FROM THE CLASSROOM 
By: Ray Hill
Professor Emeritus, Santa Rosa J.C.

• Urinating in Public is a Misdemeanor Under 370 P.C. / 372 P.C.
• Arrest for  the Wrong Crime Section Does Not Violate the Fourth Amendment as Long as There is Probable Cause to Arrest for a Criminal Violation (Peo. v. McDonald (2006) 137 Cal. App. 4th 521).

I received an agency inquiry about male patrons relieving themselves in parking lots and pedestrian corridors in the city’s crowded bar/restaurant district. Though not the most serious crime on this planet, such conduct is a nuisance and offends the general public trying to enjoy a night out.

So here is a case on point that can used at your discretion.

An Oakland Police officer observed the defendant urinating in a restaurant parking lot (1123 hours / Within 10’-15” of a busy major street).  Being unable to confirm the defendant’s identity, the officer took a couple of shots at Penal Code violations and arrested the defendant for 374 / 374.4 P.C. A search incident to arrest recovered six rocks of cocaine.

374 P.C. is an infraction violation for the dumping of waste matter. Acts include throwing, dropping, placing,  or depositing any discarded, used, or leftover substance, including, but not limited to, a lighted or non lighted cigarette, cigar, match, or any flaming or glowing material, or any garbage, trash, refuse, paper, container, packaging or construction material, carcass of a dead animal, any nauseous or offensive matter of any kind, or any object likely to injure any person or create a traffic hazard.

374.4 P.C. is an infraction violation for unlawful littering on public or private property. “Litter” means the discarding, dropping, or scattering of small quantities of waste matter ordinarily carried on or about the person, including, but not limited to, beverage containers and closures, packaging, wrappers, wastepaper, newspapers, and magazines, in a place other than a place or container for the proper disposal thereof, and including waste matter that escapes or is allowed to escape from a container, receptacle, or package.

There is an escalating fine structure for these offenses from the first to the third convictions and the court may order litter pickup as a condition of probation.

Defendant filed a motion to suppress arguing the arrest was made under incorrect and inapplicable Penal Code sections (no littering or waste material dumping occurred as defined in statute) and sought to suppress the drug evidence.

1DCA partially agreed with the defendant. The wrong section(s) in fact were used in making the arrest. But the defendant doesn’t get off that easy – the evidence was still lawfully obtained. Even if the officer was unaware of the appropriate section for such conduct, there was probable cause to arrest for a criminal violation. There was “fair probability  or “substantial chance” to believe that a crime had taken place.

The court went on to educate us on what would be the appropriate sections to use under these circumstances:

370 P.C. – The depositing anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property constitutes a public nuisance. 372 P.C. declares committing a public nuisance to be a misdemeanor.

1DCA "acknowledge[d] that there might well be circumstances in which a single, discreet act of public urination would not violate sections 370 and 372". "For example, a hiker responding to an irrepressible call of nature in an isolated area in the backwoods cannot reasonably be seen as interfering with any right common to the public”. However, urinating in public “is injurious to health, indecent or offensive to the senses”. 

“We believe the discharge of bodily fluids in such a public place is sufficient to interfere with the comfortable enjoyment of life or property”. "The safety and health of the public at  large is endangered by the improper disposal of human waste in a public place as described in these case facts”. “The sight and smell of urine are vile and offensive, and those who use the public streets and sidewalks cannot be freely subjected to such unpleasantness”.

So another tool in your toolbox, if needed, when the time, place and circumstances fit.

Stay Safe,

RH