State v. Berber ( 1987 )

McInturff, C.J.

(dissenting)—Because I believe the evidence seized in this case should have been suppressed, I dissent. For the most part, the majority and I agree on the facts. However, the majority has omitted several facts relevant to the visibility into the toilet stall from the general rest room area which bear on the question of whether Mr. Berber had a Fourth Amendment protected privacy interest which was intruded upon.

Officer Miller (hereafter the officer) testified that upon entering the rest room he could see that Mr. Berber was in the stall, but could not see anything but Mr. Berber's back and "the position of his hands" (i.e., up around his chest) when he walked in.⁴

The officer stated he did not know what Mr. Berber was doing with his hands at this time. The officer walked up behind Mr. Berber to within a couple of inches of his back and looked over his shoulder. At this point, the officer could see cocaine in Mr. Berber's hands. The officer testified that if he had been standing 2 or 3 feet back from Mr. Berber, he would not have been able to observe anything over Mr. Berber's shoulder. Because of these facts, I disagree with the majority's statement that "anyone entering the rest room had visual access" into the stall. Majority, at 590. It would be more appropriate to conclude Mr. Berber's backside at least partially blocked the view into the toilet stall from the remainder of the rest room.

Further, the majority included a rough drawing of the rest room area which is of little value in understanding the privacy interests at stake. I say this because it lacks the physical proportions necessary to put the officer's testimony in perspective.

The majority rightly assumed Mr. Berber possessed a subjective expectation of privacy while standing in the toilet stall. The majority also rightly concluded that under normal circumstances the utilization of a toilet stall for its customary purpose would give rise to an expectation of privacy for purposes of constitutional analysis. The majority then examined the openness of the location, the way in which the area was used and the method of the officer's intrusion into the area. Majority, at 590-92. The majority then concluded Mr. Berber had no objectively reasonable expectation of privacy which is protected by Const, art. 1, § 7.

Utilizing these factors, I conclude that Mr. Berber's expectation of privacy is an objectively reasonable one, and intrusion thereon is a search which is constitutionally impermissible under Const, art. 1, § 7 unless it was accompanied by a search warrant supported by probable cause or within a valid exception to warrant requirement. State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984).

First, the openness of the toilet stall is not a determinative factor. In Brown v. State, 3 Md. App. 90, 238 A.2d 147 (1968), a factually similar case, the court invalidated seizure of narcotic paraphernalia when an officer stuck his head over the door to a toilet stall, thus physically intruding into the area. Brown v. State, supra at 94 stated:

We believe that a person who enters an enclosed stall in a public toilet, with the door closed behind him, is entitled, at least, to the modicum of privacy its design affords, certainly to the extent that he will not be joined by an uninvited guest or spied upon by probing eyes in a head physically intruding into the area.

State v. Biggar, _ Hawaii _, 716 P.2d 493 (1986) is another case which is factually similar. There, in 716 P.2d at 494, an officer assigned to a drug enforcement task force at an airport allowed a man who was suspected of purchasing a suspicious ticket to use the rest room. The man closed the door on the toilet stall. The officer peered through a crack in the door and observed the suspect standing near the toilet but apparently not using it. Biggar, 716 P.2d at 494. The crack was about one-half inch wide and the detective testified it afforded him nothing more than an occasional glimpse of the suspect's right shoulder. Biggar, 716 P.2d at 494 n.3. The officer became very suspicious that the suspect was trying to destroy evidence. The officer entered the adjacent toilet stall and looked over the stall into the suspect's stall where he observed the suspect withdrawing his hand from the disposable seat cover dispenser. After the suspect left the stall, the officer discovered a packet of cocaine in the dispenser. Biggar, 716 P.2d at 494. There, at page 495, the Supreme Court of Hawaii held that the suspect had a subjective expectation of privacy in the toilet stall despite the fact that the door did not close completely. The design of the door, with a one-half inch crack, did not destroy this expectation of privacy since it was too small to afford the officer more than a view of the suspect's shoulder. Further, the court held "it is beyond dispute that an expectation of privacy in a closed toilet stall is one that society would recognize as objectively reasonable." Biggar, 716 P.2d at 495. The court held the officer lacked probable cause to climb on the toilet seat in the adjacent stall and look over the partition. The court did not reach the issue of whether the officer's peering through the crack in the door amounted to a search. Biggar, 716 P.2d at 495.

Also, the fact that Mr. Berber was not in an enclosed stall likewise is not determinative. In People v. Triggs, 8 Cal. 3d 884, 506 P.2d 232, 106 Cal. Rptr. 408 (1973), the court considered clandestine observations of doorless stalls in public rest rooms. That court rejected the argument that these observations were not searches because the conduct could have been viewed by an officer from a place where the public had a right to be and therefore there could be no reasonable expectation that it would be private. The court stated, at page 891: "The expectation of privacy a person has when he enters a restroom is reasonable and is not diminished or destroyed because the toilet stall being used lacks a door." See also Kroehler v. Scott, 391 F. Supp. 1114 (E.D. Pa. 1975).

A reasonable expectation of privacy may be constitutionally protected even though the expectation is of less than total privacy. As stated in State v. Holt, 291 Or. 343, 348, 630 P.2d 854, 857 (1981):

[Some cases] tend to decide whether an occupant has a reasonable expectation of privacy according to whether there is a door on the stall. In our opinion, that distinction is too simple to adequately protect reasonable expectations of privacy held by persons who use public restrooms. As Katz [v. United States, 389 U.S. 347 (1967)] made clear, the law may protect a reasonable expectation of less than total privacy, (i.e., in Katz an expectation of auditory privacy, but not visual privacy). One who chooses to use a doorless stall may desire total privacy, but he cannot reasonably expect it. Rather, he accepts a limited risk of observation as a consequence of the limitations of the physical structure.

