Legality of police search of man detained for urinating in public questioned

By Brian Cole

Published on April 10, 2006

On an early Sunday morning in January 2003, David McDonald was detained by police for urinating in an empty restaurant parking lot in Oakland. The officer searched him and found drugs. McDonald was placed on probation after being found guilty of possessing cocaine base. The question posed to a California Appeals Court was whether urinating in public is a crime. If it is not, detaining and searching McDonald would be illegal and his drug conviction would need to be overturned.

A California law already makes it a crime to urinate in public transportation vehicles -- but no law expressly prohibits urinating in public areas.

The judge in Alameda County Superior Court decided the search was legal based on the fact that McDonald could have been found guilty of littering. The appeals court agreed with the result of this trial and upheld the conviction. However, their reasoning was different.

The littering law, the three-judge Court of Appeal panel said, cannot be used because it defines litter as, "waste matter ordinarily carried on or about the person."

Instead, the appeals court upheld McDonald's conviction by saying he could have been found guilty of creating a public nuisance.

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