all we need is someone to tell us that sex in a stall with a 5 year old who just got bribed with candy is cool.....and this thread would be complete.

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No individual can plan his own existence in their view.

So the state planners must arrogate to themselves the right to manipulate any sector of the economic system if the good of “society” or the “general welfare” is paramount.

Ipso- if the rights of the individual get in the way, the rights of the individual must be sublimated.

The Road to Serfdom
FA Hayek (interpretation)


Mortgage Backed Security survivor

Absolutely. The United States had a continuous history of killing the Native Americans. There was no precedent for stopping, so why did we? According to you, we shouldn't have.

You may say this is stretching your interpretation, in much the same way that mentioning human sacrifice stretches a definition of privacy.

I am not saying that legal precedent is not important, even though I am unsure about your views on the subject, you at first argued against using precedent, now are arguing for it as the basis of all laws. I am merely saying that the founding fathers may not have considered EVERYTHING when writing the constitution, which is where other ideas come in to help us formulate our laws; ideas such as the "right to privacy." While not explicitly mentioned in the constitution, it is in the same spirit as the "freedom of speech."

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If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter. -- George Washington

What's wrong with sex in a bathroom stall?

I mean, I find beds more comfortable, but really now.

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"Jesus said: I have cast fire upon the world, and behold I guard it until it is ablaze."
Gospel of Thomas

Ugh.

Honestly, DL, I don't know that I've ever met a woman who would even consider sex in an airport bathroom. The smell alone would be sufficient to preclude such a thing.

__________________
When they come a wull staun ma groon
Staun ma groon al nae be afraid
Thoughts awe hame tak awa ma fear
Sweat an bluid hide ma veil awe tears

Well yeah. I don't know that I would go for it. But then I'm not really into whips'n'chains or food fetishes either.

Whatever creams your twinkie.

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"Jesus said: I have cast fire upon the world, and behold I guard it until it is ablaze."
Gospel of Thomas

How fucking stupid. I have not said we should or should not do anything...as matter of public police, what I have said is that people should not pretend the CONSITUTITON requires or prohibits things it doesn't.

If I say the there is no constitutional right to abortion, that doesn't mean I am neccesarily opposing allowing it to be legal as a matter of public policy

If I say there is no constitutional right to gay marriage, that doesn't mean I am neccesarily opposing allowing it to be legal as a matter of public policy.

Really? Because I keep hearing the physician assisted suicide is supposedly a constitutional "privacy" right, and I keep hearing about things being done in the "privacy of our homes" meaning that the constitution prohibits the actual criminalizaiton of things in places where we have an "expectation of privacy". Why is voluntary human sacrifice a stretch?

Hence my problem with the fact that not a one of you has given ANY definition for this phrase "right to privacy" you treat with such reverence.

You are confusing precedent as a legal matter in terms of Stare Decisis (which by definition recognizes that the precedent in question is actually WRONG, but accepts the continuation because of the level of societal disruption that would result from overturning it) and the reliance on the history, traditions, and practices of society determining what the CORRECT reasonable interpretation of a legal text is.

Take Social Security for example, one could argue that a proper interpreation of the constitution would deem it unconsitutional, but even a judge holding that view would likely exercise stare decisis on the grounds that the program has become so ingrained in our culture--to the extent that people have made a lifetime of irrevocable choices based on it--that simply overturning it now would result in utter chaos.

But "precedent" and Stare Decisis are another one of those absolute liberal hypocracies. They do not believe in either unless it supports their stated policy goals. A good judge employees consistent rules for deciding on whether or not allowing a clearly incorrect precedent to stand as a matter of stare decise from case to case.

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

For the thread's discussion and benefit, I am copying the Bryant decision here (the case cited by the ACLU) so everyone can read it and fully understand what it decided.

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05/22/70 STATE v. MELVIN LEO BRYANT

[1] SUPREME COURT OF MINNESOTA


[2] No. 41672


[3] 1970.MN.161 <http://www.versuslaw.com>, 177 N.W.2d 800, 287 Minn. 205


[4] May 22, 1970

. . .

[14] Appeal by Melvin Leo Bryant from an order of the Ramsey County District Court, Robert V. Rensch, Judge, denying a motion to suppress evidence, and from a judgment whereby he was convicted of sodomy.


[15] AUTHOR: KNUTSON


[16] This is an appeal from a judgment convicting defendant of consensual sodomy. The facts are not seriously in dispute and therefore only those necessary to the resolution of the issue raised will be presented.


