People v. Triggs

• Decision Date: 22 February 1973
• Docket Number: Cr. 16486
• Citation: 106 Cal.Rptr. 408,506 P.2d 232,8 Cal.3d 884
• Court: California Supreme Court
• Parties: , 506 P.2d 232 The PEOPLE, Plaintiff and Respondent, v. Leroy TRIGGS, Defendant and Appellant. In Bank

Page 408

106 Cal.Rptr. 408

8 Cal.3d 884, 506 P.2d 232

The PEOPLE, Plaintiff and Respondent, v. Leroy TRIGGS, Defendant and Appellant.

Cr. 16486.

Supreme Court of California,

In Bank.

Feb. 22, 1973.

Herbert M. Porter and Barry T. Simons, Laguna Beach, for defendant and appellant.

A. L. Wirin, Fred Okrand and Laurence R. Sperber, Los Angeles, as amici curiae on behalf of defendant and appellant.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby and Edward A. Hinz, Jr., Chief Asst. Attys. Gen., William E. James, Asst. Atty. Gen., James H. Kline and Douglas B. Noble, Deputy Attys. Gen., for plaintiff and respondent.

WRIGHT, Chief Justice.

Defendant appeals from a judgment (order granting probation) of conviction of oral copulation. (Pen.Code, § 288 a.) ¹ The sole witness at the preliminary hearing was the arresting officer, who testified as to his observations of defendant from a clandestine vantage point. Defendant made timely objection to the admissibility of the officer's testimony. Following denial of his motion to dismiss the information (§ 995) defendant waived jury trial and agreed to the submission of the case on the evidence appearing in the transcript of the preliminary hearing. ² Defendant was found guilty and was placed on probation. Among the conditions prescribed in the order granting probation were that defendant serve 30 days in the county jail and pay a fine of $300. He was released on his own recognizance (§ 1318) pending disposition of his appeal.

Defendant's sole allegation of error on appeal is the failure to suppress the arresting officer's testimony, which he contends was the intangible fruit of an illegal search and hence was admitted into evidence in violation of his rights under the United States Constitution (Fourth and Fourteenth Amendments) and the California Constitution (art. I, § 19). We conclude that the evidence used to convict defendant must be suppressed.

On the afternoon of December 19, 1970, Los Angeles Police Officer Richard Aldahl was on plainclothes patrol in Arroyo Seco Park in the City of Los Angeles. Accompanying Officer Aldahl were two fellow plain-clothed officers. Officer Aldahl observed defendant enter the men's room in the park. About 10 minutes later, David Crockett was observed entering the same men's room. Defendant had not yet reappeared. About five minutes after Crockett's entrance into the men's room, the three officers entered the 'plumbing access area' of the park's rest room building. ³ From a vantage point connected with this area Officer Aldahl was able to observe defendant orally copulating Crockett, while both Crockett and defendant were within a doorless toilet stall. ⁴

Officer Aldahl testified at the preliminary hearing that he had entered the plumbing access area at the park about 50 times for the purpose of ascertaining if any criminal conduct was occurring in the adjacent men's room. Other than entering the rest room at a 10-minute interval, a circumstance the officer had seen many times before in an innocent context, neither defendant nor Crockett had committed any suspicious acts. Officer Aldahl agreed with defense counsel that he had entered the plumbing access area on this occasion 'to make an observation in case there was a crime committed.'

This court last considered the legality of clandestine rest room observations by policemen in 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 Bielicki, a policeman used a pipe running through the ceiling to the roof to observe homosexual conduct inside the fully-enclosed stall of a pay toilet in an amusement park rest room. The pipe had been installed purely for observational purposes in response to the park owner's complaint to the vice squad. The policeman's observation in Bielicki was held by unanimous court to be a search. We held that such constituted a search because only by means of the clandestine vantage point had the policeman 'secretly 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.' It was 'undisputed that the activities of petitioners witnessed by (the arresting officer) were not 'in plain sight' or 'readily visible and accessible' . . ..' (57 Cal.2d at p. 607, 21 Cal.Rptr. at p. 555, 371 P.2d at p. 291.) We further held that the search was unreasonable because the officer had begun his observations on the night in question with 'no reasonable cause to arrest these petitioners. . . . (H)e spied on innocent and guilty alike. Such a practice amounts to a general exploratory search conducted solely to find evidence of guilt, a practice condemned both by federal law (citations omitted) and by the law of this state (citations omitted).' (57 Cal.2d at pp. 605--606, 21 Cal.Rptr. at p. 554, 371 P.2d at p. 290.)

