.) page Applying principle matter, the Steinke case to the facts this a booth within a movie arcade not, does the hours said business, arcade is become a during open because the owner had a curtain private place merely over placed entrance to the booth to darken it ‘to of the motion permit viewing pictures.’ the rationale of the Dumas case to the instant
“[Applying matter we hold that curtained booth was a to the which could place open searched be without a cause or showing probable exigency.
“ .
.. Katz v. United States
[1967]
“The United States
Court has admonished trial
judges
rule is not
exclusionaiy
formula
which the
governed by
pat
reasonableness of
tested,
conduct
is, instead,
but
police
dependent
a review of each case ‘on its own facts and circumstances’
upon
(Go-Bart
Importing
Co. v. United States
[1931]
U.S.
344,
[75
L.Ed.
374,
382,
“In Katz v. United States
389 U.S.
governmental agents
*6
a
conversation in a
booth
an
means of
intercepted
telephone
public
electronic
device. The
Court
out that in
listening
Supreme
pointed
using
it,
a
booth constructed
‘one who
public telephone
partly
glass
occupies
him,
shuts
door behind
and
the toll that
him to
a
pays
permits
place
call is
entitled
assume that
the words he utters into the
surely
will not be broadcast
to the world.’
U.S. at
352
(389
mouthpiece
p.
[19
Katz,
L.Ed.2d at
Thus in
582].)
in a
p.
petitioner, although
public
was involved in an
which is
as
place,
activity
universally respected
under even minimal standards of decent behavior.
private
“In
People
v.
Triggs
[1973]
‘a which is understood to afford ordinarily personal privacy (Id., individual at 890 from Britt v. Court occupants.’ quoting Superior [1962] 58 Cal.2d 469 at page 472 [24 Cal.Rptr. 849, 374 P.2d 817].) Again, Katz, as in it is evident that the use of a toilet ordinary public stall is to a human of the most nature. perform activity personal [Fn. omitted.]
“Pate v.
Municipal
Court
[1970]
11
Cal.App.3d
721
[89
Cal.Rptr.
893]
as
of defendant’s
This is
since
argued
supportive
position.
surprising
Pate does not
of a
involve
reasonableness
search in a
police
public
but, instead, deals with
officials into a
place,
peeping
governmental
motel room after
a trellis outside a second-floor window. The
mounting
Court of
in Pate
with the
contention that ‘like
Appeal
agreed
appellant’s
home,
(Id.,
man’s
a motel room
a
is his castle.’
at
The
724.)
Supreme
Court of the
decision,
United States
before the Katz
had extended
long
Fourth Amendment
to hotel rooms
Johnson v.
(see
United
protection
States
[1947]
“In Jacobs v. Court [1973] officials an in a Venetian governmental ‘peeked through 449] aperture blind into a closed business establishment at about 8:40 (italics p.m.’ at Access to the added) (Id., 491). window was obtained into by stepping area which was ‘not a common planter walkway pathway’ It should also be noted that the 492). court in Jacobs relied on footnote 8 Dumas 9 Cal.3d 882 wherein the Court *7 observed, ‘Homes and fall within this of clearly category offices maximum In the matter before this court the business protection.’ closed, establishment was to the and the officers did not open, venture into area which was barred to patrons.
431
“In
Jacobs
Superior
Court
[1973]
Cal.App.3d
Court of
489 the set forth the modus
for
court faced with
Appeal
an issue
operandi
searches into hidden
involving governmental
(3)
‘The basic
places:
test as to whether there has been an unconstitutional
invasion of privacy
is whether the
has exhibited a
of
subjective expectation
privacy
which is
and,
so,
reasonable
whether that
objectively
has
expectation
violated
been
unreasonable
intrusion.’
493-
governmental
pp.
