Police Toilet-Camera Case Headed to Ohio High Court
Gay
People’s Chronicle, January 17, 2003
P.O. Box 5426, Cleveland, Ohio 44101
Fax 216-631-1052
Email chronicle@chronohio.com
By Eric Resnick
Steubenville—The Ohio Supreme Court will decide if
police can videotape people as they use a restroom without first getting a
warrant. A December 18 ruling by the Seventh Ohio District Court of Appeals in
Youngstown gave police permission to hide video cameras in public toilets. It
will be appealed to the high court, plaintiff’s attorney Sam Pate said
January 11.
The appeals court also upheld the public indecency conviction of Pate’s
client, James Henry, 47, of Empire. He was one of 13 known or suspected gay
men arrested in July, 2001 in a sting operation conducted by Saline Township
Police Chief Kenneth Hayes and Jefferson County Prosecutor Bryan Felmet.
To investigate sexual activity at a highway rest stop, Hayes and Felmet hid
video cameras inside the men’s toilet light fixtures. The cameras ran for
hours each day from January to May 2001, taping every man as he used the
facility on Ohio 7 near the Ohio River between Toronto and East Liverpool.
Henry’s conviction is based on a tape showing him in the restroom for 47
seconds on May 9, 2001. The tape shows Henry entering, standing at the urinal,
and leaving the restroom.
At the trial, prosecutors convinced the jury that because Henry stepped
back from the urinal before fastening his pants, anyone entering the restroom
"could have" come to the conclusion that Henry was masturbating.
Prior to the trial Pate attempted to suppress the tape on constitutional
grounds, but Jefferson County Common Pleas Judge Joseph Corabi allowed it.
The U.S. Supreme Court has ruled that cameras in public restrooms, locker
rooms, jail cells and dressing rooms constitute illegal searches and thus
violate the Fourth Amendment.
In their unanimous opinion, the three-judge appellate panel ruled that
Henry had "no reasonable expectation of privacy so long as he remained in
the common area" of the restroom.
Like most men’s restrooms, the urinals in this one are mounted on the
wall in the same area as the sinks, with no stalls. A short privacy divider
between them was removed by Hayes and Felmet so the cameras could have a clear
view.
Pate said he will file a notice of appeal with the Ohio Supreme Court.
According to the high court’s rules, he has 45 days from the district court’s
decision to do so.
If the court decides to hear the case, they will rule on whether or not
such cameras are legal, and if police must have a warrant before hiding them
in restrooms.
If they decline to hear the case the lower court ruling will stand,
allowing police throughout Ohio to install toilet cameras with no warrant.
Henry is optimistic. "We just have to get this thing away from
southeastern Ohio," he said.
Pate is less optimistic, but feels it is worth pursuit, especially in light
of the restrictions on civil rights resulting from the September 11 attacks.
He is disappointed that civil rights groups, especially the American Civil
Liberties Union, have not yet weighed in on this case.
Pate said he has had three attempts to get cases before the Ohio Supreme
Court in his 20 years as an attorney.
"Twice I was on the losing side, and I didn’t get in. Once I was on
the winning side and the others didn’t get in," said Pate.
"If this works, it works," said Pate, adding that if it doesn’t,
he will not likely pursue the matter in a federal court.
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