In Plain View - Probable Cause

We have a situation in Charlotte, North Carolina, where a man is flashing his neighbor’s wives and children from his front doorway; as well as his garage; where he works out in the nude. The Police claim to be powerless to do anything about this. They say he is not breaking the law.  Here is the N.C Statute pertaining to Indecent Exposure;

§ 14-190.9.  Indecent exposure.

(a)        Unless the conduct is punishable under subsection (a1) of this section, any person who shall willfully expose the private parts of his or her person in any public place and in the presence of any other person or persons, except for those places designated for a public purpose where the same sex exposure is incidental to a permitted activity, or aids or abets in any such act, or who procures another to perform such act; or any person, who as owner, manager, lessee, director, promoter or agent, or in any other capacity knowingly hires, leases or permits the land, building, or premises of which he is owner, lessee or tenant, or over which he has control, to be used for purposes of any such act, shall be guilty of a Class 2 misdemeanor.

(a1)      Unless the conduct is prohibited by another law providing greater punishment, any person at least 18 years of age who shall willfully expose the private parts of his or her person in any public place in the presence of any other person less than 16 years of age for the purpose of arousing or gratifying sexual desire shall be guilty of a Class H felony. An offense committed under this subsection shall not be considered to be a lesser included offense under G.S. 14-202.1.

(b)        Notwithstanding any other provision of law, a woman may breast feed in any public or private location where she is otherwise authorized to be, irrespective of whether the nipple of the mother's breast is uncovered during or incidental to the breast feeding.

(c)        Notwithstanding any other provision of law, a local government may regulate the location and operation of sexually oriented businesses. Such local regulation may restrict or prohibit nude, seminude, or topless dancing to the extent consistent with the constitutional protection afforded free speech. (1971, c. 591, s. 1; 1993, c. 301, s. 1; c. 539, s. 124; 1994, Ex. Sess., c. 24, s. 14(c); 1998-46, s. 3; 2005-226, s. 1.)

The problem seems to be in the wording of sections (a) and (a1) which state the offense must be in a “public place.” The police and the District Attorney have stated that the man is on private property and so they are powerless. I have called the District Attorney’s office and have been told that they are not permitted; nor required; to entertain questions from the Public. They prosecute criminal offenders, supposedly in defense of society in general.

I now understand the difference between the Police and the District Attorney. The Police are there to protect your rights and help you out against the criminals; the District Attorney’s Office is engaged in both prosecuting; and defending; the rights of the criminals. In essence, they walk a fine line; working both sides of the aisle.  I don’t like it; but I now understand it.

My question is a simple one. If, for instance; the police can enter the premises of a home for probable cause based on something in plain sight; like a marijuana plant, or other overt circumstances; why then are they barred from arresting the naked flasher who operates from across an invisible property line, which places his actions in “Plain View” and thus creates the “probable cause” which would allow the police to intervene?

The answer is also simple; when you do something publicly, whether on public or private property, you relinquish; by your own actions; any reasonable expectation of privacy. If I can understand this principle, then why can't the District Attorneys Office? 

I’m no rocket scientist, but this seems to me to be a carelessly written law; not fully thought out as to the various ways in which it could be violated. The District Attorney is taking the stance that they are powerless to do anything about it until the law is rewritten. Clearly, that is not the case. Had this narrow type of thinking been prevalent back in the days of Prohibition, then Al Capone would never have been imprisoned for tax evasion.

The only thing which is keeping the people of that neighborhood in Charlotte from feeling safe is the lack of imagination in the Charlotte Mecklenburg District Attorney’s office.

Feel free to contact them at 704-686-0700. 

Or, by mail at 700 East Trade Street; 

                     Charlotte, NC 28202

Tell them Rob from Rooftop sent ya’. It will make their day.