Lest Bielicki receive too restrictive a reading this court, again acting unanimously, decided Britt five months after Bielicki. The facts in Britt were substantially identical to those presented in the case at bench. The arresting officer had been stationed in the space between the ceiling of a department store rest room and the floor above. He was able to look down through two vents in the ceiling upon the toilet stalls in the men's room below. Each stall was enclosed by partitions and a door, but the enclosures stopped 8 to 12 inches from the floor. The arresting officer observed from his position an act of oral copulation by Britt and his codefendant who occupied adjacent stalls and committed the crime from kneeling positions through the gap between the partitions and the floor.

The People attempted to distinguish Britt from Bielicki on three points: first, the vents in Britt through which the officer peered had originally been installed for a legitimate purpose; second, the toilets in Britt were free rather than pay toilets; and third, the activities observed in Britt were in 'plain view' because of the gap between the partitions and the floor. These arguments were rejected: 'The crucial fact in Bielicki was neither the manner of observation Alone nor the place of commission Alone, but rather the manner in which the police observed a place--and persons in that place--which is ordinarily understood to afford personal privacy to individual occupants.' (58 Cal.2d at p. 472, 24 Cal.Rptr. at p. 851, 374 P.2d at p. 819.)

Because the decisions in Bielicki and Britt were justified in part as protecting 'expectations of privacy,' several subsequent appellate decisions have treated the presence or absence of a door to a toilet stall in which criminal conduct occurs as determinative of the legality of clandestine observation of that stall. Under such a concept of the law, it was reasoned that there is a presumption that conduct which Could have been viewed by an officer from a place where the public had a right to be Could not reasonably have been expected to be private. Language to the contrary in Britt which placed as much emphasis on the Means of observation as on the place observed has been disregarded and Bielicki has been limited to its facts in this line of cases. (People v. Crafts (1970) 13 Cal.App.3d 457, 91 Cal.Rptr. 563; People v. Heath (1968) 266 Cal.App.2d 754, 72 Cal.Rptr. 457; People v. Roberts (1967) 256 Cal.App.2d 488, 64 Cal.Rptr. 70; People v. Maldonado (1966) 240 Cal.App.2d 812, 50 Cal.Rptr. 45; People v. Hensel (1965) 233 Cal.App.2d 834, 43 Cal.Rptr. 865; People v. Young (1963), 214 Cal.App.2d 131, 29 Cal.Rptr. 492; People v. Norton (1962) 209 Cal.App.2d 173, 25 Cal.Rptr. 676.)

In Crafts, the last of these 'doorless stall' cases, the court concluded that denials of petitions for hearings by this court of such cases indicated our acquiescence in their results and our consequent retreat from Britt. Crafts was the principal authority relied upon by the court below in denying defendant's motion to suppress.

Preliminarily we declare that our refusal to grant a hearing in a particular case is to be given No weight insofar as it might be deemed that we have acquiesced in the law as enunciated in a published opinion of a Court of Appeal when such opinion is in conflict with the law as stated by this court. Our statements of law remain binding on the trial and appellate courts of this state (People v. McGuire (1872) 45 Cal. 56, 57--58; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937) and must be applied wherever the facts of a case are not fairly distinguishable from the facts of the case in which we have declared the applicable principle of law. Our refusal to grant a hearing in any given case must not be deemed a sub silentio overruling of our prior decisions. 'The significance of such refusal is no greater than this--that this court does not consider that the interests of justice, or the purposes for which the power (to grant a hearing) was given, require its exercise in the particular case.' (People v. Davis (1905) 147 Cal. 346, 350, 81 P. 718, 720; see also Cole v. Rush (1955) 45 Cal.2d 345, 351, fn. 3, 289 P.2d 450.)

The People here urge us to hold that clandestine observation of doorless stalls in public rest rooms is not a 'search,' and hence is not subject to the Fourth Amendment's prohibition of unreasonable searches. This would permit the police to make it a routine practice to observe from hidden vantage points the rest room conduct of the public whenever such activities do not occur within fully enclosed toilet stalls and would permit spying on the 'innocent and guilty alike.' Most persons using public rest rooms have no reason to suspect that a hidden agent of the state will observe them. The expectation of privacy a person has when he enters a rest room is reasonable and is not diminished or destroyed because the toilet stall being used lacks...