applying Katz’s “reasonable expectation of privacy” test in concluding that a police officer’s observation of the defendant masturbating in a doorless toilet stall in a public restroom was not a “search” under Article I, sec- tion 9
How later courts described this case
- applying Katz’s “reasonable expectation of privacy” test in concluding that a police officer’s observation of the defendant masturbating in a doorless toilet stall in a public restroom was not a “search” under Article I, sec- tion 9
- during an ongoing investigation, an officer observed an individual peering through small holes in the partition. The officer then looked back through the hole, observed the defendant masturbating, walked to the front of the doorless stall and again observed as the individual continued to masturbate
- defendant convicted of public indecency after an officer observed him masturbating in a public restroom stall which had no doors; the court noted that “130 arrests” had been made by one officer at that restroom “in less than three months of surveillance”
- defendant’s conduct of peering through holes in wall while in the stall indicated to the police officer that there was no expectation of privacy
Written by the judges who cited it.
The opinion
LINDE, J.,
concurring.
In arriving at a disposition of this particular case, Justice Tanzer’s opinion for the Court touches only briefly on points that were stated more clearly by the Court of Appeals and that deserve attention if this decision is not to be misunderstood.
The Court of Appeals gave this background:
“Approximately two years prior to defendant’s arrest, the police began clandestine surveillance of a men’s public restroom at a rest area along an interstate highway. A screened vent was cut in a wall common to the men’s restroom and an adjacent storage room. From this vantage point, an officer, standing on a ladder in the storage room, could view the toilet stalls below. Defendant’s arresting officer testified that he had made over 130 arrests at this restroom in less than three months of surveillance. No application for a search warrant was ever made.”
*353 State v. Holt, 48 Or App 825, 827 , 617 P2d 962, 964 (1980). The Court of Appeals correctly tested the legality of this procedure against the rights of privacy of members of the general public using a toilet stall, and it concluded that clandestine police surveillance of such a stall is permissible only with a search warrant. 48 Or App at 830-831, 835, n. 6 . This Court expresses no disagreement with that conclusion.
Thus the reversal of the Court of Appeals as to this defendant should not be misunderstood as approving the legality and continued use of the procedure employed by the police. The principle that the legality of a police procedure must be tested as a general proposition with respect to the ordinary citizen is important equally to the police, who are entitled to know what is or is not permissible, and to the rights of the great majority of lawabiding persons. Both the Court of Appeals and this court recite a quotation from a concurring opinion by Justice Harlan in Katz v. United States, 389 US 347, 361 , 88 S Ct 507 , 19 LEd2d 576 (1967). If Justice Harlan is to be singled out as a source of Fourth Amendment analysis, the more important quotation is what he wrote three years later about the government’s recital of the “expectations approach in Katz”:
“. . . While these formulations represent an advance over the unsophisticated trespass analysis of the common law, they too have their limitations and can, ultimately, lead to the substitution of words for analysis. The analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. Our expectations are in large part reflections of laws that translate into rules the customs and values of the past and present.”
“Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the [electronic listener or] observer without at least the protection of a warrant requirement.”
United States v. White, 401 US 745, 786 , 91 S Ct 1122 , 28 LEd2d 453 , reh den 402 US 990 , 91 S Ct 1643 , 29 LEd2d *354 156 (1970). 1 Substituting a concealed police officer observing an apparently private toilet stall for the “electronic listener” in White, one can hardly attribute to Justice Harlan the view that the legality of police surveillance depends on the subjective expectations of the procession of individual men or women who happen to come into a restroom.
All this case decides is that even if the police surveillance exceeded legal bounds, as the Court of Appeals found, this defendant’s conduct left him in no position to demand suppression of the evidence of the particular offense with which he was charged. That offense was “public indecency,” one form of which is defined in ORS 163.465(1)(c) as exposing one’s genitals in public view with the intent of arousing one’s own or another’s sexual desire. It presupposes knowledge that one is observed. Whatever the result might have been if the defendant had been prosecuted for some offense observed by the police officer peering through a hole in the toilet wall or ceiling, this offense by definition was a public act, and it was committed after the officer stood in front of the toilet stall, i.e., after the search.
Insofar as the Court holds only that the preceding surveillance did not require excluding evidence of this offense, by definition directed at the known observer, I concur in the result.
Lent, J. joins in this concurring opinion.
See also the Supreme Court’s recent observation that “if police are to have workable rules, the balancing of the competing interests” (there in a search following a stop) “must in large part be done on a categorical basis — not in an ad hoc, case-by-case fashion by individual police officers.” Michigan v. Summers, 452 US 692 , 101 S Ct 2587 , 69 LEd2d 340 , 351 n 19 (1981), quoting Dunaway v. New York, 442 US 200, 219-220 , 99 S Ct 2248 , 60 LEd2d 824 (1979) (White, J„ concurring.)