However, a stall in a public restroom is not a private place when it is used for other than its intended purpose. See Elmore v. Atlantic Zayre, 178 Ga. App. 25 ( 341 S.E.2d 905) (1986) (no invasion of privacy when store's bathroom stall was used for sexual activity); Wylie v. State, 164 Ga. App. 174 ( 296 S.E.2d 743) (1982) (no reasonable expectation of privacy when two persons occupy a stall facing each other without speaking for a period of time). Compare Snider v. State, 238 Ga. App. 55 ( 515 S.E.2d 569) (1999), and Kelley v. State, 233 Ga. App. 244 (2) ( 503 S.E.2d 881) (1998) (16-year-old girl has a reasonable expectation of privacy when nude in the family home's bathroom in the act of or following bathing).
See Wylie v. State.Wylie v. State, 164 Ga. App. 174 ( 296 SE2d 743) (1982). However, the law recognizes that the right of privacy is not absolute. . . . [I]t . . . must be kept within its proper limits, and in its exercise must be made to accord with the rights of those who have other liberties, as well as the rights of any person who may be properly interested in the matters which are claimed to be of purely private concern.
Id. at 858. In Wylie v. State (1982), 164 Ga. App. 174, 296 S.E.2d 743, a police officer entered the restroom to use the facility but the single commode stall was occupied. When he noticed two pairs of feet in the stall, the police officer looked through a crack in the door and saw two men ingesting a white powder later identified as cocaine.
An individual clearly has an interest in privacy within a toilet stall. See Wylie v. State, 164 Ga. App. 174 ( 296 S.E.2d 743) (1982). "However, the law recognizes that the right of privacy is not absolute. . . . `But it [right of privacy] must be kept within its proper limits, and in its exercise must be made to accord with the rights of those who have other liberties, as well as the rights of any person who may be properly interested in the matters which are claimed to be of purely privateconcern.' [ Pavesich v. New England Life Ins. Co., 122 Ga. 190, 201 ( 50 S.E. 68) (1905).
"When a police officer who is in a public area observes two people using the same restroom stall, and apparently not using the stall for its intended purpose, then these observations may permit the police officer to take further reasonable steps to investigate." Barron v. State, 823 P.2d 17, 20 (Alaska Ct.App. 1992); see People v. Mercado, 68 N.Y.2d 874, 508 N.Y.S.2d 419, 501 N.E.2d 27, 29-30 (1986) (investigation by officer was permissible where officer "ascertained that two men were using a single toilet stall in a manner that indicated to him that the stall was not being used for its intended purpose."); Wylie v. State, 164 Ga.App. 174, 296 S.E.2d 743, 744 (1982) (investigation permissible where "the officer's suspicions were alerted by the fact that there were apparently two men in the stall facing each other, without speaking, for a period of time."). Affirmed.
Id. at 70.See alsoWylie v. State, 296 S.E.2d 743, 743-44 (Ga.Ct.App. 1982) (the defendant did not have a reasonable expectation of privacy when he occupied a single commode stall with another individual with their feet facing each other; when two individuals enter the stall, neither of whom appears to be an invalid or handicapped as to require assistance, the immediate surveillance of the stall, without the delay incident to a warrant, appears to pass constitutional muster); Barron v. State, 823 P.2d 17, 20 (Alaska Ct. App. 1992) ("[T]he cases suggest that when one is in a public restroom, a person has a reasonable expectation of privacy which society is prepared to recognize. However, that expectation of privacy is limited by the fact that the restroom is in a public area and one's behavior is subject to the observation of others who are in the public area.
The state correctly points out that the reasonableness of such an expectation depends on the facts of each case. Wylie v. State, 164 Ga. App. 174, 296 S.E.2d 743 (1982). It appears that many jurisdictions have ruled on an individual's privacy expectations in public restroom stalls.