People v. Dezek

• Decision Date: 04 June 1981
• Docket Number: 47342,50685 and 49827,48128,Docket Nos. 48011,50700
• Citation: 308 N.W.2d 652,107 Mich.App. 78
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John George DEZEK, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Eugene MEDEMA, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold THOMPSON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gifford Hall PLETCHER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lester G. KELLY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael D. PETRUSKA, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 652

308 N.W.2d 652

107 Mich.App. 78

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John George DEZEK, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Eugene MEDEMA, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold THOMPSON, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gifford Hall PLETCHER, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lester G. KELLY, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael D. PETRUSKA, Jr., Defendant-Appellant.

Docket Nos. 48011, 47342, 48128, 50700, 50685 and 49827.

Court of Appeals of Michigan.

June 4, 1981.

Released for Publication Aug. 5, 1981.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Gregart, Pros. Atty., Michael H. Dzialowski, Asst. Pros. Atty., for the People.

Richard R. Lamb, Kalamazoo, for defendant-appellant in No. 48128.

Franklin W. Schmiege, Kalamazoo, for defendant-appellant in No. 50700.

William R. Oudsema, Kalamazoo, for defendant-appellant in No. 50685.

William R. Farley, Grand Rapids, for defendant-appellant in No. 49827.

Steven L. Rayman, Kalamazoo, for defendant-appellant in No. 48011.

Stephen W. Burness, Kalamazoo, for defendant-appellant in No. 47342.

Before HOLBROOK, P. J., and V. J. BRENNAN and HOTCHKISS, ^* JJ.

PER CURIAM.

These consolidated cases arise out of police electronic surveillance of a men's restroom at a highway rest area. The surveillance was conducted pursuant to a search warrant which contained the following authorizations:

"A. Beginning at October 25, 1978 at 10:00 PM the visual and audio communications may be recorded as described herein.

"B. Communications between unknown males which are expected to be in the nature of solicitations for sexual activity. Further, any and all sexual activities performed between the males in the mens room of the next area located at the rest area on US-131 south of 'D' Avenue in Alamo Township, Kalamazoo County.

"C. Said conversations may include the statements of other persons present at the same time and place.

"D. Recording of these acts and conversations will be accomplished by the use of video and audio equipment located in the mens room at the rest area previously described in Section B.

"E. Said recordings shall terminate on November 1, 1978 at 11:59 P.M."

As a result of the surveillance, some 40 persons including these six defendants were arrested and charged with gross indecency between males, M.C.L. § 750.338; M.S.A. § 28.570. Each defendant herein moved to suppress the evidence obtained through the surveillance. In Medema, the circuit judge suppressed the evidence after holding that defendant had a reasonable expectation of privacy in the place searched, that there was not probable cause to issue the warrant, and that the warrant did not describe the things to be seized with sufficient particularity. In Dezek, the circuit judge suppressed the evidence after holding that there was no statutory authority for a warrant authorizing video surveillance and that defendant was not "forthwith" served with a copy of the warrant as required by M.C.L. § 780.655; M.S.A. § 28.1259(5). In Thompson, the circuit judge declined to suppress the evidence after holding that defendant had no reasonable expectation of privacy in the place searched. In Petruska, Kelly, and Pletcher, the circuit judge held that defendants had a reasonable expectation of privacy in the place searched but declined to suppress the evidence after holding that the search was conducted pursuant to a valid warrant. The people appeal of right in Medema and Dezek, while defendants appeal by leave granted in Thompson, Petruska, Kelly, and Pletcher.

I

The initial question we must address is whether defendants had a reasonable expectation of privacy in the place searched. See Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 511; 19 L.Ed.2d 576 (1967):

"(T)he Fourth Amendment protects people, not places. 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."

In concurrence, Justice Harlan observed:

"(T)here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'

"The critical fact in this case is that '(o)ne who occupies it, (a telephone booth) shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume' that his conversation is not being intercepted. * * * The point is * * * that it is a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable." Id., 361, 88 S.Ct. 516.

