Young v. State
| Decision Date | 24 March 1993 |
| Docket Number | Nos. 22294,22403 and 22529,22296,s. 22294 |
| Citation | 109 Nev. 205,849 P.2d 336 |
| Parties | Donald E. YOUNG, Appellant, v. The STATE of Nevada, Respondent. Ronald J. PIERSON, Appellant, v. The STATE of Nevada, Respondent. Boyd Allen CAMPER, Appellant, v. The STATE of Nevada, Respondent. Todd A. OSTLER, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
James J. Jackson, State Public Defender, James P. Logan, Deputy State Public Defender Mark E. Haines, Carson City, for appellant Boyd Allen Camper.
Carson City, for appellants Ronald J. Pierson and Todd A. Ostler.
Claassen & Olson, Carson City, for appellant Donald E. Young.
Frankie Sue Del Papa, Atty. Gen., Carson City; Noel S. Waters, Dist. Atty., Carson City, for respondent.
During a court-authorized surveillance of a public restroom at Mills Park, the Carson City Sheriff's Department captured appellants Ronald J. Pierson, Donald E. Young, Todd A. Ostler and Boyd A. Camper on videotape engaging in acts of masturbation and/or oral copulation. Separate bench trials were conducted for each of the four appellants. The district court denied appellants' pre-trial motions to suppress the videotapes and all evidence derived from the surveillance. Appellants were convicted of one or more counts of open or gross lewdness and/or indecent or obscene exposure.
On appeal, appellants challenge the district court's denial of their motions to suppress and contend that their conduct did not constitute indecent or obscene exposure and/or open or gross lewdness. Discerning no error below, we affirm.
The conduct ultimately leading to the arrest and conviction of each of the appellants occurred in a public lavatory at Mills Park in Carson City, Nevada. On or about August 29, 1990, Park Ranger Arley Richardson complained to the Carson City Sheriff's Department that homosexual activities were believed to be occurring in the men's restrooms. Richardson related to Detectives Dan Holub and Steve Albertsen that several park visitors had complained of the homosexual activities and he was informed and believed that such activity had been going on for at least a year. Richardson personally observed certain males frequenting the park on a "more than regular basis." The individuals would often visit the men's restroom multiple times over the course of a lunch hour, and often after work hours, entering together or meeting inside.
Richardson also observed messages on the restroom walls inviting others to meet at the restroom to engage in homosexual activity. The restroom in which the offenses occurred is approximately ten feet wide and fifteen feet long, with a door at the entry which is "locked open" with a deadbolt. Upon entering in an easterly direction, there are two wash basins and two urinals on the south wall. A metal partition separates the basin-urinal area from two commodes. The commodes are on the south wall facing north and are further separated by a partition. Although both stalls are doorless, one cannot see into the stalls from the entrance or the basin/urinal area. The partitions are partial, estimated to be approximately two feet off the ground and extending upward about six feet. The partial partitions allow anyone entering the restroom to see under the partition to determine whether the stalls are occupied.
A small hole had been made in the partition closest to the entry (near the urinal), at about eye level to persons seated on the commode, allowing observation of anyone entering the facility. A larger hole, about six to eight inches in diameter, was made in the partition separating the stalls.
The detectives' initial visual surveillance of the park area surrounding the restrooms corroborated Richardson's account. They, too, observed messages written on the restroom walls indicating the desire to meet men between the ages of 18 and 30 for the purpose of engaging in oral copulation and other homosexual acts. Holub observed men seated in the adjoining stalls talking through the hole in the partition. On several occasions, Holub saw men sitting side-by-side in the adjoining stalls with their hands over their genitals and their shirttails over their hands. However, the detectives were unable to observe any individual engaging in criminal activity.
The efforts of the two detectives and Richardson to curtail the activity was futile since they could be seen and heard approaching the stalls, thus enabling the individuals to discontinue their activities and elude detection.
