State v. Berber

740 P.2d 863, 48 Wash. App. 583, 74 A.L.R. 4th 491, 1987 Wash. App. LEXIS 3884

• Court: Court of Appeals of Washington
• Decided: July 23, 1987
• Docket: 7615-6-III
• Status: Published

Opinions

Munson, J.

Francisco Berber appeals his conviction for possession of a controlled substance, contending the trial court erred in denying his motion to suppress the cocaine seized by the police. We affirm.

While engaged in a routine nightly "bar check," two officers from the Grandview Police Department entered the Past-Time Tavern in that city and proceeded to the men's rest room. The officers knew this rest room was an area where narcotics were commonly used.

The rest room consisted of one urinal, one toilet, and a wash basin, in that order as one enters.¹ The urinal was separated from the toilet by a particle board partition extending 2 to 3 feet from the wall. Although the record does not reflect the height of the partition, it is evident the toilet was not enclosed. The urinal and the toilet were on one wall, while the wash basin was on an adjacent wall opposite the entrance.

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When the officers entered the rest room, one person was at the urinal. Mr. Berber aroused the officers' suspicions because, although standing over the toilet, his hands were positioned up around his chest. It appeared to the officers he was not using the facility for its common purpose. One of the officers, several inches taller than Mr. Berber, approached him from behind to within 2 inches and peered over his shoulder. He observed what he believed to be cocaine in Mr. Berber's left hand, enclosed in a cellophane container, which apparently was being ingested. The officer seized the cellophane package, the contents which proved to be cocaine, and placed Mr. Berber under arrest. This entire transaction—the officers entering the rest room, observing Mr. Berber, peering over his shoulder, and seizing the cellophane package—occurred almost instantaneously.

Mr. Berber was charged with possession of a controlled substance. He moved to suppress the cocaine, alleging that while at the toilet he had a legitimate expectation of privacy and the officer's glance over his shoulder constituted an impermissible warrantless search. The trial court held Mr. Berber had no reasonable expectation of privacy while standing over the toilet in this public rest room. The court denied the motion. Thereafter, both parties stipulated to the above facts at a bench trial; the court found him guilty; this appeal followed.

The fundamental issue is whether the officer's glance over Mr. Berber's shoulder while he stood over an open toilet in this public rest room constituted an unreasonable intrusion or search subject to the protections of Const, art. 1, § 7. Mr. Berber asserts individuals in a public rest room retain a legitimate expectation of privacy, even at an unenclosed toilet. The State urges that the officer's observation of Mr. Berber, given these facts, is not a "search." Rather, the officer merely observed "public" conduct.

Const, art. 1, § 7 provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." This provision places greater emphasis on the privacy interests of individuals than the Fourth Amendment and, consequently, has been interpreted to provide greater protections to the privacy rights of Washington citizens than the Fourth Amendment. State v. Bell, 108 Wn.2d 193, 196, 737 P.2d 254 (1987); State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984); State v. Nelson, 47 Wn. App. 157, 159, 734 P.2d 516 (1987). Notwithstanding this heightened protection, federal decisions validly continue to play a guiding role in our analysis of Const. art. 1, § 7. Myrick, at 510. State v. Gunwall, 106 Wn.2d 54, 60-61, 720 P.2d 808 (1986) (citing State v. Hunt, 91 N.J. 338, 363, 450 A.2d 952 (1982) (Handler, J., concurring)). Consequently, the following analysis relies in part upon decisions of the United States Supreme Court, as well as other courts' interpretations of the Fourth Amendment. However, we base our analysis and ultimate decision on the Washington Constitution. See Myrick, at 510.

As noted, Const, art. 1, § 7 guarantees that individuals will be safe from unreasonable invasions of their private affairs. State v. Kennedy, 107 Wn.2d 1, 5, 726 P.2d 445 (1986); State v. Stroud, 106 Wn.2d 144, 167, 720 P.2d 436 (1986) (Durham, J., concurring); State v. Myrick, supra; State v. Simpson, 95 Wn.2d 170, 178, 622 P.2d 1199 (1980). A violation of this provision depends on whether the individual invoking its protection demonstrates a "legitimate" or "reasonable” expectation of privacy in a place or object that is invaded by governmental action. Compare Stroud, at 159, 167 (Durham, J., concurring) with Myrick, at 510-11. Justice Durham, in her concurring opinion in Stroud, at 159, states: "[0]ur court analyze[s] search and seizure issues in terms of a person's reasonable expectation of privacy. This is an objective 'reasonable man' standard, not a test of a person's subjective expectation of privacy." Moreover, Myrick, at 510-11, provides:

Const, art. 1, § 7 analysis encompasses those legitimate privacy expectations protected by the Fourth Amendment, but is not confined to the subjective privacy expectations of modern citizens who, due to well publicized advances in surveillance technology, are learning to expect diminished privacy in many aspects of their lives. Rather, it focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.

