Your kids are young, so you take them to a public beach that lacks facilities such as restrooms or changing rooms. You parked in an open, public parking area, with a great view of the surf. Since you wore swimsuits underneath our clothes, you arrived ready for sand, sun, and saltwater fun.
However, when the time comes to leave, there is sand in unwelcome places, and you’re eager to get out of those icky, wet suits. Your solution is to take turns changing clothes in the back of your car.
By doing this, are you violating the law? The answer may depend on the precise location of the car, and/or the efforts you made to ensure your privacy.
In Salt Lake City v. Roberts, 44 P.3d 767 (Utah 2002), the defendant entered a public parking lot, drove to the back of the lot, and parked. He was surrounded by flatbed trucks, a cement wall, a fence, and closed businesses. While there, he exposed himself, unaware that two undercover police officers saw him. The city charged him under an ordinance stating, in part:
“It is unlawful for any person; while in a place open to public view, to willfully… [e]ngage in sexual conduct… [, or]… [m]ake an intentional exposure of his or her genitals.” Salt Lake City Code § 11.16.100.
The case ultimately turned on whether the charged activity occurred in a “place open to public view.” First, the trial court (the Salt Lake City justice court) reached the simple conclusion that the defendant’s conduct occurred in a “place open to public view” because it occurred in a public parking lot.
Then, the Court of Appeals, looking to case law from other states, said that it needed to be determined whether the prohibited conduct occurred in a place likely to be observed by a member of the public before a person could be convicted of that. Finally, the Utah Supreme Court said that the city code’s own definition of “place open for public view” best communicated the legislative intent of the ordinance.
The city code defined “place open for public view” as:
“[A]n area capable of use or observance by persons from the general community, where an expectation for privacy for the activity engaged in by individuals is not reasonably justified. Salt Lake City Code § 11.16.010.
While there was no serious dispute that the public parking lot was “an area capable of use or observance by persons from the general community,” the court sent the case back down to the trial court to determine whether the “defendant’s expectation of privacy was reasonably justified.” This makes sense. After all, if a person tells his attorney something in a public place, but he thinks nobody else is listening – but somebody is! – most courts still say that what the man told his lawyer is still confidential, so long as the man reasonably felt that nobody else was listening. Now, if the man told his lawyer something confidential on a bus, surrounded by other passangers, courts would certainly tell the man, “Hey, you knew the whole world could you, so we are not going to keep what you told your lawyer confidential.” More often than not, it simply comes down to what is reasonable.
After the trial court got the case back from the Utah Supreme Court, the trial court found that the defendant’s expectation of privacy was, indeed, reasonably justified, and the court dismissed the case. Salt Lake City v. Roberts, 76 P.3d 213 (Utah App. 2003). Often, these cases will involve a couple having sex in their car, or a person masturbating. Recently, a couple was charged for violating a law like this in Utah because they were having sex on a mortuary law of all places. Now, certainly they must have known that they had been entertaining hundreds of dead people!
The Roberts case does not clearly say what it was that made the trial court determine that the conduct was reasonably justified, however, we may infer that the trial court was persuaded that since the defendant carefully positioned his car at the back of the parking lot, between large trucks and walls, he was justified in thinking he was being discreet, and that nobody else was looking, and so he was not guilty of disorderly conduct.
It probably follows, then, that in our beach example, so long as those who were not changing stood outside the car, and covered the windows with towels, you may be okay. Of course, there is simply no way to guess what any individual cop, prosecutor, or judge may think. Always ask yourself this question, “Could anybody be watching me?” When in doubt, assume you are being watched. After all, busy bodies that want to call the police on you are everywhere.
Maile Verbica and Greg Smith