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Expectation of Privacy — Public Rest Room

State v. Timothy L. Neitzel, 2008 WI App 143
For Neitzel: David A. Nelson

Issue/Holding: Under the particular circumstances, the sole occupant of a locked, public restroom had no reasonable expectation of privacy given that he occupied the room for at least 25 minutes and then failed to respond to pounding on the door.

The court follows the 6-factor test adopted by State v. Juan M. Orta, 2003 WI App 93 (another public bathroom case, but with distinguishable facts, ¶17: there, multiple individuals were in a single stall, the door to which wasn’t locked). Although the majority purports to weigh each factor individually, it comes down to these crucial facts, ¶¶26-27: “Neitzel’s claim of privacy while using the only restroom for males at a gas station for at least twenty-five minutes, without responding to the officer’s knocking, is not consistent with historical notions of privacy. … While his initial use of the restroom was for its intended purpose, his expectation that he continue to have the private use of the locked restroom for at least twenty-five minutes, without responding to knocking and while dozing off, is not reasonable.”As you can gather, Neitzel either fell asleep or passed out drunk while on the toilet. (Do not attempt this trick at home.) The State apparently sought something like a bright-line rule that passage of time alone eliminates any expectation of privacy, but the court declines the invitation, ¶21 n. 5: “However, we do not establish a period of time beyond which there is no reasonable expectation of privacy. Instead, our analysis takes into account the period of time Neitzel was occupying the restroom scoupled with the knocking and lack of response.” The concurrence, however, is dubious about significant limits as a practical matter, ¶31 (“The majority’s result is dangerous because appellate courts usually do not like bright lines, and the next case will involve a twenty-minute stay in a mens’ or womens’ room. And then one of fifteen minutes, until the result is that nobody has an expectation of privacy in a locked rest room if someone knocks.”). Just so.

One wonders, too, exactly why a response to knocking would be necessary to assert a right to privacy. The majority simply asserts that “(a) person seeking privacy while using a public restroom of this type would customarily respond to a knock on the door by explaining how much longer he or she would be occupying the restroom,” ¶23. But as the concurrence suggests (¶30), the majority is reductionistic: human behavior is too idiosyncratic, too subject to uncontrollable variables, to be collapsed into such a rigid formulation. But here we are, and for the time being anyway, the holding is fact-specific.


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