dissenting.
I respectfully dissent. I would hold that the testimony of officer Shipley was the result of his lawful observations and not the result of a search. I would also hold that the subjective intent of appellee as to his reasonable expectation of privacy in the bathroom stall is a question of fact to be resolved at trial and not a question of law to be resolved at a suppression hearing.
Every observation made by a law enforcement officer is not a search. A case analogous to the present situation presented itself in Green v. State, 566 S.W.2d 578 (Tex.Crim.App.1978). In this sodomy case, appellant was in a business establishment known as Mr. Peepers. The first section of this business was a typical newsstand. The second section contained pornographic materials and the third section, the rear portion of the building, consisted of nineteen booths with coin operated viewers which showed sexually explicit materials. The lighting in this area was dim. Each booth was approximately six and one-half feet tall and entry was gained through a full length non-transparent curtain. Law enforcement officers in the area of the booths looked through the gap in the non-transparent curtain and observed appellant engaged in an act of sodomy.
In reply to Green’s argument that the officers’ observations violated his right to privacy, the court stated, “[the officers] had a legal right to be in the hallway outside the booth. A three to five inch gap between the curtain and the edge of the booth enabled the officers to view appellant’s conduct. We hold that the officers’ conduct did not constitute a search.” Id. at 583.
In our case, while the size of the gap in the door to the toilet booth is not described, it was wide enough not only for the officer to view the appellant from the hallway, but also for appellant to view the officer. The restroom was open to the male public and the officer had a right to be where he was when he viewed appellant.
Likewise, while in the adjoining stall, the officer was where he had a right to be. The location of the hole in the partition between the stalls was such that a person making the customary use of this facility could see through the hole without taking any extraordinary measures. The officers had not made the hole between the stalls and the ability to see through the partition was equal to both the officer and the appellee.
The cases cited in support of the majority opinion are distinguishable on their facts. In Buchanan v. State, 471 S.W.2d 401 (Tex.Crim.App.1971), the officers observed the defendant from a concealed position above the toilet stall. In Liebman v. State, 652 S.W.2d 942 (Tex.Crim.App.1983), one of the officers had to boost the other above a seven foot wall before he could view the illicit act. In our case, it required no unusual act or exertion for the officer to observe the appellee. In fact, when the officer viewed the appellee through the opening in the door, he was seen by appellee, who voluntarily opened the door.
Finally, it should be noted that the Fourth Amendment and Art. I, See. 9, of the U.S. and Texas Constitutions, respectively, protect people not places. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); Green, 566 S.W.2d at 582. Appellant is charged with unlawfully and with intent to arouse and gratify his sexual desires, exposing part of his genitals to the officer by recklessly disregarding whether another was present who would be offended by his exposing and rubbing his penis up and down. The majority opinion bases its conclusions solely on its view of the place where the conduct occurred. The only *595evidence of appellee’s intent is the action he took. His actions show no evidence of an expectation of privacy on his part. To the extent that they may raise a fact issue, it is part of the burden of proof during the trial, not a subject for granting a motion to suppress the evidence.
Accordingly, I would reverse the judgment of the trial court and remand the case for trial.