                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2020
                                   ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Northern District of Iowa.
Lonnie Maurice Hill,                 *
                                     *
           Defendant-Appellant.      *
                                ___________

                             Submitted: October 19, 2004
                                Filed: January 11, 2005
                                 ___________

Before COLLOTON, LAY, GRUENDER, Circuit Judges.
                          ___________

LAY, Circuit Judge.

      Lonnie Maurice Hill appeals the district court’s1 denial of his motion to
suppress evidence. We affirm the district court.

      At approximately 1:00 A.M., a store clerk working at the HandiMart
convenience store in Cedar Rapids, Iowa, phoned police to report suspicious activity
in the store. The store was located in a known area of prostitution and, after
observing a woman and a man enter the store’s small restroom, the clerk suspected

      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, presiding.
the two were using the restroom as a place for unlawful sexual activity. The single-
person restroom, available for use by either men or women, was equipped with one
stool and one urinal, but lacked any privacy partitions.

       Police officers arrived within four minutes of the call. After conferring with
the clerk, the officers knocked on the restroom door, but did not identify themselves
as police officers. They received no response. One of the officers then rapped on the
door with the end of his flashlight. He heard a jingle like a belt buckle, but otherwise
no response. After knocking the second time, the officer used a Leatherman toolkit
to unlock the door, but he did not open it. At this point, one of the occupants
relocked the door. The officer warned the occupants that he would open the door if
they did not come out. The officer then unlocked the door again with the Leatherman
kit. This time the female pushed the door open just enough to allow her exit.
Thereafter Hill began to exit. However, upon seeing the officer, he turned around and
re-entered the restroom. Hill was partially undressed. His pants were unbuttoned,
unzipped, and loosely held by the belt. Hill then set something metallic down.
Hearing the sound, the officer poked his head into the bathroom through the ajar door
and saw a small bag of marijuana and two clear baggies of cocaine on top of a metal
wastepaper basket next to the toilet. While leaving the restroom, Hill dropped a t-
shirt and a jacket on the floor. Hill was placed under arrest. A metal scale was found
in the same shirt Hill left on the floor.

       Subsequent to being indicted by a grand jury for possession with intent to
distribute 22.62 grams of crack cocaine, for distributing .33 grams of crack cocaine,
and for distributing .31 grams of crack cocaine within 1,000 feet of a school, Hill
filed a motion to suppress the evidence. The district court, adopting the Report and
Recommendation of the magistrate judge, found no Fourth Amendment violation and
that Hill had voluntarily abandoned his property in the restroom. Pursuant to the
conditional guilty plea, Hill was sentenced to 120 months imprisonment. Hill now



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appeals denial of his motion to suppress arguing the evidence was seized in violation
of his Fourth Amendment rights. Finding no violation of Hill’s Fourth Amendment
rights, we affirm the district court.

       The Fourth Amendment protects people and not places. See Katz v. United
States, 389 U.S. 347, 351 (1967). However, “the extent to which the Fourth
Amendment protects people may depend upon where those people are.” Minnesota
v. Carter, 525 U.S. 83, 88 (1998). In the present case, it was not a single person
using the single toilet restroom but two persons of opposite gender and, under the
circumstances, we hold that they had a diminished expectation of privacy which had
expired by the time the officers had arrived. To invoke the protection of the Fourth
Amendment, one must establish a legitimate expectation of privacy in the invaded
place. Rakas v. Illinois, 439 U.S. 128, 143 (1978).

       We have held that a person using a public restroom enjoys a reasonable
expectation of privacy in being shielded from view by the privacy partitions in the
restroom. United States v. White, 890 F.2d 1012, 1015 (8th Cir. 1989). However, we
have never held that this expectation lasts indefinitely. In fact, we have held that an
occupant of a public restroom, even after locking the door, waived his right to privacy
by failing to reassert it after repeated requests to enter. See United States v. Esparza,
162 F.3d 978, 980 (8th Cir. 1998). Additionally, “a[n] expectation of privacy in
commercial premises . . . is different from, and indeed less than, a similar expectation
in an individual’s home.” New York v. Burger, 482 U.S. 691, 700 (1987). These
cases recognize that regardless of one’s subjective expectation of privacy in a public
restroom, society’s recognition of that expectation of privacy is limited by the
physical design of the restroom, the location of the restroom, and the probability that
one will be asked to surrender use of the restroom to others.

      In the present case, the restroom was designed for use by one person, it was
located in a convenience store, and available for use by customers and guests of the

                                          -3-
store. Hill and his female companion occupied the restroom in a manner for which
it was not designed, and remained there after being asked to leave. Under these
circumstances, we hold that whatever reasonable expectation of privacy Hill and his
companion had expired by the time the officers arrived. Any search that may have
occurred did not violate Hill’s Fourth Amendment rights.2

       There is no question, based upon what the store clerk pointed out to the
officers, there was an entry by the man and woman into the small convenience store
restroom. The store was located in an area that was known to have a high prostitution
rate. Furthermore, although the door was locked, the police could reasonably believe
the store clerk had authority to consent to the search of the common room. See
United States v. Brokaw, 985 F.2d 951, 953 (8th Cir. 1993).

       In Esparza, 162 F.3d 978, the owner of the apartment building gave his consent
to an invasion of a small common room which was a restroom and it was locked only
on the inside with a latch. Under the circumstances, when Hill did not respond to
multiple knocks on the door by the officers when requesting entry to the restroom, the
officers could reasonably believe that the store clerk had authority to consent to a
search of the common room.

       Because there was no reasonable expectation of privacy when the officers
arrived, the unlocking of the door by a toolkit was not a violation of the Fourth
Amendment nor may it be said that on further knocking of the door the exit by the
woman occupant in the restroom was in any sense coercive. In view of the fact that
Hill and his female companion did not have a reasonable expectation of privacy, we


      2
       Of course, each factual circumstance should be evaluated on its own. Clearly,
our conclusion regarding Hill and his companion may stand on different footing than
say a child and a parent or where one person because of a disability or some other
medical reason may need assistance.

                                         -4-
hold that there was no violation of the Fourth Amendment under the circumstances.
We thus affirm the district court.

      AFFIRMED.
                      ______________________________




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