87AP-100 | Ohio Ct. App. | Mar 31, 1988
Lead Opinion
On October 21, 1985, Officer James Moss of the Columbus Police Department was working special duty at the Palace Theatre, and during intermission was assigned to work in the men's restroom. The restroom contained eight urinals along a wall and approximately the same number of toilet stalls on the opposite wall. The stalls were separated by partitions and had doors. The clearance between the bottom of the doors and the floor was such that one could see the feet of the occupier of the stall. At the top, the doors and partitions ended short of the ceiling and someone could see over a door or partition if he looked over.
During intermission, Moss entered the crowded restroom and observed a stall where the door was closed. He saw two pairs of legs in the stall standing around and facing the toilet, and the pants of both occupants appeared to be up. In addition, the officer observed that no wheelchair or crutches were in the stall. Moss heard a noise which was similar to "sniff, sniff, which was a snort." Moss then put his hands on top of the door and peeped over where he observed appellant and another male. Appellant had a straw up his nose and was snorting some type of substance, later identified as cocaine, from a plastic bag. Moss pushed in the unlocked door, took appellant into custody and seized some powder and the straw from him.
Appellant was indicted on one count of drug abuse charging him with possession of cocaine, a Schedule II controlled substance. On December 17, 1986, the trial court overruled a pretrial motion to suppress the drugs seized from appellant. Appellant waived trial by jury and on January 27, 1987 he was found guilty.
Appellant now brings this appeal and asserts the following assignment of error:
"The trial court erred in overruling defendant's motion to suppress evidence seized in violation of the defendant's rights under the
In his assignment of error, appellant alleges that Moss' initial observation of two pairs of legs, both of which were around and facing the toilet, and hearing sniffing sounds, does not rise to the level of probable cause required to conduct a warrantless search.
The
The issue of whether a person has a reasonable expectation of privacy in the place searched was addressed in Katz v. UnitedStates (1967),
The determination of whether a legitimate expectation of privacy exists must be made on a case-by-case basis considering those circumstances peculiar to the case before the court. There are two elements that must be present to justify the conclusion that a person has a legitimate expectation of privacy. First, the individual "must have a subjective expectation of privacy; and, second, * * * [the] expectation must, as an objective matter, be one that society is prepared to recognize as reasonable." UnitedStates v. Brown (C.A. 6, 1980),
In justifying a particular intrusion, a police officer must be able to point to specific facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. The facts must be judged against the objective standard of whether the facts available to the officer at the moment of the search or seizure would warrant a man of reasonable caution in the belief that the action taken was appropriate.Terry v. Ohio (1968),
In United States v. Smith (D.C.App. 1972),
"It may be that a person who has entered an enclosed stall located in a public facility with the intent of using it for the purpose for which it was made available is entitled to the modicum of privacy that its design affords and to that extent may invoke the protection of the
"* * * *198
"* * * Two persons standing in a public * * * toilet stall cannot reasonably expect to be free from some sort of authoritative intrusion, where the outward appearance they give is that they * * * apparently are using the stall for a purpose other than that for which it was intended." (Footnotes omitted.)Id. at 858.
In Wylie v. State (1982),
"Whether or not visual inspection of an enclosed area such as this constitutes an unreasonable search depends upon the circumstances of the case. There must be evidence to alert a law enforcement officer to the likelihood of illegal activity, but the evidence need not cross the probable cause threshold where nothing other than visual inspection is made and there is no physical entry." Id. at 176,
Appellant cites Buchanan v. State (Tex.Crim.App. 1971),
In both Buchanan and Bryant, the defendants were observed because the police were conducting clandestine observations to determine if any criminal activity was occurring in public restrooms. The courts' holdings in each of the cases are directed toward prohibiting police officers from conducting generalized searches looking for any kind of criminal activity, as opposed to the officers' observing suspicious behavior. The rationale behind these holdings is that if a police officer waits and observes an area long enough, he will see some type of prohibited act for which he could make an arrest.
In contrast, in People v. Mercado (1986),
Likewise, in this case, Officer Moss was entitled to look into the toilet stall to ascertain whether or not a crime was being committed, and this court finds that he acted properly under the circumstances of this case. Upon observing two pairs of legs in the stall, Moss became immediately suspicious that some sort of illegal activity was occurring. He used his experience and senses to determine that the single stall was not being used for its intended purpose, especially since there was no indication that anyone within the stall was handicapped or needed assistance. When he heard sniffing sounds coming from the stall he was justified in looking over the partition.
This court finds that an individual's subjective expectation of privacy is limited when two people are in a stall designed for use by one person. The two people in the stall cannot reasonably expect to be free from intrusion when the outward appearance they give is that they are using the single stall for a purpose other than for what it was intended. As the court stated in Mercado,supra:
"Human imagination might conjure up possible innocent behavior within that toilet stall * * * but that cannot be the test of probable cause justifying an intrusion upon one's privacy interest. Probable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt. Based on the articulated, objective facts before Officer Gray, and the reasonable inferences to be drawn therefrom, it was `more probable than not' that criminal activity was taking place inside that stall * * *. His suspicions heightened by what he saw and heard from afar, the officer was not compelled to turn heel and leave the rest room, but could properly look through the spaces at the sides of the door in an effort to learn what was going on inside. When those observations served only to enhance his suspicion of illicit activity, he properly * * * looked over the partition." Id. at 877, 508 N.Y. Supp. at 422,
Accordingly, this court finds that appellant's assignment of error is not well-taken and is hereby overruled. The judgment of the trial court is affirmed.
Judgment affirmed.
WHITESIDE, P.J., and YOUNG, J., concur.
Concurrence Opinion
Although I concur in the opinion and judgment, I feel some additional comments concerning the circumstances herein are appropriate, lest one erroneously extend our conclusions concerning public restroom privacy beyond that which we determine.
Here, defendant and his companion could not have expected complete privacy since anyone entering the restroom could view their feet and legs up to the point where the stall door commenced. The top of the door was as low as six feet from the floor according to the testimony. Although the exact distance between the bottom of the door and the floor is not certain, the officer testified it was three feet. Additionally, according to the officer's testimony, anyone entering the restroom could hear the sniffing or snorting sound emanating from the stall. Also, the men did not evince an expectation of privacy since they left the stall door unlocked. One entering a toilet stall only partially enclosed by a door or partition cannot have an expectation of complete privacy, although some degree of privacy may be expected, but, if the door is left unlocked, there is a possibility that someone may *200 open the door to enter, exposing the occupants of the stall to the view of anyone in the restroom.
Under the circumstances here, the officer obtained sufficient information from observing that which anyone could observe to justify the officer in making further investigation into the nature of the activity he had seen and heard taking place in the public restroom stall. He then "peeped" into the stall by putting his hands on the top of the partition and pulling himself up. There is no indication of his height or how far he "pulled" himself, but there is no suggestion his feet left the floor.
Under these circumstances, the intrusion of the officer was neither unreasonable nor an unwarranted invasion of defendant's privacy, since only limited privacy could be reasonably anticipated.