People v. Norton

• Decision Date: 31 October 1962
• Docket Number: Cr. 4126
• Citation: 25 Cal.Rptr. 676,209 Cal.App.2d 173
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Lynn Walter NORTON, Defendant and Appellant.

Page 676

25 Cal.Rptr. 676

209 Cal.App.2d 173

PEOPLE of the State of California, Plaintiff and Respondent, v. Lynn Walter NORTON, Defendant and Appellant.

Cr. 4126.

District Court of Appeal, First District, Division 1, California.

Oct. 31, 1962.

Hearing Denied Dec. 26, 1962.

Michael Lewton, Noel D. Martin, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., John S. McInerny and John F. Foran, Deputy Attys. Gen., San Francisco, for respondent.

SULLIVAN, Justice.

Lynn Walter Norton and Franklin Delano Strong were convicted, after a nonjury trial, of violating section 288a of the Penal Code. The trial court sentenced both defendants to imprisonment, suspended the execution of such sentence, thereupon placed both defendants on probation and ordered them to pay a fine. Norton alone appeals from the judgment of conviction.

Appellant's sole contention here is that the evidence upon which he was convicted was obtained by an illegal search and in violation of the constitutional guarantees of his privacy. (U.S.Const. 4th and 14th Amends.; Const. art. I, § 19.) He relies entirely on Bielicki v. Superior Court (1962) 57 A.C. 647, 21 Cal.Rptr. 552, 371 P.2d 288, urging that Bielicki is practically identical with the case before us and requires a reversal of the judgment herein. We have concluded, however, that the instant case is distinguishable from Bielicki on its facts, that the evidence complained of was admissible and that the judgment should be affirmed.

The only witness at the trial was Officer Yasinitsky of the San Francisco Police Department's so-called sex detail. He was produced by the prosecution. Neither of the defendants testified or called witnesses in defense. Officer Yasinitsky testified that on the day of the arrest he was assigned to duty at the Paris Theatre. He was stationed in the men's restroom of the theatre and while within the men's room proper, had secreted himself behind a marble partition separating part of the room from the other. This marble partition was the back wall of two toilet stalls, themselves separated by a marble partition. On the opposite side of the men's room and directly in front of the toilet stalls were urinals. From his position behind the partition, the officer was able to keep the general area under surveillance by the use of several 'observation holes' which had been cut through the marble.

The toilet stall in which the offense was committed was enclosed on three sides only--by a partition on the right, by a wall of the theatre on the left, and in the rear by the wall or marble partition through which Officer Yasinitsky was making his observations. On the fourth side or front of the stall facing the urinals, the toilet door had been removed so that the stall was completely exposed and a person in the men's room proper could see into it.

While stationed behind the above marble partition, Officer Yasinitsky saw the defendant Strong enter and occupy the above toilet stall which was almost directly in front of the officer's observation post. The appellant who had just entered the men's room, at first used one of the urinals and then entered the toilet stall occupied by Strong where the act proscribed by section 288a then took place. ¹ The officer then came out from his hiding place and arrested both defendants.

Appellant's objection to the above testimony 'on the grounds that it is an invasion of the right of privacy and therefore a violation of due process' was overruled. His motion to strike the testimony on the same grounds was denied.

Contrary to appellant's claim, the instant case is not factually identical with Bielicki v. Superior Court and is not controlled by the holding of the Supreme Court in the latter case. In Bielicki, the police had been authorized by the owner of an amusement park to go on the roof of a building housing pay toilets in order to keep the toilet area under surveillance for possible homosexual activity. A pipe had been installed in the roof through which an observer could see the toilet stalls below and some of the activities of their occupants. Through this pipe, a police officer observed the petitioners, each in one of the stalls, committing a violation of section 286 of the Penal Code through a hole in the partition between the stalls. Prior to making such observation, the officer had never seen or known of the petitioners and 'had no grounds for believing or even suspecting that they had committed or were then committing any crime, or that they were occupying the booths for anything other than a lawful purpose.' (57 A.C. at p. 651, 21 Cal.Rptr. at p. 554, 371 P.2d at p. 290.) The Supreme Court granted a peremptory writ of prohibition holding that the above evidence was inadmissible because obtained as a result of 'a general exploratory search conducted solely to find evidence of guilt, a practice condemned both by federal law [citations] and by the law of this state [citations].' (57 A.C. at p. 651, 21 Cal.Rptr. at p. 554, 371 P.2d at p. 290.)

Thus, in our view, the-factual essence in Bielicki was the clandestine observation by the police of a place which by its very physical appointments provided privacy to its occupant. Bielicki condemned such conduct by the police because they 'observed activities of petitioners which no member of the public could have seen, as they were carried on within the confines of toilet booths each enclosed by three walls and a door. * * *

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