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March 13, 1975

ALLEN E. KROEHLER and LAMAR HOOVER, on behalf of themselves and all others similarly situated
RICHARD M. SCOTT, Individually and as Mayor of the City of Lancaster; WILMER A. HOOVER, individually and as Chief of Police of the City of Lancaster; HARRY MELLINGER, ROLAND KUHN, Police Officers of the City of Lancaster; JOHN DOE and RICHARD ROE, their agents and employees

The opinion of the court was delivered by: TROUTMAN


 In this action under the Civil Rights Act, 42 U.S.C. ยงยง 1983 and 1985(3), plaintiffs seek an injunction prohibiting certain surveillance practices undertaken by defendants and a declaratory judgment that such surveillance deprived them of their constitutional right to privacy under the Fourth Amendment. By Memorandum and Order on August 2, 1974, this Court granted certification under F.R.Civ.P. 23(a) and (b)(2) of a class action. *fn1" Since the parties have filed a set of stipulations and exhibits, attached hereto as an Appendix, there are no outstanding factual issues which bar a decision on the merits.

 At the outset we note that these surveillance activities are not now being conducted so that the exigencies which may have mandated preliminary injunctive relief have abated. See Stipulation 9. Nevertheless, the threat of future surveillance is sufficient to warrant a declaratory judgment. See Stipulation 10; NLRB v. Raytheon Co., 398 U.S. 25, 26 L. Ed. 2d 21, 90 S. Ct. 1547 (1970); and 6A Moore, Federal Practice P 67.08[2] at 57-40. *fn2"

 On the stipulated facts, the plaintiffs contend that they are entitled to a reasonable expectation of privacy while using public toilet stalls and, as such, these expectations trigger the protections of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1969); People v. Triggs, 8 Cal. 3d 884, 106 Cal. Rptr. 408, 506 P. 2d 232 (1973). These protections, they argue, prohibit the defendants from covertly peering through a hole placed in the ceiling and into the toilet stalls without first obtaining a search warrant based upon a showing of probable cause that criminal activity was taking place therein or demonstrating at least the exigent circumstances which suspend the requirement of a warrant. Defendants counter with the assertion that persons using public toilet stalls are not entitled to the protections of the Fourth Amendment since no expectation of privacy is reasonably and properly generated in the use of such public facilities. Defendants point to the circumstances which gave rise to the surveillance -- namely, numerous complaints of criminal activities, including homosexual and drug-related incidents -- and conclude that the surveillance in question was constitutionally proper, prompted by the threat thus posed to the innocent public of which plaintiffs are members. See Stipulations 3, 4, 16 and 26. Defendants rely heavily upon Smayda v. United States, 352 F.2d 251 (9th Cir.) cert. denied 382 U.S. 981, 15 L. Ed. 2d 471, 86 S. Ct. 555 (1966).

 The crucial inquiry is whether a person utilizing a public toilet stall is entitled to be free from governmental intrusion in the form of clandestine observation absent a preliminary demonstration of probable cause warranting the conclusion that criminal activity is occurring. Stated differently, and more simply, the issue is whether the Fourth Amendment protects a person who temporarily occupies a toilet stall in a public restroom from observation through small ceiling vents designed exclusively for that purpose in search of suspected criminal activity of a drug-related or sexually-oriented nature. We look first to Katz v. United States, supra, which articulated the appropriate test to be utilized under the Fourth Amendment. In Katz, the Supreme Court held inadmissible, in a criminal prosecution, evidence which was procured by a warrantless electronic surveillance of a defendant's conversation in a telephone booth, despite the fact that the booth was designed for public use. "Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures". 389 U.S. at 359, 88 S. Ct. at 515, 19 L. Ed. 2d 576. Concluding that the absence of physical intrusion was not determinative, the Court held:

". . . the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection . . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Id., 389 U.S. at 351-352.

 Justice Harlan observed:

". . . there is a two-fold requirement, 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'.
. . .
"The critical fact in this case is that '[one] who occupies it, [a telephone booth] shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume' that his conversation is not being intercepted. . . . The point is . . . that it is a temporarily private place whose momentary occupant's expectations are recognized as reasonable." Id. 361.

 Once it has been determined that the circumstances justify an expectation of privacy which is subjectively and objectively reasonable, the Fourth Amendment requires that the detached restraint of a neutral official be interposed between the individual and the governmental intrusion.

"'Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes', United States v. Jeffers, 342 U.S. 48, 51, 96 L. Ed. 59, 64, 72 S. Ct. 93, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." [footnotes omitted] 389 U.S. at 357, 88 S. Ct. at 514, 19 L. Ed. 2d 576.

 In applying the expectation of privacy test to the facts and circumstances in question, we are persuaded that plaintiffs harbored reasonable expectations of privacy which are generally recognized as subjectively and objectively reasonable, and are thus entitled to Fourth Amendment protections. *fn3" It is uncontested that the defendants failed to procure a warrant prior to the commencement of the surveillance in question. See Stipulation 14. As such, we conclude the search was unreasonable per se. Katz, supra.

 In reaching this conclusion, we have carefully analyzed the cases which have involved covert police observation of activities undertaken in toilet stalls in public restrooms. In People v. Trigg, supra, the Court held inadmissible evidence obtained by a police officer who had sequestered himself in a plumbing access area behind a toilet stall. The state argued that his visual observations did not constitute a "search" within the ambit of the Fourth Amendment since the toilet stall under surveillance had no door. *fn4" The police officer testified that even though the defendant had done nothing suspicious, the officer nevertheless sneaked into his observation post "in case there was a crime committed" as he had done approximately fifty times before. In holding the search illegal, the Court concluded:

"This would permit the police to make it a routine practice to observe from hidden vantage points the restroom conduct of the public whenever such activities do not occur within fully enclosed toilet stalls and would permit spying on the 'innocent and guilty alike'. Most persons using public restrooms have no reason to suspect that a hidden agent of the state will observe them. The expectation of privacy a person has when he enters a restroom is reasonable and is not diminished or destroyed because the toilet stall being used lacks a door." 8 Cal. 3d 884, 106 Cal. Rptr. 408, 506 P. 2d 236.

 In addition, it was noted that the rights of innocent persons to such privacy were concomitantly violated.

"In seeking to honor reasonable expectations of privacy throughout application of search and seizure law, we must consider the expectations of the innocent as well as the guilty. When innocent people are subjected to illegal searches -- including when, as here, they do not even know their private parts and bodily functions are being exposed to the gaze of the law -- their rights are violated even though such searches turn up no evidence of guilt." Id., 506 P.2d at 237-238.

 In Bielicki v. Superior Court, 57 Cal. 2d 602, 371 P. 2d 288, 21 Cal. Rptr. 552 (1962), upon receipt of complaints of homosexual activity, two "spy pipes" were installed in the roof of pay toilets in a privately owned amusement park. At the owner's request two police officers perched on the roof to peer through the pipes and observe the conduct of the occupants "until we make an arrest, or until we see that we can't make an arrest". The Court suppressed ...

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