United States v. Watkins

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 11, 2026
• Docket: 23-6210
• Status: Published

Opinion

Appellate Case: 23-6210 Document: 87 Date Filed: 05/11/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 11, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 23-6210 v. (D.C. No. 5:22-CR-00325-R-1) (W.D. Okla.) CAMERON WATKINS, a/k/a Crazy Gun,

Defendant - Appellant. _________________________________

ORDER _________________________________

Before HARTZ, TYMKOVICH, MATHESON, PHILLIPS, McHUGH, MORITZ, EID, CARSON, and FEDERICO, Circuit Judges. ∗ _________________________________

This matter is before the court on Appellant’s Petition for Panel Rehearing or

Rehearing En Banc and the United States’ Response to Appellant’s Petition for

Rehearing.

Appellant’s request for panel rehearing is DENIED by a majority of the panel.

Judge Moritz would grant panel rehearing.

The Honorable Jerome A. Holmes, the Honorable Robert E. Bacharach, and the ∗

Honorable Veronica S. Rossman are recused in this matter. Appellate Case: 23-6210 Document: 87 Date Filed: 05/11/2026 Page: 2

The petition and response were circulated to all non-recused active judges of the

court, and a poll was called. The poll did not carry. Consequently, Appellant’s request for

en banc rehearing is DENIED.

Judges Moritz and Federico voted to grant en banc rehearing. Judge Hartz has

filed a separate concurrence in the denial of en banc rehearing. Judge Moritz has filed a

separate dissent from the denial of en banc rehearing, which is joined by Judge Federico.

Entered for the Court,

PER CURIAM

2 Appellate Case: 23-6210 Document: 87 Date Filed: 05/11/2026 Page: 3

23-6210, United States v. Watkins

HARTZ, Circuit Judge, supporting the denial of rehearing en banc

I have nothing to add doctrinally regarding the panel opinion. But two

observations may be useful.

First, my chambers has conducted a review of statutes of the 50 States and the

District of Columbia addressing Peeping Toms—that is, persons using unaided vision to

spy on others. We may well have missed something, but I doubt that anything omitted

would affect the principal conclusion.

Only six States have no such statutes. Of the statutes, the great majority (all but 12

statutes from 12 States) would not apply to the action of the officer in this case because

they require a trespass (as is also the case with Model Penal Code § 250.12); require that

the viewing be with lewd or improper intent or involve unclothed private parts; or do not

apply to law-enforcement officers. *

* Statutes with a 1 include a requirement that the perpetrator be trespassing. Statutes with a 2 include a requirement that the perpetrator act with lewd or improper intent or actually observe another’s uncovered intimate areas. Statutes with a 3 include an express exception for law-enforcement activities. Some statutes contain multiple provisions covering the officer’s conduct, with an exception applicable to only some of those provisions. These are denoted with the addition of (in part) to the relevant superscript. Statutes that on their face would prohibit the conduct in this case are noted in bold.

Ala. Code § 13A-11-32;1 Ala. Code § 13A-11-32.1;2 Ariz. Rev. Stat. Ann. § 13- 1424;2 Ariz. Rev. Stat. Ann. § 13-3019; Ark. Code Ann. § 5-16-102;1 (in part),2 Ark. Code Ann. § 5-71-213; Cal. Penal Code § 647; Colo. Rev. Stat. § 18-3-405.6;2 Colo. Rev. Stat. § 18-7-801;2 Conn. Gen. Stat. § 53a-189a;1 Del. Code Ann. tit. 11, § 820;1 Del. Code Ann. tit. 11, § 1335;1 D.C. Code § 22-3531;3 Fla. Stat. Ann. § 810.14;2 Ga. Code Ann. § 16-11-61; Haw. Rev. Stat. Ann. § 711-1111;1 (in part),2 (in part),3 Idaho Code Ann. § 18- 7006;1 720 Ill. Comp. Stat. Ann. 5/26-1;1,2 Ind. Code Ann. § 35-45-4-5; Iowa Code Appellate Case: 23-6210 Document: 87 Date Filed: 05/11/2026 Page: 4

Second, the dissent from denial states that the officer’s face was “so close” to the

window that he could see the entire room. But the record does not show how close that

was, and it is not obvious that the officer would need to press his face against the window

to see Defendant on the bed.

