State v. Jarrell

• Decision Date: 19 February 1975
• Docket Number: No. 7426SC811,7426SC811
• Citation: 24 N.C.App. 610,211 S.E.2d 837
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. James Norfleet JARRELL and Monte Munoz Zepeda.

Page 837

211 S.E.2d 837

24 N.C.App. 610

STATE of North Carolina v. James Norfleet JARRELL and Monte Munoz Zepeda.

No. 7426SC811.

Court of Appeals of North Carolina.

Feb. 19, 1975.

Certiorari Denied and Appeal Dismissed by Supreme Court April 2, 1975.

Atty. Gen. Robert Carson by Asst. Atty. Gen. Edwin M. Speas, Jr., Raleigh, for the State.

Craighill, Rendleman & Clarkson by Hugh B. Campbell, Jr., Charlotte, for defendant-appellant Jarrell.

Casey & Daly, P.A. by George S. Daly, Jr., and William G. Jones, Charlotte, for defendant-appellant Zepeda.

PARKER, Judge.

Defendants first contend that the trial court erred in overruling their objections to testimony of Officer Cobb as to the reasons the police were maintaining surveillance of the restroom. Cobb testified that he and other officers had received numerous complaints concerning 'acts being committed in the men's bathroom.' Defendants contend that this testimony, admitted over objection, was irrelevant on the issue of their guilt and had the sole effect of creating prejudice against them in the minds of the jurors. In this connection we note initially that in the testimony complained of Officer Cobb did not further characterize or explain to the jury what he meant by the phrase, 'acts being committed in the men's bathroom,' and only by intimation could the jury guess that the acts referred to involved sexual misconduct. Furthermore, the challenged testimony did serve to explain the surveillance of the restroom and was relevant for that purpose. It may be granted that it was irrelevant to prove that defendants committed any crime, but even so, and even if it be further granted that the challenged testimony should have been excluded, nevertheless in this case the properly admitted evidence of guilt was so overwhelming and the prejudicial effect of the challenged evidence was so insignificant by comparison, that it is clear that error in admitting the evidence was harmless beyond any reasonable doubt. Where that is the case, reversal is not required even when the error complained of involves allowing introduction of evidence in violation of a defendant's constitutional rights. State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (1970). Still less is a reversal and new trial required where, as in the case now before us, the error complained of involves only the allowance of testimony of questionable relevancy. The assignment of error which is the basis of defendants' first contention, being assignment of error No. 8, is overruled.

Defendants next contend it was error to deny their motions to suppress and to allow into evidence the photographs taken of them by Officer Cobb and his testimony concerning what he saw while he observed them from his position concealed in the restroom attic. They contend that this evidence should have been suppressed as being the product of an illegal search violative of their Fourth Amendment rights. We do not agree. At all times while Officer Cobb observed the defendants and when he photographed them through a preexisting hole in the restroom ceiling, defendants were in the open, public area of the room. At no time did he observe or photograph either of them in an enclosed toilet stall, a place which might ordinarily be understood to afford some degree of personal privacy to an individual occupant. Therefore, decisions holding an illegal search occurs when the police surreptitiously observe persons in an enclosed toilet stall, Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288 (1962); Britt v. Superior Court, 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); Contra, Smayda v. United States, 352 F.2d 251 (9th Cir. 1965), cert. denied, 382 U.S. 981, 86 S.Ct. 555, 15 L.Ed.2d 471 (1966), are not here applicable. Defendants cite and rely upon People v. Triggs, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232 (1973), for the proposition that it is also illegal to maintain surveillance over the open areas of a public toilet room. In that case the activities observed took place in a doorless toilet stall and could have been seen by anyone who walked into the public area of the restroom. In holding the surveillance in that case to be illegal, the California Supreme Court relied in part upon the public policy as declared in an act adopted by the California Legislature. In their brief defendants also rely heavily upon Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) to sustain their position that an unconstitutional search occurred in the present case. We do not so broadly read the holding in Katz. It is true that the majority opinion in Katz contains the statement that 'the Fourth Amendment protects people, not places', 389 U.S. at 351, 88 S.Ct. at 511, but that broad statement furnishes little assistance in determining what human activities occurring in what places and under what circumstances are entitled to be constitutionallyprotected from unreasonable governmental intrusion. The sentence appears in the portion of the majority opinion in which the Court was seeking to shift emphasis away from the concept of 'constitutionally protected areas' as a 'talismanic solution to every Fourth Amendment problem', and to focus attention more upon what a person might be doing in a particular area and his reasonable expectation of privacy for his activity. 389 U.S. at 351, n. 9, 88 S.Ct. 507. Obviously, all human activities must occur in some 'area,' and as Justice Harlan pointed out in his concurring opinion in Katz, the answer to...