The Other Can, Man

There are some places where privacy, for Fourth Amendment purposes, really shouldn’t be in question.  If a person’s home is his castle, the toilet is his throne. But to police in Portland, prosecutors and the judge who denied suppression without explanation, there is nothing special about porcelain.

From Oregon v. Holiday:

Defendant appeals his conviction for possession of cocaine, ORS 475.884, assigning error to the trial court’s denial of his motion to suppress. Believing that defendant was in violation of a term of his probation, police unlocked and opened the door to the public restroom that defendant was occupying.

The state argued below that entry into the restroom was lawful because the officer who unlocked the door had reason to believe that defendant was trying to evade him and that, once defendant came out of the restroom, cocaine residue on a “crack pipe” was in plain view. On appeal, the state modifies the “evasive action” rationale by arguing that entry into the restroom was lawful because defendant had no privacy interest there due to the inferable fact that he was not using it for a “private purpose.”

As Judge David Schuman of the Oregon Court of Appeals concluded, perhaps with some personal understanding that trial judge Adrienne C. Nelson lacked, whatever a defendant does within the sanctity of a locked bathroom is meant to be “private.”

While “[n]o one has a constitutional privacy interest that shields him from all forms of scrutiny,” we have also recognized that, although “every man’s house is his castle,” a restroom is his “bastion of privacy.” (Citations omitted.)

The particular context that the state points to in defense of its argument that defendant had no constitutionally protected privacy interest is that defendant was not using the restroom for a “private purpose.” We are uncertain as to what, exactly, the state means by “private purpose.” If it means that defendant was not using the restroom for its intended purpose, then the argument cannot be reconciled with Casconi, 94 Or App at 8 459, or Owczarzak, 94 Or App at 502, where we held that the defendants had protected privacy interests while they were in the restroom masturbating. If, on the other hand, the state means to argue that defendant has no privacy interest because the purpose of his being in the restroom was not “private,” that argument cannot be reconciled with the facts or with the state’s theory of the case–that defendant entered the bathroom precisely to achieve privacy, that is, to achieve freedom from the necessity to confront Albertson.

While this may be striking for its obviousness, even though it required a decision from the Oregon Court of Appeals to state the obvious, consider the implications for a police justification for a warrantless entry and search of a home where the testimony is that after the knock and announce, the officers hear a toilet flushing.

The immediate assumption is that the occupants are flushing drugs down the toilet, destroying evidence and thus creating an exigency that provides an exception to the warrant requirement.  Hear a flush? Break in without a warrant to prevent the destruction of evidence.

Why?  Why is the assumption that an occupant is destroying evidence rather than an occupant is doing what people do on the toilet?  And afterward, they flush. It’s the polite thing to do.

If there was probable cause to believe that the occupants of a premises were engaged in crime, then the police should have obtained a warrant rather than play the “knock and talk” game, ignoring the Fourth Amendment and testing the occupants by persuading, threatening and lying to get inside.  Without a warrant, there has been no finding of probable cause and yet the immediate assumption is that a toilet flush means something different than the enjoyment of a natural function.  The cops break down the door and rush into the bathroom. Why is that cool?

A secondary aspect of the Holiday decision relates to the prosecution’s claim of inevitable discovery of cocaine residue on the defendant’s crack pipe after he comes out of the bathroom.

Once the door was opened, defendant came out of the restroom carrying a plastic grocery sack. Officers handcuffed him and placed the sack on the hood of Helfrich’s patrol car. Inside the plastic sack were a number of personal items including eyeglasses, mail, medication, and a small clear plastic bag with defendant’s name on it. Inside that plastic bag was a white cardboard box. Inside that box, apparently in “plain view,” was a glass pipe that Helfrich immediately recognized as a “crack pipe.” The officers then seized the pipe, which subsequently tested positive for cocaine residue.

So the crack pipe was inside a white cardboard box, inside a plastic bag, and this, the prosecution argued, constituted “plain view?” Was it not wrapped in lead?  Apparently, plain view has a very different meaning in Oregon.

Judge Schuman, curiously, rejected the inevitable discovery argument not because the pipe would not have been discovered in plain view as Holiday exited the toilet, but because the prosecution had failed to argue and support the criteria for inevitable discovery at the suppression hearing.  Presumably, they could offer proof on the next go ’round and prevail.



One comment on “The Other Can, Man

  1. Wheeze The People™

    Last I checked, there’s at least some crack attached to a pipe in every in-use toilet; butt usually not in plainview unless, perhaps, from the perspective of a turd floating in the bowl . . . Could that be what happened here?? . . .

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