People v. Abate

• Decision Date: 09 April 1981
• Docket Number: Docket No. 52381
• Citation: 306 N.W.2d 476,105 Mich.App. 274
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Dante ABATE, Defendant-Appellant. 105 Mich.App. 274, 306 N.W.2d 476
• Court: Court of Appeal of Michigan — District of US

Page 476

306 N.W.2d 476

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Dante ABATE, Defendant-Appellant.

Docket No. 52381.

105 Mich.App. 274, 306 N.W.2d 476

Court of Appeals of Michigan.

April 9, 1981.

Released for Publication June 16, 1981.

[105 MICHAPP 275] Michael J. Murray, Mount Clemens, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Edward V. Boggs, Don L. Milbourn, Asst. Pros. Attys., for plaintiff-appellee.

Before KAUFMAN, P. J., and KELLY and CYNAR, JJ.

KELLY, Judge.

Defendant-appellant, Michael Dante Abate, appeals by leave granted a decision of the trial court denying his motion to quash an information charging him with a violation of M.C.L. § 750.539d; M.S.A. § 28.807(4). The statute prohibits the installation or maintenance of devices designed for [105 MICHAPP 276] secret observations of persons in private places. The defendant raises three issues.

The disputed information resulted from the defendant's installation of two "two-way" mirrors over the women's restroom of defendant's roller skating rink. Defendant admitted installing the mirrors, allegedly to guard against vandalism. At the preliminary examination, defendant testified that similar mirrors were used in the men's restroom and that female employees observed the women's restroom and male employees observed the men's restroom. In the women's restroom, one of the mirrors was located above the "common" part of the restroom, that part containing sinks, real mirrors, etc. The mirror which the examining judge found as evidence of the violation was located directly above one of the three stalls in the restroom. Apparently, an observer behind the two-way mirror could view the activities in all three stalls. Each stall was constructed in a normal fashion for public restrooms. The back of the stall was the room wall, two partitions were sides and the door could be latched. The door and one or more of the sides of each stall extended from about 14 inches off the ground, to a point where a person of average height could not readily see over the top. The complaining witness stated that someone could "pull themselves up on the partition" and look in, or stand on the toilet bowl in the adjoining stall and peer over the partition. Small gaps (described as "hairline cracks" by the complaining witness) between the door and partition might also allow a person putting their eye near the crack to see inside.

The defendant first alleges that M.C.L. § 750.539d; M.S.A. § 28.807(4) does not prohibit the installation of observation devices like those herein. The statute provides:

[105 MICHAPP 277] "Any person who installs in any private place, without the consent of the person or persons entitled to privacy there, any device for observing, photographing, or eavesdropping upon the sounds or events in such place, or uses any such unauthorized installation, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both."

Defendant admits installing the viewing device, but claims that the stall of his public restroom was not a "private place" within the meaning of the statute. The Legislature defined "private place" for the purposes of the statute:

"As used in section 539a to 539i:

" 'Private place' means a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance but does not include a place to which the public or substantial group of the public has access." M.C.L. § 750.539a(1); M.S.A. § 28.807(1)(1).

Thus, to qualify as a private place protected from surreptitious visual entry, the area must be one in which a reasonable person would expect not to be disturbed by the appearance of another person or be subject to surveillance. The area also must not be one to which the general public has access. We address each of the three factors relating to the statutory definitions:

I

A. "Safe from casual or hostile intrusion ".

This statutory language has not been interpreted by Michigan courts. However, in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court discussed the related area of expectations of privacy against intrusions by the government:

[105 MICHAPP 278] "Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude." Rakas v. Illinois, supra, 143, fn. 12, 99 S.Ct. 430.

See also Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The Rakas Court further did not exclude other bases to establish legitimate expectations of privacy.

