IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY
APPELLATE DIVISION

STATE OF FLORIDA,

            Appellant,

vs.                                                                   Appeal No. CRC 00-05092 CFANO

VINCENT VELA,

            Appellee.

_________________________________/

Opinion filed _____________________.

Appeal from Order Granting Motion to Suppress

Pinellas County Court

County Judge Amy M. Williams

Robert McLaughlin, Esq.
Assistant State Attorney
Attorney for Appellant

Joy K. Goodyear, Esq.
Assistant Public Defender
Attorney for Appellee

ORDER AND OPINION

            THIS MATTER is before the Court on the State’s appeal from the trial court’s Order granting the defendant’s Motion to Suppress based on a finding of lack of probable cause to arrest the defendant for violation of Fla. Stat. Sec. 800.3.  After reviewing the briefs and record, this Court affirms the Order granting the Motion to Suppress. 

            On review of a motion to suppress, the appellate court is to give deference to a trial court’s factual findings, but legal conclusions are reviewed de novoPhuagnong v. State, 714 So.2d 527 (Fla. 1st DCA 1998).  In this de novo review, this Court defers to the factual findings of the trial judge, but this Court will consider whether as a matter of law those facts amounted to probable cause. Furthermore, a ruling on a motion to suppress is presumptively correct, and a reviewing court should interpret the evidence and reasonable inferences and deductions drawn from the evidence in a manner most favorable to sustaining the trial court ruling.  Johnston v. State, 438 So.2d 774 (Fla. 1983); McNamara v. State, 357 So.2d 410 (Fla. 1978).

The Adult Entertainment Center is located on U.S. 19 in Pinellas County.  Within the Center are mini-booths where patrons can view adult films.  No fee is required to enter the Center.  However, to enter the mini-booth area you must purchase a minimum of four dollars worth of tokens, which are used to view the adult films.  There is no physical barrier within the Center to prevent patrons from entering the mini-booth area.  However, an electric device notifies the clerk if anyone enters that area.

The mini-booths are approximately four feet wide by six feet long, and are meant to provide for the viewing of films for one person at a time.  Outside of each booth is a red light that illuminates when a movie is being viewed to notify other patrons that the booth is occupied.  The door to each mini-booth is hinged and opens inward toward the patron inside the booth. If left ajar, the door will swing completely open in an inward direction.

On November 3, 1999, an undercover detective with the Pinellas County Sheriff’s Office entered the Center.  The detective entered the mini-booth area and noticed that the red light was on outside mini-booth number four.  Mini-booth number four is at the end of a hallway containing several other mini-booths.  The hallway dead ends outside booth number four.  The detective testified that he approached booth number four despite the illuminated red light to determine whether any illegal activity was taking place inside.  As the detective approached booth number four, he noticed that the door was open approximately four inches wide.  The detective testified that he then repositioned himself to see inside the booth.  When the detective repositioned himself, he observed the defendant seated inside the booth with his left foot against the door to stop the door from swinging open, allegedly masturbating while viewing an adult film.   The detective entered the booth, identified himself as a police officer, and issued the defendant a Notice to Appear for the charge of Exposure of Sexual Organs in violation of Fla. Stat. Sec. 800.03.

On February 11, 2000, the defendant filed a Motion to Suppress or in the Alternative Motion in Limine asserting that the defendant had a reasonable expectation of privacy in the booth and the officer did not have sufficient cause to use his observations to arrest the defendant.  After the hearing on the motion, the trial court orally granted the Motion to Suppress.  After denying the State’s motion for rehearing, the court filed a written Order Granting Motion to Suppress.  After a short statement of the pertinent facts, the order cited the statute in question, and concluded that the defendant had both a reasonable expectation of privacy and a subjective right of privacy under Katz v. United States, 389 U.S. 347 (1967).  Therefore, under the circumstances there was no basis found for the arrest without a warrant.

The State raises three issues on appeal.  First, the State claims that the trial court erred in holding that under Fla. Stat. Sec. 800.03 the Adult Entertainment Center is a place set aside for the defendant’s conduct. This court disagrees with State’s contention that the trial court made the above holding.  The trial court did make the following comment when orally granting the defendant’s Motion to Suppress: “It seems to me this is a place set aside for that purpose; it’s an Adult Entertainment Center”.  However, this was not the main ground on which the Motion to Suppress was granted by the trial court as can be seen by the written order.  While the language was not left out in the portion of the order citing the statute, there was no specific reference made to that part of the statute.  Instead, the court specifically found that under the circumstances, “the defendant had a reasonable expectation of privacy and subjective right of privacy under Katz.”  We, therefore, find the State’s first argument without merit.

The State’s second issue on appeal is that the trial court erred in holding that the defendant had a subjective right of privacy.  In State v. Conforti, 688 So.2d 350 (Fla. 4th DCA 1997), the court held that delineating the zone of privacy protected by the constitution begins with the subjective expectations of the individual.  In this case, the defendant paid to enter a part of the bookstore separated from the rest of the store. The defendant chose the last booth at the end of a dead-end hallway despite the fact that all of the other booths in the hallway were unoccupied.  The defendant could not have expected another patron to walk by because there would be nowhere further in the hallway to go except into the booth in which the Defendant was sitting.  The illuminated red light located outside the booth, however, served to prevent this from happening because its illumination indicated that the defendant’s booth was occupied.  Finally, the defendant kept his foot against the booth door to keep it from swinging open.  Although, the detective testified that each of the booth doors had a lock, he could not testify that this particular booth had a lock or, if it did have a lock, whether the lock was functional.  We, therefore, find that the defendant clearly had a subjective expectation of privacy because he took deliberate action to prevent himself from being seen.

