Ward v. State, No. 93-920

CourtCourt of Appeal of Florida (US)
Writing for the CourtW. SHARP; HARRIS; PETERSON; PETERSON
Citation636 So.2d 68
Parties19 Fla. L. Weekly D613 Teddy Arlington WARD, Petitioner, v. STATE of Florida, Respondent.
Decision Date18 March 1994
Docket NumberNo. 93-920

Page 68

636 So.2d 68
19 Fla. L. Weekly D613
Teddy Arlington WARD, Petitioner,
v.
STATE of Florida, Respondent.
No. 93-920.
District Court of Appeal of Florida,
Fifth District.
March 18, 1994.
Rehearings Denied April 27, 1994.

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.

W. SHARP, Judge.

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

Page 69

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

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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...

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6 practice notes
  • Hougum v. Valley Memorial Homes, No. 970108
    • United States
    • United States State Supreme Court of North Dakota
    • January 27, 1998
    ...5 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 Page 822 44, 47 (Ind.1994). See State v. Bryant, 287 Minn. 205, 177 N.W.2d 800, 804 (1970) (......
  • State v. Brown, No. 13-95-081-CR
    • United States
    • Court of Appeals of Texas
    • August 29, 1996
    ...officer 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......
  • State v. Orta, No. 02-1008-CR.
    • United States
    • Court of Appeals of Wisconsin
    • April 23, 2003
    ...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, No. 93-03588
    • United States
    • Court of Appeal of Florida (US)
    • May 5, 1995
    ...invaded 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......
  • Request a trial to view additional results
6 cases
  • Hougum v. Valley Memorial Homes, No. 970108
    • United States
    • United States State Supreme Court of North Dakota
    • January 27, 1998
    ...5 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 Page 822 44, 47 (Ind.1994). See State v. Bryant, 287 Minn. 205, 177 N.W.2d 800, 804 (1970) (......
  • State v. Brown, No. 13-95-081-CR
    • United States
    • Court of Appeals of Texas
    • August 29, 1996
    ...officer 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......
  • State v. Orta, No. 02-1008-CR.
    • United States
    • Court of Appeals of Wisconsin
    • April 23, 2003
    ...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, No. 93-03588
    • United States
    • Court of Appeal of Florida (US)
    • May 5, 1995
    ...invaded 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......
  • Request a trial to view additional results

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