¶1concurring.
¶2I join in the majority opinion, although I suggest that, because the police surveillance of defendant inside began because of the police activity outside, all that followed that original police activity may have been subject to suppression. However, I do not believe the dissent should pass without comment.
¶3One’s objective expectation of privacy is a function of where one is. Inside a castle, the expectation is great; inside a doorless toilet stall, it is minimal. But, even in the latter case, it exists.
¶4I cannot tell whether the dissent accepts this self-evident proposition or not. Its statement that "[wjhat the officer saw from the adjacent stall … *836was no more the product of a search than the act of an officer looking through the window of a car parked on a public street” suggests that it does not. The fact that the dissent cannot distinguish between a parked car and a public restroom is, in fact, disturbing aside from any considerations of constitutional analysis.
¶5Moving beyond the dissent’s obscure handling of the objective expectation of privacy consideration, it is at least clear that the dissent disagrees with the subjective side of the majority analysis. The dissent says, "It is impossible for me, on these facts, to believe that this defendant sought to preserve himself or his acts from 'public’ view.” And, "Even if we were to grant that the peeking from the adjoining stall was an unlawful violation of privacy …, I would not in this case hold that defendant’s activity in plain, public and intended view was subjected to a 'search.’ ” (Emphasis in original).
¶6The problem with the dissent’s analysis on this point is that the defendant was carrying on his activities in the stall. If he did not both objectively and subjectively seek some privacy, he could have conducted his activity outside the restroom (or in a parked car). That small expectation of privacy was invaded by the officer’s peering from the next stall. All that occurred afterward followed from that one impermissible act of searching.
¶7I concur with the majority.
¶8dissenting.
¶9I dissent because the majority is wrong in several respects.
¶101. The "threshhold question” is, indeed, "whether these police observations constitute searches within the confines of the Fourth Amendment.” The surveillance from the storage room produced no evidence, so it is irrelevant. What the officer saw from the adjacent stall or from in front of the defendant’s place (and from in front of the defendant for that matter) *837was no more the product of a search than the act of an officer looking through the window of a car parked on a public street.
¶11At the heart of the rationale of Katz v. United States, 389 US 347, 88 S Ct 507, 19 L Ed 2d 576 (1967), is the idea that what the Fourth Amendment protects is the right of people to keep from the public that which they seek to preserve as private. It is impossible for me, on these facts, to believe that this defendant sought to preserve himself or his acts from "public” view.
¶123. After quoting Justice Harlan’s language, concurring in Katz, the majority ignores what he said: "…[F]irst that a person have exhibited an actual (subjective) expectation of privacy, etc.” Whatever defendant was exhibiting, it was not an expectation of privacy.
¶134. Once we acknowledge that the observation from the storeroom is irrelevant, the quotation from Professor LaFave loses most of its legal and ethical force. It seems inescapable to me that the officer saw defendant’s conduct from places he had a right to be and to look, regardless of his motivation or previous conduct.
¶145. The opinion suggests that we should consider the fact that this officer had historically observed many other people from his hiding place. Whether or not that was true, and whatever may be the value judgment we might make about that, it is not legally of any force that I can understand.
¶156. People v. Triggs, 8 Cal 3d 884, 106 Cal Rptr 408, 506 P2d 232 (1973), and the prior decisions on which it is based, are mighty weak authorities in this case. The issue there was the admissibility of testimony by an officer about what he saw from a secret hiding place, and the court made the point repeatedly that it was not considering a "plain view” situation. The defendant here moved to suppress all testimony by the officers involved. No other issue has been presented to us.
¶16*8387. Finally, I do not accept the analysis in footnote 5 about "inevitable discovery,” although I would agree that it could really be the toughest and most important issue in the case, especially given the strictures of ORS 133.683 (which the defendant does not cite). Even if we were to grant that the peeking from the adjoining stall was an unlawful violation of defendant’s constitutionally protected expectation of privacy (which I do not grant), I would not in this case hold that defendant’s activity in plain, public and intended view was subjected to a "search.”
¶17I would affirm.