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THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM S. BARRON, JR., )
) Court of Appeals No. A-3682
Appellant, ) Trial Court No. 4FA-S89-3390CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1192 - January 3, 1992]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for
Appellant. W. H. Hawley, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
William S. Barron, Jr., was convicted, following a jury
trial, of two counts of misconduct involving a controlled
substance in the third degree, a class B felony. AS
11.71.030(a)(1). Barron appeals, arguing that Superior Court
Judge Richard D. Savell erred in denying his motion to suppress.
We affirm.
Barron first raised his motion to suppress after the
jury was selected for his trial. Judge Savell declined to rule
on the issue during trial, but permitted Barron to file his
motion to suppress after the jury reached its verdict. In
response to Barron's motion to suppress, the state filed an
affidavit of Daniel Hoffman, the Fairbanks police officer who
initially contacted and arrested Barron. It appears that Judge
Savell decided the suppression issue based upon the testimony
which was presented at trial and Hoffman's affidavit.1
According to Hoffman's testimony and his affidavit, on
October 23, 1989, he was making a routine check at a bar in
Fairbanks known as the Sunset Inn. As part of his check, Hoffman
went into a public restroom. When he entered the restroom, he
could see the feet of two men in the same stall. The stall was
enclosed, but he could see the feet under the space between the
bottom of the stall and the floor. Officer Hoffman could see
that the restroom was not crowded and concluded that there was no
reason for two people to use the same stall. He also noticed,
from the position of the feet, that the men were well away from
the commode and that they were talking to each other in low
voices. Officer Hoffman stated that from experience he knew that
illegal drug transactions frequently took place in restrooms of
bars. Officer Hoffman concluded that a drug offense might be
taking place and approached the stall to take a closer look. He
stepped closer to the stall. While still in the common area of
the restroom, through a sizeable gap between the hinged door of
the stall and the partition separating it from another stall, he
could see Barron and another man, Robert Pailing. From this
position he could see that neither man was using the stall for
its intended purpose, and that both men had their clothes on.
Hoffman stated:
I felt that I was reasonable in
suspecting that some type of drug activity
might be involved. I was aware that if such
activity within the stall was the case, the
activity could readily terminate and any
evidence quickly disappear. I believed that
a prompt investigation was required as a
matter of practical necessity.
Hoffman told Barron and Pailing to keep their hands in view and
to come out of the stall. Barron and Pailing came out and stood
outside the stall. At this time, Hoffman saw a plastic bag
floating in clear water in the commode. Within the clear bag,
Hoffman could see other small clear plastic bags which contained
a white powdery substance. From his experience, Hoffman
concluded that the substance in the bag was cocaine and he had
interrupted a drug transaction. Hoffman arrested both Barron and
Pailing and seized the plastic bag. The bag was later found to
contain packets of cocaine. Barron was convicted of delivering
cocaine to Pailing and possessing cocaine for purposes of
delivery based upon this evidence.
Barron contends that Officer Hoffman's actions in
contacting him constituted an illegal seizure under the fourth
amendment of the United States Constitution and article I,
section 14 of the Alaska Constitution. In deciding the
suppression motion, Judge Savell ruled, "Officer Hoffman was
lawfully in the rest room and lawfully observed activities which
gave rise to reasonable suspicion and justified further
investigation under Coleman v. State, 553 P.2d 40 (Alaska 1976)."
Under Coleman, a police officer can temporarily detain
a person "where the police officer has a reasonable suspicion
that imminent public danger exists or serious harm to persons or
property has recently occurred." Coleman, 553 P.2d at 46. The
question before us for review is whether Judge Savell erred in
concluding that Officer Hoffman's actions were justified under
this standard.
The fourth amendment of the United States Constitution
provides that:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but
upon probable cause, supported by oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
See also Alaska Const. art. I, 14.
In his concurrence in Katz v. United States, 389 U.S.
347, 361 (1967), Justice Harlan explained that the rule
protecting citizens against unreasonable searches applies when
two requirements are met:
first that a person have exhibited an actual
(subjective) expectation of privacy and,
second, that the expectation be one that
society is prepared to recognize as
"reasonable."
In interpreting the meaning of article 1, section 14 of the
Alaska Constitution and the privacy clause of the Alaska
Constitution, article 1, section 22, the Alaska Supreme Court in
State v. Glass, 583 P.2d 872, 875 (Alaska 1978), adopted the dual
requirements set forth in Justice Harlan's concurrence.
