home > legal work > case resolutions Salt Lake City v. Keith Roberts BRIEF OF AMICUS CURIAE AMERICAN CIVIL LIBERTIES UNION OF UTAH IN SUPPORT OF APPELLEE IN THE SUPREME COURT FOR THE STATE OF UTAH Case No. 20000679-SC Priority No. 13 SALT LAKE CITY, Plaintiff/Appellant, vs. KEITH ROBERTS, Defendant/Appellee. JANELLE P. EURICK(8801) STEPHEN C. CLARK (4551) American Civil Liberties Union of Utah, Foundation, Inc. Attorneys for Amicus Curiae 355 North 300 West Suite 1 Salt Lake City, Utah 84103 (801) 521-9862 ANDREW MCCULLOUGH, LLC (2170) Attorney for Respondent 895 West Center Street Orem, Utah 84057 (801) 222-9635 ROGER CUTLER (791) SALT LAKE CITY ATTORNEY Attorney for Petitioner 451 South St. Room 505A Salt Lake City, Utah 84111 (801) 535-7788 TABLE OF CONTENTS Table of Contents Table of Authorities Constitutional Provisions, Statutes, and Ordinances Interest of Amicus Curiae Statement of Facts Summary of Argument A. The Court of Appeals correctly concluded that Salt Lake City Code §11.16.100 permits a conviction only where the objective circumstances establish that the conduct giving rise to the alleged violation is likely to be observed by a member of the public, not where such observation is even remotely possible B. Assuming for purposes of argument that the intent of Salt Lake City Code §11.16.100 is to protect unsuspecting members of the general public from unwanted exposure to lewd behavior, it does not extend to circumstances in which the defendant has taken reasonable steps to ensure privacy and therefore has not willfully exposed himself to public view Argument POINT 1. The Court of Appeals correctly concluded that the meaning of “open to public view” in Salt Lake City Code §11.16.100 includes an objective analysis of whether or not the conduct is likely to be seen by a member of the general community in order to determine if an expectation of privacy is justified A. A reasonable expectation of privacy exists where members of the public are not likely to observe the alleged lewd conduct B. The Fourth Amendment’s “plain view” exception to search and seizure cases is not applicable to Salt Lake City Code §11.16.100 POINT II. Willful conduct does not arise in a situation where the defendant takes reasonable steps to shield his activities from the members of the general community Salt Lake City Code §11.16.100 seeks to protect Conclusion TABLE OF AUTHORITIES Case Authority: California v. Ciraolo, 476 U.S. 207 (1986) Davenport v. United States, 56 A.2d 851 (Mun. Ct. App. Dist. Col. 1948) Florida v. Riley, 488 U.S. 445 (1989) Eisenstadt v. Baird, 405 U.S. 438 (1972) Loving v. Virginia, 388 U.S. 1 (1967) Olmstead v. United States, 277 U.S. 438 (1928) People v. Legel, 24 Ill. App. 3d 554 (Ill. App. Ct. 1974) People v. McNamara, 585 N.E.2d 788 (N.Y. 1991) Perrine v. Kennecott Mining Corp., 911 P.2d 1290 (Utah 19960 Peyton v. District of Columbia, 100 A.2d 36 (Mun. Ct. App. Dist. Col. 1953) Pierce v. Society of Sisters, 268 U.S. 510 (1925) Prince v. Massachusetts, 321 U.S. 158 (1944) Roe v. Wade, 410 U.S. 113 (1973) Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) State v. Broad, 600 P.2d 1379 (Haw. 1979) State v. Culmsee, 754 P.2d 11 (Or. Ct. App. 1988) State v. Larsen, 865 P.2d 1355 (Utah 1993) State v. Lee, 633 P.2d 48 (Utah 1981) State v. O., 355 A.2d 195 (N.J. 1976) United States v. Cox, 929 F.2d 1511 (10th Cir. 1991) United States v. Doe, 884 F.Supp. 78 (E.D.N.Y. 1995) Constitutional Provisions, Statutes, and Ordinances: Salt Lake City Code Section 11.16.100 (1987) Salt Lake City Code Section 11.16.010 (M) (1987) Utah Code Annotated §76-2-103 (1) Law Reviews, Annotations, and Treatises: William C. Heffernan, Privacy Rights, 29 Suffolk U.L. Rev. 737 (1995) A. G. Barnett , Annotation, Criminal Offense Predicated Upon Indecent Exposure, 94 A.L.R.2d 1353 (1999) JOHN STUART MILL, ON LIBERTY (Elizabeth Rapaport Ed.1978) CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES AND RULES United States Constitution, Amendment IV: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Ratified December 15, 1791). Salt Lake City Code 11.16.100. Urinating in Public and Other Disorderly Conduct. It shall be unlawful for any person, while in a place open to public view, to willfully: A. Urinate or stool; B. Engage in Sexual Conduct, alone or with another person or animal; C. Make an intentional exposure of his or her genitals, pubic area, buttocks or any portion of the areola and/or nipple of the female breast; D. Exhibit the private parts of any horse, bull, or other animal in a state of sexual stimulation, or to exhibit such animals in the act of sexual copulation. (Ord. 88-86 §60 (part)1986: prior code §32-2-5). Salt Lake City Code §11.16.010 (M) M. “Place open for public view” means an area capable of use or observance by persons from the general