Joseph L. Smayda and Wendell H. Gunther v. United States

Smayda and Gunther were convicted of violating the “Assimilative Crimes” Act, 18 U.S.C. § 13 . 1 The offense was committed within Yosemite National Park, concededly a place of the type referred *252 to in the section and in 18 U.S.C. § 7 . The crime, oral copulation, is made punishable by the California Penal Code, Section 288a. Both defendants appeal. Their attack upon the judgment is based entirely upon their claim that all of the evidence against them was obtained in violation of their rights as defined in the Fourth Amendment to the Constitution:

The offense occurred in a men’s toilet and washroom, at Camp Curry, a resort in the Park maintained and operated by the Yosemite Park & Curry Co., a government concessionaire. The particular facility is in a portion of the resort where tent-cabins, equipped for the accommodation of guests, are located. It is maintained primarily for the use of guests, but appears to be open, like most such facilities in hotels, to the public. In the men’s section of the building, which is enclosed by walls having windows in them set with the sills about 5 or 6 feet from the floor, there are wash basins, a urinal and three toilets. The latter are…

(concurring).

In my view Judge Duniway’s opinion that there was probable cause for the viewing that the officers made, and that there was here no unreasonable search within the meaning of the Fourth Amendment, is a correct one. I am not prepared to agree that appellants waived any right they may have had, but it is unnecessary that I do so.

I wish to note several things about this case which I believe to be unique and without precedent. In the first place, there was no “actual intrusion into a constitutionally protected area.” 1 The ceiling where the windows were cut was, as the exhibits show, at least three feet above the highest portion of the toilet stall, and above an open area unconnected with the stalls. Assuming that the occupied portions of the stalls were properly treated as a part of the “persons, houses, papers, and effects” to be protected against unreasonable searches, those who viewed what was happening in the stalls made no “actual intrusion” herein.

Again, the record shows that the viewing windows were installed by a private concern, the Yosemite Park and Curry Company. Mr. Whiteman, the manager of the Company, stated “I suggested it.” and that he had company…

(dissenting).

The court’s decision is in conflict with decisions of the Supreme Court of the State of California concerning the protection which the Constitution of the United States affords against unreasonable searches and seizures in the circumstances here involved. 1 The reasons given by the court for taking a narrower view of the Constitution’s coverage do not seem persuasive.

Since the central purpose of the Fourth Amendment is to protect the privacy of persons and property (Wolf v. Colorado, 338 U.S. 25, 27 , 69 S.Ct. 1359 , 93 L.Ed. 1782 (1949)), it is easy to agree that the Amendment does not apply where there is no privacy to protect. It is also easy to agree that it is not a “search” to watch persons who are in plain sight in a public place, and that this is no less true when observation is clandestine than when it is open.

But less than complete privacy is not the equivalent of no privacy at all. The Fourth Amendment protects limited privacy — which, after all, is the only kind *260 people ordinarily know. Houses, hotel rooms, offices, private automobiles, and taxicabs all have windows exposing portions of their interiors, and hotel rooms, offices, and taxicabs must…

352 F.2d 251 Joseph L. SMAYDA and Wendell H. Gunther, Appellants, v. UNITED STATES of America, Appellee. No. 19156. United States Court of Appeals Ninth Circuit. Oct. 11, 1965, Certiorari Denied Jan. 17, 1966, See 86 S.Ct. 555 . Herbert Donaldson, San Francisco, Cal., for appellants. Cecil F. Poole, U.S. Atty., Jerrold M. Ladar, Asst. U.S. Atty., San Francisco, Cal., for appellee. Defendants were convicted in the United States District Court for the Northern District of California, Northern Division, Thomas J. MacBride, J., of violating Assimilative Crimes Act and they appealed. The Court of Appeals, Duniway, Circuit Judge, held that police officer's observation and photographing from camouflaged hole in ceiling of occupants of enclosed public toilet stalls did not amount to unreasonable search within Fourth Amendment where police had reasonable cause to believe that stalls were being used in commission of crime. Affirmed. Browning, Circuit Judge, dissented. Before POPE, BROWNING and DUNIWAY, Circuit Judges. DUNIWAY, Circuit Judge. 1 Smayda and Gunther were convicted of violating the 'Assimilative Crimes' Act, 18 U.S.C. Sec. 13 . 1 The offense was committed within Yosemite…