Ward v. State
| Decision Date | 18 March 1994 |
| Docket Number | No. 93-920,93-920 |
| Citation | 636 So.2d 68 |
| Parties | 19 Fla. L. Weekly D613 Teddy Arlington WARD, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida District Court of Appeals |
James Dickson Crock of James Dickson Crock, P.A., Daytona Beach, for petitioner.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Ben Fox, Sp. Asst. Atty. Gen., Daytona Beach, for respondent.
Ward petitions this court for issuance of a writ of certiorari to review the circuit court's reversal of the county court's order suppressing evidence in a criminal case. The circuit court acted in its appellate capacity, 1 and thus although we have jurisdiction, 2 our scope of review is narrower than if this cause came to us as a plenary appeal. See Combs v. State, 436 So.2d 93 (Fla.1983). Because we think the admission of the suppressed evidence would violate the Fourth Amendment of the Federal Constitution we issue the writ. We do not reach the further question of whether the state's conduct in this case impaired Ward's right of privacy provided for by Article I, section 23 of the Florida Constitution.
Ward was charged with violating section 800.03 of the Florida Statutes. That statute provides:
It shall be unlawful for any person to expose or exhibit his sexual organs in any public place ... in a vulgar and indecent manner, or so to expose or exhibit his person in such place, or to go or be naked in such place. Provided, however, this section shall not be construed to prohibit the exposure of such organs or the person in any place provided or set apart for that purpose....
Sec. 800.03, Fla.Stat. (1991).
Counsel for Ward filed a motion to suppress evidence allegedly unlawfully obtained by a police officer during an intrusive peeking into a bathroom stall occupied by Ward, which was located in a public restroom in a public park. The police officer and Ward both testified. The trial court ruled for Ward. Thus on appeal of this cause, any reviewing court must resolve any discrepancies in the record in Ward's favor.
Because of various complaints in the past by users of the park that the men's restroom was being used for illegal homosexual contacts and activities, Police Officer Barker made a practice of checking on the restroom in a random fashion. The restroom contains two stalls with doors that close. Barker's normal practice was to enter the rear stall and peak into the adjoining stall at whoever comes in, through a hole which has been punched out in the wall between the stalls.
On this particular occasion, Barker walked into the rear stall without noticing another person was occupying it. He saw this person seated on the toilet, his hand extended toward the hole. Barker backed out.
He then decided to peek into the front stall to see what its occupant was doing. In order to see into the front stall, then occupied by Ward, he had to stand close to the door and peer through the crack.
Barker saw Ward seated on the toilet. Ward was looking forward and did not appear aware of the hole and the other man in the next stall. He saw Ward masturbating his penis with his right hand. Shortly thereafter, Ward left the stall and bathroom.
Ward testified he entered the toilet stall to use it for its intended purpose. He did not expect anyone to peek in at him through the crack in the door and a hole in the wall. He was aware of another occupant in the stall next door, but did not look through the hole in the partition, and never saw its occupant. He admitted to "playing" with himself "too much."
Since a violation of section 800.03 is a first degree misdemeanor in Florida, the charges against Ward were brought in the county court. Ward's attorney filed a motion to suppress the evidence of what Officer Barker saw, based on both a violation of the Fourth Amendment and the Florida Constitution's right of privacy. Apparently, no motion to dismiss or motion pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) was filed in this case.
We have serious doubts that any "crime" was committed in this case, based on the record before this court. The Florida case law dealing with section 800.03 requires that the exposure of one's person or the doing of a lewd act, be in the presence of another person, or in a public place from which the public is not excluded and could be reasonably expected to be. See Chesebrough v. State, 255 So.2d 675 (Fla.1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972); Duvallon v. State, 404 So.2d 196 (Fla. 1st DCA 1981). Cf. State v. Werner, 609 So.2d 585 (Fla.1992); State v. Davis, 623 So.2d 622 (Fla. 4th DCA 1993); Joel E. Smith, J.D., Annotation, What Constitutes "Public Place" within Meaning of Statute Prohibiting Commission of Sexual Act in Public Place, 96 A.L.R.3d 692 (1979); Annotation Criminal defense predicated upon indecent exposure, 94 A.L.R.2d 1353 (1964); 50 Am.Jur.2d Lewdness & Indecency Secs. 1, 17. It appears from this record that Ward was not in such a public place, and the only reason Officer Barker saw him was because Barker peeked (knothole fashion) through the door crack.
Further, section 800.03 specifically provides that the exposure of sex organs must take place in a locality not "set apart for that purpose." 3 Obviously a closed toilet stall is one place set aside for that purpose. And masturbation, by itself, is not a crime in Florida (nor any other state that we are aware of). However, because no motions to dismiss were filed, we must address the constitutional issues posed by the county court's ruling on Ward's motion to suppress.
The county court found that the design of the toilet stalls was sufficient to provide the occupant, after closing the doors, with a degree of privacy. 4 This privacy was invaded by Officer Barker's looking through the crack in the door in a "peeping Tom fashion." 5
The trial court concluded that due to the design of the toilet stall, Ward had both a "reasonable expectation of privacy" and a subjective expectation of privacy within the scope of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and therefore Officer Baker's peeking at him (without any probable cause to think he was committing a crime) was an unlawful search and seizure under the Fourth Amendment of the Federal Constitution. She also ruled that Officer Barker's peeking was an unlawful invasion of Ward's privacy guaranteed by Article I, section 23 of the Florida Constitution. Accordingly, she suppressed the evidence produced by Officer Barker's viewing.
