(dissenting).
I disagree with the conclusion of the court that the apartment house hallway and entry steps were public places so as to make either the state statute or local ordinance applicable to that area. We recognized in State v. Lake, 476 N.W.2d 55, 57 (Iowa 1991), that “[a] right of public access is a touchstone of the section 123.3(23) definition of a public place.” For purposes of applying that definition, I submit that public access refers to access by the public at large without invitation. I am confident that neither the tenants in this apartment building nor the building’s owner have chosen to open it up to public access. Those persons who are welcome there come by invitation, express or implied.
In determining whether the areas where the alleged crimes were committed were public places, the majority relies on three factors that have absolutely no bearing on whether Booth’s acts fall within the statutory definition of the crimes of which she has been convicted. These are the defendant’s status in the common areas of the building under the terms of her lease, the sensibilities of the other tenants in the building, and Fourth Amendment jurisprudence concerning a reasonable expectation of privacy. The tenant’s status in the common areas of the building under her lease in no way governs the right of public access. Nor do the tenant’s sensibilities to the conduct of other tenants.
Fourth Amendment jurisprudence was referred to in the Lake case to confirm the private nature of an automobile interior. The Fourth Amendment jurisprudence relied on by the majority is in no way determinative of a right to admission on the part of the general public. That is because there are many places where the general public is not admitted but where persons present do not enjoy a reasonable expectation of privacy. The district court acted properly in reversing the judgment of the magistrate, and I would affirm its order.
LAVORATO, C.J., joins this dissent.