In our view, an expectation of safety from casual or hostile intrusions, in the above statute, arises in much the same situations as does an expectation of privacy protected under the Fourth Amendment. U.S.Const., Am. IV. Thus, in the instant case, the complaining witness's limited ability to exclude others from the partially enclosed toilet stall during the time in which it was occupied would indicate some expectation of safety from intrusion. Testimony at the preliminary examination revealed that an occupant of the toilet stall could be viewed by someone who got on the floor and peered under the door or partition, stood on the toilet bowl in the adjoining stall or put their eye up to the "hairline cracks" between the door and partitions. These methods of intruding on the occupant's privacy might be fairly characterized as "hostile intrusions", but certainly not as "casual intrusions". The design of the stall is specifically intended to keep an occupant free from casual intrusions. As such, the stall in question, when closed and locked, would meet this first statutory requirement of finding a "private place".

[105 MICHAPP 279] B. "Safe from * * * surveillance ".

The definition of surveillance is also provided by statute. M.C.L. § 750.539a(3); M.S.A. § 28.807(1)(3) states:

" 'Surveillance' means to secretly observe the activities of another person for the purpose of spying upon and invading the privacy of the person observed".

We have already concluded that a user of the stalls in defendant's ladies room has a reasonable expectation that casual intrusions will not occur. While this expectation does not extend to all possible intrusions, we believe that a person using defendant's facilities may reasonably expect to be protected from secret observations during the period of the stall's use.

C. "Not * * * a place to which the public or a substantial group of the public has access ".

The word "access" has been defined as the "ability or permission to approach, enter, speak with, or use; admittance". The Random House Dictionary (unabridged ed), p. 8. The testimony below indicated that once a person enters the public restroom stall and closes and latches the door, any "access" which the public might have had is cut off. Under this interpretation, the enclosed stall is again a private place under the statute, during the period in which it is used. ¹

[105 MICHAPP 280] In People v. Hunt, 77 Mich.App. 590, 259 N.W.2d 147 (1977), this Court addressed a case bearing some factual similarity to the instant case. In Hunt, the Court discussed the defendant's claim of a reasonable expectation of privacy in a gas station restroom. The restroom was occupied by the defendant and a companion for about 30 minutes when, after being called by the station proprietor, police entered and found the defendant using heroin. The Court adopted the rationale expressed in Kirsch v. State, 10 Md.App. 565, 568-569, 271 A.2d 770, 772 (1970):

"That there may be circumstances, as in Brown, (Brown v. State, 3 Md.App. 90 238 A.2d 147 (1968)), where a person is afforded Fourth Amendment protection from unwarranted governmental intrusion into particular areas within a public rest room, does not mean that an individual who may intend to avail himself of exclusive occupancy of the whole of such a public facility is thereby constitutionally insulated for as long as he wishes from unwelcome scrutiny of his actions. See Bielicki v. Superior Court, (57 Cal.2d 602, 21 Cal.Rptr. 552) 371 P.2d 288 (1962); Britt v. Superior Court, (58 Cal.2d 469, 24 Cal.Rptr. 849) 374 P.2d 817 (1962); State v. Bryant, (287 Minn. 205) 177 N.W.2d 800 (1970), and cases cited therein. Compare Smayda v. United States, 352 F.2d 251 (CA 9 (1966)), cert. den., 382 U.S. 981, (86 S.Ct. 555, 15 L.Ed.2d 471 (1966)); Mitchell v. State, (120 Ga.App. 447) 170 S.E.2d 765 (1969). Assuming it not unreasonable for a person given the key to a rest room in a gas station to expect a measure of privacy therein, that expectation of privacy is necessarily limited to that which is justifiable and reasonable; and what that encompasses depends upon and is controlled by the [105 MICHAPP 281] circumstances of each case. At best, the expectation of privacy in a free rest room facility, or any part of it, which is intended to be accessible for public use cannot be other than temporary. And where, as in the present case, the facility was plainly designed to permit multiple usage by members of the public who might be granted admittance thereto by keys controlled by the proprietor, no reasonable person would be justified in expecting absolute privacy in, or exclusive use of, the whole of such a facility, particularly where the length of such occupancy and use far exceeded, as here, normally permissible limits. Cf. Mancusi v. DeForte, (392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968)). Without question,...