Crime, Drugs, Masturbation, Pornography

Just in Case You Were Wondering, Porn Store Video Booths Do Carry the Expectation of Privacy

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Well, you don’t see this every day. “This” meaning a substantive legal debate over the privacy implications of watching porn inside an adult video store.

The stimulating (hem hem) opinion comes (why does everything suddenly sound so dirty?) to us courtesy of the New York County Supreme Court. A man arrested in Times Square for selling narcotics appealed his arrest, saying police who burst in on him (for crying out loud, I can’t stop the puns) conducted an illegal search and seizure.

I should not write this story, because I know it will only encourage more BikeDude commenter jokes, but here goes….

The defendant in the case, Otis Hemmings, allegedly sold narcotics to a undercover police officer inside a Times Square adult DVD store. The undercover officer who made the sale had to come outside the store and signal to the “ghost officer” waiting outside, who had not actually seen the defendant’s face.

All the ghost officer and his team knew was that the target was “a stocky person wearing a three-quarter length leather jacket.” Upon searching the store, they did not find anyone resembling the man they were looking for. That is, until they discovered a row of private booths designed for watching pornography. All but two were empty. Police entered the first one, discovered a man who fit the description, but still weren’t sure. They took him outside, where the original undercover officer identified him. He was subsequently arrested.

In court, the defendant argued that the police conducted an unlawful search and seizure by opening the closed (but unlocked) door of his booth.

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Judge Ruth Pickholz agreed. She ruled on January 12 that Hemmings should have been able to expect a little privacy in his jack-off closet:

It is as reasonable to expect privacy in a closed video booth in an adult book or video store as it is in a bathroom stall. Video booths exist solely in adult book and video stores. Their purpose is to permit patrons to afford privacy to viewers of adult videos. Society considers the activity that viewers commonly engage in while watching videos of this type to be as private as the activities engaged in by those using toilet stalls and fitting rooms. Were someone to engage in such activity in a public area, he could be prosecuted for public lewdness or exposure of his person….

Even where this is not the case, privacy is afforded to the person who wishes nothing more than the opportunity to view the type of adult video he may favor away from censorious or prying eyes. In either case, the occupant expects that he will have privacy while he is inside the booth, and I find that such expectation of privacy, at least in a booth like the one before me which excludes outside viewers, is reasonable.

Judge Pickholz phrased it so politely! “The person who wishes nothing more than the opportunity to view the type of adult video he may favor away from censorious or prying eyes.” Such an innocent, simple desire. I guess New York is different, but in San Francisco, adult movie stores are the kinds of places where homeless people light their naked bodies on fire and have to get tackled by police to be put out.

Also, I’m not sure dressing rooms and bathrooms are provided for quite the same activities as adult video stores. If I remember correctly, wasn’t there that guy who got in trouble for doing that thing in an airport bathroom? Oh yeah, it was former Republican Senator Larry Craig.

But the ruling does get more, uh, technical. Judge Pickholz delves into a rather comprehensive analysis of the masturbatory habits of people who frequent adult movie theaters vs. those who inhabit adult video stores. I think this is the first time I’ve seen the word masturbate used in a court ruling.

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Earmuffs, children:

The People put forth several arguments in support of their contention that the defendant lacked a reasonable expectation of privacy in the booth in this instance.… Their major argument is as follows: Public areas of commercial premises are not afforded Fourth Amendment protection, and the police have the right to enter such premises to make observations. Observing someone walk into a video booth is no different from watching him walk into a public movie theater that plays adult movies, in that in each case the observer is aware that the customer is about to watch an adult video. The only activity that is compromising is the act of walking into the theater or booth, which is open to public view.

What transpires in the theater or booth, i.e., the viewing of an adult video, is a foregone conclusion. Recognizing, without conceding so explicitly, that it is not uncommon for viewers of adult videos to masturbate while viewing them, the People argue that defendant could not have lawfully done so in this case because, as he did not lock the door, anyone could have entered the booth to observe him. As the only lawful activity in which he would have engaged while in the unlocked booth was watching a video, and as that act is no more intimate or personal an activity than watching an adult movie in a public movie theater, the defendant in the case before me lacked a reasonable expectation of privacy.

Okay. So the police argued that because he didn’t lock the door, anyone could just barge in without knocking. How rude. The judge, clearly the only one with manners here, disagreed.

I reject the argument that defendant did not have an expectation of privacy in the booth because he did not lock the door. The absence of a lock is not a determinative factor in deciding whether a person has a reasonable expectation of privacy in an area… I see no reason to assume otherwise in the case of a video booth where the door is closed. Just as in the case of an occupant of a toilet stall in a public restroom, an occupant of a video booth would expect that another, seeing that the door was closed and suspecting that enclosure was in use, would not simply push the door open to use it. At the very least, societal mores would require him to announce his presence or knock to verify that it was in use.

I do appreciate the locked door argument. I’m sure there are millions of teenage men (hell, and women) who would love to show this legal opinion to their parents.

Giggedy giggedy.

New York v. Hemmings [Supreme Court, New York County]

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