*1 P.2d 64 Respondent, Utah, Plaintiff STATE KENT, Defendant
Leon Marlow Appellant. No. Supreme of Utah. Court
Sept. *2 Defender, Legal Mitsunaga,
Jimi John O’Connell, appel- City, D. Lake for Salt lant. Hansen, Atty. Gen., Gary A.
Phil L. City, Frank, Atty. Gen., Lake Asst. Salt respondent.
NELSON, Judge: District defendant-appellant
The reversal seeks unlawful the crime of his conviction of possession drug. tried of a narcotic He was court, jury. sitting district without primarily ground, appeal The based on the reason, trial court and for the grant erred in refusal to the defendant’s its in a suppress motion to seized evidence premises by search Lake of his the Salt City facts, with police. The connection key fol- of the seizure evidence are lows : warrant, unit, his ex-wife were liv- without
The defendant and without knock- City together ing announcing presence, in a Lake ing unit Salt their and ar- informed, Kent they had been rested motel. officers his ex-wife. Then Police claim, apartment they by Kent, searched the occupied a “reliable informer” Kent had been connected a series of directed and Pat- aided Officer rick, who, burglaries in at drug vantage point, store gave narcotics verbal ap- had been taken. officers instructions as to where were narcotics Thereupon proached manager to ob- hidden. Lindsey motel Waters' and- drug a hidden found the drugs tain her consent to use of which would in- vantage point they keep duce from which could narcosis. Following the Kent under surveillance. Prior appellant the trial moved the Patrick, manager, contact with Officer suppress court to testimony all regarding *3 engaged had who other officers been the what Officer Patrick saw and heard in investigation, the the of entered attic the appellant’s the interior residence, of and the where, by looking through
motel venti- physical evidence seized under his direction. ceiling bathroom located the of the lator The motion was At denied. the conclusion the unit in which the was defendant of the the hearing motion was renewed and staying, entire bathroom could observe the again denied. part unit. 'A of the bedroom Appellant claims se- evidence thus anyone prevented shield curved metal cured resulted from an unlawful invasion being from the bathroom aware premises privacy of his and his all in vio- occupants The being were observed. attic lation Fourth Fourteenth Amend- During day the dark. the first was officer anything illegal taking place, to the did not ments United States see Constitution. he but did hear him Kent’s ex-wife ask respondent The submits that the convic- if he wanted two It is claimed this “V’s.” tion of the defendant and trial court’s to had do with the amount to of narcotic suppress the denial of motion to evi- his be used. ground dence affirmed on the should be day theOn second Patrick observed Kent trespass physical there was unlawful spoon, eye enter bathroom and use entry premises appellant. The into the dropper, pacifier syringe make what to argues occupied the area from State he considered to a “fix.” Patrick radioed Patrick, by into the Officer observation this information to Officers Waters readily occupied unit defendant was Lindsey motel. who were outside the by anyone. officer did available The not any action, These two officers then motel to entered have take affirmative such vent, by usurping part petitioners’ house removing from a cover heating system open which was merely that was or office —a all observed rather part premises occupied integral argued that further observation. was petitioners, usurpation that the bath- was possible someone in for was knowledge and readily he effected without their appellant ascertain room of through without their consent. In these circum- the vent. observed was pause we need not stances to consider failed respondent has for Counsel whether or not there a technical tres- he questions which adequately answer pass property under the local relat- Patrick Did Officer granted. takes ing party walls. Fourth Inherent place himself over right have rights inevitably Amendment not are look so as to occupied defendant unit in terms ancient measurable niceties ? bedroom into his bathroom down tort property or real law. [Citations ob- he made his in which the area Was omitted.] If rented unit? part of the servation were, an intruder the officer then wasn’t Amendment, per- The Fourth defendant trespasser ? Is it conceivable rights sonal secures, which it have a ceiling his bath- gazing at the would be long history. very At the core stands right to as- room? Did not of a man retreat in a seclusion? sume he was home there be free from unreason- governmental able intrusion. [Citations pur dependence on the State’s omitted.] trespass, according to ported lack of a * * * But decision here does law, property fac local as a determinative turn technicality there has an intrusion tor in whether *4 upon party a wall as a matter of local constitutionally protected a area is It law. reality based an the clearly by refuted Silverman v. United of actual constitutionally intrusion into a distinguish States.1 It difficult be to ** * protected [Emphasis area. the the tween vent located in bathroom in mine.] heating system instant the the case and Silverman which was described as an in adopted The California courts have the tegral part premises occupied by principle although trespass a is a fac- petitioners. The stated: court tor be to considered in the determining rea-
Here, contrast, by search, the officers over- sonableness of a a tech- minor or petitioners’ only the heard conversation nical involving physical entry not 505, 511, 682, 679, (1961).