community, where an expectation of privacy for the activity engaged in by individuals is not reasonably justified. Utah Code Annotated §76-2-103 (1) A person engages in conduct: (1) Intentionally, or with the intent or willfully with respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result. IN THE UTAH SUPREME COURT STATE OF UTAH BRIEF OF AMICUS CURIAE Case No. 20000679 SALT LAKE CITY, Petitioner, vs. KEITH ROBERTS, Respondent. INTEREST OF AMICUS CURIAE The American Civil Liberties Union of Utah (“ACLU of Utah”) is a private, nonprofit, nonpartisan membership organization devoted to protecting the basic civil liberties of all Utah residents and extending those protections to groups that have traditionally been denied them. The ACLU of Utah has a long history of involvement, both as amicus curiae and as direct counsel, in defending personal privacy and other important constitutional rights. The ACLU of Utah is the state affiliate of the American Civil Liberties Union. The American Civil Liberties Union is a nonprofit, nonpartisan corporation founded in 1920 for the purpose of maintaining and advancing civil liberties in the United States. It has over 275,000 members nationwide. The American Civil Liberties Union has a long history of legal advocacy to protect privacy and other important constitutional rights for all individuals. The American Civil Liberties Union has a long history of involvement, either directly or as amicus curiae, in many challenges to state laws that regulate private sexual conduct, like the Salt Lake City ordinance involved here. STATEMENT OF FACTS Amicus curiae adopt the appellee’s statement of facts concerning the events that took place on July 9, 1999 in Salt Lake City, Utah. SUMMARY OF ARGUMENT A. The Court of Appeals correctly concluded that Salt Lake City Code § 11.16.100 permits a conviction only where the objective circumstances establish that the conduct giving rise to the alleged violation is likely to be observed by a member of the public, not where such observation is even remotely possible. The right to personal privacy has long been recognized as a fundamental right secured by the Constitution of the United States. Salt Lake City Code §11.16.010 (M) recognizes 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.” Salt Lake City asks this Court to ignore the second requirement, and to permit criminalization of consensual sexual behavior in any place that is “capable” of use or observance by a member of the general public. Salt Lake City even goes so far as to say that such a place 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 City’s argument represents an effort to radically expand the state’s police power and to reduce the constitutional right to privacy. The “plain view” exception to Fourth Amendment’s prohibition on unreasonable searches and seizures is properly limited to that unique context, where its purpose is to allow police officers who are otherwise lawfully at a location to obtain evidence in plain view. It should not be extended to situations where the purpose is to protect members of the public from witnessing objectionable conduct. The Court of Appeals properly declined to adopt the City’s invitation to eviscerate the constitutional right to privacy. B. Assuming for purposes of argument that the intent of Salt Lake City Code §11.16.100 is to protect unsuspecting members of the general public from unwanted exposure to lewd behavior, it does not extend to circumstances in which the defendant has taken reasonable steps to ensure privacy and therefore has not willfully exposed himself to public view. Besides requiring that conduct be in “an area capable of use or observance” by the general public and in a place where an expectation of privacy “is not reasonably justified,” Salt Lake City Code §11.16.100 permits a conviction only where a person “willfully” exposes his genitals or engages in other proscribed conduct while in such a place. According to Utah law, “willfully” means to consciously engage in the prohibited conduct. If one takes reasonable steps to remove himself from the public gaze and remain unseen, he is by definition not “willfully” exposing himself in a public place. Therefore, assuming the intent of Salt Lake City Code §11.16.100 is to prevent unsuspecting passersby from unwanted exposure to lewd or obscene conduct, the Court of Appeals was correct in holding that if an actual member of the general public would not likely observe the defendant’s conduct, he has not created the harm this statute seeks to prevent. ARGUMENT POINT 1 THE COURT OF APPEALS CORRECTLY CONCLUDED THAT THE MEANING OF “OPEN TO PUBLIC VIEW” IN SALT LAKE CITY CODE §11.16.100 INCLUDES AN OBJECTIVE ANALYSIS OF WHETHER OR NOT THE CONDUCT IS LIKELY TO BE SEEN BY A MEMBER OF THE GENERAL COMMUNITY IN ORDER TO DETERMINE IF AN EXPECTATION OF PRIVACY IS JUSTIFIED A. A reasonable expectation of privacy exists where members of the public are not likely to observe the alleged lewd conduct. The United States Supreme Court has long recognized the right to privacy. Justice Louis Brandeis, was the first to argue that the Fourth Amendment protected an individual’s right of privacy from governmental intrusion: “The makers of our Constitution… conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever means employed, must be deemed a violation of the Fourth Amendment.” Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting), overruled by Katz v. United States, 389 U.S. 347 (1967). In addition to the right of privacy guaranteed by the Fourth Amendment, the Supreme Court has recognized a right to privacy connected to an individual’s liberty interest. This liberty interest in privacy encompasses several different “areas or zones of privacy.” Roe v. Wade, 410 U.S. 113, 152 (1973). These areas or zones of privacy prevent the government from unreasonably intruding upon decisions relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); contraception, Eisenstadt v. Baird, 405 U.S. 438 (1972) at 453-454; family relationships, Prince v. Massachusetts, 321 U.S. 158 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510 (1925). In balance with the right of privacy is the legitimate state interest in regulating the moral welfare of its state and protecting public decency. However, the state’s interest in regulating public sexual activity does not extend beyond the public sphere. “Privacy rights are place-based rights: they protect sexual activity only when undertaken in a private setting. Thus, privacy rights are compatible with a seclusion restriction on sexual activity that allows the state to sanction people for engaging in public sexual activity. These rights concurrently presuppose a seclusion privilege that protects individuals from state interference when they engage in sexual activity in private.” (Emphasis added). William C. Heffernan, Privacy Rights, 29 Suffolk U.L. Rev. 737, 760 (1995). Several courts have recognized that this “seclusion privilege” applies when consenting adults who wish to engage in sexual activity take reasonable steps to ensure their privacy by situating themselves in an area where they believe unsuspecting passersby will not be able to witness their activities, removing themselves from the state’s regulatory control. See People v. 585 N.E.2d 788, 78 N.Y.2d 626 (N.Y. 1991); State v. Culmsee, 91 Ore. App. 63, 754 P.2d 11 (Or. Ct. App. 1988); State v. Broad, 61 Haw. 187, 600 P.2d 1379 (Haw. 1979); United States v. Doe, 884 F.Supp. 78 (E.D.N.Y. 1995). Salt Lake City Code §11.16.010 (M) defines the phrase “open to public view” as an area capable of use or observance by the general community, “where an expectation of privacy for the activity engaged in by individuals is not reasonably justified.” This definition is compatible with the state’s interest in regulating public sexual activity. However, the definition also recognizes the individual’s right to privacy, or the “seclusion privilege,” by requiring an objective analysis of whether or not a reasonable expectation of privacy can be justified. In accordance with this interpretation of Salt Lake City Code, the Court of Appeals correctly recognized that an activity is “open to public view” only when an objective determination is made regarding whether the alleged sexual conduct is “likely to be seen” by a casual passerby. This objective analysis goes directly to the determination of whether a reasonable expectation of privacy is justified under the statute. “That a member of public may pass by is certainly part of the essence of a public place, and the harm to such a person’s sensibilities is precisely that aimed at by the statute. Conversely where no such harm is likely, the statute is not violated.” People v. McNamara, 585 N.E.2d 788, 793 (N.Y. 1991). Thus, the Court of Appeals was unwilling to find a reasonable expectation of privacy where members of the public were likely to see the alleged lewd activity. When activities take place in an area where a member of the general community is not likely to see them, however, a reasonable expectation of privacy is justified. Salt Lake City would like this Court to ignore the second half of the definition of “open to public view” and allow police officers to intrude into the protected sphere of private consensual sexual relations between adults because of the location of the activity, failing to consider whether or not a reasonable expectation of privacy exists. This interpretation is not in conformity with Salt Lake City Code §11.16.010(M) nor is it consistent with the individual right to privacy regarding sexual activities in the private sphere. A justifiable