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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Bruce Robert DOUGLAS, Defendant and Appellant.

No. H002552.

Decided: March 10, 1988

Michael A. Kresser, Acting Conflicts Adm'r, San Jose, in association with Larry J. Musitelli, Appellate Counsel, Santa Cruz, for defendant and appellant (under appointment by the Court of Appeal). John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., David D. Salmon, Supervising Deputy Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

After his motion to suppress evidence was denied, Bruce Robert Douglas pled guilty to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), being under the influence of alcohol or drugs in public (Pen. Code, § 647, subd. (f)), and possession of a hypodermic needle and syringe (Bus. & Prof. Code, § 4143, subd. (a)).  Imposition of sentence was suspended and he was admitted to probation.   He appeals, seeking further review of his contention that evidence against him had been obtained by an illegal search.  (Pen. Code § 1538.5, subd. (m).)  The facts are undisputed.   Upon our independent measurement of those facts “ ‘against the constitutional standard of reasonableness' ” (People v. Leyba (1981) 29 Cal.3d 591, 597, 174 Cal.Rptr. 867, 629 P.2d 961) we conclude there was no violation of Douglas's Fourth Amendment rights.   Accordingly we affirm.

The only evidence before the trial court was a transcript of the preliminary examination testimony of San Jose Police Officer Colla.

Colla was dispatched to a Chevron gas station at 2 a.m.   At the station the night cashier, Herzog, told Colla a man and a woman had come to the gas station, one of them had asked to use the bathroom, and Herzog (from his cashier's booth) had electronically unlocked the doors to the restrooms whereupon both the man and the woman entered the men's room.   Herzog told Colla he had yelled at the man and woman “to come on out of there” or “ ‘Hey, come back here,’ something like that,” but had received no indication the man or woman had heard him.   Herzog did not indicate to Colla that the woman had been forced into the bathroom.   Herzog told Colla he had then called the police.

Colla “thought it was a multitude of things could have been happening;  one, prostitution activity.   I wasn't sure if the female had gone in there voluntarily.   Maybe some sort of assault, sex crimes, things like that.”   Herzog electronically unlocked the doors and Colla entered the men's room.

The men's room contained one toilet stall and a urinal.   The stall door was closed.   There was a space of approximately six inches between the bottoms of the stall wall and door and the floor of the men's room:  Colla could see, on the floor within the stall, what appeared to be a man's feet and a woman's purse.   Colla observed this situation for about ten seconds.   During that time he saw nothing else unusual, and heard nothing at all:  No groans, yells, or sounds of any kind.

The tops of the stall wall and door were approximately six feet above the floor.   From his position Colla could see nothing inside the stall other than the man's two feet and the woman's purse.   Without speaking, he walked over to the stall and, by standing on tiptoe, looked over the wall into the stall.   He saw a woman sitting on top of the toilet tank and appellant Douglas apparently using a hypodermic needle and syringe to inject something into her arm.   Colla had no prior knowledge of either the man or the woman.

Colla then announced he was a police officer, forced open the stall door, arrested both Douglas and the woman, and collected the evidence in issue here.

In the trial court Douglas conceded, appropriately, that Colla had “at least a basis for going into the restroom.”  “When law enforcement officers suspect that crimes are being perpetrated, they are as free to enter restrooms as is any member of the public.”  (People v. Triggs (1973) 8 Cal.3d 884, 894 fn. 7, 106 Cal.Rptr. 408, 506 P.2d 232.)   It is also apparent that once Colla had looked over the wall into the toilet stall the hypodermic needle and syringe were within his plain view, and hence no further search was involved with respect to those articles;  Douglas does not contend otherwise.   The evidence subsequently seized included methamphetamine found in the syringe and a bindle of methamphetamine which Colla found by searching the woman's purse.   Douglas initially moved to suppress both, but then at hearing stipulated he was not attempting to suppress the bindle.   Douglas also conceded he was not claiming a violation of the knock-notice rules (Pen.Code § 844;  cf. Pen.Code § 1531).

Thus the narrow question presented to the trial court was whether Colla had violated Douglas's Fourth Amendment rights by looking over the wall into the toilet stall.

The trial court concluded both that Colla had had probable cause to look into the stall and that there had been exigent circumstances sufficient to justify Colla's actions.

