Last edited: February 14, 2005

Police Toilet-Camera Case Headed to Ohio High Court

Gay Peopleís Chronicle, January 17, 2003
P.O. Box 5426, Cleveland, Ohio 44101
Fax 216-631-1052

By Eric Resnick

SteubenvilleóThe 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, plaintiffís attorney Sam Pate said January 11.

The appeals court also upheld the public indecency conviction of Pateís 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 menís 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.

Henryís 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 menís 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 courtís rules, he has 45 days from the district courtís 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 didnít get in. Once I was on the winning side and the others didnít get in," said Pate.

"If this works, it works," said Pate, adding that if it doesnít, he will not likely pursue the matter in a federal court.

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