State v. Wilson

291 Or.App. 581

422 P.3d 402

STATE of Oregon, Plaintiff-Respondent,

v.Timothy John WILSON, aka Timothy J. Wilson, Defendant-Appellant.

A162122

Court of Appeals of Oregon.

Argued and submitted November 30, 2017.

May 2, 2018

Brett J. Allin, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

Defendant appeals a judgment of conviction for public indecency, ORS 163.465. Before trial, defendant moved to suppress the observations of two police officers who, from several feet away, glanced under a partition of a public restroom stall and saw defendant lying on the floor masturbating. Defendant argued that the officers conducted a warrantless search that violated his right to privacy under Article I, section 9, of the Oregon Constitution. The trial court denied defendant’s motion after finding that there was no search. On appeal, defendant assigns error to that ruling. For the reasons discussed below, we conclude that the officers did not engage in a warrantless search because defendant did not have a protected privacy interest while lying on the floor of the public restroom stall. Accordingly, we affirm.¹

We state the facts consistently with the trial court’s implied and express factual findings. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). Portland State University (PSU) Police Officers Marks and Troppe were dispatched to investigate a report of someone lying on the floor of a toilet stall in a public restroom in the PSU Urban Center in downtown Portland. Both officers wore body cameras that recorded the following events. The officers arrived at the restroom, which has one exterior door into a vestibule and a second interior door into the restroom itself. Marks and Troppe entered the common area of the restroom. Both immediately saw a person, defendant, lying on the floor inside one of the restroom stalls. The officers could see defendant through the approximately 12–inch gap between the floor and the bottom of the stall door. The officers saw that defendant’s pants were partially down and that his arm was moving quickly up and down. Marks, who immediately suspected that defendant was masturbating, bent over at the waist to a 90–degree angle at his hips while standing between three and five feet from the stall to see exactly what defendant was doing. Marks saw defendant masturbating with his genitals exposed. At the same time, Troppe, who was concerned that defendant was having a medical emergency, also stopped about two to two-and-a-half feet away from the restroom stall and similarly bent to see under the stall door. Troppe also immediately saw that defendant was masturbating. Marks then knocked on the stall door and ordered defendant out. Defendant told the officers that no one should have reported his conduct to the police. Marks and Troppe placed defendant under arrest for public indecency.

Prior to a bench trial, defendant moved to suppress the officers’ observations. Defendant argued that he had a right to privacy inside the stall under Article I, section 9, and that the officers significantly impaired that right by bending over at a short distance from the stall to glance into the stall. The trial court denied defendant’s motion and, following a bench trial, convicted him of public indecency.

On appeal, defendant reiterates the arguments that he raised at the suppression hearing. We review a trial court’s ruling on a motion to suppress evidence for errors of law. State v. Ipsen , 288 Or. App. 395, 398, 406 P.3d 105 (2017). In doing so, "we are bound by the trial court’s findings of historical fact that are supported by constitutionally sufficient evidence" in the record. State v. Powell , 288 Or. App. 660, 662, 406 P.3d 1111 (2017).

Under Article I, section 9, "[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure[.]" A search under that section occurs when the government "invades a protected privacy interest." State v. Brown , 348 Or. 293, 297, 232 P.3d 962 (2010). A "protected privacy interest" refers to the privacy to which one has a "right," not the privacy that one "reasonably expects" under the circumstances. Id . at 298, 232 P.3d 962 (quoting State v. Campbell , 306 Or. 157, 164, 759 P.2d 1040 (1988) (internal quotation marks omitted) ). For that reason, a defendant’s subjective expectation of privacy does not determine whether the police have violated a constitutionally protected privacy interest. Id. Rather, "such interests are defined by an objective test that asks whether the government’s conduct would significantly impair an individual’s interest in freedom from scrutiny, i.e. , his or her privacy." State v. Rodriguez–Ganegar , 186 Or. App. 530, 534, 63 P.3d 1225, rev. den. , 335 Or. 578, 74 P.3d 112 (2003).

