Affidavits which contained nothing concerning basis of informant's conclusions as to homosexual activity taking place in restroom in highway rest area and which contained nothing from which the credibility of the informant or the accuracy of the information could be inferred were inadequate to support issuance of search warrant authorizing surveillance in restrooms.

3. Searches and Seizures →3.8(2)

Search warrant for restrooms of highway rest area at which homosexual activity was suspected did not limit the search to precise and discriminate circumstances where the warrant authorized surveillance of every occupant of the stalls during the relevant periods and the stalls were kept under constant surveillance through audio and video monitors.

4. Criminal Law 394.4(11)

Video recordings of activities taking place in restroom, police surveillance notes of activities observed through the monitor, and testimony of officers as to activities observed through the monitor or upon entry R. C. Hotchkiss, 30th Judicial Circuit Judge, itting on Court of Appeals by assignment pur

Mich. 653

observations

into the restroom after through the monitor were required to be suppressed where the monitoring was pursuant to an invalid search warrant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Gregart, Pros. Atty., Michael H. Dzialowski, Asst. Pros. Atty., for the People.

Richard R. Lamb, Kalamazoo, for defendant-appellant in No. 48128.

Franklin W. Schmiege, Kalamazoo, for defendant-appellant in No. 50700.

William R. Oudsema, Kalamazoo, for defendant-appellant in No. 50685.

William R. Farley, Grand Rapids, for defendant-appellant in No. 49827.

Steven L. Rayman, Kalamazoo, for defendant-appellant in No. 48011.

Stephen W. Burness, Kalamazoo, for defendant-appellant in No. 47342.

Before HOLBROOK, P. J., and V. J BRENNAN and HOTCHKISS,* JJ.

PER CURIAM.

These consolidated cases arise out of police electronic surveillance of a men's restroom at a highway rest area. The surveil lance was conducted pursuant to a search warrant which contained the following su thorizations:

"A. Beginning at October 25, 1978 at 10:00 PM the visual and audio communcations may be recorded as described herein.

"B. Communications between known males which are expected to be in the nature of solicitations for sexual a tivity. Further, any and all sexual activi ties performed between the males in the mens room of the next area located at the rest area on US-131 south of 'D' Avenue in Alamo Township, Kalamazoo County

"C. Said conversations may include the statements of other persons present at the same time and place.

suant to Const. 1963, Art. 6, Sec. 23, as amend ed 1968.

654 Mich.

"D. Recording of these acts and conversations will be accomplished by the use of video and audio equipment located in the mens room at the rest area previously described in Section B.

"E. Said recordings shall terminate on November 1, 1978 at 11:59 P.M."

As a result of the surveillance, some 40 persons including these six defendants were arrested and charged with gross indecency between males, M.C.L. § 750.338; M.S.A. § 28.570. Each defendant herein moved to suppress the evidence obtained through the surveillance. In Medema, the circuit judge suppressed the evidence after holding that defendant had a reasonable expectation of privacy in the place searched, that there was not probable cause to issue the warrant, and that the warrant did not describe the things to be seized with sufficient particularity. In Dezek, the circuit judge suppressed the evidence after holding that there was no statutory authority for a warrant authorizing video surveillance and that defendant was not "forthwith" served with a copy of the warrant as required by M.C.L. § 780.655; M.S.A. § 28.1259(5). In Thompson, the circuit judge declined to suppress the evidence after holding that defendant had no reasonable expectation of privacy in the place searched. In Petruska, Kelly, and Pletcher, the circuit judge held that defendants had a reasonable expectation of privacy in the place searched but declined to suppress the evidence after holding that the search was conducted pursuant to a valid warrant. The people appeal of right in Medema and Dezek, while defendants appeal by leave granted in Thompson, Petruska, Kelly, and Pletcher.

I

The initial question we must address is whether defendants had a reasonable expectation of privacy in the place searched. See Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 511; 19 L.Ed.2d 576 (1967):

"[T]he Fourth Amendment protects people, not places. What a person know ingly 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."

In concurrence, Justice Harlan observed: "[T]here 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.'

"The critical fact in this case is that [o]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 that it is a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable." Id., 361, 88 S.Ct. 516.