Consequently, the detectives sought an order authorizing surreptitious surveillance. The officers opined that surreptitious surveillance of the restroom's interior would be more effective in both discouraging and apprehending the individuals suspected of engaging in criminal behavior. Detective Holub submitted an oral affidavit to Justice of the Peace Robey Willis on September 11, 1990, wherein he related the foregoing facts. Satisfied that there was probable cause to believe that evidence of open or gross lewdness, indecent or obscene exposure and/or vagrancy could be found in the public men's room at Mills Park, Judge Willis signed the order authorizing visual surveillance.
The surveillance order authorized the officers to:
[E]stablish a point of surreptitious surveillance upon the above-described men's restroom facility by creating a hole or holes in the restroom wall dividing the men's restroom from the adjoining maintenance room, whereby from the maintenance room said law enforcement officers may clearly observe and/or photograph the activities occurring within the restroom which are the subject of this criminal investigation.
The surveillance was limited to ten days, beginning on September 11, 1990, and expiring on September 21, 1990. Surveillance was to be conducted by Carson City Sheriff's deputies from 7:00 a.m. to 7:00 p.m. 1 The officers were also ordered to file a surveillance report with the court.
Armed with the surveillance order, Albertsen and Holub proceeded to surveil the men's room. The officers set up a monitor and video equipment in a maintenance room separating the men's and women's restrooms. A miniature camera was installed in a metal alarm box with a grate-type bottom located above the two stalls over the partition. 2 The camera was connected to a monitor and a video cassette recorder. While the monitoring was constant, taping would occur only when the officer observed criminal conduct. The surreptitious surveillance proved effective, revealing approximately twenty individuals, including appellants, engaging in acts of masturbation and/or oral copulation in the Mills Park men's restroom. Appellants were observed and charged as follows:
Appellant Boyd Camper (22403) --On September 20, 1990, Camper was observed masturbating while peeking through a hole in the toilet stall, for which he was charged with open and indecent exposure. On September 24, 1990, he was observed masturbating while watching one Ronald Dowler masturbate, and then allowing Dowler to copulate him. As a result, Camper was charged with gross lewdness.
Appellant Donald Young (22294)--Young was observed masturbating while peeking through the peephole in the partition and masturbating while watching another masturbate. On the latter occasion, Young and the other male were observed with their pants down in front of the stalls in view of anyone entering the restroom. These events occurred on September 19 and 20, 1990, and were the basis of two counts of gross lewdness and one count of open and indecent exposure.
Appellant Ronald J. Pierson (22296)--On September 24, 1990, Pierson was observed in the doorless stall performing an act of oral copulation on Thomas Crouch. On the following day, Pierson was seen masturbating while watching Ronald Dowler Appellant Todd A. Ostler (22529)--On September 19, 1990, Ostler was observed masturbating in the doorless stall while peeking through a hole in the partition. He was charged with one count of open and indecent exposure.
masturbate. Pierson was charged with two counts of gross lewdness.
At their respective bench trials, appellants sought to suppress the videotapes and any other evidence garnered through the surreptitious surveillance. Appellants argued that their Fourth Amendment rights were violated by the surveillance because they had a reasonable expectation of privacy in the Mills Park men's restroom. They also challenged the validity of the order authorizing the surveillance. All motions were denied.
Camper was convicted of open or gross lewdness and sentenced to six months in jail. His sentence was suspended and Camper was placed on probation for up to three years. Young was convicted of two counts of gross lewdness, one count of open and indecent exposure and one count of vagrancy. He was given four six-month jail terms, all to run concurrently. The sentences were suspended and Young was placed on probation for up to three years. Pierson was convicted of two counts of gross lewdness. He was sentenced to nine months in the county jail. The sentences were suspended and Pierson was placed on probation for a period not to exceed two years. Ostler was convicted of one count of open and indecent exposure and fined $1,000. In addition, all appellants were ordered to pay $250 in restitution to the Carson City Sheriff's Department.
Appellants contend that their expectation of privacy in a public restroom was reasonable notwithstanding that the restroom was located in a public park and the stalls were doorless. Relying on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), appellants argue that the stalls were temporary private places where they had reasonable expectations of privacy from surreptitious police surveillance.
In light of the location and nature of appellants' conduct, we reject appellants' contention and hold that appellants'...
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