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Big Brother in the Bathroom: A Federal Court Puts the "Public" In "Public Restrooms"


Wednesday, Feb. 09, 2005

In United States v. Hill, the U.S. Court of Appeals for the Eighth Circuit recently held that under some circumstances, there is no continuing Fourth Amendment right to privacy in a public restroom.

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.

The Facts of U.S. v. Hill

In the particular case, a man and a woman together entered a bathroom located at a convenience store in Cedar Rapids, Iowa. The bathroom contained one stall and one urinal, as well as a lock on the door. The clerk suspected unlawful sexual activity, because the store was located in an area known for prostitution. He called the police, and they arrived shortly thereafter.

Once at the scene, the officers conferred with the clerk and knocked on the restroom door without identifying themselves as police. They received no response and knocked again. They eventually used a toolkit to unlock the door two separate times (because the couple relocked it the first time). One officer announced that he would open the door if the couple did not come out immediately.

After that announcement and the second unlocking, the woman inside opened the door slightly, and the man - Lonnie Maurice Hill - began to exit. Upon seeing the police, however, Hill re-entered the restroom. He was partially undressed, and when the police came in after him, they found drugs, including crack cocaine, and a metal scale.

Hill's Argument, and the Prior Court Rulings in the Case

After pleading guilty to a variety of drug charges, Hill was sentenced to ten years imprisonment. Part of the plea agreement, however, reserved his right to challenge the search that had turned up incriminating evidence, and he did so in the district court and then, after losing there, repeated his challenge on appeal.

Hill claimed that the police had violated the Fourth Amendment by unlocking the door while he was in the restroom. Accordingly, he argued, the evidence they found there should have been suppressed. Because Hill's guilty plea was conditional, a finding in his favor would have entitled him - at the very least - to a trial.

The Court of Appeals ruled, however, that when the police showed up at the convenience store, Hill lacked any reasonable expectation of privacy in the bathroom.

Before discussing why the court came to that conclusion, let us take a moment to consider what it means, from a constitutional perspective, to say that a person lacks any reasonable expectation of privacy.

The Meaning of Fourth Amendment "Reasonable Expectations of Privacy"

The Fourth Amendment protects the right of the people to be free from unreasonable searches and seizures. Under the case law interpreting this provision, the government must not perform "searches" or "seizures" without some justification, which often (but not always) includes a warrant and probable cause. Freedom from unreasonable searches and seizures protects a variety of interests, including privacy and property, and has sometimes been described as "the right to be let alone."

Because the Fourth Amendment applies only when the government performs something that qualifies as a "search" or a "seizure", the definition of these terms is very important in determining whether people will enjoy the right to be let alone. A search, under the cases, takes place when the government invades a "reasonable expectation of privacy."

The Fourth Amendment thus does not require of police that they have a warrant or probable cause or, indeed, any justification whatsoever for their conduct, when they engage in surveillance that does not, in the courts' view, intrude upon any "reasonable expectation of privacy."

What Reasonable Privacy Expectations Do People Have in Public Restrooms?

So why didn't Hill have a reasonable expectation of privacy in the door remaining locked while he and his female companion were using the bathroom? Are public bathrooms fair game for the police?

No. The same federal appeals court that decided Hill had earlier held, in the 1989 case of United States v. White, that people do have a reasonable expectation of privacy in being shielded from view by the privacy partitions in a public restroom.

Importantly, however, the court has also said that a reasonable privacy expectation is different in a public restroom from what it would be in a home. This is at least in part because in the former, it is understood that users will be expected eventually to surrender their respective stalls to others.

All of this makes good sense. A public restroom is not a permanent abode into which a customer can simply enter and stay indefinitely. On the other hand, it also seems wrong to say that some people have no reasonable expectation of privacy in the restroom.

To evaluate the court's approach to public restrooms, let us now turn to the facts that - in the judges' estimation - eliminated Hill's right to privacy in the bathroom.

The Decisive Facts in Hill v. United States

In its opinion, the court first notes that the restroom in question was what one might call a one-seater. That is, it had facilities for only one customer at a time, unlike a restroom containing multiple stalls. In this particular bathroom, it was accordingly deviant and perhaps suspicious for Hill and a woman to enter together.