Testimony revealed that the men's rest large room with one door leading to the room subject to the search warrant was a outside. Within the room were several urinals and wash basins and four toilet stalls. The stalls were constructed of solid partitions elevated from the floor approximately 8-12 inches. The partition did not extend to the ceiling, but a five-foot eleven-inch man could not peer over its top. At the front of each stall was a door of the same height as the side partitions. The doors had been designed with latches, but the latching devices were broken or missing. Persons using the stalls, including defendants, would usually use small rolls of toilet paper wedged into the door cracks to hold the doors closed. A hole had been created in the common side partition between two of the stalls. The hole was approximately six inches in diameter (as stipulated by the parties in three of the cases; the only testimony concerning the size of the hole disclosed that it was six inches in circumference). It was located about waist high. It was Heged that the illegal acts were committed by one participant placing his penis

through the hole while standing in one stall and the occupant of the other stall performing fellatio upon him. Surveillance of the two stalls was accomplished by installation of a needle-point video camera lens in the ceiling above the stalls. The lens was directly connected to a video camera situated above the ceiling panels which was connected by cables to a video tape recorder and a video monitor. The recorder and monitor were located in a room separate from the men's rest room. The audio surveillance was concentrated on the same two stalls but picked up most sound within the room. The video monitor provided continuous video and audio coverage of all activity within the two stalls. The sound was not recorded, but the video recorder was turned on by the officers when they observed through the monitor that sexual activity between males was about to occur in the stalls.

[1] We hold that the bathroom stalls here, like the telephone booth in Katz, were temporarily private places whose momentary occupants' expectations of privacy are recognized by society as reasonable. See Bielicki v. Superior Court of Los Angeles County, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288 (1962); Britt v. Superior Court of Santa Clara County, 58 Cal.2d 469, 24 Cal. Rptr. 849, 374 P.2d 817 (1962); Brown v. State, 3 Md.App. 90, 238 A.2d 147 (1968); State v. Bryant, 287 Minn. 205, 177 N.W.2d 800 (1970); Buchanan v. State, 471 S.W.2d 401 (Tex.Crim.App., 1971); People V. Triggs, 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232, 234 (1973); and Kroehler v. Scott, 391 F.Supp. 1114 (E.D.Pa., 1975). See also People v. Abate, 105 Mich. App. 274, 306 N.W.2d 476 (1981), in which, under circumstances analogous to those presented here, the Court found a toilet stall in a public rest room at a roller skating rink to be a "private place" under M.C.L. § 750.539d; M.S.A. § 28.807(4). Compare also People v. Hunt, 77 Mich.App. 590, 259 N.W.2d 147 (1977), in which the Court expressly distinguished the instant situation while holding that defendant had no reasonable expectation of privacy. In Hunt, defendant and his female companion had taken exclusive occu

ev of a public rest room for over 30

Mich. 655

minutes, during which time moans were heard through the rest room door.

Some jurisdictions, while unprepared to recognize a reasonable expectation of privacy where defendant's activities were viewed from a common area of a rest room, nevertheless have indicated that such an expectation of privacy exists under other circumstances. See Buchanan, supra, and Moore v. Florida, 355 So.2d 1219 (Fla.App., 1978). In this case, reliance upon the visibility of defendant's activities from the common area of the rest room or through the hole to the adjacent stall is misplaced. In Katz, supra, the government argued that defendant placed the telephone calls which were recorded by the police from a glass telephone booth in which defendant was visible to the public. The Court rejected that argument, noting that defendant sought to exclude intruding ears rather than intruding eyes when he entered the booth. Thus Katz recognized that an expectation of privacy may be partial and yet receive constitutional protection. A stall such as that at issue here obviously does not afford complete privacy, but an occupant of the stall would reasonably expect to enjoy such privacy as the design of the stall afforded.

II

Since we hold that defendants had reasonable expectations of privacy in the place searched, and since no exigent circumstanees are proffered for our consideration, the admissibility of the evidence turns on whether the district judge erred in issuing a search warrant. The judge issued the warrant based on affidavits of three members of the Kalamazoo County Sheriff's Department. Relevant portions of those affidavits are reproduced below. One affidavit provided:

"(3) That the affiant was informed of men soliciting for immoral purposes and suspected homosexual activity at the US-131/'D' Avenue rest area, Alamo Township, County of Kalamazoo, State of Michigan.