Liebman v. State

• Decision Date: 11 May 1983
• Docket Number: Nos. 64684,64685,s. 64684
• Citation: 652 S.W.2d 942
• Parties: Lawrence Britton LIEBMAN, Appellant, v. The STATE of Texas, Appellee. Norman Dale BLOOMER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 942

652 S.W.2d 942

Lawrence Britton LIEBMAN, Appellant, v. The STATE of Texas, Appellee.

Norman Dale BLOOMER, Appellant, v. The STATE of Texas, Appellee.

Nos. 64684, 64685.

Court of Criminal Appeals of Texas,

En Banc.

May 11, 1983.

Rehearing Denied July 20, 1983.

Kim K. Day, Dallas, for appellants.

Henry Wade, Dist. Atty. and Jeffrey Keck, Catherine Crier and Richard Aguire, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Attys., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

Before us are appeals from convictions for public lewdness ¹ in which the trial court assessed each appellant's punishment at a fine of $500.00 and 90 days, probated.

As we understand the contentions on appeal, the sufficiency of the evidence to support the convictions is not assailed. However, both appellants contend the incriminating evidence introduced against them was obtained as a result of warrantless searches not based on probable cause.

Briefly, that evidence established that on August 3, 1979, in the Paris Adult Theatre, appellant Bloomer entered booth 14 and appellant Liebman entered adjacent booth 15 of the coin operated movie arcade section. This was observed by Dallas Vice Control Division Officers Przywara, Thomas and Sanders.

According to Przywara, what really drew the officers' attention to appellants was that they entered one of the theatre's five adjoining pairs of booths, ² through which a large hole had been cut at approximately waist high on the common wall. These "glory holes" (socalled in adult book store parlance) were, according to Przywara, commonly used by patrons to engage in sexual conduct with the patron in the neighboring booth.

Having observed the appellants enter the suspected booths and close the respective doors thereto, Pryzwara and Thomas, leaving Sanders in the hall, set out to confirm their suspicions; they entered booth 13 together, closed the door then took turns looking over the seven foot wall at appellant Bloomer. In order to accomplish this, the officers stood on each other's cupped hands. Pryzwara testified that when he looked into adjoining booth 14, he saw Bloomer, with his "body in the approximate location of the glory hole," standing "flushed against the wall with his hands out ... and his waist and entire body appeared to be flushed with the wall. That was the common wall that had the hole in it, facing booth number 15."

Next the officers entered booth 16, again closing the door behind them to exclude intruding eyes. They repeated the sequence of boosting one another in order to effect a view into adjoining booth 15. Pryzwara testified that when he looked into booth 15, he "observed Mr. Liebman ... seated on a bench with his hands in skin contact with the penis ³ that was stuck through the wall from booth 14 into booth 15 and he was masturbating this penis in a vigorous manner." Considerately waiting for appellants to exit the booths, the officers arrested them at that time.

I. PUBLIC PLACE?

Appellants contend that the trial court erred in "finding the booths in which [they] were observed were public and thus, that the [searches of them] were legal and reasonable."

We first observe that a finding that a place is "public," is not a sine qua non of concluding that one has no reasonable expectation of privacy in that place. Conversely, neither is it indispensable to concluding one has a reasonable expectation of privacy in a place, that the place is "nonpublic" or "private." This verity was most succinctly acknowledged by the Supreme Court of the United States in Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967):

"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." [Citations omitted] ⁴

Thus, while the sufficiency of the evidence to establish the offenses alleged here is dependent upon the State's proving appellants committed the culpable acts in a "public place," the public or private nature of the place is by no means determinative of the Fourth Amendment issues presented. E.g., Cammack v. State, 641 S.W.2d 906 (Tex.Cr.App.1982); see also Kirtley v. State, 585 S.W.2d 724, 725, n. 4 (Tex.Cr.App.1979) ; and Resnick v. State, 574 S.W.2d 558 (Tex.Cr.App.1978). ⁵

If appellants' contention can be construed to claim the evidence is insufficient to show booths 14 and 15 of the Paris Theatre were "public places" within the meaning of § 21.07, supra, it is without merit.