[17] Montgomery Ward and Company operates a large department store in St. Paul. For the convenience of the public it provides restrooms. The men's restroom involved here contained a number of toilet stalls, 2 feet 9 inches wide and approximately 5 feet in depth. They were separated by metal partitions beginning about 12 1/2 inches above the floor and extending to within 3 1/2 feet from the ceiling. The partitions were constructed of two pieces of metal back-to-back with an air space between them. The total thickness of the partitions was about 1 inch. Each stall had a door which could be closed and secured from the inside. When the door was closed it was impossible to see into the stall from the public area of the restroom, other than to see the feet of one occupying the stall. A hole about 2 1/2 inches in diameter had been cut through the partition separating two stalls. The hole was known to the store's protection supervisor, David Imire, and had existed for about 2 weeks before the matters discussed herein took place. Mr. Imire brought it to the attention of the store's operating manager, but the hole was not closed and was still in existence at the time of the trial. Suspecting that the stalls were being illegally used by homosexuals, the store's protection manager enlisted the aid of the St. Paul police. A police officer and Mr. Imire stationed themselves over a ventilator in the ceiling above the restroom, which enabled them to view the toilet stalls below. There they observed defendant and another perform an act of oral sodomy by means of the hole cut in the partition separating the two stalls. Defendant was thereupon arrested, tried, and convicted upon the testimony of the police officer and Mr. Imire. If the testimony upon which the conviction rests was admissible, there is no doubt that there is sufficient evidence to sustain the conviction. The only question raised here is whether the testimony of the police officer and Imire was admissible.


[18] The facts in this case are indistinguishable from those of Bielicki v. Superior Court, 57 Cal. (2d) 602, 21 Cal. Rptr. 552, 371 P. (2d) 288, and Britt v. Superior Court, 58 Cal. (2d) 469, 24 Cal. Rptr. 849, 374 P. (2d) 817.


[19] The Bielicki case held that testimony of officers who secretly observed occupants of toilet stalls through a pipe installed through the roof of the building was inadmissible as the product of an unlawful search. The court said (57 Cal. [2d] 609, 21 Cal. Rptr. 556, 371 P. [2d] 292):


[20] "Certainly the premises of an amusement park held out to public use are subject to reasonable inspection. But license to make such an inspection of a toilet stall is not the equivalent of authority to invade the personal right of privacy of the person occupying the stall. Authority of police officers to spy on occupants of toilet booths -- whether in an amusement park or a private home -- will not be sustained on the theory that if they watch enough people long enough some malum prohibitum acts will eventually be discovered."


[21] In the Britt case, an officer secretly watched toilet stalls in a department store by means of two vents. Defendant was apprehended, as here, in committing an illegal act. In holding the testimony of an officer was inadmissible, the court said (58 Cal. [2d] 472, 24 Cal. Rptr. 851, 374 P. [2d] 819):


[22] "* * * Of course, clandestine observations by police officers of premises devoted to common use by the general public -- such as, for example, the shopping areas and public hallways and elevators of the department store here involved -- is not prohibited by our decision in Bielicki. * * * But it is equally clear that authority to maintain clandestine surveillance of common use public places and persons therein is not the equivalent of license to surreptitiously invade the right of personal privacy of persons in private places. Man's constitutionally protected right of personal privacy not only abides with him while he is the householder within his own castle but cloaks him when as a member of the public he is temporarily occupying a room -- including a toilet stall -- to the extent that it is offered to the public for private, however transient, individual use."


[23] In Brown v. State, 3 Md. App. 90, 238 A. (2d) 147, an officer observed a known drug addict standing in a toilet booth. There was a swinging door about 5 feet 5 inches high on the booth. The officer put his head over the door and saw some narcotic paraphernalia on the commode. The court, holding his testimony inadmissible, said (3 Md. App. 94, 238 A. [2d] 149):


[24] "* * * We believe that a person who enters an enclosed stall in a public toilet, with the door closed behind him, is entitled, at least, to the modicum of privacy its design affords, certainly to the extent that he will not be joined by an uninvited guest or spied upon by probing eyes in a head physically intruding into the area."


[25] In State v. Kent, 20 Utah (2d) 1, 432 P. (2d) 64, police suspected the defendant of stealing narcotics. They obtained permission from a motel manager to observe the bathroom and part of the bedroom through a ventilator in the attic. The court held the evidence obtained inadmissible since it was the result of an illegal exploratory search which violated defendant's constitutional right to privacy.


