People v. Crafts

Opinion

GUSTAFSON, J.

On October 14,1969, two police officers were stationed in a room adjoining the men’s restroom in a public park. The floor of the room is higher than the floor of the restroom. The wall separating the room from the restroom contains an opening covered with transparent material through which the restroom can be seen from the adjoining room. The opening is at a height which enables someone in the room to be comfortably seating in a chair while looking through the opening into the restroom. The only articles in the room were two chairs upon which the two police officers sat. The record does not disclose that the room had any purpose other than that for which it was used by the two police officers.

The officers observed one defendant sitting on a toilet located in a stall without a door and the other defendant standing at a urinal on the opposite wall. The defendant seated on the toilet walked over to the other defendant, dropped to his knees and put the other defendant’s erect penis in his mouth.

[459]

While these activities could not have been seen from the doorway to the restroom, they could have been seen by anyone who came a few feet into the restroom. The officers thereupon left the observation room, entered the restroom, arrested the defendants and charged them with violating section 288a of the Penal Code.

After being held to answer by a magistrate, defendants moved in the superior court under section 1538.5 of the Penal Code for an order suppressing evidence of what was observed by the officers. The motion was granted and the prosecution having indicated that it had no other evidence, the court dismissed the action pursuant to section 1385 of the Penal Code. The prosecution appeals from the order of dismissal. (Pen. Code, § 1238, subd. (7).)

The judge below relied upon

Bielicki

v.

Superior Court

(1962) 57 Cal.2d 602 [21 Cal.Rptr. 552, 371 P.2d 288] and

Britt