expectation of privacy can exist in an area capable of use or observance by the public. Otherwise, every time consenting adults engage in private sexual relations they are susceptible to criminal charges simply because a police officer could intentionally peer through a window or a gap in bedroom curtains looking for evidence of a crime. In this case, Mr. Roberts concealed his activities from public view by situating himself in an area where members of the general public were not likely to observe him. Arguably, the area was capable of use or observance by the general public. But, Salt Lake City must also prove that Mr. Roberts did not have justifiable expectation of privacy. This expectation of privacy should be determined by showing that a member of the public is not likely to observe the alleged lewd conduct, in conformity with the general purpose of the statute, preventing members of the public from viewing lewd behavior. This expectation of privacy should not be determined, however, because a police officer investigating general criminal activities purposefully followed and watched Mr. Roberts’ activities. B. The Fourth Amendment’s “plain view” exception to search and seizure cases is not applicable to Salt Lake City Code §11.16.100. Salt Lake City argues that the Fourth Amendment “plain view” exception should be expanded in order to determine whether or not the defendant was in a place “open to public view” when the alleged lewd activity took place. However, the best indication of statutory intent is the statute’s plain meaning. Perrine v. Kennecott Mining Corp., 911 P.2d 1290, 1292 (Utah 1996). In this case, Salt Lake City Code defines “open to public view” within the statute as “an area capable of use or observance by persons from the general community, where an expectation of privacy for the activity engaged in by individuals is not reasonably justified,” Salt Lake City Code §11.16.010 (M). The definition of open to public view within the statute should control this Court’s interpretation of the law and not what Salt Lake City would like to add to the definition, namely, the “plain view” exception to Fourth Amendment search and seizure cases. The “plain view” exception is intended for the specific purpose of allowing police officers that view evidence of crime from a position lawfully accessible to the public to seize that evidence without acquiring a search warrant. State v. Lee, 633 P.2d at 51. It is not intended to protect members of the public from viewing lewd behavior, as is Salt Lake City’s lewdness ordinance. Expansion of the “plain view” doctrine will do nothing more than create criminal activity where constitutionally protected intimate relations once existed. For example, suppose a married couple enters their own fenced backyard to go skinny-dipping in their hot tub at 3:00 a.m. The hot tub is bordered from all sides and is left open to the sky. Their yard borders a public park. The couple has a justifiable expectation of privacy in their own yard because members of the public are not likely to view their behavior at 3:00 a.m. Next, assume that this couple has a row of marijuana plants growing along the border of their yard and the park. A police officer, following a tip from a concerned neighbor about marijuana growing in the neighborhood, circles the house by helicopter and observes the plants. If the officer seized the plants the search would ostensibly fall under the “plain view” exception of the Fourth Amendment. See Florida v. Riley, 488 U.S. 445 (1989); California v. Ciraolo, 476 U.S. 207 (1986). Under Salt Lake City’s expansion of the plain view exception, the officer would have just created a crime because he witnessed the couple’s private sexual activities in the hot tub. Following Salt Lake City’s argument to its illogical conclusion, every intimate and private sexual act performed within any area where a police officer might lawfully view the activity would be considered lewd behavior. Whether the officer peers through a bedroom window or a car window in a secluded private parking lot, the result is a blatant violation of personal privacy. Further, the court in McNamara rejected the same argument advanced by Salt Lake City, stating “the diminished expectation of privacy does not transform the interior of an automobile into a public place.” 