State v. Owczarzak

• Decision Date: 21 December 1988
• Docket Number: No. 87-11706,87-11706
• Citation: 94 Or.App. 500,766 P.2d 399
• Parties: STATE of Oregon, Respondent, v. Paul Stefan OWCZARZAK, Appellant. ; CA A46859.
• Court: Oregon Court of Appeals

Page 399

766 P.2d 399

94 Or.App. 500

STATE of Oregon, Respondent, v. Paul Stefan OWCZARZAK, Appellant.

No. 87-11706; CA A46859.

Court of Appeals of Oregon.

Argued and Submitted July 25, 1988.

Decided Dec. 21, 1988.

John Henry Hingson III, Oregon City, argued the cause for appellant. With him on the brief was ACLU Foundation of Oregon, Inc., Oregon City.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Brenda J. Peterson, Asst. Atty. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Defendant appeals his conviction for public indecency, ORS 163.465, after a trial to the court on stipulated facts. We reverse.

Defendant assigns as error the trial court's denial of his motion to suppress evidence obtained as a result of the same warrantless police surveillance that we discussed in State v. Casconi, 94 Or.App. 457, 766 P.2d 397 (decided this date). Acting on the request of the highway department to investigate sexual activity in a public restroom on an interstate highway, the police installed two videotape cameras in "peepholes." The cameras were placed so that the police could watch what was occurring in and in front of the two toilet stalls. The stalls have no doors, but the stall interiors cannot be seen by a person entering the restroom. A person using the restroom would not be able to detect the presence of the cameras, which the police turned on when they saw "criminal activity."

The police saw defendant enter and sit in one of the two stalls. Another man entered the second stall. Defendant walked from his stall to the second with his pants down. He stood in front of the second stall and began to masturbate. He then entered the second man's stall briefly, and the man there touched defendant's arm. Defendant resumed his position outside the second stall and continued to masturbate. A third man entered the restroom, and defendant quickly returned to the first stall. The second man left. The third man sat on the toilet in the second stall and did not engage in any criminal activity or appear to observe any activities of defendant or the second man.

In State v. Casconi, supra, the police watched the defendant as he masturbated in a stall. The defendant was not seen by anyone and contacted no one in the restroom. We held that, under the analysis of Article I, section 9, of the Oregon Constitution as set forth in State v. Campbell, 306 Or. 157, 759 P.2d 1040 (1988), the use of a restroom stall without a door did not mean that a person was deprived of privacy and that the surveillance was an illegal search under Article I, section 9. We distinguished State v. Holt, 291 Or. 343, 630 P.2d 854 (1981), which involved police surveillance in the same restroom. In Holt, the officer saw no illegal activity while watching through a peephole but, after the officer sat in the neighboring stall, he observed the defendant masturbating and attempting to contact a partner. The court affirmed the conviction, because the defendant could not expect privacy when committing acts so that others in the restroom could see him.

Defendant here exposed himself in the common area of the restroom as well as to another individual. He could have had no more expectation that his acts were "private" than the defendant in Holt. However, Holt employed a Fourth Amendment analysis, see State v. Tanner, 304 Or. 312, 321 n. 7, 745 P.2d 757 (1987), and the Supreme Court has specifically rejected the "expectation of privacy" analysis for searches under Article I, section 9. State v. Campbell, supra, 306 Or. at 164, 759 P.2d 1040.

Article I, section 9, prohibits governmental acts that invade an individual's privacy interests. State v. Campbell, supra, 306 Or. at 166, 759 P.2d 1040. The protected privacy is not subjective; it is the right to be free from particular forms of governmental scrutiny. 306 Or. at 170, 759 P.2d 1040. In Campbell, officers, suspecting that the defendant had committed burglaries, placed a transmitter on his automobile in order to follow him to verify their suspicions. The court rejected the state's argument that the defendant had no privacy interest, on the ground that the transmitter, in giving the location of the defendant's automobile, disclosed only what any member of the public could legitimately observe. The court held that whether particular police conduct constitutes a search is not determined by whether other conduct might result in the same discovery. 306 Or. at 167, 759 P.2d 1040.

Similarly here, we reject the state's position that, because defendant's conduct took place in an area open to the view of others in the restroom, he had no protected privacy interest. The issue is not whether his activity could have legitimately been seen by another in the restroom but, rather, whether the surreptitious surveillance was a search that invaded his privacy. See State v. Casconi, supra, 94 Or.App. 457, 461, 766 P.2d 397, 399. That determination depends on "whether the practice, if engaged in wholly at the discretion of the government, will significantly impair 'the people's' freedom from scrutiny * * *." State v. Campbell, supra, 306 Or. at 171, 759 P.2d 1040. The legality of police conduct is tested with respect to the ordinary citizen. See State v. Holt, supra, 291 Or. at 353, 630 P.2d 854 (Linde, J., concurring). A restroom is a place that, by its very nature, excludes unlimited observation. A person in a public restroom anticipates that another person might enter and see what is going on. What a person does not anticipate is that his activity will be seen by concealed officers or recorded by concealed cameras. That police surveillance, which allows no ready means for the person to determine that he is being watched, significantly impairs the people's freedom from scrutiny. See State v. Campbell, supra, 306 Or. at 172, 759 P.2d 1040. ¹

Reversed and remanded for a new trial.

ROSSMAN, Judge, dissenting.

Whether defendant's Article I, section 9, privacy interests were invaded is a question of "right, not expectation." State v. Tanner, 304 Or. 312, 321 n. 7, 745 P.2d 757 (1987). Because I do not believe defendant had a cognizable privacy right to engage in sexual acts in the common area of a public restroom, I dissent.

We can all agree on the inviolability of the toilet by the government. Police surveillance of restroom stalls is an unwarranted intrusion on " 'the people's freedom from scrutiny * * *.' " State v. Campbell, 306 Or. 157, 171, 759 P.2d 1040 (1988). At the same time, no search occurs where

"[p]ersons * * * conduct themselves in otherwise protected areas in such a way that their words or acts can plainly be seen or heard outside without any special effort. * * * [A] person's conduct within private premises may be such as to sacrifice the 'expectation of privacy.' " State v. Louis, 296 Or. 57, 61, 672 P.2d 708 (1983).

That is the case here. Defendant did not engage in a sexual act in the privacy of his restroom stall. On the contrary, he...