Barron argues that because the Alaska Constitution
provides broader protection than the federal constitution, this
court should recognize that, under the two-pronged test approved
in Glass, he had a reasonable expectation of privacy in a closed
restroom stall. Further, Barrow cites the decisions of other
jurisdictions which have ruled that an individual has a right to
privacy in a public bathroom stall. See People v. Triggs, 506
P.2d 232 (Cal. 1973); Bielicki v. Superior Court, 371 P.2d 288
(Cal. 1962; Brown v. State, 238 A.2d 147 (Md. App. 1968); People
v. Dezek, 308 N.W.2d 652 (Mich. App. 1981); Buchanan v. State,
471 S.W.2d 401 (Tex. Crim. App. 1971).
The state distinguishes all the cases cited by Barron
and argues that Barron's reliance on these decisions is mistaken.
With regard to Bielicki and Triggs, the state correctly points
out that under a more recent decision by the California Supreme
Court, the Triggs holding was expressly limited to the
proposition that "a public restroom gives rise to a reasonable
expectation of freedom from observation by a law enforcement
officer who has assumed a clandestine, unexpected vantage point
to spy indiscriminately on all who enter." In Re Deborah C., 635
P.2d 446, 452 (Cal. 1981).
In his treatise on search and seizure, Professor LaFave
analyzes the cases in this area as follows:
Katz, properly viewed, extends the
limitations of the Fourth Amendment to those
forms of police surveillance which cannot be
"permitted to go unregulated by
constitutional restraints." Clandestine
peeping into rest rooms is surely one type of
surveillance which cannot be left to the whim
of the police, whether there are doors on the
stalls or not. . . .
. . . .
[However,] if the police merely
enter a rest room and see conduct occurring
within a stall which is "readily visible and
accessible" to any member of the public who
so enters, there is . . . no intrusion into
a justified expectation of privacy. Under
certain circumstances, even an entry into a
locked rest room will not amount to a search.
1 LaFave, Search and Seizure, 2.4(c) at 440-41 (1987)
(footnotes omitted).
We believe that the cases suggest that when one is in a
public restroom, a person has a reasonable expectation of privacy
which society is prepared to recognize. However, that
expectation of privacy is limited by the fact that the restroom
is in a public area and one's behavior is subject to the
observation of others who are in the public area. When a police
officer who is in a public area observes two people using the
same restroom stall, and apparently not using the stall for its
intended purpose, then these observations may permit the police
officer to take further reasonable steps to investigate. For
instance, in People v. Mercado, 501 N.E.2d 27, 28 (N.Y. 1986), an
officer entered a restroom in an airport after receiving a tip
that two men were occupying one of the stalls. The officer saw
only one stall with a closed door, noted that only one pair of
legs was visible, but heard two low male voices conversing in the
stall. Id. He then attempted to peer through the crack in the
door and saw two individuals inside -- the second with his feet
on the toilet. Id. at 29. The officer next entered the
adjoining stall, stood on the toilet, peered over the stall wall,
and saw that both occupants of the other stall possessed drugs.
Id.
Mercado was arrested, and, before trial, filed a motion
to suppress the evidence. The motion was denied. On appeal
Mercado claimed he had a reasonable expectation of privacy in the
toilet stall. The New York Court of Appeals agreed that Mercado
had a reasonable expectation of privacy in a public restroom
stall. Despite this determination, the court found that the
officer could reasonably conclude that a drug crime was occurring
in the stall based upon the tip and his observations. Id. at 30.
The court held the officer's actions were justified under the
fourth amendment.
In the instant case, Officer Hoffman entered a public
restroom and, from a public place, saw that two men were engaging
in some sort of transaction in the lavatory stall. He suspected
criminal activity, most probably a drug transaction. He
therefore took a closer look, again observing from a public area.
From his observations, he concluded that he was probably
observing an illegal drug transaction. He therefore told the men
to come out of the stall. When they did, he was able to observe
evidence which led to Barron's conviction on the drug offenses.
We conclude that Judge Savell could properly find that Officer
Hoffman's actions were justified under Coleman. Officer Hoffman
had reasonable suspicion that he had stumbled into an illegal
drug transaction. It was necessary for Hoffman to conduct "a
prompt investigation . . . as a matter of practical necessity."
Coleman, 553 P.2d at 46 (quoting Goss v. State, 390 P.2d 220, 224
(Alaska 1964)). Judge Savell could properly find that Officer
Hoffman's response was minimally intrusive and was a reasonable
response to the situation which he observed. See State v. G.B.,
769 P.2d 452, 456 (Alaska App. 1989) (in applying the Coleman
rule, the court must balance the seriousness of the offense, the
recency of the crime, the strength of the officer's reasonable
suspicion, and the actual intrusiveness of the investigative
stop).
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Hoffman testified at trial. Hoffman's post-trial
affidavit focused more specifically on his reasons for contacting
Barron than did his trial testimony.
