352 F.2d 251 (9th Cir. 1965), 19156, Smayda v. United States

Docket Nº:19156.
Citation:352 F.2d 251
Party Name:Joseph L. SMAYDA and Wendell H. Gunther, Appellants, v. UNITED STATES of America, Appellee.
Case Date:October 11, 1965
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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352 F.2d 251 (9th Cir. 1965)

Joseph L. SMAYDA and Wendell H. Gunther, Appellants,


UNITED STATES of America, Appellee.

No. 19156.

United States Court of Appeals, Ninth Circuit.

October 11, 1965

Certiorari Denied Jan. 17, 1966, See 86 S.Ct. 555.

Herbert Donaldson, San Francisco, Cal., for appellants.

Cecil F. Poole, U.S. Atty., Jerrold M. Ladar, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before POPE, BROWNING and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge.

Smayda and Gunther were convicted of violating the 'Assimilative Crimes' Act, 18 U.S.C. § 13. 1 The offense was committed within Yosemite National Park, concededly a place of the type referred

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to in the section and in 18 U.S.C. § 7. The crime, oral copulation, is made punishable by the California Penal Code, Section 288a. Both defendants appeal. Their attack upon the judgment is based entirely upon their claim that all of the evidence against them was obtained in violation of their rights as defined in the Fourth Amendment to the Constitution:

'The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated * * *.'

The offense occurred in a men's toilet and washroom, at Camp Curry, a resort in the Park maintained and operated by the Yosemite Park & Curry Co., a government concessionaire. The particular facility is in a portion of the resort where tent-cabins, equipped for the accommodation of guests, are located. It is maintained primarily for the use of guests, but appears to be open, like most such facilities in hotels, to the public. In the men's section of the building, which is enclosed by walls having windows in them set with the sills about 5 or 6 feet from the floor, there are wash basins, a urinal and three toilets. The latter are separately enclosed in stalls set side by side. The back wall of all three is a floor to ceiling partition, behind which is a space for getting at the pipes and similar purposes. One stall, which we call No. 1, is set at the side of the room, so that one of its sides is also a solid wall, from floor to ceiling. The partitions between the stalls and the exterior side wall of the third stall in the row (No. 3) are each made of a single thickness of boards, beginning about 18 inches above the floor and extending to about 3 feet from the ceiling, or a height of about 6 feet. Each stall has a door that swings inward and rests against a jamb when closed. The bottom of the door is a few inches higher above the floor than the bottom of the partitions and the top a few inches lower than the top of the partitions. The doors do not automatically swing shut and there is no lock, latch, or bolt with which to fasten them from the inside. Thus, an occupant of the stall cannot prevent someone else from entering except by holding the door shut. There is a light bulb in the ceiling just outside the door of the center stall (No. 2), and other light bulbs are in the main room, but none is over the stalls themselves. Above the whole restroom, under a peaked roof, is an open space or attic.

In the summer of 1963, between Memorial Day and July 13, both the manager of the resort and the park rangers, who also serve as park police, received complaints and information and themselves observed persons and conduct, indicating to them that restroom 600 was being used by homosexuals as a 'hangout' and a place in which homosexual activities were being carried on. Persons unknown had cut holes in the two partitions separating stall No. 2 from stalls Nos. 1 and 3, each hole being about 2 inches square and about waist high from the floor. There were stains indicating use of these holes for lewd purposes. There were also smaller holes through which one using a toilet could peer into the adjoining stall. We do not detail all of the evidence in this regard; it was ample to give the manager and the rangers reasonable cause to believe that the stalls in restroom 600 had been and would be used in violation of Penal Code section 288a.

As a result, the manager of the resort discussed the problem with Ranger Twight, the law enforcement specialist in the Park, and it was decided that a hole should be cut in the ceiling over each stall, for purposes of observation. This was done, each hole being about 6 inches square and covered with a screen so as to make it look like an air vent. It was believed that criminal acts were most likely to occur at night, and particularly Saturday night, so that Ranger Twight decided to conduct surveillance on Saturday evening 'after the family-type people had quit using the facility.' Surveillance was conducted first on the night of July 13 from 11:00 P.M. to midnight.

