Cook v. State

DUGGAN, Justice,

concurring.

I concur with the majority’s disposition of the appeal. I specifically agree with the majority’s reasoning that Officer Whitaker had probable cause, coupled with exigent circumstances, to make the warrantless arrest of appellant and the two other individuals who occupied the auditorium restroom toilet stall described in the majority opinion.

However, I strongly disagree with the majority’s conclusion that a “search” occurred, or that the toilet stall in question afforded appellant and the two other simultaneous adult occupants a reasonable expectation of privacy.

As described in the record, the four sides of the toilet stall here in question were formed by the restroom wall to the rear, a partition wall on either side, and a door to the front. There was an open space of approximately 12 to 14 inches between the restroom floor and the bottoms of the door and the partition walls. Neither Buchanan v. State, 471 S.W.2d at 401, nor Leibman v. State, 652 S.W.2d at 942, cited by the majority, give any indication that the enclosed privacy areas protected in those decisions (a toilet stall with a door in Buchanan; a coin-operated movie arcade booth with a door in Leibman, were other than solidly enclosed areas, built so that persons standing outside could not see persons — or activities — within. In the two cited cases, the initial police observation occurred when officers either positioned themselves to look down from concealed positions overhead, or climbed onto objects to look over the enclosure’s top.

By contrast, our fact situation was one in which outsiders could readily observe six legs — the usual number to equip three ordinary human beings — through the open space between the floor and the bottom of the stall. These six legs were enough to alert the dullest passing observer to the fact that the toilet stall was not being used for its intended private purpose. Any expectation of privacy that the three occupants may have entertained was not “one that society is prepared to recognize as ‘reasonable’.” Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed. 2d 220 (1979); Chapa v. State, 729 S.W.2d 723, 727 (Tex.Crim.App.1987).

With this exception, I concur in the result and join in affirming the judgment.