home > newsroom Utah Supreme Court Decision a Win for Personal Privacy FOR IMMEDIATE RELEASE Friday, March 15, 2002 SALT LAKE CITY – In a ruling issued today in the case Salt Lake City v. Keith Roberts, the Utah Supreme Court rejected Salt Lake City’s attempt to expand police investigatory powers in ways that would have severely infringed upon personal privacy. The American Civil Liberties Union of Utah, which filed an amicus curiae brief in support of appellee Roberts, was pleased with the outcome. At issue in the case is the interpretation of the Salt Lake City laws regulating public lewdness, which as written, appropriately recognize the right to privacy by criminalizing consensual sexual behavior only when it takes place in “an area capable of use or observance by persons from the general community” and “where an expectation of privacy for the activity engaged in is not justified.” The Court of Appeals held that in order to sustain a conviction based on conduct “open to public view,” the court must review all the facts and circumstances to determine whether the conduct was “likely to be seen” by a member of the public. The city appealed this decision to the Utah Supreme Court, arguing that consensual sexual behavior that occurs in any place a member of the general public might conceivably be able to view the conduct is a crime, with no regard to the likelihood that anyone will actually see the conduct. Salt Lake City went so far as to say that such a location must include any place that would fall within the “plain view” rule previously limited to the unique context of Fourth Amendment searches and seizures. The ACLU of Utah argued that the “plain view” rule, which allows police officers who are otherwise lawfully at a location to obtain evidence in “plain view” without a warrant, is a very limited rule that has no application in situations in which adults have taken reasonable steps to shield their intimate conduct from public view. The Utah Supreme Court agreed and rejected the city’s attempts to apply the “plain view” doctrine to the public lewdness code, stating that, “the city council likely did not intend for Fourth Amendment case law to establish the meaning of the terms used in the ordinance.” Because it required additional facts to make a determination in Roberts’ specific case, the Utah Supreme Court remanded the case to the trial court. “Expansion of the ‘plain view’ doctrine would have created criminal activity where constitutionally protected intimate relations had once existed,” said Stephen Clark, ACLU of Utah legal director. “If the city had had its way, then every time consenting adults engaged in private sexual relations, they would have been susceptible to criminal charges simply because a police officer is able to peer through a window or a gap in the bedroom curtains.” --end--

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