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Twight and a photographer were in the attic, and two rangers with a radio were outside where they could be called immediately. Some 25 or 30 persons were observed who simply made the normal use of the stall. Others were seen who peered through holes in the partitions, looked at each other over the partitions, masturbated, and at least two of whom performed an indecent act through the hole in the partition, but not in violation of P.C. § 288a. No arrests were made.

On July 20, similar surveillance was begun at 11:00 P.M. Six or seven persons whose behavior was normal were observed. Within five minutes after the surveillance began appellant Gunther appeared and entered one of the stalls. He remained for about 15 minutes, masturbated, and peered through the holes. He then left. A hand reached up and unscrewed the light bulb in front of the stalls. The officers could not see whose hand it was. Gunther returned shortly, and went through the same performance for about 15 minutes. He again left, returned and entered stall No. 2. Smayda then came in and entered stall No. 1. They peered at each other, masturbated, and then committed the crime through the hole in the partition. Photographs were taken. Twight, by radio, summoned the waiting rangers, and the appellants were arrested.

The record makes it clear that, while there was reason to believe that someone might commit the offense that evening, there was no reason to believe, at any time until after each appellant entered a stall, that that particular person was about to commit it.

Appellants rely primarily upon two California cases, Bielicki v. Superior Court, 1962, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288 and Britt v. Superior Court, 1962, 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817. In each case, under quite similar circumstances, 2 it was held that the surveillance was an unreasonable search, forbidden by both Article I § 19 of the California Constitution and the Fourth Amendment to the United States Constitution, and that evidence thus obtained was inadmissible.

It is suggested that we should follow these cases because, under the Assimilative Crimes Act, we are applying California law, and it would be anomalous if the defendants could be convicted under that Act of an offense for which they could not be convicted in a California court. We do not agree. The Assimilative Crimes Act creates a federal offense; it refers to the California statutes for its definition and its penalty, 3 but it does not incorporate the whole criminal and constitutional law of California. 4 In a federal court, the question of whether evidence was unlawfully obtained, and should therefore be excluded, is a federal question. We look, then, to the Constitution of the United States, not that of California. A decision of the Supreme Court of California, construing the Constitution of the United States, while entitled to great respect, is not binding upon the federal courts.

Our question then is, does the Fourth Amendment forbid what was done here? We hold that it does not, on two alternative grounds: (1) If the ranger's conduct was a 'search,' appellants impliedly consented to it by doing what they did where they did it, and (2) there was no

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'unreasonable search' within the meaning of the amendment.

1. The District Judge, after hearing the testimony and examining photographs of the stalls, received in evidence as exhibits, reached the following conclusion:

'* * * I looked at the pictures and I think that there is something that we have got to consider here in the physical set-up of this bathroom and the physical characteristics of these doors. Mr. Porterfield in his argument referred to the train lobby observation point where the con man was witnessed making evidently some fast change and the Court held that he was out in the public when he was under surveillance, and, nevertheless, this was not an invasion of his privacy, and I attempted to distinguish that situation from that of where the person is in the extreme privacy of a lavatory, and that on the one hand he expects the whole world to see what he is doing, whereas, in the privacy of a toilet, he could not expect the whole world to see what he was doing. But viewing these pictures, a great deal of the privacy is taken out of these toilet stalls by the fact that they're wide open for three feet at the top and they're wide open for approximately 18 inches at the bottom. They are almost public. When a person goes into a stall of this type, the only reason for that door, in my opinion, is to shield the person who uses the lavatory from the very intimate details. When Mr. Twight could testify from out in the lobby that he could tell whether the man had his pants up or down in the customary fashion, a great deal of the privacy certainly is gone from the transaction that the person went in there to consummate.'

We agree. Confining our ruling to the facts of this case, we think that, when people resort to such a public toilet for criminal purposes, they deliberately take the chance that they may be observed by police officers, and that they are not protected from such observation, whether...

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