[26] The only case which our research has brought to light where observation of a toilet stall, such as is involved here, was held to be admissible, is Smayda v. United States (9 Cir.) 352 F. (2d) 251, certiorari denied, 382 U.S. 981, 86 S. Ct. 555, 15 L. ed. (2d) 471. The decision was by a divided court. The court said (352 F. [2d] 255):


[27] "* * * t would have been easy for any member of the public to see the offense. Any member of the public could have peered over the door, or the side partitions, or under either, or pushed open the door. * * * 'If appellant had any right of privacy certainly waived it' * * *."


[28] A number of cases have held that where there is no door on the stall or the one using it has no right to expect privacy, evidence is admissible showing the commission of a similar crime. See, for example, People v. Heath, 266 Cal. App. (2d) 754, 72 Cal. Rptr. 457; People v. Roberts, 256 Cal. App. (2d) 488, 64 Cal. Rptr. 70; People v. Maldonado, 240 Cal. App. (2d) 812, 50 Cal. Rptr. 45; People v. Hensel, 233 Cal. App. (2d) 834,43 Cal. Rptr. 865; People v. Young, 214 Cal. App. (2d) 131, 29 Cal. Rptr. 492; People v. Norton, 209 Cal. App. (2d) 173, 25 Cal. Rptr. 676; Poore v. State of Ohio (N.D. Ohio) 243 F. Supp. 777; State v. Coyle (Fla. App.) 181 So. (2d) 671.


[29] We view as controlling the case of Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. ed. (2d) 576. There the defendant was convicted of transmitting wagering information by telephone. FBI agents had attached an electronic listening and recording device to the outside of a public telephone booth from which the defendant placed his calls. In holding that the evidence was inadmissible, the Supreme Court said (389 U.S. 351, 88 S. Ct. 511, 19 L. ed. [2d] 582):


[30] "* * * For 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. [Citations omitted.] But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. [Citations omitted.]


[31] "The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye -- it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. * * *


[32] "* * * The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance."


[33] While the Katz case involved evidence obtained by listening and the case before us involves evidence obtained by visual observation, we think the results are the same. In a concurring opinion, Mr. Justice Harlan said (389 U.S. 361, 88 S. Ct. 516, 19 L. ed. [2d] 587):


[34] "As the Court's opinion states, 'the Fourth Amendment protects people, not places.' The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a 'place.' My understanding of the rule that has emerged from prior decisions is that there is a twofold 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.' Thus a man's home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the 'plain view' of outsiders are not 'protected' because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. [Citation omitted.]


[35] "The critical fact in these cases is that 'ne 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 not that the booth is 'accessible to the public' at other times * * * but that it is a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable."


[36] Surely this language applies here, where the facilities provided assure the user of privacy as much as a telephone booth does.


[37] It is understandable that a large department store would desire to eliminate a use of restrooms that would be revolting to most people who wished to use the facilities properly. There were, however, ways of eliminating such use of the facilities other than surreptitious surveillance. The store had known about the hole in the partition for some time before defendant was apprehended, but had not closed it. The store could have removed the doors if it saw fit, so that anyone using the facilities would have no expectation of privacy; or it could have posted signs warning anyone using the facilities that they were apt to be under surveillance. But once facilities are provided wherein those using them properly are assured of privacy, the store has no right to destroy that privacy without the consent, actual or implied, of one to whom it has been assured. In the very nature of things, in the process of protecting the innocent all search and seizure prohibitions inevitably afford protection to some guilty persons; but the rights of the innocent may not be sacrificed to apprehend the guilty.


[38] We think that those using the facilities provided by the store in a proper manner would have been quite shocked to know that they were under surveillance. We are convinced that the evidence obtained in this manner is inadmissible.


[39] The state relies mainly on consent to support admissibility of the evidence obtained. As far as the user of the facilities is concerned, there was, of course, no consent. Consent can hardly be given in the absence of some knowledge that an act is in progress or is to be performed. In the state's brief we find the following:


[40] " The search was lawful because consent to the search was given by the management of the department store to the police to assume a physical vantage point which is on property over which customers have no control and which is beyond the confines of the areas of the exclusive control of persons using men's room facilities.


[41] "Certainly the management of the department has standing to consent to allowing a police officer to take a position anywhere in the store which is not within that area ostensibly under the defendant's exclusive control."


[42] With that position we cannot agree. As has been stated above, once the store provided facilities of such a nature that the user was assured of privacy, it could not destroy that privacy by giving its consent to secret surveillance by police.


[43] We are of the opinion that the evidence obtained by this secret surveillance was a violation of the constitutional rights of those using the facilities provided by the store. As a consequence the evidence was inadmissible and the conviction must be reversed.


[44] Reversed.