Second, the court points out, the convenience store in which the restroom in question was located is part of an area known to have a high prostitution rate. Because of the prevalence of prostitution, the simultaneous entry of a man and a woman into a restroom might arouse suspicions that the couple is using the restroom to engage in illicit sexual activity.

Third, the court observes, the couple remained in the restroom after being asked to leave. The man and woman might thus have forfeited their interest in being left alone.

The court is right to observe that these three factors contribute to the likelihood that something illegal was taking place in the restroom. Therefore, at some point, police might well have had probable cause to search the bathroom.

The Significant Difference Between "Not a Search" and "A Legal Search"

The problem, however, in how the court actually dealt with the case is that it did not simply find probable cause for a search. It instead declared that the occupants of the public restroom retained no reasonable expectation of privacy. Police, for that reason, did not need probable cause or a warrant to proceed as they did. The court thus translated the uncontroversial fact that this couple may well have behaved suspiciously into an unwarranted finding that the police did not invade their privacy.

The difference might seem unimportant. After all, even if the police did "search" Hill, for Fourth Amendment purposes, with probable cause to do so, they would have been just as authorized in unlocking the bathroom door and gaining entry as they were under the court's actual analysis. What difference does it make whether we call the police action a legal "search" or whether we say that their conduct simply did not implicate the Fourth Amendment's protections at all?

One answer to this question rests in the rule that requires police with probable cause generally to seek a search warrant rather than go ahead and act on their own. If police in Hill were not searching at all, however, then they necessarily did not have to appear before a magistrate and obtain a warrant.

Police - people who are in what the Supreme Court has called the "often competitive enterprise of ferreting out crime" - are more likely to see a reason to enter a bathroom than is a neutral magistrate taking an unbiased look at the facts. This in itself is an important distinction.

Even beyond the warrant requirement -- which does not apply to every search and seizure and thus might not have applied to Hill's case -- there is additional value in having the courts recognize that an invasion of privacy triggering the Fourth Amendment has indeed taken place.

First, the fact that a couple is located in a high-prostitution neighborhood seems much more appropriately linked to justifying suspicion than it is to diminishing the couple's expectation of privacy in the restroom. No matter what the neighborhood, in other words, you should be able to retreat to the privacy of a bathroom without worrying about police (or anyone else) breaking in. Suggesting otherwise explicitly devalues the privacy of those who lead their lives in high-crime areas.

Similarly, that a couple enters a bathroom together might seem unusual and therefore legitimately to give rise to some suspicion. But entering a bathroom with another person could be entirely innocent, as the court recognizes in a footnote. For example, if one member of the couple, due to a physical disability, requires assistance in using the restroom, that need should not take the actor outside the coverage of the Fourth Amendment.

The Right Way to Analyze Hill: A Search Prompted by Probable Cause

As a matter of how we talk about Fourth Amendment rights, then, it simply makes sense to say that the couple in Hill may have given rise to a legitimate suspicion of prostitution. Given that legitimate suspicion, moreover, the police either should have sought a warrant to search the bathroom or perhaps even acted appropriately in foregoing a search warrant, for whatever reason the court of appeals might have wished to offer. Ultimately, though, police were right to want to search the bathroom occupied by the couple in question.

Nonetheless, honesty should require a judicial acknowledgement that police did perform a search when they insisted on entering an occupied bathroom. The couple's privacy was thus actually invaded and should accordingly be understood to have been invaded. The same would necessarily be true for an innocent couple, similarly situated.

To say so is not costly. As we have seen, it does not deprive the police of the logical inferences that any person might draw from a suspicious set of circumstances. Calling a search by its rightful name does, however, classify a police officer's behavior as reasonable when she acts on legitimate suspicion. And this course is far preferable to classifying some intrusions as non-intrusions and thereby exempting the police entirely from the Fourth Amendment requirement that they act reasonably.

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her earlier columns, including those covering topics in criminal law, and criminal procedure, may be found in the archive of her work on this site.

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