1. 365
U.S.
81 S.Ct.
L.Ed.2d 734
building
dinary
into a
derogate
circumstances,
does not
from the
such
suppress
toas
riot,
the
fire,
reasonable
of
search.
a
life or property
otherwise
nature
save
case
degree
privacy
prevent
escape
Rather
is the
to
fleeing suspect
of a
enjoyed
place
prevent
or to
evidence,
defendant
involved
the
destruction
important
determining
the
factor
the
consent of a landlord or hotel or motel
manager
the reasonableness of the search and
would not
jus-
essen-
be sufficient
to
tify
tially
depend upon
that determination
an
must
officer to make a search of ten-
par-
premises
the
ant’s
facts and circumstances of
without a
warrant. A land-
duty,
lord
ticular case.2
has
as well as a vital interest
in cooperating with officers
as to
so
remove
pleaded
Having
violation
both
suspicion
himself of
Amendments,
Fourth
Fourteenth
we
promptly exculpate
by allowing
himself
must determine if the Fourth Amendment
search,
permission
innkeeper
of an
applies
states.
will not
constitute
ersatz in
warrant.
so much
a matter of
query
If
was such a
before
proceeding
officer
approved
in a manner
adoption
Fourteenth Amend
court,
operate
way
as
is to
in a
ment
definitely
it has now been
settled that
required by law.
provisions
Fourth Amend
apply
equal
ment
do
force to
conditions and
circumstances of
present
particular
states and in
questions
case
emergency
would indicate no
present
search and seizure.3
justify
which would
the search
If,
seizure
police.
effected
clearly
It has also been
estab
suspected,
the defendant was
Supreme
lished
a number of
guilty
Court
stealing narcotics,
he would most
premises
decisions
leased and rented
probably
keep
intend to
them for his own
protection
would come
under the
use or for sale to others.
In either case
By
Fourth Amendment.4
the same deci
likely
would not be
destroy
nar-
others,5
appears
sions and
it now
except
cotics
prevent
as a last resort
that,
settled
in the absence of abandon
them from
found. Since
defend-
ment,
lease,
expiration of
or other extraor-
apparently
ant
had
suspicion
that he was
People Willard, Cal.App.,
Cal.Rptr.
Chapman
2.
v.
States,
610,
v. United
365 U.S.
739,
734,
776,
828;
81 S.Ct.
5 L.Ed.
United
Mapp
Ohio,
643,
3.
Jeffers,
v.
367 U.S.
81 S.Ct.
States v.
342 U.S.
72 S.Ct.
1684, 6
59;