§ 716.7;2 Ky. Rev. Stat. Ann.§ 531.090;2,3 La. Stat. Ann. § 14:283.1;2 La. Stat. Ann. § 14:284; Me. Rev. Stat. Ann. tit. 17-A, § 511;1,3 Md. Code Ann., Crim. Law § 3-901;3 Md. Code Ann., Crim. Law § 3-902;2,3 Md. Code Ann., Crim. Law § 6-408;1 Mich. Comp. Laws § 750.539b;1 Mich. Comp. Laws § 750.539j;3 Minn. Stat. Ann. § 609.746;1 Miss. Code Ann. § 97-29-61;2 MPC § 250.12;1 Mont. Code Ann. 45-5-223;3 Neb. Rev. Stat. § 28-311.08; Nev. Rev. Stat. Ann. § 200.603;3 N.H. Rev. Stat. Ann § 644:9;1 (in part),2 (in part) N.J. Stat. Ann. § 2C:14-9;3 N.J. Stat. Ann. § 2C:18-3; N.M. Stat. Ann § 30-9-20; N.C. Gen. Stat. § 14-202;3 N.D. Cent. Code Ann. § 12.1-20-12.2;2 N.D. Cent. Code § 12.1-31-14; Ohio Rev. Code Ann. § 2907.08;2 Okla. Stat. Ann. tit. 21, § 1171; Or. Rev. Stat. 163.700;2,3 18 Pa. Cons. Stat. Ann. § 7507.1;2,3 R.I. Gen. Laws § 11-45-1;1 (in part),2 S.C. Code Ann. § 16-17-470;2 (in part),3 (in part) S.D. Codified Laws § 22-21-1;1 S.D. Codified Laws § 22-21-3;1 Tenn. Code Ann. § 39-13-607;2 Tex. Penal Code Ann. § 21.17;2 Tex. Penal Code Ann. § 42.01;2 Utah Code Ann. § 76-12-302;3 Utah Code Ann. § 76-12-306;2 Vt. Stat. Ann. tit. 13, § 2605;3 Va. Code Ann. § 18.2-130;1 (in part),3 Wash. Rev. Code § 9A.44.115;2 Wis. Stat. § 942.08;2 Wyo. Stat. Ann. § 6-4-304.

2 Appellate Case: 23-6210 Document: 87 Date Filed: 05/11/2026 Page: 5

MORITZ, Circuit Judge, dissenting from the denial of rehearing en banc.

This court has missed its opportunity to correct a significant and unwarranted

erosion of Fourth Amendment protections. The officer in this case placed his face so

close to a motel room’s window that he could peer through a one-inch gap in the curtains

and view the entire room. According to this court, that rendered the entire motel room in

plain view because the officer’s feet were located in a public walkway and he used only

his unaided senses.

But individuals who close their curtains have an objectively reasonable

expectation of privacy in what lies behind them. That there was a one-inch gap between

the curtains here is by no means determinative—who among us has not struggled to get

curtains perfectly closed? And peeping through small gaps in curtains (or similar gaps in

bathrooms stalls, tent flaps, or apartment blinds) is grossly inconsistent with societal

norms. The court’s myopic focus on so-called plain view ignores that there was nothing

“plain” about the view that the officer obtained here.

What is plain, however, is that the outcome here turned on a misguided concern

with “draw[ing] a bright line that would render the observation in this case a violation of

the Fourth Amendment.” United States v. Watkins, 156 F.4th 1049, 1057–58 (10th Cir.

2025). A bright line is not only unnecessary, but anathema to the Fourth Amendment’s

totality-of-the-circumstances framework. The only standard we should apply is the one

already provided in the Constitution: reasonableness. Appellate Case: 23-6210 Document: 87 Date Filed: 05/11/2026 Page: 6

With that standard top of mind, this case should turn on the common-sense

proposition that Americans reasonably expect privacy behind their closed doors and

drapes. But this court ignores common sense in the name of public access, plain view,

and a misplaced concern about bright-line rules. By refusing to peer through the gaps in

its own reasoning, the court closes the curtain on fundamental Fourth Amendment

protections. I would grant rehearing en banc.