A Christchurch police officer peered over a toilet cubicle wall to catch a toilet spy literally with his pants down. Later he searched Emilio Nicholas Exequiel Araneda Aranguiz’s cellphone and found 101 videos and images of male genitalia taken through a hole in the cubicle next to the urinal in Riccarton Mall, Christchurch. The High Court in Christchurch has ruled both searches illegal but says it would be wrong to exclude the evidence obtained.
Aranguiz, 23, originally from Chile, was convicted of a representative charge of intentionally making an intimate visual recording and intentional damage after a judge-alone trial last December. Sentenced to six months home detention and 100 hours of community work, Aranguiz appealed the conviction alleging the evidence against him could not be used because it was obtained in unreasonable searches.
He was caught on January 12, 2018, when a police officer called by mall management went to an adjacent cubicle and peered over the top to see Aranguiz sitting on the toilet with his pants down, holding his mobile phone. The officer then knocked on the cubicle door and entered using a multitool.
The officer also recovered a screwdriver used to make holes in the cubicle wall from Aranguiz’s pockets. At the police station, an officer told Aranguiz to unlock his phone so he could inspect it. To refuse would be another offense, the officer said.
Justice Cameron Mander said the officer’s search of the cubicle by looking over the top was not unlawful but it was unreasonable. Aranguiz had a legitimate expectation of privacy and criminal activity detected through the search could not validate the search.
“The reasonable expectation of privacy deriving from a person’s occupation of a toilet cubicle is obvious..that an occupant of a locked toilet cubicle may be partially unclothed is a foreseeable state of affairs. When coupled with the bodily function associated with the use of the toilet cubicle, the preservation of a person’s dignity… is clearly engaged,” Justice Mander said.
Although Aranguiz had been in the cubicle for 50 minutes before the constable appeared, the constable should have made preliminary inquiries before making a visual examination.
The judge said the screwdriver and cellphone were not recovered as a consequence of the breach but, even if they were, the exclusion of the items from evidence would be disproportionate to the impropriety of the breach. The evidence was highly relevant and not realistically open to challenge, he said.
Justice Cameron said he had reservations about a District Court ruling the search of Mr Aranguiz’s cellphone was unreasonable because the accused had been arrested for damaging the toilet cubicle not the illegal recording. The images could clearly be linked to the cubicle damage, he said.
The police officers could have arrested Aranguiz for making intimate visual recordings and then obtained a search warrant. Aranguiz was then misled into thinking he had to release his PIN number. However given the importance of the evidence it would disproportionate to exclude the evidence, Justice Mander said.
Source: Stuff
Featured Image- A man was caught spying through a hole in a toilet cubicle in Westfield Riccarton mall in 2018. Photo / Stuff
