Craig had no reasonable expectation of privacy in the common area of the restroom, where she would expect her conduct to be observed by other individuals in the restroom. See, e.g., United States v. Billings, 858 F.2d 617, 618 (10th Cir.1988) (per curiam) (holding that no reasonable expectation of privacy exists as to what "can be observed by any ordinary patron of a public restroom"). Byrd only entered the common area of the restroom; consequently, we affirm the grant of summary judgment in favor of all Appellees on this claim.
does not afford complete privacy, but an occupant of the stall would reasonably expect to enjoy such privacy as the design of the stall afforded, i.e., to the extent that defendant's activities were performed beneath a partition and could be viewed by one using the common area of the restroom, the defendant had no subjective expectation of privacy, and, even if he did, it would not be an expectation which society would recognize as reasonable.United States v. White, 890 F.2d 1012, 1015 (8th Cir. 1989) (quoting People v. Kalchik, 407 N.W.2d 627, 631 (Mich. App. 1987), and holding that observations made by police officer who followed defendant into airport restroom were not an illegal search because they were not a violation of any reasonable expectations of privacy); see also United States v. Billings, 858 F.2d 617 (10th Cir. 1988) (defendant had no reasonable expectation of privacy in open area of stall where any patron of public restroom could easily see, and thus officer's observation of drugs taped to defendant's legs, which were plainly visible in gap between restroom stall and floor, did not taint subsequent search). C. Disciplinary Action
See Daniels v. Apfel, 154 F.3d 1129, 1131 (10th Cir. 1998) (remanding for a determination of the appropriate age category when the ALJ's decision came 65 days before the plaintiff's birthday); Kane v. Heckler, 776 F.2d 1130, 1133 (3d Cir. 1985) (remanding for application of § 416.963 when the plaintiff was 48 days short of her birthday); Metaxotos v. Barnhart, 2005 WL 2899851, at *8 (S.D.N.Y. Nov. 3, 2005) (remanding for consideration of the borderline situation where the plaintiff was 6 months shy of an older age category); France v. Apfel, 87 F. Supp. 2d 484, 491 (D. Md. 2000) (granting summary judgment for the plaintiff where the difference was 5 months). But see Crady v. Sect'y of Health Human Serv., 858 F.2d 617, 622 (6th Cir. 1987) (applying the substantial evidence rule to determine that the ALJ has discretion to decide if a case is borderline where the claimant was one month shy of his 55th birthday). Therefore, this is a borderline case.
See Daniels v. Apfel, 154 F.3d 1129, 1131 (10th Cir. 1998) (remanding for a determination of the appropriate age category when the ALJ's decision came 65 days before the plaintiff's birthday); Kane v. Heckler, 776 F.2d 1130, 1133 (3d Cir. 1985) (remanding for application of § 416.963 when the plaintiff was 48 days short of her birthday); Metaxotos v. Barnhart, 2005 WL 2899851, at *8 (S.D.N.Y. Nov. 3, 2005) (remanding for consideration of the borderline situation where the plaintiff was 6 months shy of an older age category); France v. Apfel, 87 F. Supp. 2d 484, 491 (D. Md. 2000) (granting summary judgment for the plaintiff where the difference was 5 months). But see Crady v. Sect'y of Health Human Serv., 858 F.2d 617, 622 (6th Cir. 1987) (applying the substantial evidence rule to determine that the ALJ has discretion to decide if a case is borderline where the claimant was one month shy of his 55th birthday). Therefore, this is a borderline case.
Harrison cites to several cases holding that the expectation of privacy in a toilet stall is not absolute, and that if an intruder can see what is allegedly secluded, there is no expectation of privacy. United States v. Delaney, 52 F.3d 182, 187-88 (8th Cir. 1995); United States v. Billings, 858 F.2d 617, (10th Cir. 1998). In Delaney, the Eighth Circuit held that "an occupant of a toilet stall in a public rest room may have a reasonable expectation of privacy against clandestine police surveillance of the interior of the stall," but that the right is not absolute.
(Triggs, supra, 8 Cal.3d at pp. 890–891, 106 Cal.Rptr. 408, 506 P.2d 232.) M.H.'s reply brief also cites United States v. Billings (10th Cir. 1988) 858 F.2d 617, but that case is distinguishable because there police followed a drug courier into an airport restroom, and, once inside the restroom, the officer, standing a few feet away from the stall, saw a drug parcel taped to the courier's leg. (Id. at pp. 617–618.)
and ultimately accessible to others when the trash was removed and discarded off-site. . . . [A] properly instructed jury could not have found that she had a reasonable expectation of privacy in the discarded letter."). If there is a subjective expectation of privacy, then the question becomes whether the alleged invasion of that privacy was objectively reasonable. See, e.g., Hart v. Seven Resorts, Inc., 947 P.2d 846, 853 (Ariz. Ct. App.1997) (holding that an individual is liable for an invasion of privacy only if he "intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns ... if the intrusion would be highly offensive to a reasonable person"); Medical Laboratory Management Consultants v. American Broadcasting Companies, Inc, 30 F. Supp.2d 1182, 1188 (D. Ariz. 1998) (holding that a plaintiff can only recover if she has an "objectively reasonable expectation of seclusion or solitude in the place" (emphasis omitted)); United States v. Billings, 858 F.2d 617, 618 (10th Cir. 1988) (per curiam) (holding that no reasonable expectation of privacy exists as to what "can be observed by any ordinary patron of a public restroom"). Turning to the record, the undisputed facts show that Maurie Baker and Ben Ferguson were invited into both the Mississippi home and the Burnettes' Moscow, Tennessee home.
On the other hand, defendant did have an actual, subjective expectation that he would not be viewed from overhead.See also United States v. Billings, 858 F.2d 617 (10th Cir. 1988) (defendant using public restroom at airport had no reasonable objective expectation of privacy in the gap area between the bathroom stall and the floor that was observable by the ordinary restroom patron and, thus, a police officer's plain observation of contraband (a clear bag with a white substance) taped to defendant's leg did not violate defendant's right of privacy and did not taint subsequent search of defendant); State v. Cooper, 29 Kan. App. 2d 177, 181, 23 P.3d 163, 166 (2001) ("Bathroom stalls do not provide complete privacy, `but an occupant of the stall would reasonably expect to enjoy such privacy as the design of the stall afforded.'"). In this case, the evidence indicated that Velvet Video was a commercial establishment open to the public.