Testimony revealed that the men's rest room subject to the search warrant was a large room with one door leading to the outside. Within the room were several urinals and wash basins and four toilet stalls. The stalls were constructed of solid partitions elevated from the floor approximately 8-12 inches. The partition did not extend to the ceiling, but a five-foot eleven-inch man could not peer over its top. At the front of each stall was a door of the same height as the side partitions. The doors had been designed with latches, but the latching devices were broken or missing. Persons using the stalls, including defendants, would usually use small rolls of toilet paper wedged into the door cracks to hold the doors closed. A hole had been created in the common side partition between two of the stalls. The hole was approximately six inches in diameter (as stipulated by the parties in three of the cases; the only testimony concerning the size of the hole disclosed that it was six inches in circumference). It was located about waist high. It was alleged that the illegal acts were committed by one participant placing his penis through the hole while standing in one stall and the occupant of the other stall performing fellatio upon him. Surveillance of the two stalls was accomplished by installation of a needle-point video camera lens in the ceiling above the stalls. The lens was directly connected to a video camera situated above the ceiling panels which was connected by cables to a video tape recorder and a video monitor. The recorder and monitor were located in a room separate from the men's rest room. The audio surveillance was concentrated on the same two stalls but picked up most sound within the room. The video monitor provided continuous video and audio coverage of all activity within the two stalls. The sound was not recorded, but the video recorder was turned on by the officers when they observed through the monitor that sexual activity between males was about to occur in the stalls.

We hold that the bathroom stalls here, like the telephone booth in Katz, were temporarily private places whose momentary occupants' expectations of privacy are recognized by society as reasonable. See Bielicki v. Superior Court of Los Angeles County, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288 (1962); Britt v. Superior Court of Santa Clara County, 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817 (1962); Brown v. State, 3 Md.App. 90, 238 A.2d 147 (1968); State v. Bryant, 287 Minn. 205, 177 N.W.2d 800 (1970); Buchanan v. State, 471 S.W.2d 401 (Tex.Crim.App., 1971); People v. Triggs, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232, 234 (1973); and Kroehler v. Scott, 391 F.Supp. 1114 (E.D.Pa., 1975). See also People v. Abate, 105 Mich.App. 274, 306 N.W.2d 476 (1981), in which, under circumstances analogous to those presented here, the Court found a toilet stall in a public rest room at a roller skating rink to be a "private place" under M.C.L. § 750.539d; M.S.A. § 28.807(4). Compare also People v. Hunt, 77 Mich.App. 590, 259 N.W.2d 147 (1977), in which the Court expressly distinguished the instant situation while holding that defendant had no reasonable expectation of privacy. In Hunt, defendant and his female companion had taken exclusive occupancy of a public rest room for over 30 minutes, during which time moans were heard through the rest room door.

Some jurisdictions, while unprepared to recognize a reasonable expectation of privacy where defendant's activities were viewed from a common area of a restroom, nevertheless have indicated that such an expectation of privacy exists under other circumstances. See Buchanan, supra, and Moore v. Florida, 355 So.2d 1219 (Fla.App., 1978). In this case, reliance upon the visibility of defendant's activities from the common area of the rest room or through the hole to the adjacent stall is misplaced. In Katz, supra, the government argued that defendant placed the telephone calls which were recorded by the police from a glass telephone booth in which defendant was visible to the public. The Court rejected that argument, noting that defendant sought to exclude intruding ears rather than intruding eyes when he entered the booth. Thus Katz recognized that an expectation of privacy may be partial and yet receive constitutional protection. A stall such as that at issue here obviously does not afford complete privacy, but an occupant of the stall would reasonably expect to enjoy such privacy as the design of the stall afforded.

II

Since we hold that defendants had reasonable expectations of privacy in the place searched, and since no exigent circumstances are proffered for our consideration, the admissibility of the evidence turns on whether the district judge erred in issuing a search warrant. The judge issued the warrant based on affidavits of three members of the Kalamazoo County Sheriff's Department. Relevant portions of those affidavits are reproduced below. One...