State v. Berber

• Citation: 48 Wn.App. 583,740 P.2d 863
• Decision Date: 23 July 1987
• Docket Number: No. 7615-6-III,7615-6-III
• Parties: , 74 A.L.R.4th 491 STATE of Washington, Respondent, v. Francisco BERBER, Appellant.
• Court: Court of Appeals of Washington

Page 583

48 Wn.App. 583

740 P.2d 863, 74 A.L.R.4th 491

STATE of Washington, Respondent, v. Francisco BERBER, Appellant.

No. 7615-6-III.

Court of Appeals of Washington,

Division 3, Panel One.

July 23, 1987.

Victor H. Lara, Schwab, Kurtz & Hurley, Yakima, for appellant.

Jeffrey Sullivan, Pros. Atty., Donald Kresse, Deputy Pros. Atty., Yakima, for respondent.

MUNSON, Judge.

Francisco Berber appeals his conviction for possession of a controlled substance, contending the trial court erred in denying his motion to suppress the cocaine seized by the police. We affirm.

While engaged in a routine nightly "bar check," two officers from the Grandview Police Department entered the Past-Time Tavern in that city and proceeded to the men's restroom. The officers knew this restroom was an area where narcotics were commonly used.

The restroom consisted of one urinal, one toilet, and a wash basin, in that order as one enters. ¹ The urinal was separated from the toilet by a particle board partition extending 2 to 3 feet from the wall. Although the record does not reflect the height of the partition, it is evident the toilet was not enclosed. The urinal and the toilet were on one wall, while the wash basin was on an adjacent wall opposite the entrance.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

When the officers entered the restroom, one person was at the urinal. Mr. Berber aroused the officers' suspicions because, although standing over the toilet, his hands were positioned up around his chest. It appeared to the officers he was not using the facility for its common purpose. One of the officers, several inches taller than Mr. Berber, approached him from behind to within 2 inches and peered over his shoulder. He observed what he believed to be cocaine in Mr. Berber's left hand, enclosed in a cellophane container, which apparently was being ingested. The officer seized the cellophane package, the contents which proved to be cocaine, and placed Mr. Berber under arrest. This entire transaction--the officers entering the restroom, observing Mr. Berber, peering over his shoulder, and seizing the cellophane package--occurred almost instantaneously.

Mr. Berber was charged with possession of a controlled substance. He moved to suppress the cocaine, alleging that while at the toilet he had a legitimate expectation of privacy and the officer's glance over his shoulder constituted an impermissible warrantless search. The trial court held Mr. Berber had no reasonable expectation of privacy while standing over the toilet in this public restroom. The court denied the motion. Thereafter, both parties stipulated to the above facts at a bench trial; the court found him guilty; this appeal followed.

The fundamental issue is whether the officer's glance over Mr. Berber's shoulder while he stood over an open toilet in this public restroom constituted an unreasonable intrusion or search subject to the protections of Washington Constitution article 1, section 7. Mr. Berber asserts individuals in a public restroom retain a legitimate expectation of privacy, even at an unenclosed toilet. The State urges that the officer's observation of Mr. Berber, given these facts, is not a "search." Rather, the officer merely observed "public" conduct.

Const. art. 1, § 7 provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." This provision places greater emphasis on the privacy interests of individuals than the Fourth Amendment and, consequently, has been interpreted to provide greater protections to the privacy rights of Washington citizens than the Fourth Amendment. State v. Bell, 108 Wash.2d 193, 196, 737 P.2d 254 (1987); State v. Myrick, 102 Wash.2d 506, 510, 688 P.2d 151 (1984); State v. Nelson, 47 Wash.App. 157, 159, 734 P.2d 516 (1987). Notwithstanding this heightened protection, federal decisions validly continue to play a guiding role in our analysis of Const. art. 1, § 7. Myrick, 102 Wash.2d at 510, 688 P.2d 151. State v. Gunwall, 106 Wash.2d 54, 60-61, 720 P.2d 808 (1986) (citing State v. Hunt, 91 N.J. 338, 363 450 A.2d 952 (1982) (Handler, J., concurring)). Consequently, the following analysis relies in part upon decisions of the United States Supreme Court, as well as other courts' interpretations of the Fourth Amendment. However, we base our analysis and ultimate decision on the Washington Constitution. See Myrick, 102 Wash.2d at 510, 688 P.2d 151.

