Freeman

This case is before us following an order certifying the matter to this court from the Appellate Department of the Superior Court, Los Angeles County.

The statement of facts consists of a stipulation:'

We adopt substantially the opinion written by Judge Alarcon as the opinion of this court, adding thereto some minor changes and excisions.

“The trial court denied the defendant’s motion to suppress the observations of the arresting officer. Our task is to determine whether the evidence fails to support the trial court’s decision. The trial court found that the officer’s observations were made in ‘a public place’ and therefore no search occurred. The uncontradicted facts in this case support the trial judge’s finding that the observations were made in a public place. [Our] research has not revealed any reported case involving observations made into a curtained booth at a public movie arcade....

“Our Supreme Court has provided clear guidance in determining whether the place which was searched comes within the protection of the Fourth Amendment or article I, section 13 of the California Constitution.

“In People v. Dumas [1973] 9 Cal.3d 871 [ 109 Cal.Rptr. 304 , 512 P.2d…

Dissenting. — This case proves that reasonable judges can differ on whether a subjective expectation of privacy is objectively reasonable or a,legal pip edrearn. Personally, I should have thought that regardless of the primary purpose of the curtain, it was objectively reasonable for defendant to expect that police officers would leave him alone for the two. or three minutes it took him to get his quarter’s worth of “entertainment.”

I therefore dissent.

Appellant’s petition for a hearing by the Supreme Court was denied April 21, 1977. Tobriner, J., was of the opinion that the petition should be granted.

This case is before us following an order certifying the matter to this court from the Appellate Department of the Superior Court, Los Angeles County.

The statement of facts consists of a stipulation:

"The parties stipulated to the following facts incorporated in the engrossed settlement statement:

"`The officers had no search warrant or arrest warrant with respect to the defendant or the place where he was arrested.

"`On September 17, 1975, the officers entered an adult bookstore, which has a movie arcade at the rear to "check for 647(a) suspects and juveniles inside the location." The movie arcade consists of a series of booths about the size of telephone booths. The booths are enclosed on three sides by solid walls, or partitions, and on the fourth side there is a hanging curtain over the front of the booth. The booth curtain is tacked at the top and does not slide on a rod. Only one person can use the booth at a time, both because the booth is small and because motion pictures are viewed through a small glass pane about 2 inches x 6 inches in dimension and only one face can be in front of the glass pane at a time.

"`Photographs of the booths will be…