V.T.C.A. Penal Code, § 1.07(a)(29) defines "public place" in relevant part: "any place to which the public or a substantial group of the public has access and includes ... the common areas of ... shops." We hold the booths in question are what was contemplated by the Legislature to be a "public place." Cammack, supra; Resnick, supra; Green v. State, 566 S.W.2d 578 (Tex.Cr.App.1978). This ground of error is overruled.

II. REASONABLE EXPECTATION OF PRIVACY?

A determinative issue we confront is whether the officers' conduct in boosting one another to the only vantage points from which appellants could be observed constituted "searches" within the meaning of the Fourth Amendment to the Constitution of the United States. ⁶ The State correctly observes that this issue depends on whether each appellant can claim a "reasonable" expectation of privacy which has been invaded, and which entitles him to the protection of the Fourth Amendment.

A. SUBJECTIVE EXPECTATION

It is well settled by now that this inquiry embraces two discrete questions, the first of which requires a determination of whether the individual has shown that he seeks to preserve something as private; Katz, supra; or restated, whether, by his conduct he has exhibited an actual or subjective expectation of privacy. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

1. DESIGN OF THE VIEWING BOOTH

While the design of the "place" in which appellants were observed by the officers is important, see Green, supra; Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971), its relevance is in reflecting the inherent opportunity the individual had for privacy in the "place" and the steps he actually took to avail himself of that opportunity.

"But [an] effort to decide whether or not a given 'area,' viewed in the abstract, is 'constitutionally protected' deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. * * * [And what a person] seeks to preserve as private even in an area accessible to the public, may be constitutionally protected."

Katz v. United States, supra, 389 U.S. at 351, 88 S.Ct. at 511.

In this case, appellants entered booths constructed of plywood walls and a door, all of which were approximately seven feet high. The design of each of the 50 booths was such that, by placing a quarter in a slot, a movie would be projected onto the inside of the door where there was a projection screen. It was Officer Przywara's testimony that, with the door closed, no one could see "into the booths through a crack in the door." "Most of [the booths] do have locks." ⁷ The tops of all the booths were open, and "anyone can look over the tops."

2. APPELLANTS' CONDUCT EXHIBITING THEIR EXPECTATION

When appellants entered the booths in question, they "closed the door completely," even though, according to Przywara, it is not necessary to completely close the door in order to view the film. The officer testified that unless one were standing on something, or over seven feet tall, he could not see into other booths.

Accordingly, it is clear that a person would have a subjective expectation of privacy under the circumstances and conditions described. As Judge Douglas reasoned for the Court in Buchanan, supra, at 404:

"A toilet stall in a public restroom is private to the extent it is offered to the public for private, however transient, individual use. Britt v. Superior Court, 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817. The occupants are entitled to the modicum of privacy its design affords. Brown v. State, 3 Md.App. 90, 238 A.2d 147.

Similarly, the 3 1/2' X 4' booths in the Paris Theatre were offered to the public, including appellants, for private, however transient use. Appellants apparently took all steps possible to exclude others from the booths.

B. WAS THIS SUBJECTIVE EXPECTATION JUSTIFIABLE UNDER THE OBJECTIVE CIRCUMSTANCES?

The second question in determining whether a "search" occurred requires an inquiry into whether appellants' subjective expectations of privacy were such that society is prepared to recognize them as "reasonable," or, stated another way, whether appellants' expectations, viewed objectively, were "justifiable" under the circumstances. Smith v. Maryland, supra.

Officer Przywara testified that when he entered the booth next to the one occupied by Bloomer he did "definitely not" expect to have privacy from persons who might look at him over the top of the walls; however, he closed the door so he would not be observed from the hall:

"[Shutting the door] would keep ourselves from being, what in our terminology is called burned. In other words, our undercover capacity being blown by other individuals who might be walking by in the halls."

Asked why (if persons looking at each other over the seven foot wall were such a common or expected occurrence in the Paris Theatre) he was afraid other patrons would think anything out of the ordinary about seeing him and his partner lifting one another for a view into the adjacent booth, Przywara was constrained to concede patrons would immediately suspect he and his partner were police. He then modified his testimony to the extent that "people could look over the tops. Anyone can look over the tops." Thus it appears that the...