concurring.
The majority opinion is correct with regard to the reasonableness of appellant’s expectation of privacy. I do not agree with the Court of Appeals’ holding that appellant’s expectation of privacy in his dressing room derived from and must be measured by the expectation of privacy held by the licensee-owner in the entire business establishment. Neither do I agree with the implied finding by the majority that had the police officer gone into appellant’s dressing room in furtherance of the regulatory scheme detailed by the Texas Alcoholic Beverage Code, he would have been within the scope of a permissible regulatory search.
The Fourth Amendment to the United States Constitution and Article 1, § 9 of the Texas Constitution guarantee persons freedom from unreasonable searches. This right, as noted by the majority, protects the “‘legitimate expectations of privacy’ of persons not places.” At 779, citing Ybarra v. Illinois, 444 U.S. 85, 91-92, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979), rehearing denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 737 (1980).
Certainly a licensee-owner may be required to waive some privacy rights in exchange for the privilege of engaging in a closely regulated business. See United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) and Collonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970). There is no requirement, however, that employees, patrons, or other persons must also waive their rights upon entry into the business establishment. See at 778, discussing Ybarra, supra.
Thus, I see no reason why any expectation of privacy held by appellant regarding the dressing room should be considered waived because the owner-licensee waived his rights to privacy. Rather, we should determine: 1) whether appellant exhibited an expectation of privacy in the dressing room, and 2) whether that expectation was reasonable in the face of a regulatory scheme that calls for exploratory administrative searches in the club that housed the dressing room.
With regard to the first inquiry, I find that the facts of this case support a finding that appellant manifested an expectation of privacy in the dressing room. The record shows that:
1. appellant had a contract with the club which provided that he was to be furnished with a private room;
2. the dressing room was separated from the public area of the club, and was curtained from public view;
3. a bodyguard was posted outside the room to prevent unauthorized entry; and
4. appellant was present and using the room at the time of the search.
Clearly appellant exhibited an expectation of privacy in what he considered and what was meant to be his private dressing room.
I also would hold that this expectation of privacy was reasonable given a regulatory scheme that authorizes exploratory administrative searches of the club that housed the dressing room, for the following reasons.
First, a dressing room is not an area used to further the conduct sought to be regulated by the T.A.B.C. since no liquor is sold there, nor are customers allowed *782there. An entertainer’s backstage dressing room has long been accepted in this country. By its very title, the dressing room is a room for changing clothes or costumes. The privacy that society places on this routine occurrence is high, as evidenced by the large number of private places within public places that exist solely for the purpose of removing clothing (clothing store changing rooms, swimsuit bathhouses, health spa locker rooms, etc.)
Second, there is no evidence that the dressing room here was anything but that: an entertainer’s legitimate dressing room as opposed to a sham or subterfuge.
Last, as pointed out in Justice Howell’s dissent, a dressing room is historically and traditionally regarded as a private area for the entertainer and has been considered so since the time of Thespis.
In this regard, the dressing room is not unlike a restroom provided in a nightclub. Certainly a third person visiting or working in such an establishment would have a right to privacy in a closed stall in the restroom, which most persons would assume. This Court would likely find that expectation reasonable in the face of a forced police entry into a closed and occupied stall under the guise of “furtherance” of a regulatory scheme. I see little reason to distinguish between these areas within the nightclub vis-a-vis the right to privacy.
In sum, the dressing room should not have been searched because appellant exhibited an expectation of privacy in that area which I believe was reasonable under the circumstances. Thus, the search was beyond the scope of that authorized by the T.A.B.C. The majority opinion should recognize this analysis of the reasonable expectation of privacy appellant had with regard to the dressing room, independent of any rights waived by the owner-licensee.
With these comments, I join the remainder of the majority opinion and, under the facts of this case, the result reached.
TEAGUE and CAMPBELL, JJ., join.