L.Ed.2d
States,
96 L.Ed.
McDonald v. United
Utah,
Louden
85 S.Ct.
335 U.S.
arisen. fully surreptitious aware of methods. police would have attempt, and would have been able say in are those who such cases There Therefore, emergency stop him. situ- justify the as this that the end would means. justified police in existed ation Surely permitted where an officer would be without a war- their search seizure posted speed limit to to exceed overtake rant. speeder, be able take such a he should major that the can be no denial There necessary to action as would consider duty diligently and fear- is to violating the narcotic act. It is one arrest lessly investigate the law. crime enforce placed pro- emphasis on said too much criminal, apprehend the It is their task to tecting rights wrongdoer, guilt. in the determination of his and to aid protecting given too little attention so- required whether offense This is ciety. in total. To this we cannot subscribe felony a of little concern or a misdemeanor area, forbidden, There in which far-reaching ef- importance great authority may granted the officer exceed charge a fect. It would be inclusive of duty, performance regard- Certainly the murder. jaywalking or of be, may how desirable the end less of possession apprehension a of miscreant variance, espe- cannot be a substantial narcotics, en- particularly of one cially ex- if the deviation is true sale, vigorous and in its demands gaged provi- pressly forbidden constitutional inquiry by police. No one continuing legislative or enactment. sion pathetic drug addict. No more than a processes law despicable than held that the or We have is more venal criminal legitimate objective, seek one only affluence the one who seeks state of who, justice.6 The court degenerate, and to do selling poison to the out truth opportunity to place affording the flights hope, alternate is not bereft of makes display their histrionic ecstasy euphoria, learned counsel abnormal tensions talents, drama, comedy. psychosis. nor to enact frenzy, resulting in Yet often the truth —the re- is a to determine iniquitous malefactor ferreting out case, particular to review trade, po- facts of a nefarious sponsible for such may justice accordingly, all that and act rami- restricted, prevented from liceman is be no dismissal prevail. There should beyond the limitations set fying his search judgment unless charge reversal of may be- be narrow law. interstice Seymour, P.2d 655. 2d 18 Utah 6. State v. *6 ruling. privacy guaranteed by and the law demand such as the Fourth
facts however, requires, only recog- the Amendment. This preservation and of substantive
nition
There are
of the
main-
students
law who
rights, hut
the
also
strict adherence to
privacy developed
parasite
tain that
as a
requirements
adjective law, particularly
of
Thus,
rights.
earlier well-established
especially
procedure
if the method of
the
some courts have refused
consider
to
mandatory by
has been made
constitutional
claim
tied
unless
has been
in with some
provision
legislative
or
act.
right,
other
right
fundamental
the
such as
trespass.
to resist
Regardless of how beneficial or desirable
society
may be,
the
to
certain ultimate
England,
country,
In
as well as in this
judicial
the
court must have
fortitude
notwithstanding
the
court decision to
con-
courage,
integrity,
moral
re-
as well as the
trary,
respectable scholarly opinion has
attacks,
interpret
gardless of invidious
to
does,
events,
contended there
at all
apply
the
it is. He must act
law as
privacy
should exist a common law of
hope
without
of accolade or
of ob-
fear
independent
phases
aspects
of all other
loquy.
though the
This is true even
court
history
of the
law. These
of
students
may think the
The
law should be different.
jurisprudence hold was the common law
body.
policy-making
is not a
The
court
home;
right
privacy
of man to have
in his
question
resolving
is not one
a balance
of
indis-
right
that it
which is
rights
the
the individual and the
They
pensable essential of civilization.
comple-
rights
group. They
are
firmly
claim
as one of
it was
established
mentary;
having
both
a common conclu-
bright
Anglo-Saxon
the
features of the
sion,
good
each and all.
In some
progress.
It be-
contributions to human
supreme.
respects the
Under
individual
longed
men.7
to all
circumstances,
rights
certain
accept
point
latter
view
We
authority and
prevail
group
individual
over
gives
right
privacy
further hold
Thus,
rights.
group
detection
emphasis
dignity
of man.
added
criminal,
apprehension
as
as his
desirable
only man
principle that not
rests on the
be,
process
might
pursuit must be
due
'Surely
obey
sovereign
the law.
but the
must
of law.
recognized since
principle has been
significant point
by defend-
II,
Magna
raised
days
in the
Henry
and later
son, King John,
from his
right
Charta exacted
alleged
ant
is his
violation of his
U.S.App.D.C.
