FL- Barred testimony throws curve into mall sex sting cases

Whether or not you agree with the decision is of no matter, this is good lawyering. Read the judge's decision.

6-14-2008 Florida:

DAYTONA BEACH -- Much of the testimony of a Beach Patrol officer will not be allowed in the case of a man accused of masturbating in a closed bathroom stall in the Sears store at the Volusia Mall -- because he didn't have a legal right to peer inside -- a judge ruled Thursday.

It remains to be seen what, if any, impact the decision might have on similar local cases of lewd acts in men's rooms, including the pending misdemeanor charges against ex-city commissioner Mike Shallow and former Seabreeze High School teacher David Behringer.

County Judge Belle Schumann found observations made by Volusia County Beach Patrol Capt. Rich Gardner should be suppressed in the case against Kenneth Halpin because the law established by a 5th District Court of Appeal ruling in 1994 says a closed bathroom stall is a private place.

In what could affect other cases, Schumann asked the appeals court to clarify the law on the issue of privacy in restroom stalls when police suspect criminal activity.

"If they accept, we will get an opinion which will be controlling those types of cases in the future," State Attorney John Tanner said. "I think the judge in effect took a more direct route to a higher court. We're pleased she did that . . . It's in everyone's best interest to clarify the law."

In the order -- which relied on a 1994 Holly Hill case -- the judge found Gardner did not have a legal reason to peer into Halpin's stall during the Nov. 1 mall sting. The ruling touches on similar arguments made by lawyers in the two higher profile cases of Shallow, 58, and Behringer, 29, and could be "persuasive" to other county judges, lawyers say.

With the suppression granted, the state's case against Halpin is weakened substantially. "We are taking a look and re-evaluating the case," State Attorney's Office spokeswoman Linda Pruitt said.

The judge's decision comes as Shallow and Behringer await a ruling from County Judge Peter McGlashan, who in April heard arguments over whether or not he should dismiss separate charges of indecent exposure and lewd acts against them.

With a decision in those cases expected today, some legal observers say a contrary ruling could create confusion over what the law is, although others say county judges make differing rulings all the time.

"The judges can have different rulings," said Tanner. "That's why you have an appeals court." If Judge McGlashan denies their pending motions, Shallow and Behringer are scheduled for trial next week.

Halpin, Behringer, Shallow and six other men were charged in the sting Nov. 1. The operation was conducted, according to court records, after Daytona Beach police received complaints about homosexual activity in the upstairs Sears men's room at the Volusia Mall. Beach Patrol officers were asked to assist because of their experience in similar stings, according to testimony. But one difference became clear: While many of their earlier arrests at or near the beach involved bathrooms with no stall doors, the activities in the Sears men's room were behind closed stalls. Those doors prompted officers to illegally peek inside, defense lawyers argue.

Halpin, who turns 45 today, walked into the bathroom and entered a stall, closing the door. Gardner, who was already in the bathroom, said he observed Halpin sniffing and coughing and raising and lowering his foot, Gardner said. Based on his training, Gardner took those behaviors as a sign that Halpin was inviting him to participate in a sex act.

Gardner exited the stall he was in, stood in front of the door and looked in at Halpin, according to testimony. "Captain Gardner observed Mr. Halpin masturbating his exposed penis for approximately 10 seconds." Then the stall door was opened.

During a hearing June 2, there was some conflicting testimony over who opened the door. The judge found it was Halpin. After his arrest, Halpin told officers, "he was being stupid, and should have just tried to exchange telephone numbers with Captain Gardner," according to testimony.

The case hinges on the appeal's court's findings 14 years ago, the judge said.

"The simple act of entering a public bathroom stall and closing the door creates an area where a person is entitled to be free from unwarranted peeking and intrusion," the judge wrote. "Under the Ward decision, Captain Gardner could not intrude into that constitutional area without probable cause to believe that a crime was being committed."

The judge found that things Gardner said he heard, "coughing, breathing heavily, using one's zipper inside a bathroom stall" do not show probable cause that a crime was being committed. ..News Source.. by JAY STAPLETON, Staff writer