Plain-View From a Public Walkway Through a Curtain Gap: The Tenth Circuit Lets the Panel Rule Stand

Precedents Cited

United States v. Watkins, 156 F.4th 1049, 1057–58 (10th Cir. 2025)

The dissent quotes the prior panel decision as expressing concern with “draw[ing] a bright line that would render the observation in this case a violation of the Fourth Amendment.” The dissent treats that passage as central: in its view, the court’s result turned on an aversion to administrable limits rather than on the Fourth Amendment’s “totality-of-the-circumstances framework.”

Although the order does not restate the panel’s full reasoning, the dissental makes clear the panel treated the officer’s observation as non-problematic because the officer (i) stood where the public could stand (a public walkway), and (ii) used only “unaided senses.” That framing aligns with a plain-view-like conception: if something can be seen from a lawful vantage point without enhancement, it is not protected to the same degree as what is concealed.

Model Penal Code § 250.12

Judge Hartz cites Model Penal Code § 250.12 in the context of “Peeping Tom” statutes and notes that, like many state laws, it includes a trespass requirement. The MPC is not used as binding Fourth Amendment authority; instead, it is invoked as a proxy for “societal norms” and legislative judgments about when voyeuristic looking becomes wrongful.

The concurrence’s use of the MPC is telling: it implicitly treats widespread statutory design (especially trespass or lewd-intent elements and law-enforcement exceptions) as evidence that the officer’s conduct is not broadly condemned by legislatures, which may bear on what is “reasonable” for Fourth Amendment purposes.

State “Peeping Tom” statutes (50-state survey)

Judge Hartz’s chambers surveyed statutes “addressing Peeping Toms—that is, persons using unaided vision to spy on others.” The concurrence reports that the “great majority” of such statutes would not apply to the officer’s conduct because they:

• require trespass (often matching the MPC approach);
• require lewd or improper intent or viewing of unclothed private parts; or
• do not apply to law-enforcement officers (contain exceptions).

The concurrence also lists numerous statutes and notes that those “on their face would prohibit the conduct in this case” are “noted in bold” (though the plain-text reproduction here does not preserve the formatting). The survey functions as an empirical rejoinder to the dissent’s “societal norms” argument: if most jurisdictions do not criminalize similar conduct— particularly when performed without trespass or with law-enforcement exceptions—then it is harder (in the concurrence’s view) to claim the conduct is categorically outside social acceptability.

Importantly, the survey is not framed as controlling Fourth Amendment doctrine. It is used to reinforce a background premise: that an officer looking with unaided vision from a lawful vantage point is often treated differently than a trespasser or a voyeur acting with lewd intent.

Legal Reasoning

Because the decision is an order denying rehearing, the court does not re-litigate the merits in a full doctrinal analysis. Still, the separate writings expose two competing conceptions of “reasonableness” under the Fourth Amendment in this setting:

1) The concurrence’s norm-and-administrability framing

Judge Hartz “ha[s] nothing to add doctrinally regarding the panel opinion,” but provides two observations aimed at supporting the denial of rehearing:

• Normative/legislative evidence: the 50-state survey suggests legislatures frequently condition voyeurism liability on trespass, lewd intent, or exclude law enforcement, which tends to normalize (or at least not condemn) the kind of viewing described here.
• Record-based factual caution: the dissent describes the officer’s face as “so close” to the window that he could see the entire room, but the concurrence emphasizes the record does not establish the precise distance and notes it is “not obvious” the officer needed to press against the glass to see in.

These points operate as support for leaving the panel decision undisturbed: the concurrence implicitly resists treating the officer’s conduct as an outlier or as conduct requiring corrective en banc intervention.

2) The dissent’s privacy-and-common-sense framing

Judge Moritz’s dissent treats the case as a fundamental Fourth Amendment problem: people who close curtains “have an objectively reasonable expectation of privacy in what lies behind them,” and “peeping through small gaps” is “grossly inconsistent with societal norms.” On this view, the panel’s “plain view” label is misapplied because “there was nothing ‘plain’ about the view” obtained by exploiting a narrow gap.

The dissent is also methodologically focused: it criticizes the panel’s apparent desire for a “bright line” and insists the Fourth Amendment calls for a “totality-of-the-circumstances” assessment anchored in “reasonableness.” In other words, even if the officer’s feet were on a public walkway, the manner of observation (intentional peering through a small concealment gap) should matter.

3) What the denial of rehearing en banc signifies

Institutionally, the denial indicates that a majority of non-recused active judges did not view the panel’s approach as sufficiently erroneous, disruptive, or in need of uniform circuit guidance to warrant en banc review—despite two votes to rehear and a published dissent warning of constitutional “erosion.”

Impact

Although the order itself is procedural, it cements the practical force of the panel’s approach as described by the dissent: observations into a motel room through a small curtain gap may be treated as effectively “plain view” when made from a public walkway with unaided vision.

Potential downstream effects include:

• Expanded “lawful vantage point” investigations: officers may be more willing to visually inspect interiors from common areas (walkways, breezeways) by searching for incidental gaps in curtains or blinds, relying on the notion that any view thus obtained is “plain.”
• Reduced weight for partial concealment: occupants’ efforts to close curtains could be discounted if minor imperfections (gaps) are treated as eliminating the expectation of privacy as to whatever can be seen by deliberate positioning.
• Fact disputes will matter: Judge Hartz’s emphasis on record ambiguity about how close the officer was to the window signals future litigation may focus heavily on the officer’s exact positioning, angles, and whether the view required extraordinary efforts.
• Normative cross-currents: the concurrence’s legislative survey invites parties to argue “societal norms” using criminal statutes and exceptions—while the dissent suggests those norms are better captured by everyday expectations (closed curtains mean privacy) rather than by criminal-code technicalities (trespass/lewd intent carveouts).