The prosecutor appeals as of right the trial court’s dismissal of charges against defendant and its grant of defendant’s motion to suppress. Defendant was charged with two counts of gross indecency between males, MCL 750.338; MSA 28.570, arising out of alleged sexual activities occurring at the mens’ public restroom on US Highway 127 in Alaiedon Township, Ingham County, Michigan, commonly known as the Holt rest area. The two major issues on appeal are whether the gross indecency statute is unconstitutionally vague as applied and whether there was a reasonable expectation of privacy in the common area of the public restroom so that videotapes resulting from a surveillance of that area without a warrant could not be used to support a search warrant. We reverse.
The trial court found the challenged statute unconstitutionally vague because it did not provide defendant with fair notice of the conduct proscribed, either as written by the Legislature or as interpreted by the courts. We disagree.
A majority of our Supreme Court has already determined that the term "act of gross indecency” standing alone fails to give adequate notice of the conduct proscribed by the statute.
People v Howell,
Looking to our case law, we are met by a conflict as to how the term gross indecency is to be defined. Having reviewed the cases, we are convinced that the better view is that set forth by the decision in
People v Howell, supra.
For the reasons set forth in
People v Emmerich,
Applying the relevant part of this definition, the question in this case becomes whether an act of mutual masturbation is any "ultimate sexual act committed in public.” There is no indication in Howell that "any ultimate sexual act” is limited to intercourse or to an act involving penetration. The act here was mutual masturbation of exposed *67 penises by two males. We do not believe that defendant can seriously maintain that this was not an "ultimate sex act” or that he was not on notice that performance of this act in public was prohibited and left him subject to prosecution under the statute proscribing gross indecency between male persons. 3 Compare Emmerich, supra.
Even if we were to subscribe to the alternative definition of gross indecency as set forth in
People v Dexter,
Our decision in this case was clear given the nature of the act in question and the guidance provided by the Howell standard. However, in reviewing the case law and the variety of situations which other courts have faced, we are greatly troubled by the lack of direction and guidance that the Legislature has provided in gross indecency statutes. As stated in Emmerich, the time has come to stop perpetuating nineteenth century avoidance of an indelicate subject in order to spare Victorian-era sensibilities. The time has come to lay to rest the attitude that the "gross indecency” of the subject of the crime of gross indecency forbids a more precise definition of the conduct proscribed. Emmerich, supra, p 288. The Legislature took the statute proscribing "carnal *68 knowledge” and redefined the prohibited acts as criminal sexual conduct so as to deal with the reality of the actions for which our society would hold an individual criminally liable. The same should be done for the gross indecency státutes.
We are convinced that to follow the
Dexter
standard would leave the statute unconstitutionally vague because it leaves the trier of fact free to decide, without any legally fixed standard, both what the prohibited criminal act is and whether it has been committed.
Howell, supra,
pp 23-24;
Emmerich, supra,
p 288. However, we recognize the problem faced by other panels when faced with a situation that instinctively would appear to be an act that would not be tolerated in public and therefore should come under the statute, but that would not come under the
Howell
test. See
People v Trammell,
We also find that the trial court erred in finding that defendant had a reasonable expectation of *69 privacy in the common area of the restroom. At the time of the alleged activities in this case, the police had secured a warrant to install cameras in the ceiling above the stalls in the restroom. Previously, the police had maintained surveillance of the common area of the facility. Videotapes of alleged acts of gross indecency occurring in the common area were then submitted to support the warrant. It is these videotapes that defendant challenged.
The videotapes of activities that took place in the common area of the restroom did not violate the constitutional right to privacy guaranteed by the federal and state constitutions. As noted in
People v Heydenberk,
The court below gave great significance to the fact that anyone entering the facility had to open two separate doors before entering the common *70 area. 4 The theory is that anyone seeking to preserve his privacy would be forewarned upon hearing the first door open and that any private activity could be stopped before the second door was opened and his privacy was invaded. This theory might support defendant’s subjective expectation of privacy. It may even be relevant to argue to the finder of fact that the particular construction of the facility made this area not public for purposes of the gross indecency definition. However, we cannot seriously accept as a matter of law that the construction of the facility somehow turned a public bathroom into a constitutionally protected private area. The common area was readily accessible to anyone needing to use the facility. The public’s expectation that they were entering a public facility certainly was not extinguished because they had to open two doors rather than one. To the extent that the videotapes were made of activities in the common area of the restroom, we cannot find that they invaded a constitutionally protected expectation of privacy. The trial court’s ruling on the motion to suppress was clearly erroneous and is reversed. Kalchik, supra, p 47.
As applied to this case, our holding means that the police did not need a warrant to monitor or videotape the common area. That evidence could therefore be used to obtain the search warrant, which included a request to install two cameras in the ceiling with a view of at least a part of the stalls, as well as cameras in the common area. While the details of the act set forth in the prosecutor’s brief indicate that at least some of the evidence must have come from the ceiling cameras, the issue as presented to this Court addresses
*71
only the tape made of the common area. We therefore decline to address the propriety of the ceiling cameras, other than to note that such a warrant can be valid given the appropriate circumstances and restrictions. See
Kalchik, supra; People v Dezek,
Since the original videotapes could be used to support the need for the warrant, we need not address defendant’s other issues concerning its validity, although we note that the evidence of sperm in the facility and the statement of the maintenance foreman would not in themselves have been sufficient to support the warrant.
People v Sherbine,
Reversed.
Notes
When this statute was reviewed by the Supreme Court, only three of the justices concurred as to section n of the opinion which sets forth a construction of the term "act of gross indecency.” However, all the participating justices apparently agreed with section i of the decision where it was decided that the term standing on its own was unconstitutionally vague. Howell, supra, pp 21-22.
In
People v Gunnett,
Panels of this Court have disagreed on whether the touching or stroking of an exposed penis is an act of gross indecency
People v Holland,
Heydenberk also concerned the Holt rest area involved in this case, although there is no mention in the case of the double-door construction argued by defendant here.