(Citations omitted. Italics ours.)

It is unclear after Myrick and Stroud whether the 2-prong expectation of privacy test developed by the United States Supreme Court for purposes of Fourth Amendment analysis² is to be retained under a Const, art. 1, § 7 analysis. Nock, Seizing Opportunity, Searching for Theory: Article 1, Section 7, 8 U. Puget Sound L. Rev. 331, 366 (1984). See also Utter, Survey of Washington Search and Seizure Law, 9 U. Puget Sound L. Rev. 1, 19 (1985). In the absence of any clear indication from our Supreme Court as to applicability of the federal test, we will analyze search and seizure issues by reference to that test.

We assume Mr. Berber had a subjective expectation of privacy, so the first prong of the federal test is answered in the affirmative. However, under the second prong of the test is this expectation one that society is prepared to recognize as legitimate when analyzed according to an "objective 'reasonable man' standard"? Stroud, at 159 (Durham, J., concurring); Myrick, at 510. Cf. Oliver v. United States, 466 U.S. 170, 188, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984); Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979). For purposes of Const, art. 1, § 7 analysis, our examination of Fourth Amendment cases suggests several considerations which may profitably be utilized in making what is essentially the identical determination under our constitution. These considerations are: (1) society's belief that certain areas are ordinarily understood to afford personal privacy; (2) the character of the area in which the claimed privacy interest is asserted; (3) the way in which the area is used; and (4) the method, means, or manner by which the government agents intrude into the area. We do not mean to suggest these considerations are relevant in every article 1, section 7 case or that their mechanical application will lead to a "correct" result. Nonetheless, they are useful analytical tools in attempting to determine whether an individual's legitimate expectation of privacy has been invaded.

First, based upon widely accepted social norms, the area within an occupied toilet stall is properly characterized as "private." Occupants thereof ordinarily find it highly offensive to have their private parts and bodily functions exposed to law enforcement officers. See People v. Triggs, 8 Cal. 3d 884, 506 P.2d 232, 238, 106 Cal. Rptr. 408 (1973). Moreover, the fact a toilet or urinal is not completely shielded from public view does not necessarily destroy the expectation of privacy an occupant possesses. See, e.g., Kroehler v. Scott, 391 F. Supp. 1114, 1117 (E.D. Pa. 1975); State v. Holt, 291 Or. 343, 630 P.2d 854, 857 (1981); Triggs, 506 P.2d at 236; Brown v. State, 3 Md. App. 90, 94, 238 A.2d 147, 149 (1968) ("a person who enters an enclosed stall ... is entitled ... to the modicum of privacy its design affords"). Cf. Myrick, at 513 (although "the language of Const, art. 1, § 7 precludes a 'protected places' analysis" the nature of the area into which intrusion took place is one factor in determining whether the intrusion is constitutional).

These expectations are strongest where the toilet in a public rest room is fully enclosed. See People v. Mercado, 68 N.Y.2d 874, 501 N.E.2d 27, 29, 508 N.Y.S.2d 419 (1986). However, when viewed objectively, most citizens do not expect the same degree of privacy where the toilet in a public rest room is exposed to the public. Justice Durham, concurring in Stroud, at 167, noted society as a whole possesses a diminished expectation of privacy in certain places. For example, a person's residence is a highly private place under most circumstances and gives rise to a legitimate expectation of privacy. See Const, art. 1, § 7 (home given special protection); State v. Holeman, 103 Wn.2d 426, 429, 693 P.2d 89 (1985). On the other hand, travel in an automobile is a relatively public endeavor; the openness of the automobile gives rise to what may be characterized as a "diminished expectation of privacy." Stroud, at 168 (Durham, J., concurring). The location of this toilet in a public rest room, its lack of any real enclosure, and the openness of the view from the general rest room area contribute to a diminished expectation of privacy by those using the facilities therein.