On appeal, the circuit court ruled that Ward had no reasonable expectation of privacy as to his activities in the closed stall of the public restroom. It characterized Ward's behavior as the same as though he had been masturbating in the open, public area of the restroom, or with the door ajar or open. But the factual issues dealing with the design of the restroom were for the trier of fact. And, she found on this point that:
"[I]t is possible for a person standing outside the stalls to look into one of the stalls by peering through the small slit on the side of the door where the door is attached with hinges to the wall dividing the two stalls."
She also said it required the officer's "affirmative action" of peeking through the crack to see Ward inside. This is not a "plain view" case. 6
We agree with the circuit court that had Ward been masturbating in the public area of the restroom with the intent of exposing himself to others, or had he been doing so in a stall, the interior of which could be freely seen from the public areas, a reasonable expectation of privacy would not have existed. But we must take the record as it exists before us, and resolve all factual disputes as the trier of fact did, if there was sufficient competent evidence to support her findings. 7 In this case, we agree that there was.
The question of whether and under what circumstances a person has a reasonable expectation of privacy in a public restroom protected by the Fourth Amendment has arisen in a surprisingly large number of cases in other jurisdictions. See Michael R. Flaherty, Jr., Annotation, Search and Seizure: Reasonable Expectation of Privacy in Public Restroom, 74 A.L.R.4th 508 (1989). The weight of authority appears to hold that warrantless observations of a person in a public restroom while occupying a closed toilet stall should be suppressed unless the police had probable cause to believe a crime was being committed. The degree of privacy afforded appears to turn on the amount of privacy or shielding from view that is afforded by the design of the closed toilet stall from ordinary viewing from the public areas of the restroom (not hidden camera's in the ceiling or policemen hidden behind false vents, pipes or two-way mirrors). 8 However, California and Oregon cases hold that a reasonable expectation of privacy exists even for doorless toilet stalls. See State v. Casconi, 94 Or.App. 457, 766 P.2d 397 (1988); People v. Triggs, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232 (1973).
In this case, the record established that Ward was in an enclosed stall with the door closed. He was not freely visible from the public areas. And there was no probable cause justification for Officer Barker to think a crime was being committed. 9
No Florida case has held that evidence obtained by police observations of a person in a public restroom should be suppressed on Fourth Amendment grounds. But the three cases we have found where the Fourth Amendment defense was raised and rejected are distinguishable. In State v. Coyle, 181 So.2d 671 (Fla. 2d DCA 1966), the police observations were of activities taking place in a doorless stall of a public restroom. In State v. Daniel, 319 So.2d 582 (Fla. 4th DCA 1975), the police saw the defendant with illegal drugs in his possession, in the public area of the restroom. And, in Moore v. State, 355 So.2d 1219 (Fla. 1st DCA 1978)...
To continue reading
Request your trial
-
Hougum v. Valley Memorial Homes
...Courts generally have said activities conducted in an enclosed stall in a public restroom do not occur in a public place. Ward v. State, 636 So.2d 68, 69 (Fla.App.1994); Chubb v. State, 640 N.E.2d 44, 47 (Ind.1994). See State v. Bryant, 287 Minn. 205, 177 N.W.2d 800, 804 (1970) (surreptitio......
-
State v. Brown
...had to peek into the stall or whether the officer could see enough through the opening without having to peek. See Ward v. State, 636 So.2d 68, 71 (Fla.App.--5th Dist.1994); State v. Limberhand, 117 Idaho 456, 788 P.2d 857 (App.1990); City of Tukwila v. Nalder, 53 Wash.App. 746, 770 P.2d 67......
-
State v. Orta, 02-1008-CR.
...notions of privacy. Orta cites to Biggar, 716 P.2d 493; Brown v. State, 238 A.2d 147 (Md. Ct. Spec. App. 1968); and Ward v. State, 636 So. 2d 68 (Fla. Dist. Ct. App. 1994), for the proposition that despite his failure to latch the door, he still took precautions for privacy and that his cla......
-
Ramirez v. State, 93-03588
...when the police, acting prematurely, seized him with no more than a suspicion that criminal activity was afoot. See Ward v. State, 636 So.2d 68 (Fla. 5th DCA 1994); Michael R. Flaherty, Jr., Annotation, Search and Seizure: Reasonable Expectation of Privacy in Public Restroom, 74 A.L.R.4th 5......
-
Search and seizure
...dog alert, the order granting suppression is reversed. State v. Reaves, 15 So. 3d 784 (Fla. 5th DCA 2009) The rule of Ward v. State , 636 So. 2d 68 (Fla. 5th DCA 1994) is not violated when an LEO learns that defendant in a public bathroom stall is seeking to engage in lewd activity, and the......
-
Privacy, property, and public sex.
...Cir. 2005). This is particularly true when the conduct in question takes place behind closed bathroom stalls. See, e.g., Ward v. State, 636 So.2d 68, 72 (Fla. Dist. Ct. App. 1994); People v. Dezek, 308 N.W.2d 652, 655 (Mich. Ct. App. 1981). Although for some courts the absence of a stall do......