Privacy and Technology - In a ruling issued March 15, 2002 in 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 had filed an amicus curiae brief in support of appealer Keith Roberts. At issue in the case was the interpretation of Salt Lake City laws regulating public lewdness.
As written, city law appropriately 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."
The controversy before the court arose from an incident in 1999, when Roberts took careful measures to ensure that a passersby would not observe his conduct. He and a female companion parked his car in an out-of-the-way lot behind a flatbed trailer. Because of the remote nature of the area and the fact that it was dark outside, Roberts believed they would not be observed. However, Salt Lake City police officers not only followed Roberts to the parking lot, but they crawled under the flatbed trailer to get a better view of their activities. Based on the officers’ observations, Roberts was arrested and charged with disorderly conduct for lewd activity.
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 to the Utah Supreme Court, arguing that consensual sexual behavior that occurs in any place in which a member of the general public is "capable" of viewing 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.