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Expectation of Privacy — Public Rest Room Stall

State v. Juan M. Orta, 2003 WI App 93
For Orta: Glenn L. Cushing, SPD, Madison Appellate


¶2 … (A)n individual who occupies a public restroom stall does not have a reasonable expectation of privacy when he or she occupies it with another individual, leaves the door slightly ajar and unlatched, and evinces no indication that the stall is being used for its intended purpose.

The court clarifies the methodology “where standing is at issue”: in contrast to consideration of the merits of a search/seizure issue, “a court may look to facts discovered after the intrusion to determine if a defendant has a reasonable expectation of privacy to confer standing to challenge a search…. Therefore, in assessing Orta’s standing claim, we are entitled to consider the observations and discoveries made by Jones when he entered the restroom stall.” ¶¶7, 9. As the above summary indicates, though, this is a very fact-specific result. The court takes pains to distinguish foreign authority affording privacy rights in a public stall, on the basis of the multiple occupancy in this instance. ¶ 17. That seems to be the most important factor, more so than even leaving the door slightly ajar, cases cited ¶17 n. 3; you may have an expectation of privacy even with multiple occupancy if the door is locked, ¶22 n. 5.Cited, State v. Powers, Fl App 4D07-3974, 10/15/08, for idea that expectation of privacy in public restroom stall “gives way where two persons enter a stall together under circumstances reasonably indicating that they are doing drugs.”

See also U.S. v. Hill, 8th Cir No 04-2020, 1/11/05 (where “it was not a single person using the single toilet restroom but two persons of opposite gender and, under the circumstances, we hold that they had a diminished expectation of privacy which had expired by the time the officers had arrived”; cases involving “privacy partitions” distinguished). One knowledgable commentator is alarmed by the result in Hill: “This ruling is significant. It means that — contrary to most people’s expectations – closing the door to a public bathroom does not necessarily entitle a person to freedom from governmental snooping.” Sherry F. Colb, Findlaw’s Writ, “Big Brother in the Bathroom,” 2/9/05. She astutely points out that, while the police might well have had probable cause under the facts to believe a crime was taking place, that wasn’t the basis for entry; there’s a big difference in saying, no expectation of privacy therefore no search. Colb’s concern, it should be said, seemingly wouldn’t apply to the Orta result, given that the door was left ajar, a singularly crucial privacy-reducing fact.

For additional authority recognizing that “(a) substantial line of state cases have recognized that occupants of public restrooms have a reasonable expectation of privacy,” and citing cases, see State v. Smith, 2004 MT 234, 8/31/04 (extending this principle to a transient guest in a private home).

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