(Citations omitted. Italics mine.)

Having concluded presence or absence of a door does not answer the question, I would look at the modicum of privacy the design of the stall affords, per Brown v. State, supra. Here, the design of the stall afforded some privacy to the occupant. Walls on three sides restricted the public's view into the stall. Additionally, the body of the person using the stall restricted view into the stall—in essence, the occupant's backside became the door, and to the extent the backside of the occupant restricted the view into the stall, privacy was afforded by the design of the stall. Here, the police officer admitted he could see nothing but Mr. Berber's backside and the position of his hands without intruding into the stall to peer over Mr. Berber's shoulder.

I disagree with the majority's conclusion that given the design of the stall the officer saw no more than an ordinary member of the public would have seen if entering the rest room. Here, what the officer saw from the view of an ordinary member of the public was only Mr. Berber's backside. Cases which have discussed this factor involved incriminating conduct apparent to the officer before entry into the toilet stall or other protected area cases. United States v. Smith, 293 A.2d 856, 858 (D.C. 1972); Kirsch v. State, 10 Md. App. 565, 271 A.2d 770, 771 (1970). In People v. Triggs, supra at 895 n.7, the court said: "Should they discover from a location open to the public, the commission of criminal acts, their observation of what is in plain view involves no search, and is not subject to the strictures of the Fourth Amendment." (Italics mine.) However, observation of incriminating acts is not equivalent to observation of "arguably suspicious behavior . . . susceptible to an innocent explanation." People v. Triggs, supra at 895. See also State v. Biggar, 716 P.2d at 494, 496, where purchase of a suspicious airline ticket, apparent nonuse of toilet facilities in the stall, and nervousness did not amount to probable cause to search. Here, the view of Mr. Berber's backside and arms raised to his chest did not provide any evidence that Mr. Berber was engaged in a criminal act. The fact that his arms were raised to his chest and not in the usual position is merely arguably suspicious behavior and is susceptible to an innocent explanation—for example, the buttoning of a shirt, or removal of a cigarette package from a shirt pocket.

Next, the majority examines the way the particular area was used to decide if a legitimate expectation of privacy exists therein. Here, the majority argues the fact that Mr. Berber did not appear to be using the facility to urinate bears on whether his expectation of privacy was reasonable. The court in Biggar, 716 P.2d at 494, found a reasonable expectation of privacy where the suspect stood near a toilet but did not appear to be using it. The mere fact that Mr. Berber was not urinating at the time the officers entered the rest room is not enough to destroy the reasonableness of an expectation of privacy in this instance.

Finally, the majority examines the method of the officer's intrusion into the area. I disagree with the majority's conclusion that this particular form of surveillance is one that may be permitted to go unregulated by constitutional restraints. Physical intrusion into a toilet stall is just as abhorrent to the sensibilities of the average citizen as clandestine surveillance of the activities therein. Biggar; Brown v. State, supra. It cannot be said from the officer's testimony that he possessed any evidence of criminal activity before he peered over Mr. Berber's shoulder. Mr. Berber's bathroom behavior was significantly less suspicious than the behavior observed in Biggar, 716 P.2d at 496, where the court said:

While it is obvious from the record that Detective Peterson suspected Appellant of trying to destroy or abandon drugs, it is equally obvious that Appellant's bathroom behavior was insufficient to justify Officer Peterson's observing him from the adjacent stall.

(Footnote omitted.)

As a matter of policy, protection under Const, art. 1, § 7 should be determined by focusing on "those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." State v. Myrick, supra at 511. The expectation that a citizen's privacy will not be intruded upon by the State while occupying a toilet stall, even in a public rest room, is exactly the type of "private affair" Const, art. 1, § 7 protects. Based on these facts, it cannot be said the officers possessed probable cause to search Mr. Berber. Standing within 2 inches of a person standing in a toilet stall is not only an invasion of his constitutional right of privacy, but is abhorrent on its face.⁵

Therefore, having concluded the officers conducted an unlawful search, the evidence obtained should have been excluded. I would reverse the conviction of Mr. Berber.

Review denied by Supreme Court November 4, 1987.

4 Officer Miller testified:

"Q Where was Mr. Berber standing?

”A Standing right here.

"Q Right in front of the commode?

"A Thatls correct.

"Q Now when you first walked in, you mentioned that you saw him doing nothing, just standing there.

"A Just standing there.

"Q And when you actually saw what you observed, the suspected cocaine, is after you looked over his shoulder?

"A That's correct.

"Q Before that you didn't observe anything suspicious?

"A No, there was a subject standing here and, as I said, another subject had finished and was exiting sis Officer Dobrauc and myself walked in.

"Q Now how far did you stand from him when you observed the suspected cocaine?

"A I was right on his back.

"Q Would you say a couple inches from himl "A A couple inches.

"Q And you peered over his shoulder?

"A I am considerably taller than the defendant.

"Q Now if he had been 2 or 3 feet back, would you have been able to observe anything over his shoulder?

"A Two or three feet back, no." (Italics mine.)

5 It is not difficult for me to perceive that the conduct of a person standing 2 inches away from a man in a toilet stall and peering over his shoulder could provoke an immediate assault upon the intruder.