The Peephole Problem

The right of the people to be secure

in their persons, houses, papers and

effects, against unreasonable searches

and seizures, shall not be violated . . .

--Fourth Amendment

The constitutional command erects a wall of privacy that U.S. police cannot breach without a valid search warrant. But even so, the wall has gaping holes. Police are free to use evidence gained by peering in the locked windows of a private house; they can also plant electronic "bugs" on outside walls to record conversations inside. Unless they unlock the windows or pierce the walls, they need no warrant--for the moment at least, the line is drawn at actual physical intrusion.

How then should the Fourth Amendment be applied when police drill peepholes in the ceiling of a public toilet to catch homosexuals?

Uncomfortable Thought. The U.S. Court of Appeals in San Francisco faced this constitutional riddle in a case that arose from complaints of homosexual activity in the men's room of a privately run resort in Yosemite National Park. Without a warrant, a U.S. park ranger had holes cut above three stalls and disguised them as air vents. After watching 40 men peacefully come and go, the ranger and a photographer finally saw two men performing acts that violated both U.S. and California law.

Convicted under U.S. law, the defendants appealed on the grounds that the California Supreme Court has already invoked the Fourth Amendment twice to bar almost precisely similar evidence. The state court ruled that a public toilet stall is a place of privacy that police cannot invade unreasonably. In the Yosemite case, however, the U.S. Appellate Court sharply disagreed and upheld the convictions.

"We are made as uncomfortable as the next man by the thought that our own legitimate activities in such a place may be spied upon by the police," said the court. Nonetheless, the place is public, and it is properly subject to peephole surveillance because of "the criminal activities that can and do occur in it. People who choose to commit crimes where they may be seen take the chance that they will be seen."

Unmoved Majority. In troubled dissent, Judge James R. Browning argued that the Fourth Amendment "protects such privacy as a reasonable person would suppose to exist in given circumstances." The ranger invaded that privacy, said Judge Browning, by cutting peepholes that "constituted actual intrusion," and the resulting surveillance without a warrant created what the Fourth Amendment condemns--"a general exploratory search conducted solely to find guilt." Not moved, Judge Browning's brethren refused to extend the right of privacy to a public toilet. There was no actual intrusion, said the court. "All appellants complain of is that they were seen."

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