The Supreme Court has previously explained that, when persons "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 police officer’s unaided observations of that conduct from a lawful vantage point generally should not be suppressed as the product of an unlawful search. State v. Louis , 296 Or. 57, 61, 672 P.2d 708 (1983). In Louis , a police officer photographed the defendant through the defendant’s street-level front window using a camera with a modestly enhanced telephoto lens set up in a garage across the street from the defendant’s home. Id . at 59, 672 P.2d 708. The photographs depicted the defendant exposing his genitals while standing naked at the window. Id. Other evidence demonstrated that the defendant "could be seen from the neighbor’s garage and from the street, without the aid of a telephoto lens." Id. at 60, 672 P.2d 708. The Supreme Court first acknowledged that the defendant’s home was "the quintessential domain protected by the constitutional guarantee against warrantless searches." Id . But the court also emphasized that "not everything that police officers see or hear one do in private quarters requires a search warrant." Id. at 61, 672 P.2d 708. Because the defendant’s conduct "could be seen and had been seen" from the street with or without a telephoto lens, the court found that the police had not invaded a protected privacy interest, and thus had not conducted a warrantless search under Article I, section 9. Id .

Similarly, in State v. Corra , 88 Or. App. 339, 745 P.2d 786 (1987), rev. den. , 305 Or. 331, 752 P.2d 842 (1988), we concluded that a police officer who stood on a rock to see over a six-foot high fence surrounding the defendant’s property and saw the defendant handling marijuana plants in his yard did not engage in an Article I, section 9, search. We first noted that, "[a]lthough defendant had a privacy interest in his backyard, he could not insist that others ignore that which was available to their senses." 88 Or. App. at 342, 745 P.2d 786. We then explained that the officer’s "observations of defendant’s backyard took only a short time; they were not significantly longer than a neighbor’s might be." Id. Finally, we explained that, although the officer who saw the defendant was not tall enough to see over the fence unaided, many people "are tall enough to look over a six-foot high fence without standing on [a] rock; they could have seen what [the officer] saw ‘without any special effort.’ " Id. (quoting Louis , 296 Or. at 61, 672 P.2d 708 ). We concluded that "[w]e see no constitutional significance in [the officer’s] standing on the rock to see what some others could see without standing on it." Id .

By contrast, in State v. Casconi , 94 Or. App. 457, 766 P.2d 397 (1988), we found that an unlawful warrantless search had occurred when the police installed a video camera in a public restroom and recorded the defendant masturbating in a doorless toilet stall. We first explained that "[t]he final bastion of privacy is to be found in the area of human procreation and excretion" and, "if a person is entitled to any shred of privacy, then it is to privacy as to those matters." 94 Or. App. at 461, 766 P.2d 397 (quoting Sterling v. Cupp , 44 Or. App. 755, 761, 607 P.2d 206 (1980), aff’d as modified , 290 Or. 611, 625 P.2d 123 (1981) (internal quotation marks omitted) ). We then concluded that "[a]llowing the police to conduct hidden surveillance of a doorless toilet stall significantly impairs freedom from scrutiny." Id . Importantly, the critical factor in our decision that a search had occurred was the "use of the concealed camera" to record the defendant. Id. To emphasize that point, we contrasted State v. Holt , 291 Or. 343, 630 P.2d 854 (1981), in which the Supreme Court concluded that the defendant, whom the police had observed masturbating through a pre-existing hole in a partition dividing two doorless toilet stalls in a public restroom, had no reasonable expectation of privacy "because he committed his acts so that other restroom users could see him."² Id. See also State v. Owczarzak , 94 Or. App. 500, 503, 766 P.2d 399 (1988) (police officers conducted a search when they used a hidden camera to surreptitiously surveil a public restroom and observed the defendant masturbating in one of the stalls, because, while "[a] person in a public restroom anticipates that another person might enter and see what is going on," a person does not anticipate "that his activity [in a restroom] will be seen by concealed officers or recorded by concealed cameras").

In each of the cases cited above, our determination of whether the police invaded the defendants’ constitutionally protected right to...