Little,
13 A.L.R.2d
178 F.2d
7. District
of Columbia v.
suppressed,
feel
bath
Although
We
Officer
often
Patrick’s
June
observations constituted an unlawful
likely
prior
room
it most
even
existed
privacy.10
defendant’s
are
invasion of
We
Plantagenets
found
reign of the
defendant,
renting
Angles, Saxons
customs and rules of
unit,
right
motel
obtained
exclusive
Jutes.
it,
right
privacy.
use
included the
pri-
any event,
personal
*7
right may
by
It
il
is true this
be forfeited
guar-
vacy
dignity
protected and
and
by
against
intrusions
legal
property,
anteed
unwarranted
use of the
but such unlawful
by
of the United
State
Constitution
by legal
first be
utilization
established
must
by numerous
upheld
States and has been
means.11
right
not
this
has
court decisions.8 Where
just
A right
that to which
a
one has
prac-
terrifying
respected
been
the most
just
claim. A resident
land
a
of this
has
tices have been used.9
claim,
given,
God
or innate as
human be-
a
readily
the action in other
We
recall
life,
ing
liberty
pursuit
happi-
of
forces,
political
acting in the
lands where
ness,
corresponding
as a
accom-
guise
policemen
arrested their
of
panying right,
right
privacy
in his
hours,
victims at all
without warrants.
own home.
sequence there-
forgotten
Nor
have we
Privacy
apart
com-
means a state
from
corpus, and the
to—abolition of habeas
place
pany
observation;
it
a
of
means
liquidation
banishment
arrested
of those
judicial
secrecy.
all without
review.
seclusion and
California,
People
Regaldo,
Cal.App.2d 586,
384 U.
11.
v.
224
Schmerber v. State of
1826, 1834,
Cal.Rptr.
(1964) ; People
16 L.Ed.2d
Wil
S.
86 S.Ct.
36
795
v.
(1966) ;
lard,
Cal.Rptr. 734,
(1966),
State of Con
where
908
Griswold v.
47
738
“ * * *
necticut,
479, 485,
we ob
381
the court stated:
As
(1965),
People
Norton, supra,
where the
in
upon private constitute pass, yet infrequently gravamen TUCKETT, JJ., CALLISTER con- There injury privacy.13 is the the harm cur. un- privacy seen in under
is harm
*8
circumstances.
favorable
CROCKETT,
(dissenting).
Chief Justice
impossible
to determine
It
for us
is
salient considerations
There are several
the
Lindsey
either of
Officer
whether
impel
to
firm
which
me
conviction that
to
had sufficient evidence
other officers
opinion
the court
of
is
error.
burglaries.
defendant to a
of
link the
series
it is
upsets
1.
It
the determination which
actually
case,
of-
If
then this
this were
make,
prerogative
of the trial
to
court
warrant
a search
ficer
have secured
should
reasonably
that the
evidence was
vital
arrest
or a
for
of the defendant
warrant
lawfully obtained.
received.
upon
information he had
based
I
to ob-
requiring
police
2. On what
believe is a misconceived
reason for
The
technicality,
requires the
it
that it
overstrained
overturns
tain
warrant
defendant,
to
their
the conviction
about
subject
or information
whose
to
evidence
doubt,
magistrate,
guilt
be no
of
objective
there can
and who is
scrutinizing of an
determines, upon
character which
itself refers
the information
then
(jthe
who
“iniquitous
re-
issue or
to as
an
malefactor
whether a warrant should
available
Inc., D.C.,
Greenhead,
13.
see note
Silverman
United
12.
States v.
United
supra.
F.Supp. 890.
trade,”
e., in
squarely,
i.
seem to me to meet that
sponsible for such nefarious
issue
contrary,
drugs.
on the
it
leaves
somewhat obscure
narcotic
by discussing a number of other matters
shocking
conclu-
3.
It does this
dispute.
about which there is no
peace
(who
officer
was where
sion that
be,
any
misunderstanding
he had a
to
without
To avoid
I concede
lawful
physical
the do-
applies
invasion into
the Fourth Amendment
defendant,
states;
main
the use
it
of
and without
when one
a hotel room
rents
aids,
any extrasensory
simply
purposes
of
observed
becomes
most
home or his
ears,)
agree
made
eyes
Similarly
what he could with his
castle.