The record would support a conclusion that none of the charges against Douglas was based on the bindle found in the woman's purse.   Nevertheless, in this court Douglas seeks to readdress the validity of the purse search, contending he had had standing to challenge that search and that his attorney's stipulation to abandon the challenge had deprived him of effective assistance of counsel.   We need not reach these contentions because they would in no event affect the result in this court:  Here as below, Douglas's only argument for exclusion of any of the evidence is that Colla violated his rights by looking into the toilet stall.   Were we to agree with this argument we would be constrained to conclude the methamphetamine in the syringe should have been suppressed, and on that basis to reverse Douglas's conviction whether or not the bindle would have been admissible.  (People v. Hill (1974) 12 Cal.3d 731, 767–769, 117 Cal.Rptr. 393, 528 P.2d 1.)   Because we reject Douglas's only Fourth Amendment argument we affirm.

To support his argument for exclusion, Douglas relies on People v. Triggs, supra, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232.  Triggs is a leading case for the well-established proposition that the occupant of a toilet stall in a public restroom may normally have a reasonable expectation of privacy as against routine clandestine surveillance of the interior of the stall, and therefore (under the rationale of Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576) police observation of the occupant's activities within the stall, either by means of or incident to such surveillance, constitutes a search within the meaning of the Fourth Amendment.  (Cf. generally 1 LaFave, Search and Seizure (2d ed. 1987) Protected Areas and Interests, § 2.4(c), pp. 437–441.)   In Triggs, plainclothes officers in a Los Angeles park routinely used a “plumbing access area” in the park's restroom building to observe activities within the men's and women's restrooms.   On the occasion in question, apparently from positions outside the restroom building, the officers saw the defendant enter the men's room, followed about 10 minutes later by another man.   Five minutes after the second man entered the officers went to the “plumbing access area,” from which they saw the two men engaged in homosexual activity in a doorless toilet stall.   One of the officers testified he had used the “plumbing access area” “about 50 times for the purpose of ascertaining if any criminal conduct was occurring in the adjacent men's room.   Other than entering the restroom at a 10–minute interval, a circumstance the officer had seen many times before in an innocent context, neither [man] had committed any suspicious acts.  [The officer] agreed with defense counsel that he had entered the plumbing access area on this occasion ‘to make an observation in case there was a crime committed.’ ”  (8 Cal.3d at pp. 888–889, 106 Cal.Rptr. 408, 506 P.2d 232.)   The Supreme Court concluded the “clandestine observation” had constituted a search, the officers had lacked probable cause to search the toilet stall, and therefore the officer's trial testimony as to what he observed should have been excluded. (Id. at pp. 894–895, 106 Cal.Rptr. 408, 506 P.2d 232.)

The circumstances before us are distinguishable from Triggs and similar cases in several respects:  Entry by a man and a woman, together, into the men's room was by no means equivalent to the apparently innocuous serial entry by two men observed by the officers in Triggs.   There is no showing that police were conducting or had conducted routine surveillance of, or had any ongoing interest in, the restrooms at the Chevron station.   Colla's conduct was in immediate and direct response to a request of a station employee for assistance in controlling use of the station restrooms on a single occasion in specifically described circumstances.   Beyond Colla's right, and arguable duty, to act upon the employee's plausible request for assistance, the facts as reported by the employee suggested to Colla that criminal activity was in progress in the men's room.

In the circumstances of record we might question the parties' apparent assumption that Colla's observation constituted a search (cf. In re Deborah C. (1981) 30 Cal.3d 125, 135, 137, 138 fn. 9, 177 Cal.Rptr. 852, 635 P.2d 446;  Rakas v. Illinois (1978) 439 U.S. 128, 143–144 fn. 12, 99 S.Ct. 421, 430–431 fn. 12, 58 L.Ed.2d 387), but we need not reach the point:  Assuming Douglas's interest in such privacy as the toilet stall afforded would have been constitutionally protected against “ ‘unreasonable governmental intrusion’ ” (People v. Triggs, supra, 8 Cal.3d 884, 891, 106 Cal.Rptr. 408, 506 P.2d 232), we conclude Colla's minimal intrusion was constitutionally reasonable, and therefore permissible, in the circumstances known to Colla.   Colla's concern that the entry of Douglas and the woman into the men's room at 2 o'clock in the morning connoted “prostitution, ․ some sort of assault, sex crimes, things like that” was rational, and he acted rationally to investigate the situation in light of his concern a crime was in progress and that the woman might be a victim.