585 N.E.2d at 793. The court developed a spectrum of activities that on one end would be considered private, and on the other end would be considered in public view. “The interior of a vehicle on a desolate road is not a ‘public place’ in the same sense that the interior of a car parked at a busy downtown shopping area might be.” Id. As in McNamara, the Fourth Amendment’s “plain view” exception has nothing to do with protecting members of the general public from lewd conduct. Therefore, sound public policy dictates that the power of the police to follow citizens and charge them with public lewdness should be limited to situations where members of the public are likely to observe the offensive behavior. The Court of Appeals was correct in deciding that “open to public view” means that members of the public are likely to view the prohibited conduct, making an expectation of privacy unjustifiable. The Fourth Amendment “plain view” definition should likewise be limited to cases where law enforcement officers are lawfully on the premises and find evidence of a crime in plain view. POINT 2 WILLFUL CONDUCT DOES NOT ARISE IN A SITUATION WHERE THE DEFENDANT TAKES REASONABLE STEPS TO SHIELD HIS ACTIVITIES FROM THE MEMBERS OF THE GENERAL COMMUNITY SALT LAKE CITY CODE §11.16.100 SEEKS TO PROTECT In On Liberty, John Stuart Mill advanced the theory that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient to warrant.” Salt Lake City Code 11.16.100 embodies this theory by requiring “willful” behavior that will potentially cause harm to the members of the public the ordinance seeks to protect. The term “willfully” as defined in Utah Code §76-2-103 in conjunction with the term “intentionally” means that it is the person’s “conscious objective or desire to engage in the conduct or cause the result.” Salt Lake City argues that the offense of public lewdness rests only upon finding that the location of the activity was capable of use or observance by the general public. The position urged by Salt Lake City would defeat the “willful” requirement by ignoring any intent on the part of the defendant to commit public lewdness. However, in accordance with Utah law, the prosecution must prove beyond a reasonable doubt that the accused desired to engage in the conduct alleged. See State v. Larsen, 865 P.2d 1355 (Utah 1993). In this case, the only “willful act” Mr. Roberts’ engaged in was to “willfully” remain unseen by any member of the public. Mr. Roberts’ choice to park behind two flatbed trucks and a two-story block wall at the rear of a parking lot demonstrates this. Thus, contrary to Salt Lake City’s interpretation, the plain meaning of the statute requires something more than purposely concealing one’s actions from public view. Various courts have determined that the intent required for committing public lewdness offenses results where no attempt to conceal lewd exposure was made. See Davenport v. United States, 56 A.2d 851 (Mun. Ct. App. Dist. Col. 1948). For instance, in People v. Legel, 24 Ill. App. 3d 554 (Ill. App. Ct. 1974), the court found that the defendant who purposefully stood in front of a window in his home exposing his genitals did so intentionally because the defendant made no attempt to conceal his activities from passersby. Further, in United States v. Cox, 929 F.2d 1511 (10th Cir. 1991), the court stated: “The government concedes that had defendant exposed his sex organ in a public place which reasonably accommodated privacy, such as a lavatory, a dressing room or a deserted field, evidence of sexual intent would be more difficult to discern. Likewise, similar public exposure occurring in the middle of the night at a place where it was unlikely to be observed by other nonconsenting persons, may be insufficient to establish the necessary intent for this offense.” (Emphasis added) See generally 53 C.J.S. Lewdness §4; State v. Broad, 61 Haw. 187, 600 P.2d 1379 (1979). Id. at 1515 n.2. In Cox, the defendant parked near the front entrance of a commissary during normal business hours unclothed from the waist down with his car windows and sunroof open and made no effort to conceal his actions. Id. Intent to commit public lewdness in a parked vehicle has been found under circumstances where the defendant exposed himself at a time and place when a reasonable man knew or should have known that his act was likely to be seen by the public. Where activities are not likely to be seen by the general public, criminal intent is lacking. See Peyton v. District of Columbia, 100 A.2d 36 (Mun. Ct. App. Dist. Col. 1953); State v. O., 355 A.2d 195 (N.J. 1976)(court concluded that a private sexual act in a parked car did not occur under circumstances in which defendants could reasonably be deemed to have intended, or known, that their conduct was likely to be seen by the public). See also Criminal Offense Predicated Upon Indecent Exposure, §10 Intent, 94 A.L.R.2d 1353. This reasoning is supported by every case the Court of Appeals cited in deciding Mr. Roberts activities must have been “likely to be seen” by a casual passerby. In State v. Broad, 61 Haw. 187; 600 P.2d 1379 (Haw. 1979), police officers followed the defendant, whom they suspected of picking up a prostitute. The defendant parked his car in between two streetlights on a residential street. Other