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2009 Jotwell: J. Things We Like [1] (2009)

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Exposing Criminal Procedure's Hidden History
David Alan Sklansky, One Train May Hide Another: Katz, Stonewall, and the Secret Subtext of Criminal
Procedure, 41 U.C. Davis L. Rev. 875 (2008).

Jack Chin

David Alan Sklansky offers fascinating new insights into an old chestnut, Katz v. United States, 389 U.S. 347
(1967). Katz is a worthy subject, because its rejection of the trespass test for searches in favor of the
reasonable expectation of privacy framework apparently heralded a new scope for the Fourth Amendment.
The specific holding of Katz, that wiretapping constituted a search, overruled prior law and survives today. Yet,
as the cases after Katz developed, from open fields to wired informants, the results of the new test were the
same as the old test.

Together, the great criminal procedure cases of the Warren Court read like a parade of vice straight out of Guys
and Dolls: The possession of dirty paperbacks at issue in Mapp v. Ohio, 367 U.S. 643 (1961), the incipient stick-
up artists of Terry v. Ohio, 392 U.S. 1 (1968), the Chinese opium dealers in Wong Sun v. United States, 371
U.S. 471 (1963), the bookmaker in Spinelli v. United States, 393 U.S. 410 (1969), and the L.A. bookie in Katz
itself. Sklansky proposes that with Katz, at least, this image is wrong; Katz was not only about bets and
telephone booths. The secret subtext of Katz was protection of gay men from police surveillance in public
restroom stalls. Sklansky advances a powerful circumstantial case that both pre-Katz jurisprudence involving
gay men and the cultural context of morals policing of males might well have influenced the Court's decision.

Remarkably, the phrase reasonable expectation of privacy originated in arguments that the police should not
spy on men in bathroom stalls. In a 1966 special project, the UCLA Law Review published an empirical study
of arrests for consensual sodomy in California. More than half were made in public restrooms. Most were for
sexual conduct directly witnessed by the arresting officers, typically, it seems, from hidden observation posts.
Sklansky, supra, at 887. The study criticized toilet surveillance, arguing that the Fourth Amendment should
protect 'reasonable expectations of privacy' in 'semi-public places.' Id. at 894.

The study built on ongoing litigation in California employing the same phraseology. In 1962, a pair of
California Supreme Court decisions held that the police could not observe people in closed bathroom stalls from
hidden vantage points. In a case involving Park Rangers observing men in bathrooms at Yosemite, the Ninth
Circuit disagreed. Smayda v. United States, 352 F.2d 251 (9th Cir. 1965), cert. denied, 382 U.S. 981 (1966).
However,  Judge Browning's dissent contended that the evidence had to be suppressed because defendants had a
reasonable expectation of partial privacy. Id. at 260.

The UCLA   report was noticed; for example, Look Magazine discussed it in a 1967 an article on The sad 'gay'
life. Similarly, while the Court ultimately denied certiorari in Smayda in spite of the conflicting decisions,
Sklansky shows that it was not a routine rejection. Justice Douglas voted to take the case, and clerks for Clark

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