“[W]e deal here with an entire rubric of police conduct—necessarily swift action predicated upon the on-the-spot observations of the officer on the beat—which historically has not been, and as a practical matter could not be, subjected to the warrant procedure.   Instead, the conduct ․ must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures. [¶ ]․  [I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”  (Terry v. Ohio (1968) 392 U.S. 1, 20–21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889, fns. omitted.)   The facts must be judged “against an objective standard:  would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?”  (Id. at pp. 21–22, 88 S.Ct. at p. 1880.)   Neither “inarticulate hunches” nor simple subjective good faith will suffice.  (Id. at p. 22, 88 S.Ct. at p. 1880.)

We are satisfied the facts known to Colla met the objective test and justified his actions.  (Cf. People v. Duncan (1986) 42 Cal.3d 91, 97–99, 227 Cal.Rptr. 654, 720 P.2d 2;  People v. Ammons (1980) 103 Cal.App.3d 20, 28–31, 162 Cal.Rptr. 772;  People v. Parra (1973) 30 Cal.App.3d 729, 732–734, 106 Cal.Rptr. 531;  People v. Clark (1968) 262 Cal.App.2d 471, 475–477, 68 Cal.Rptr. 713; cf. also Witkin, Cal. Crim. Procedure (1985 Supp., Part 2) § 945, p. 161, citing additional cases.)   Douglas argues Colla should not have looked into the stall but should, instead, have identified himself and demanded an explanation from the people in the stall.   In the circumstances of record we conclude Colla's decision to look rather than to speak was reasonable.

It follows that the trial court's order denying Douglas's motion to suppress evidence was proper.

The order granting probation is affirmed.

The precise issues presented in this appeal are whether appellant Douglas had an expectation of privacy inside the closed bathroom stall and, if so, whether Officer Colla's search of that bathroom stall was supported by probable cause or justified under a theory of exigent circumstances as the trial court so found.

The majority opinion carefully avoids addressing head on whether Officer Colla had “probable cause” to search the bathroom stall.   Instead, in vague language, it concludes that Officer Colla's “minimal intrusion” was “permissible” given the officer's “concern” that entry of a man and woman into a men's room at 2 a.m. “connoted ‘prostitution, ․ some sort of assault, sex crimes, things like that’ ” and given his rational “concern” that a woman might be a victim to a crime in progress.   With all due respect, a rational concern that a crime may be occurring does not itself constitute probable cause to search.

The principles governing the review of the trial court's denial of Douglas's Penal Code section 1538.5 motion are well established.   Where, as here, the evidence is uncontroverted, we do not engage in a substantial evidence review;  “the question becomes one of law for the reviewing court.”  (People v. Flores (1979) 100 Cal.App.3d 221, 228, 160 Cal.Rptr. 839.)   We must independently determine whether the facts support the court's legal conclusions.  (See People v. Gee (1982) 130 Cal.App.3d 174, 179, 181 Cal.Rptr. 524;  People v. Leyba (1981) 29 Cal.3d 591, 597–598, 174 Cal.Rptr. 867, 629 P.2d 961;  cf. People v. Aldridge (1984) 35 Cal.3d 473, 477, 198 Cal.Rptr. 538, 674 P.2d 240.)

The enactment of California Constitution, article I, section 28(d) (Proposition 8), on June 9, 1982, requires us to apply federal constitutional law to determine whether evidence should be excluded for offenses committed after that date.  (In re Lance W. (1985) 37 Cal.3d 873, 886–888, 896, 210 Cal.Rptr. 631, 694 P.2d 744.)

