Utah Supreme Court Decision a Win for Personal Privacy, ACLU Says

Affiliate: ACLU of Utah
March 15, 2002 12:00 am

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SALT LAKE CITY–In a ruling that preserves the privacy rights of couples engaged in sexual relations, the Utah Supreme Court today rejected Salt Lake City’s attempt to expand police investigatory powers in ways that would have severely infringed upon such personal privacy.

“We are extremely pleased with today’s ruling,” said Stephen Clark, Legal Director of the American Civil Liberties Union of Utah, which filed a friend-of-the-court brief in the case. “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.”

At issue in Salt Lake City v. Keith Roberts is the city’s contention that any consensual sexual behavior that occurs between a couple 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.

After losing an appeals court decision last year, the city appealed to the Utah Supreme Court again, arguing that consensual sexual behavior in any place a member of the general public might see is a crime. Lawyers for the city this time went further by saying 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,” Clark said.

The Utah Supreme Court’s ruling is online at http://courtlink.utcourts.gov/opinions/supopin/roberts2.htm.

The ACLU’s friend-of-the court brief in the case is online at http://www.acluutah.org/Robertsamicus.htm.

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