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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



Opinion No. 5755

August 11, 1980


Public restrooms


Surveillance in public restrooms

Surveillance of public areas of public restrooms by means of audio-monitoring devices detecting loud noises and closed circuit television cameras aimed at the entrances of restrooms does not violate any rights of privacy guaranteed by the Fourth Amendment to the Constitution of the United States.

Col. Gerald L. Hough


Department of State Police

714 S. Harrison Road

East Lansing, Michigan 48823

In a letter to this office, you requested an opinion as to the permissibility of utilizing audio and visual monitoring surveillance in State freeway rest areas. Your letter states in pertinent part:

'In the past few years, security at freeway rest areas has become an increasing problem for motorists who use these facilities. As the result of a recent murder at a freeway rest area near Gaylord, a task force was formed by the State Department of Transportation to address security problems at freeway rest areas.

One suggested solution calls for the installation in each restroom of audio sensors which would be designed to activate only when a minimum decible level is reached. The audio sensors would be set at a decibel level so as to only detect loud noises. Muffled tones or normal conversations would not fall within the pre-set decibel levels and would not be monitored. Consideration of this type of audio device directly involves the question of the right to privacy.

he second suggested solution involves the use of a closed circuit television camera which would transmit pictures back to a central monitoring station. This type of device would be mounted inside the restroom and aimed at restroom entrances, monitoring those entering and existing the restroom facilities. Again, the question of the right to privacy is a central issue when the use of a camera is considered.

f audio and visual monitoring devices were used, the fact that these devices are in use would be posted in a conspicuous manner in each rest area.'

Based upon the above, you requested my opinion on the following questions:

1. Would the use of an audio-monitoring device of the type described above be permissible or would the use of this type of device be an unreasonable invasion of a person's privacy?

2. Would the use of a camera at restroom entrances be permissible or would the use of cameras at these locations be an unreasonable invasion of a person's privacy?

The United States Supreme Court in Katz v United States, 389 US 347; 88 S Ct 407; 19 L Ed 2d 576 (1967) noted that the Fourth Amendment protects an individual's right to privacy from unreasonable governmental intrusion, while recognizing that 'the Fourth Amendment cannot be translated into a general constitutional 'right to privacy." The Court in Katz, however, adopted the principle that public areas may become private temporarily for purposes of the Fourth Amendment:

'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, may be constitutionally protected.' [citations omitted] 389 US 347, 351.

Justice Harlan in his concurring opinion in Katz, supra, (p 361) noted that the answer to the question of what protections the Fourth Amendment affords to 'people' requires reference to a 'place'.

It has also been held that the Fourth Amendment guarantee against unreasonable searches embraces rights of privacy against unreasonable government search where the individual has a reasonable expection of privacy even though on public premises, and any violation may give rise to a cause of action for damages under 42 USC Sec. 1983 for deprivation of a federally protected right. Gilland v Schmidt, 579 F2d 825 (CA3, 1978).

In State v Jarrell, 24 NC App 610; 211 SE2d 837, cert den, app dis, 213 SE2d 724 (1975), a police officer who was secreted in the attic of a public restroom in a public park, observed criminal activities of the defendants occurring in the public areas of the restroom. The Court held that because the criminal activity occurred in plain view within the 'public areas' of the restroom, the surveillance did not violate the Fourth Amendment stating:

'. . . At all times while Officer Cobb observed the defendants and when he photographed them through a preexisting hole in the restroom ceiling, defendants were in the open, public area of the room. At no time did he observe or photograph either of them in an enclosed toilet stall, a place which might ordinarily be understood to afford some degree of personal privacy to an individual occupant. Therefore, decisions holding an illegal search occurs when the police surreptitiously observe persons in an enclosed toilet stall, Bielicki v Superior Court, 57 Cal2d 602, 21 Cal Rptr. 552, 371 P.2d 288 (1962); Britt v Superior Court, 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 NW2d 800 (1970); contra, Smayda v United States, 352 F.2d 251 (9th Cir. 1965), cert. denied, 382 U.S. 981, 86 S.Ct. 555, 15 LEd2d 471 (1966), are not here applicable . . .' 213 SE2d 837, 839.

Accord: People v Norton, 209 Cal App 2d 173; 25 Cal Rptr 676 (1962); People v Heath, 266 Cal App 2d 754; 72 Cal Rptr 457 (1968); and Buchanan v Texas, (Texas Court of Crim App) 471 SW2d 401 (1971), cert den 405 US 930 (1972).

The distinguishing feature of State v Jarrell, supra, and the previously cited surveillance cases rests upon what activity a person knowingly exposes to others in the public areas of a restroom and the reasonableness of the expectation of privacy. Language in Brown v State, 3 Md App 90; 238 A2d 147, 149 (1968) is particularly instructive here:

'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 physicially intruding into the area.'

Therefore it must be concluded that the reasonableness of one's expectation of privacy in a public restroom does not extend to the public areas of the restroom.

It is, therefore, my opinion that the utilization of a audio-monitoring device detecting loud noises within the public restroom and of a closed circuit television camera aimed at the entrance of the public restroom would not violate any rights of privacy guaranteed by the Fourth Amendment to the Constitution of the United States.

Frank J. Kelley

Attorney General

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