The State’s third issue on appeal is that the trial court erred in holding that the defendant had a reasonable expectation of privacy. As stated above, the defendant went into an adult book store, paid money to proceed to an area designed for viewing adult films, selected the last booth at the dead end of a hallway where no other booths were occupied, put coins into a movie viewer which causes a light to come on outside the booth to indicate that the booth was occupied, and propped his foot against the door to keep it from swinging open.  We find that by taking these actions the defendant also had a reasonable expectation of privacy.

Furthermore, the defendant was not in “plain view” of the detective. Instead, the detective had to reposition himself to be able to view the defendant through the crack in the door.  During the Motion to Suppress, the detective testified as follows:

“Q.  And the door hinges; how do they operate?

A. There are six doors that have hinges that allow the door to open about four

inches.

Q. From this vantage point you still cannot see because of the position of the

door; is that correct?

A. That’s correct

Q. And once you saw the light was on and someone was in there, you moved from

your position to a position to see whether you can see what was going on inside

that mini-booth?

A. Yes.”

And then on recross-examination, the officer testified as follows:

“Q.  From that particular point, you had to position yourself to look in the opening

 of that door; is that correct?

A. Yes, I did.”

And then the judge asked the following:

“Q. When you stated you came into the hallway, could you see the defendant at

 that point?

A. No.”

In Ward v. State, 636 So.2d 68 (Fla. 5th DCA 1994), the court held that a defendant masturbating in a closed toilet stall did enjoy a reasonable expectation of privacy, despite the fact that the arresting officer could see the defendant through a crack in the stall.  The court found that the case was not a “plain view” case and that the officer’s conduct constituted an unlawful search and seizure because the officer took affirmative action to view the defendant’s conduct by standing close to the door and peering through the crack.  In reaching it’s decision, the Court distinguished Moore v. State, 355 So.2d 582 1219 (Fla. 1st DCA 1978), where a fourth amendment defense was rejected.  In Moore, the court found that the police had reasonable grounds to believe that the defendant was not using the closed toilet stall in a public restroom in a bus station for its normal purpose, and they could see enough through the door openings (not having to peep) by simply standing outside, to detect the commission of a crime.

The facts of this case are clearly analogous to Ward.  There was no probable cause justification for the officer to think a crime was being committed in the booth.  However, the officer walked to the end of the hallway specifically looking for criminal activity.  When he approached the booth in which the defendant was seated, he could not see into the booth, but he knew that the booth was occupied because the red light was on.  The officer then proceeded to reposition himself (took affirmative action) to peer inside the booth.

There is also a substantial difference between a stall in a public restroom and a private booth in an adult bookstore.  A public bathroom stall is much more accessible and has a much greater frequency of use by the public.  Therefore, the likelihood of your actions being seen in a public bathroom stall is much greater than in a private booth in an adult bookstore.  Accordingly, we find that the officer’s conduct constituted an unlawful search and seizure.

Based on the forgoing, it is

ORDERED AND ADJUDGED that the Order granting the Motion to Suppress is affirmed.

            DONE AND ORDERED in Chambers at St. Petersburg, Pinellas County, Florida this ______ day of December, 2000.


___________________________
NANCY MOATE LEY
Circuit Judge


___________________________
R. TIMOTHY PETERS
Circuit Judge

 


Judge Cope dissents with opinion

The facts of this case are not analogous to Ward and are clearly distinguishable.  The subject of the alleged unreasonable search was a booth within a business called “The Adult Entertainment Center” for adult entertainment.  Ward was a public restroom case.  Search and seizure focuses on the place not the illegal activity.  The public restroom did not have a flashing red light which the majority assumes was to insure privacy (the detective approached despite the illuminated red light).  Red lights are not placed in windows or above booths where the product is adult entertainment.  A red light is an announcement that the booth and/or bed is available for shared adult “entertainment”.  The detective did not peer in a public restroom through a gap between the door and structure of the stall, but rather into a booth in an adult business with a door kept open four inches (4”).  By leaving the door open in the described environment there was an implied invitation of entry, not a subjective or reasonable right of privacy.  Common sense dictates that if the defendant wanted privacy the door would have and could have been shut.  The practical effect of the majority opinion permits the defendant to advertise the offering of an illegal activity and prohibits the enforcement of the law.

Further, I find that the detective did not open the door to the booth to obtain probable cause but rather made an observation with his own eyes from a place that was open to the public.  Thus, under these circumstances the defendant was in plain view.


__________________________
CHARLES W. COPE
Circuit Judge
Primary Appellate Judge

Copies furnished to:

The Honorable Amy M. Williams

Robert F. McLaughlin, Esq.
Assistant State Attorney
P.O. Box 5028
Clearwater, Florida 33758

Joy K. Goodyear, Esq.
Assistant Public Defender
Criminal Justice Center
14250 49th Street North
Clearwater, Florida 33762