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On January 5, 1978, Robert L. Newell, a Dallas city police officer, working undercover on a temporary assignment, went to the Red Letter News Number Two on Harry Hines Boulevard. This place was apparently an adult book shop or newsstand containing a movie section with individual booths showing peep shows. Newell was in mufti. After entering the common area of the store, he went into several of the booths in the movie section. He eventually entered *908 booth six and deposited a quarter, leaving the door ajar about three inches. Appellant entered the completely enclosed booth, twenty-eight inches by forty-two inches, and closed the door.[1] Newell related that the appellant "groped my groin," made sexual contact and placed his hands on Newell's genitals there in the booth. Newell suggested that they go to his van parked outside. The appellant was thereafter arrested.
Officer Newell entered the common area of the book store open to the public and went into several of the peep show booths also open to the publicto view the movies. After he entered booth No. 6, leaving the door ajar, appellant entered and closed and possibly locked the door behind him. The public nature of the booth could not be changed by the appellant, acting alone, closing and locking the door, closeting himself with a stranger. Westbrook v. State, 624 S.W.2d 294 (Dallas Ct. of App.1981); Cf. Green v. State, 566 S.W.2d 578 (Tex.Cr.App. 1978); Bishoff v. State, 531 S.W.2d 346 (Tex.Cr.App.1976).
In addition, since the appellant in Green was aware of the free access to occupied booths and was aware that the light which signalled that his booth was occupied did not work, he could have no reasonable expectation of privacy in that booth, even when he closed the curtain.
By contrast, in the present case the testimony was that the viewing booth was completely enclosed. It had solid walls, a solid door with a bolt, and a solid ceiling. The door had to be closed in order to view the movie inside the booth. The only light within the booth came from the movie projector. When the appellant entered the booth, his back was against the door. Although the police officer testified that he did not actually see the appellant lock the door, he acknowledged that the door was completely closed and that the appellant could have locked the door without his knowledge. The appellant testified that he locked the door.
Under these facts, I would hold that the booth, at the time the sexual contact took place, was not a public place. The area was completely closed to public view. The appellant's testimony that he locked the door was not contradicted by the State's only witness. Both witnesses testified that the door was completely closed. Therefore, at the time the act took place, the public's access to the booth had been eliminated.
The court decided Buchanan on Fourth Amendment grounds. However, in my view that difference is not dispositive. The question involved in this case is closely related to, and interwoven with, Fourth Amendment considerations. Both the court of appeals in Westbrook, and the majority in this case, state that "[t]he public nature of the booth could not be changed by appellant, acting alone, closing and locking the door." Why not? If the act of closing and locking the door on a public restroom toilet stall can give one a reasonable expectation of privacy in that toilet stall, why doesn't the same act give one a reasonable expectation of privacy in a viewing booth? Furthermore, doesn't the act of closing and locking a door give one a reasonable expectation of privacy because the public is then excluded?
The majority seems to say that if the public once has access to a place, that place is forever a "public place." Does that then mean that even though the owner of the public book store involved in this case were to close and lock his front door, the store would remain a public place? The conclusion logically follows from the majority's statement, yet I think the majority would agree that the conclusion is absurd. Even places generally open to the public may become private in some circumstances. The most obvious of these circumstances is the act of closing and locking a door.
Once the appellant entered and locked the door to the viewing booth he had a reasonable expectation of privacy in the booth. He also changed the nature of the booth from a public area to a private area. That act of the appellant, acting alone, denied "the public or a substantial group of the public" the right of access to the interior as long as the door was closed and locked. For that period of time, the booth was no longer a public place within the meaning of V.T.C.A., Penal Code, Section 21.07.
[1] Newell acknowledged there was a lock on the door, and that he did not know whether appellant locked the door although the appellant closed it when entering. Appellant testified at the motion to suppress hearing he locked the door upon entering the booth occupied by a man he did not know.
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Whether an order of appellee New York Public Service Commission that prohibits the inclusion by appellant and other public utility companies in monthly bills of inserts discussing controversial issues of public policy directly infringes the freedom of speech protected by the First and Fourteenth Amendments and thus is invalid.
Whether a city ordinancewhich bars door-to-door solicitation by charities that cannot prove that 75% of their proceeds go directly to charitable purposesviolates the 1st and 14th Amendment free speech rights of solicitors.
Whether the sanctioning of an ACLU lawyer for informng a woman through direct mail about legal assistance available from the ACLU violated speech and associational freedoms guaranteed by the First Amendment.
Whether a "Green River Ordiance" which bans the soliciting of individuals on their property without their consent violates the First Amendment and Fourteenth Amendment freedom of speech rights of magazine solicitors.
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