As noted, Const. art. 1, § 7 guarantees that individuals will be safe from unreasonable invasions of their private affairs. State v. Kennedy, 107 Wash.2d 1, 5, 726 P.2d 445 (1986); State v. Stroud, 106 Wash.2d 144, 167, 720 P.2d 436 (1986) (Durham, J., concurring); State v. Myrick, supra; State v. Simpson, 95 Wash.2d 170, 178, 622 P.2d 1199 (1980). A violation of this provision depends on whether the individual invoking its protection demonstrates a "legitimate" or "reasonable" expectation of privacy in a place or object that is invaded by governmental action. Cf. Stroud, 106 Wash.2d at 159, 167, 720 P.2d 436 (Durham, J., concurring) with Myrick, 102 Wash.2d at 510-11, 688 P.2d 151. Justice Durham, in her concurring opinion in Stroud, 106 Wash.2d at 159, 720 P.2d 436, states: "[O]ur court analyze[s] search and seizure issues in terms of a person's reasonable expectation of privacy. This is an objective 'reasonable man' standard, not a test of a person's subjective expectation of privacy." Moreover, Myrick, 102 Wash.2d at 510-11, 688 P.2d 151, provides:

Const. art. 1, § 7 analysis encompasses those legitimate privacy expectations protected by the Fourth Amendment, but is not confined to the subjective privacy expectations of modern citizens who, due to well publicized advances in surveillance technology, are learning to expect diminished privacy in many aspects of their lives. Rather, it focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.

(Citations omitted. Italics ours.)

It is unclear after Myrick and Stroud whether the 2-prong expectation of privacy test developed by the United States Supreme Court for purposes of Fourth Amendment analysis ² is to be retained under an art. 1, § 7 analysis. Nock, Seizing Opportunity, Searching for Theory: Article 1, Section 7, 8 U.Puget Sound L. Rev. 331, 366 (1984). See also Utter, Survey of Washington Search and Seizure Law, 9 U. Puget Sound L.Rev. 1, 19 (1985). In the absence of any clear indication from our Supreme Court as to applicability of the federal test, we will analyze search and seizure issues by reference to that test.

We assume Mr. Berber had a subjective expectation of privacy, so the first prong of the federal test is answered in the affirmative. However, under the second prong of the test is this expectation one that society is prepared to recognize as legitimate when analyzed according to an "objective 'reasonable man' standard"? Stroud, 106 Wash.2d at 159, 720 P.2d 436 (Durham, J., concurring); Myrick, 102 Wash.2d at 510, 688 P.2d 151. Cf. Oliver v. United States, 466 U.S. 170, 188, 104 S.Ct. 1735, 1746, 80 L.Ed.2d 214 (1984); Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). For purposes of art. 1, § 7 analysis, our examination of Fourth Amendment cases suggests several considerations which may profitably be utilized in making what is essentially the identical determination under our constitution. These considerations are: (1) society's belief that certain areas are ordinarily understood to afford personal privacy; (2) the character of the area in which the claimed privacy interest is asserted; (3) the way in which the area is used; and (4) the method, means, or manner by which the government agents intrude into the area. We do not mean to suggest these considerations are relevant in every article 1, section 7 case or that their mechanical application will lead to a "correct" result. Nonetheless, they are useful analytical tools in attempting to determine whether an individual's legitimate expectation of privacy has been invaded.

First, based upon widely accepted social norms, the area within an occupied toilet stall is properly characterized as "private." Occupants thereof ordinarily find it highly offensive to have their private parts and bodily functions exposed to law enforcement officers. See People v. Triggs, 8 Cal.3d 884, 106 Cal.Rptr. 408, 414, 506 P.2d 232, 238 (1973). Moreover, the fact a toilet or urinal is not completely shielded from public view does not necessarily destroy the expectation of privacy an occupant possesses. See, e.g., Kroehler v. Scott, 391 F.Supp. 1114, 1117 (E.D.Pa.1975); State v. Holt, 291 Or. 343, 630 P.2d 854, 857 (1981); Triggs, 506 P.2d at 236; Brown v. State, 3 Md.App. 90, 238 A.2d 147, 149 (1968) ("a person who enters an enclosed stall ... is entitled ... to the modicum of privacy its design affords"). Cf. Myrick, 102 Wash.2d at 513, 688 P.2d 151 (although "the language of Const. art. 1, § 7 precludes a 'protected places' analysis," the nature of the area into which intrusion took place is one factor in determining whether the intrusion is constitutional).

These expectations are strongest where the toilet in a public rest room is fully enclosed. See People v. Mercado, 68 N.Y.2d 874, 508 N.Y.S.2d 419, 421, 501 N.E.2d 27, 29 (1986). However, when viewed objectively, most citizens do not expect the same degree of privacy where the toilet in a public restroom is exposed to the public. Justice Durham, concurring in Stroud, 106 Wash.2d at 167, 720 P.2d 436, noted society as a whole possesses a diminished expectation of privacy in certain places. For example, a person's residence is a highly private place under most circumstances and gives rise to a legitimate expectation of privacy. See Const. art. 1, § 7 (home given special protection); State v. Holeman, 103 Wash.2d 426, 429, ...