houses on the street were dark and the inhabitants were assumed to be sleeping at the time. Id. at 1380. The officers approached the car and shined a flashlight in the window enabling them to observe sexual activity. The Supreme Court of Hawaii concluded that the only reason the officers viewed the defendant’s activities is because they followed him to the location. Id. at 1382. Therefore, it was improbable that the members of the public the law sought to protect would observe the defendant’s acts or that the defendant had sufficient intent to expose himself to the public. In People v. McNamara, 585 N.E.2d 788 (N.Y. 1991), the public lewdness statute required an intent to be observed by members of the public. Quoting the Model Penal Code the court found that intent is lacking where persons who desire privacy take reasonable steps to secure it, preventing the likelihood that passersby will observe the conduct. Id. at 793. Under this standard, the court found no intention on behalf of any of the defendants to be observed by the general public while performing sexual activities in parked cars during late night hours. United States v. Doe, 884 F.Supp. 78 (E.D.N.Y. 1995), involved a security officer patrolling the Gateway National Recreation Area when he discovered two men in a wooded area approximately 10 feet away from a bicycle path and 50 feet east of a parking lot. Id. at 80. The officer testified that shrubbery blocked his view from both the bicycle path and the parking lot. Id. In order to view the men, the officer walked off the path and into the shrubbery. It was 8:45 p.m. during the park’s off season. The court, relying extensively on McNamara, concluded that the defendant could not be convicted under the statute stating: “While the policy goals of section 245 invite expansive interpretation, there must be some basis in fact to support the conclusion that the activity ‘likely would be seen by the casual passerby.’ That evidence is lacking here. This incident occurred on an April night, in the off season, and in an area obscured by thick bushes. The arresting officer, hardly a casual passerby, was on patrol searching for homosexual behavior or drug activity and yet he could not see the defendant until he left the path and penetrated the apparently dense shrubbery. While a reasonably secluded spot in the bushes will not provide any guarantee of a safe haven for those intent on outdoor sexual activity, the precise circumstances presented here do not permit a reasonable trier of fact to conclude that the activity in question occurred in a pubic place.” Id. at 82. The Court of Appeals properly relied on Broad, McNamara, and their progeny to show that members of the public must have some likelihood of viewing the objectionable conduct. Otherwise, police officers will be able to follow a suspect anywhere, peer through a window, and create a crime even where the parties did not intend to commit the offense of public lewdness and where no harm has occurred to the class of persons the law seeks to protect. The facts of Mr. Roberts’ case show that he made every effort to conceal his activities from members of the public. He drove to a location under a viaduct and determined he did not want to park in that area. Next, he drove to the parking lot on 1860 S. and 900W. where he parked behind two flatbed trucks and a two-story block wall. These actions are inconsistent with the contention that Mr. Roberts sought to “willfully” expose his genitals in an area open to public view. CONCLUSION Requiring public lewdness offenses to be predicated on the fact that members of the public are likely to observe the alleged lewd conduct will not turn every dark alley, street, park, or driveway into a house of prostitution. Rather, it will protect the “seclusion privilege” aspect of the right to privacy that exists between consenting adults who take reasonable steps to conceal their activities from members of the public. If a person is in a place where general members of the public are likely to pass, the activities are arguably “willful” and an expectation of privacy cannot be justified. But, when the totality of the circumstances indicates that the parties have taken reasonable steps to ensure privacy and are in an area where members of the public are unlikely to venture, their actions should not be considered “open to public view” within the meaning of the ordinance. Therefore, in harmony with the interests of individual privacy and sound public policy we urge the Court to find that the Court of Appeals properly interpreted Salt Lake City Code §11.16.100 in this instance. Dated this 15th day of February, 2001. American Civil Liberties Foundation of Utah, Inc. Janelle P. Eurick Stephen C. Clark Attorneys for Amicus Curiae

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