(dissenting opinions omitted).

IMO, Larry Craig easily loses this case, even based upon Bryant.

First, Bryant did not hold that a person has a right to engage in sodomy in a public toilet. It held that a public toilet stall is a place where there is a reasonable expectation of privacy. That is a huge and critical distinction. At that time (1970) sodomy was illegal. As for the expectation, the court did not say it was a safe zone for illegal activities. It merely said that the expectation was something that police must respect when choosing how to detect any crimes in such a place, as they are similarly required to do with any other such place where the expectation exists (home, car, etc).

Second, Craig was required to file a pretrial motion to suppress evidence if he felt the State obtained the evidence against him in violation of the Fourth Amendment. He failed to do so, and instead chose to represent himself after being informed of his right to counsel, and he entered a guilty plea pursuant to a plea bargain after receiving his guilty plea colloquy (acknowledgement of rights in writing and examination by judge to assure a person entering a guilty plea is doing so knowingly, voluntarily, and intelligently). Thus, he entered his guilty plea in a knowing, voluntary and intelligent fashion in court. He also let his appeal right period lapse. Thus, he waived (gave up) his rights to challenge the legality of the State's evidence and cannot now seek to open his plea upon those waived grounds.

Third, even had he raised the issue in a timely pretrial motion to suppress evidence based upon Bryant, he would still lose.

In Bryant, the officers positioned themselves in a ventilator over toilet stalls to peer into them to see who, if anyone, would engage in sodomy (then deemed an illegal act). They had no reasonable suspicion of any particular person violating a law. Rather, they were just randomly peering into stalls without the knowledge of occupants to see who might break laws in them.

In Craig's situation, however, he first peered into the cop's stall--not vice versa--and then sat in the stall next to the cop, whereafter he tried to get the cop's attention for sexual purposes by putting his feet and waiving his hands into the cop's stall to get the cop's attention for sexual advances.

Thus, Craig went outside his stall into another person's stall, which happened to be the cop's. Hence, it was actually Craig who had interfered with the cop's expectation of privacy in his own stall. The cop, seeing this occur, then developed reasonable suspicion and responded to Craig whilst in his own stall whilst Craig continued to put his feet and hands into the cop's stall.

Moreover, as for any of Craig's peering into the cop's stall and any signalling made by Craig under the stall wall, that is what is called a 'plain view' observation by the officer, all of which do not implicate Fourth Amendment concerns.

The cop was not obliged to ignore the invasion of his own stall or ignore all those observations he observed in plain view as intended and done intentionally by Craig. This is vastly a different scenario than that which existed in Bryant.

Excellent Reasoning O'Sullivan!

Excellent analysis O'Sullivan, and right on the mark, and this further illustrates my point about the absurdity and danger of the ACLU's position in this case and what it indicates about their absolute inability to engage in rational interpretation of law or precedent. For the ACLU to try and portray Bryant as proscribing laws against public sex, rather than as it clearly says and you indicated raising fourth amendment search issues is either evidence of extreme ignorance, or unethical dishonesty on its part.

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

It continuously amazes me how people can be consistently ignorant of what the purpose of the ACLU is.

__________________
"Jesus said: I have cast fire upon the world, and behold I guard it until it is ablaze."
Gospel of Thomas

What about when the ACLU is actively defending what you would consider to be pro-Christian, pro-conservative causes?

__________________
When they come a wull staun ma groon
Staun ma groon al nae be afraid
Thoughts awe hame tak awa ma fear
Sweat an bluid hide ma veil awe tears

They rarely if ever defend pro-Christian or pro-conservative "causes" other than when it happens to coincide with furthering a liberal cause, and generally that tends not to distort the constitution as much as most of their high profile interventions.

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

It's sad when people let hatred blind them so badly.

__________________
When they come a wull staun ma groon
Staun ma groon al nae be afraid
Thoughts awe hame tak awa ma fear
Sweat an bluid hide ma veil awe tears

I thought that the ACLU case was that even if Craig was soliciting sex it's not illegal because the law forbids soliciting public sex acts, public sex acts are illegal, but the theory is that sex in a toilet stall is not public sex, so it's not illegal, so prosecution's theory that Craig was soliciting a public sex act is invalid.

Or as my uncle says "All these lawyers get paid differently, depending on how thin they can slice the baloney"

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“ The subjects of every state ought to contribute towards the support of the government, as nearly as possible, in proportion to their respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the state.”

Adam Smith , The Wealth of Nations 1776

"We have always known that heedless self-interest was bad morals; we know now that it is bad economics"
FDR's second Inaugural Address