Second, the toilet's location and exposure tend to support the State's contention that Mr. Berber's expectation was not reasonable. Mr. Berber contends the toilet was located in a "stall" because of the partition separating it from the urinal. The area surrounding the toilet may be characterized as a "stall" only by the grossest of generalizations; anyone entering the rest room had visual access to it. The officers saw no more than an ordinary member of the public would have seen upon entering the rest room. Assuming arguendo a "stall" existed, 1 W. LaFave, Search and Seizure § 2.4(c), at 440-41 (2d ed. 1987) notes: "[I]f the police merely enter a rest room and see conduct occurring within a stall which is 'readily visible and accessible' to any member of the public who so enters, there is . . .no intrusion into a justified expectation of privacy." (Footnotes omitted.)

Third, the way a particular area is used may be relevant to the determination of whether a legitimate expectation of privacy exists therein. Oliver, 466 U.S. at 178; Rakas v. Illinois, 439 U.S. 128, 152-53, 58 L. Ed. 387, 99 S. Ct. 421 (1978). Kroehler, at 1118 n.4 states: "[T]he expectation of privacy is generated by the nature of the activity involved, rather than by the precise physical characteristics of the stall ..." Analysis under this consideration generally focuses on how the area is ordinarily used. Under normal circumstances, the utilization of a toilet for its customary purpose would give rise to an expectation of privacy for purposes of constitutional analysis.

However, the particular manner in which the area is used becomes the relevant inquiry where the person's activities within the area are exposed to the general public. For example, the user of an enclosed public telephone booth has a legitimate expectation of privacy regarding auditory transmissions, but not with respect to visual access of his or her actions therein. Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). In a statement we find equally applicable to Const, art. 1, § 7, Katz, 389 U.S. at 351-52 states the Fourth Amendment protects

people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Justice Harlan's concurrence in Katz noted:

Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the "plain view" of outsiders are not "protected" because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.

Katz, 389 U.S. at 361; see also State v. Jordan, 29 Wn. App. 924, 927, 631 P.2d 989 (1981).

"The test of legitimacy is not whether the individual chooses to conceal assertively 'private' activity." Oliver, 466 U.S. at 182. The issue is whether the government's intrusion infringes upon the personal and societal values protected by Const, art. 1, § 7. Cf. W. LaFave, at 311-12 (citing Note, From Private Places to Personal Privacy: A PostKatz Study of Fourth Amendment Protection, 43 N.Y.U. L. Rev. 968, 983 (1968)). Given the openness of the location in which he conducted his illegal activity and the officers' testimony that it was obvious he was not using the area for its customary purpose, his attempt to conceal his illegal activity by facing the toilet does not indicate that his expectation of privacy, if any, was justified.

Finally, the method by which the officers here intruded into the area is also relevant to our determination.³ W. LaFave, at 314, provides that the ultimate question under search and seizure analysis

[i]s whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.

(Footnotes omitted.) (quoting Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 403 (1974)).

The circumstances here are clearly distinguishable from those in Triggs, Kroehler, and the other decisions involving toilet stalls relied upon by Mr. Berber. In those cases, the police surreptitiously viewed from holes, vents, or by other clandestine means the occupants of enclosed toilets. These secret observations subjected the innocent, as well as the guilty, to unreasonable intrusions.

Unlike those decisions, the officer's observation here was not surreptitious. Mr. Berber cannot be characterized as being in a stall. Mr. Berber, though perhaps possessing a subjective or actual expectation of privacy, did not, when viewed objectively, possess a legitimate or reasonable expectation of privacy. See Stroud, at 159 (Durham, J., concurring).

The conviction is affirmed.

Green, J., concurs.

1 The illustration is a portion of an exhibit of a hand-drawn sketch depicting the rest room area. The identifications have been supplied from the testimony of the officers.

2 Whether a legitimate expectation of privacy is violated by a search and/or seizure involves two discrete questions under a Fourth Amendment analysis. First, has an individual by his or her conduct exhibited a subjective expectation of privacy in a particular place or object? Katz v. United States, 389 U.S. 347, 361, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). Second, is the individual's subjective expectation of privacy one that society is prepared to recognize? Katz, 389 U.S. at 361. Put another way, were the individual's subjective expectations, when viewed objectively, justified under the circumstances? Oliver v. United States, 466 U.S. 170, 188, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984); Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979).

3 Because Const, art. 1, § 7 focuses on privacy interests, rather than police conduct, this factor is not as important as if under a Fourth Amendment analysis. Nonetheless, the manner of the intrusion appears to retain some importance under Const, art. 1, § 7 analysis. See Myrick, at 514 (unaided aerial surveillance of defendant's property not a search under Const, art. 1, § 7).