Poole v. State

• Decision Date: 31 January 1992
• Citation: 596 So.2d 632
• Parties: David Lawrence POOLE v. STATE. CR 90-699, CR 90-1156.
• Court: Alabama Court of Criminal Appeals

Page 632

596 So.2d 632

David Lawrence POOLE v. STATE.

CR 90-699, CR 90-1156.

Court of Criminal Appeals of Alabama.

Jan. 31, 1992.

Rehearing Denied March 13, 1992.

Cecil M. Matthews, Guntersville, for appellant.

James H. Evans, Atty. Gen., and Jack W. Willis, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, David Lawrence Poole, was charged in five separate indictments with the production of obscene matter depicting persons under seventeen years of age involved in obscene acts, in violation of Ala.Code 1975, § 13A-12-197. Four of these indictments were consolidated for trial and a jury convicted the appellant on all four charges. He was sentenced as an habitual offender to imprisonment for life on each of the four convictions, with the sentences to run consecutively. The appellant subsequently pleaded guilty to the fifth indictment, although he preserved his right to appeal certain issues. He was also sentenced to imprisonment for life on that conviction, with the sentence to run concurrently with the life sentence imposed on one of the jury convictions.

Two separate appeals have been filed with this Court. One appeal (CR-90-699) pertains to the four cases tried before a jury, the other (CR-90-1156) concerns the issues preserved when the appellant pleaded guilty to the fifth indictment. Because the facts and issues in these appeals are intertwined, we have elected to dispose of both appeals with one opinion.

On August 11, 1989, the Rainsville Police Department received a telephone call concerning a video camera in the men's rest room of the Rainsville Skating Rink, the appellant's place of business. Officers dispatched to the scene observed a video camera behind a vent grill in the ceiling of the men's rest room. The officers removed this camera and found that it was attached to a coaxial cable leading to the appellant's trailer, which was located some twenty feet from the skating rink. The next day, the officers obtained a search warrant for the appellant's trailer. During the search of the trailer, the officers seized a number of video cassette tapes. Four of these tapes form the basis for the indictments in cases CC-89-444, -524, -525, and -527, which were consolidated for trial. The video tape contained in the camera seized from the rest room of the skating rink is the basis of the indictment in CC-89-526, to which the appellant pleaded guilty.

I

In both appeals, the appellant asserts that the trial court erred in denying his motion to suppress the video camera and the video tape contained therein that were seized without a warrant from the rest room of the skating rink.

It appears from the record in CR-90-699 that the camera was first seen and reported by a patron or patrons of the skating rink. Rainsville police officers were then dispatched to the skating rink. Officer Mark Hawes testified at the suppression hearing that he went into the men's rest room where he observed a video camera "up in the ceiling." R. 59 (CR-90-699). When asked to describe the location of this camera, Officer Hawes responded, "There was a vent covered by a, sort of like a grate, and the camera was up above that." Id. ¹ Officer Hawes stated that he could "see the camera from just being inside the rest room looking up through that grate." Id. When the prosecutor asked, "Did you have to move anything or put anything aside in order to see that camera if you knew where you were looking," Hawes responded, "No, sir." Id. at 59-60.

The appellant maintains that he had a reasonable expectation of privacy in the skating rink rest room, and that, therefore, a warrant was required before the officers could seize the camera and the video tape that it contained. He also asserts that "[t]he fact that the camera was 'hidden' clearly demonstrates [his] expectation of privacy in its existence." Appellant's brief at 18 (CR-90-699); Appellant's brief at 23 (CR-90-1156).

It has long been recognized "that the Fourth Amendment's prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes. An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable." New York v. Burger, 482 U.S. 691, 699, 107 S.Ct. 2636, 2642, 96 L.Ed.2d 601 (1987) (citations omitted). However, "a business operator has a reasonable expectation of privacy only in those areas from which the public has been excluded." United States v. Dunn, 480 U.S. 294, 316, 107 S.Ct. 1134, 1147, 94 L.Ed.2d 326 (1987) (Brennan, J., dissenting) (footnote omitted) (emphasis added). See Maryland v. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370 (1985) (defendant had no "reasonable expectation of privacy in areas of the store where the public was invited to enter and to transact business"); See v. City of Seattle, 387 U.S. 541, 545, 87 S.Ct. 1737, 1740, 18 L.Ed.2d 943 (1967) ("administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled ... within the framework of a warrant procedure").