Douglas and his companion were inside a closed toilet stall within a public restroom:  the Supreme Court has long recognized that the “occupants of toilet stalls can reasonably expect their activities within them to be private.”   (People v. Triggs (1973) 8 Cal.3d 884, 892, 106 Cal.Rptr. 408, 506 P.2d 232, disapproved on other grounds in People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 4, 150 Cal.Rptr. 910, 587 P.2d 706;  Bielicki v. Superior Court (1962) 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288.)   The fact that the wall and door of the stall did not reach the floor or ceiling does not lessen the expectation of privacy within the stall.  (Britt v. Superior Court (1962) 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817.)   Therefore, Colla's observations within the stall must be supported by probable cause or otherwise justified under the theory of exigent circumstances.   (People v. Triggs, supra, 8 Cal.3d at pp. 892–893, 106 Cal.Rptr. 408, 506 P.2d 232.)

Probable cause exists when, at the time officers conduct a search, “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense.”  (Beck v. Ohio (1964) 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142.)   Although Beck defined probable cause in the context of an arrest, the same standard applies to probable cause to search.  (Spinelli v. United States (1969) 393 U.S. 410, 417, fn. 5, 89 S.Ct. 584, 589, fn. 5, 21 L.Ed.2d 637.)   A determination of whether probable cause, i.e., the probability of criminal activity, exists requires a practical consideration of the totality of the circumstances involved in the case.  (Illinois v. Gates (1983) 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527.)

Here, Officer Colla testified that he had “some suspicion” that “a multitude of things could have been happening;  one, prostitution activity․  Maybe some sort of assault, sex crimes, things like that.”   However, when he entered the restroom and stood outside the closed stall for 10 seconds, it was quiet and he admitted not hearing any sound which would be consistent with sexual activity.  “ ‘[C]ommon rumor or report, suspicion, or even “strong reason to suspect” ’ have historically been inadequate to establish probable cause, and ‘that principle has survived to this day’ in the law of the Fourth Amendment and the law of this state.”  (People v. Triggs, supra, 8 Cal.3d at p. 895, 106 Cal.Rptr. 408, 506 P.2d 232, citing Henry v. United States (1959) 361 U.S. 98, 101, 80 S.Ct. 168, 170, 4 L.Ed.2d 134.)   At most, Officer Colla's “rational concern” that a “multitude of things could have been happening;  one, prostitution activity․  Maybe some sort of assault, sex crimes, things like that” is a euphemism for a “strong reason to suspect” inadequate to justify the search which took place.   Officer Colla lacked probable cause to search the toilet stall occupied by Douglas, as his clandestine observations were prompted by a suspicion inadequate to establish probable cause even under the “totality of the circumstances” standard set forth in Gates.

Nor can the theory of exigent circumstances justify this search given the circumstances facing Officer Colla as he stood in the restroom outside the closed stall.   The theory applies when law enforcement is presented with “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.   There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.”   (People v. Ramey (1976) 16 Cal.3d 263, 276, 127 Cal.Rptr. 629, 545 P.2d 1333, cert. den. 429 U.S. 929, 97 S.Ct. 335, 50 L.Ed.2d 299;  People v. Stamper (1980) 106 Cal.App.3d 301, 306, 164 Cal.Rptr. 861.)

At the time Officer Colla looked into the closed stall, he had no information that there was an imminent danger to life or property, or the likelihood of flight or destruction of evidence.   He had no suspicion of narcotic activity and therefore was unconcerned with the destruction of evidence.   His presence in the restroom precluded flight from the stall.   The fact that the restroom was quiet, that he heard no sounds consistent with sexual activity, sexual assault, or any other type of assault which might suggest a threat to property, could only have minimized any concern he may have had regarding danger to life or property.   The fact that Officer Colla listened quietly for 10 seconds after noticing that all he could see when he entered the restroom was a pair of men's legs and a woman's purse on the floor reveals that that fact alone did not suggest to him the level of an exigency warranting swift action to prevent imminent danger, such as forcing open the stall or demanding immediate entry.   Instead, Officer Colla quietly walked over to the wall of the stall, stood on his tiptoes, and peeked over the top of the wall.   His observation was “ ‘prompted by a general curiosity to ascertain what, if anything’ ” (People v. Superior Court (1970) 3 Cal.3d 807, 831, 91 Cal.Rptr. 729, 478 P.2d 449, citation omitted) was happening inside the stall rather than by a sense of a level of exigency.

Officer Colla's testimony as to what he observed and his discovery of the hypodermic needle and syringe filled with methamphetamine were secured as a result of an illegal search and should have been suppressed.

BRAUER, Associate Justice.

AGLIANO, P.J., concurs.

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