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Univ. of San Diego School of Law

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Thursday, January 13, 2005

New Case: Reasonable Expectation of Privacy in a Locked, Public Restroom?

The Eighth Circuit held this week in U.S. v. Hill that the defendant did not have a reasonable expectation of privacy in a convenience store restroom that he had entered and locked.  The defendant had entered the restroom with a woman, and the store clerk called the police when he suspected the couple was having sex therein.  After the police arrived a few minutes later and knocked several times and received no response (but heard belt buckles, etc.), they picked the lock on the door and found the defendant in a state of semi-dress (with a woman) and with illegal narcotics surrounding him.  Important to its holding were the facts that the restroom was located in a commercial establishment, that he shared the restroom with another person, that he used the restroom for a purpose other than for its intended use, and that he did not exit the restroom after having been asked several times.  Thus, any expectation of privacy that he might have enjoyed when he first entered the restroom had expired by the time the police arrived.  The court stated that some customers who remain in a public restroom for extended periods of time, such as ill or  handicap persons or a parent helping a child use the restroom, might retain their expecation of privacy througout the extended duration of their restroom visit. 

A few parts of the decision were a little confusing.  For example, the court also mentioned that the store clerk had authority to consent to the search, but the facts do not indicate that the clerk in fact consented.  There was very little analysis on that point.  The decision seems to be based on a lack of a reasonable expectation of privacy rather than on valid consent by the store clerk.  Also, the court's analysis suggested that the defendant and his lady friend had been asked to leave the bathroom several times (presumably by the store clerk), but the facts do not reflect this.

All in all, it seems like the right result.  While I would say that a person has a reasonable expectation of privacy upon entering a public restroom and locking the door, one who does so with another person, remains inside for an extended period of time, and the ignores requests to leave without offering an excuse (like "I'm sick") would have to expect that he is wearing out his welcome and that the store owner or someone else might bust in at any moment to see what is going on.  Thus, the expectation of privacy is eroded by the subsequent events. [Mark Godsey]

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