494. See also
v. Edwards
[1969]
71 Cal.2d
633,
“[T]he “The uncontroverted evidence before the trial court established that the was in a at the time his conduct appellant was public place observed. The fact that the of the movie arcade had proprietor placed curtain over the front of the booth did not convert booth into a There is no private place. his question appellant “expected to be maintained” and the so Such privacy parties stipulated. expectation was not reasonable in a business hours. public place during
“The fact that the defendant that his lewd secretly expected allegedly discovered, conduct would not be curtain, because of the does not demonstrate an reasonable of In Dean v. expectation privacy. Court [110 Cal.Rptr. also contended that the fact he was petitioner activities engaged illegal (cultivation cannabis demonstrated sativa) his insistence on privacy because his activities him to The court in Dean exposed prison. disposed of this contention as follows:
“ ‘Petitioner to two unlike notions —an erroneously gives identity internal, uncommunicated need reasonable, and a exhibited privacy the latter as a Fourth Amendment expectation privacy. Only qualifies determinant. “The courts have that man implicitly recognized requires some in which his freedom to the intrusions of is sanctuary escape society all but absolute. . . . Certain other them with an places carry which, considerable, less intense insistent. . .. although This arises not from the hierarchy protection application differing locales, constitutional standards to various but from an rather application standard of reasonableness all in accordance with a single places fundamental that a intrusion into one domain understanding particular human existence threatens while the same seriously personal security, *8 Dumas, v. not.” into another domain does supra,
intrusion (People 882-883.) Cal.3d at pp.
“ common that mankind’s like the disclose ‘Judicial statements foregoing a and business the use of domestic supply prime habits in property also, cases of (See of the reasonableness privacy. measure expectations Court, 631- 9 Cal.3d at v. in Lorenzana supra, pp. summarized Sneed, v. 511 P.2d supra, People a One who builds 541-542.) swimming at pool Cal.App.3d pp. from (hence in his immunity) area backyard expects privacy sun-bathing business in used Areas ordinary operations reasonably aerial inspection. are Such areas similar entitled to expectedly immunity. are assumedly So was the area habits of mankind. the common according private Sneed, to the Sneed in surveillance supra; helicopter exposed (32 was the court, the area “backyard.”. occupant’s at 117.) 542.)’ p. test formulated the common-habits-of-mankind
“Applying facts, it is evident that case to these Dean expectation appellant’s a of mankind in The common habits was unreasonable. viewing communicate to do not motion picture public place theaters Motion officials an picture privacy. governmental and distraction to to outside are darkened and closed light normally and facilitate the visual arresting experience. heighten anticipated which is in the nature did into an area (1) officers not surreptiously peer office, room, castle, a motel or a fenced of a man’s such as a home or or make clandestine observations or matters (2) backyard, eavesdrop intimate, to be or understood all decent persons private ordinarily waste. or the elimination such as a conversation bodily telephone films, Instead, which exhibited in a sexually explicit they public place and to determine back a to look for curtain juveniles pushed lewd acts. were engaging persons the action which alone validates
“One further fact deserves comment above, at motion. As noted court in the defendant’s of the trial denying the curtain on the booth were time the officers looking they parted with California, In law officers charged juveniles. enforcement the Penal section 313.1 of children enforcing duty protecting as follows: Code which provides minor, who, with is a ‘(a) knowledge Every person the true care in
who fails to exercise reasonable age ascertaining *9 minor, distributes, sends, sent, exhibits, to causes be or offers knowingly to distribute or exhibit harmful matter to the minor is any guilty misdemeanor. who ‘(b) himself to be the or Every person misrepresents parent of a minor and causes the minor to be admitted to an
guardian thereby exhibition of harmful matter is of a misdemeanor.’ guilty above,
“As noted facts show that the movie arcade was stipulated films. Since it is cannot obvious that showing sexually explicit age size, be determined shoe it was because the necessaiy, management movie arcade chose booths, to curtain the for the to police part the curtain to determine (1) whether the in the booth was under patron so, (2) whether films eighteen years age “sexually explicit” contained matter harmful to minors.” sum, determine,
In it was for the trial facts, court to under what the of the curtain was. The court found that it was purpose present secure but rather to shut out excessive a factual Under such privacy light. state, no reasonable existed and observation privacy enforcement law officers was not an intrusion. unconstitutional affirmed.
Judgment J., concurred.
Ashby, KAUS, J.,P. case that can reasonable Dissenting. proves judges —This on differ whether a subjective expectation objectively reasonable or edrearn. I that should have a,legal pip Personally, thought of the curtain, was it regardless primary purpose reasonable for defendant that officers would leave him expect police for the alone three minutes it took worth him to his two. get quarter’s “entertainment.” I therefore dissent. for a Court was denied petition hearing by
Appellant’s Tobriner, J., 1977. was of should petition April opinion be granted.