and submitted November 30, 2017.
Multnomah County Circuit Court 16CR15193 Bronson D. James,
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
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.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: 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 inside
the stall while masturbating. Defendant argued that the
officers had 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.
On appeal, defendant assigns error to that ruling.
Held: The trial court did not err. Defendant was
visible from the common area of the public restroom without
any special effort by the officers, and the officers'
conduct did not offend any social norms. Accordingly,
defendant did not have a right to privacy under Article I,
section 9, while lying on the floor of the stall in a way
that could be easily seen, and the officers' actions that
allowed them to observe defendant did not constitute a
Or.App. 582] SHORR, J.
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,
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
[291 Or.App. 583] 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.
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
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
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 (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., [291 Or.App. 584] his or her privacy."
State v. Rodriguez- Ganegar, 186 Or.App. 530, 534,
63 P.3d 1225, rev den, 335 Or. 578 (2003).
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.
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. 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.
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.
in State v. Corra,88 Or.App. 339, 745 P.2d 786
(1987), rev den,305 Or. 331 (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.
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 [291 Or.App.
585] 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 ...