It is clear that the appellant in this case had no reasonable expectation of privacy in the rest room utilized by the male patrons of his skating rink. Nor is there any merit to his argument that the camera was "hidden," thereby creating an expectation of privacy in the camera. Officer Hawes' testimony at the suppression hearing clearly establishes that the camera was not "hidden." Hawes stated that he could "see the camera from just being inside the rest room looking up through that grate." R. 59 (CR-90-699). He also testified, without objection, that he had interviewed the patrons of the skating rink the night the camera was found and that "[t]he[re] had been many people that had seen [the camera] after the young man found it." Id. at 60. It is clear that, even though the camera was behind a vent grill, it was readily visible to a person standing in the rest room. Compare United States v. Irizarry, 673 F.2d 554, 559 (1st Cir.1982) (narcotics and weapon found above soundproofing panel in ceiling could not be seen by person standing on the bathroom floor).

In United States v. White, 890 F.2d 1012 (8th Cir.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3254, 111 L.Ed.2d 763 (1990), the court noted that even a public rest room stall "does not afford complete privacy, [as] an occupant of the stall would reasonably expect to enjoy [only] such privacy as the design of the stall afforded, i.e., to the extent that defendant's activities were performed beneath a partition and could be viewed by one using the common area of the restroom, the defendant had no subjective expectation of privacy, and, even if he did, it would not be an expectation of privacy which society would recognize as reasonable." 890 F.2d at 1015 (quoting People v. Kalchik, 160 Mich.App. 40, 407 N.W.2d 627, 651 (1987)). We find this observation equally applicable in the present case. The video camera, although behind a vent grill, could readily be seen by anyone in the rest room. While the appellant undoubtedly did not intend or anticipate that the camera would be observed or reported to the police, "[t]he concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities." United States v. Jacobsen, 466 U.S. 109, 122, 104 S.Ct. 1652, 1661, 80 L.Ed.2d 85 (1984). "The mere expectation that the possibly illegal nature of [one's activities] will not come to the attention of the authorities, whether because a customer will not complain or because undercover police will not transact business with the store is not one that society is prepared to recognize as reasonable." Maryland v. Macon, 472 U.S. at 469, 105 S.Ct. at 2782. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). By voluntarily placing the video camera in a portion of the business premises to which his patrons had ready access, the appellant "exposed" the camera to possible observation by patrons and thus assumed the risk that the camera's presence in the rest room would be reported to the police. Cf. Smith v. Maryland, 442 U.S. 735, 744, 99 S.Ct. 2577, 2582, 61 L.Ed.2d 220 (1979) (by using his telephone, defendant "assumed the risk that the [telephone] company would reveal to police the numbers he dialed"); United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 1624, 48 L.Ed.2d 71 (1976) (prior to the enactment of the Right to Financial Privacy Act, codified at 12 U.S.C. §§ 3401-3422 (1988), bank "depositor t[ook] the risk, in revealing his affairs to [a bank employee] that the information w[ould] be conveyed by that person to the Government").

Therefore, we conclude that the video camera was in "plain view" and that its discovery did not involve a "search."

"As a general proposition, it is fair to say that when a law enforcement officer is able to detect something by utilization of one or more of his senses while lawfully present at the vantage point where those senses are used, that detection does not constitute a 'search' within the meaning of the Fourth Amendment."

1 W. LaFave, Search and Seizure, § 2.2 at 320 (2d ed. 1987). "[I]f the police merely enter a rest room and see conduct occurring within a stall which is 'readily visible and accessible' to any member of the public who so enters, there is again no intrusion into a justified expectation of privacy." Id. § 2.4(c) at 440-41. "When law enforcement officers suspect that crimes are being perpetrated, they are as free to enter rest rooms as is any member of the public. Should they discover from a location open to the public the commission of...