I
with
desir-
ability
safeguarding
rights
peo-
the defendant’s
“unreasonable search” of
premises.
ple
persons
in their
secure
and in their
any
highhand-
homes from
unwarranted or
Its effect
set such unrealistic
rights
privacy.
ed
into their
intrusions
upon police
restrictions
work as
serious-
disagree
I
Nor do
with the standard defini-
ly impair
in the control
their effectiveness
given.
tions of certain terms
But inasmuch
investigation
and the
of other
narcotics
disagreement
as there is no
about
those
crimes,
carried on in
most
which are
matters, I am
at a
somewhat
loss to under-
secret.
discussing
stand what
them has to do with
above,
ignores
doing
only disputed
what I insist
precedent requiring
the time-honored
sur-
here,
controlling issue
whether
vey
light
evidence
favorable
an unreasonable search.
findings
to the
and of
trial court
proper application
A
of the United States
indulging credit to his determination. On
Constitution,
any law, requires
re-
the contrary,
aspects
the evi-
selects
pro-
flection
the circumstances which
impresses
dence
la-
to suit what
me
aas
duced it and the intent with which it was
preconceived
bored effort
arrive
at
adopted.
that there
will be remembered
desired result.
highhanded
had indeed been
and ruthless
private
in this
controlling
sole and
issue
case
intrusions
into and
searches
homes,
whether the observations made
Offi-
well known
facts were
*9
cer H.
the
mo-
W. Patrick into
defendant’s
founders. Those are the abuses that
the
tel
Rights
guard
room constituted “an unreasonable Bill
intended
was
prohibited by
against.
important
the Fourth Amend-
that
search”
What
these
protections
employed
ment to the
I
intended
not
United States Constitution.
be
as
possible
for
declaim this
the utmost
em- become
detached from their reasons
with
so
abuse,
phasis
because the' court’s
not
that
there is no such
does
existence
where
they provide
protection
oppressive
a cloak
to enable
handed
against
intrusion
the
carry
rights.
undoubtedly
criminal activities
lawbreakers
on
It
for
defendant’s
was
against
citizenry
escape
law-abiding
this
that
the
reason
in
lan-
founders
punishment,
guage
detection
and thus ob-
Fourth
Amendment
not
did
as-
promote
against
searches,
struct
than
order
good
only against
rather
sure
all
but
society.
requires
but little reflection
those
which are “unreasonable.”
very right
in
to see that the
to be secure
in
As indicated
opinion,
the court’s
person,
property
de-
home
officers set about
keep
go-
watch on the
prates
protection is
fendant
about for his
ings to and from
goings
on
upon
dependent
competent
efficient
They
defendant’s motel
acting
unit.
were
depends
law enforcement.
in turn
This
on information
they regarded
from what
upon
imposing undue restrictions
not
as a “reliable”
drug-
source.
It related to
prosecution
officers in
detection and
burglaries
store
in which
had been
narcotics
they
of crime
will
so
have reasonable
taken.
From
information and the fact
proc-
investigating
freedom action in the
that the landlady
through
had observed
public
protection
ess.1 The
is entitled to
por-
window the
putting
defendant’s wife
suspected
as well as those
of crime.
powder
tions of a white
bits
into
little
paper,
purpose
by inquiring
good
This
is not served
there was
reason to believe that
they
may
engaged
whether
have been a technical
were
in trafficking in narcot-
misstep
against
hyper-
ics.
irregularity
requested
some
Officer Patrick
man-
ager
interpretation
technical
of the letter of
given
the Tower Motel and was
permission
go
in-
in
open
circumstances where was
area above
apply.
tended to
It neither
ob-
motel
units.
serves
jective,
harmony
my
is it
nor
sense
raised,
Because of
issue here
justice,
regard
sort
the rules as some
applicable law,
important
it is
to visualize
game
person engaged
in which
crime
clearly
possible
sparse
as
from the rather
“sporting
has a
chance” to beat
law.
record
area from
which the
question whether,
observation
critical
under
circumstances,
fairly
particular
it can
relationship
was made and its
to the defend-
justly
high-
search
that the
said
motel unit.
ant’s
Seymour,
2d
See State
Utah
is not
relevant
test
whether
it is reason
procure
warrant,
417 P .2d 655.
able to
a search
”
See
See statement
Davis
whether the search was reasonable.’
(9th
1964).
California,
“It
12 stairway leading
There was a from the with materials for preparing bathroom story through up office to the second door dose narcotics. or attic area the whole which extends over opinion The statement the main that
area over the units. The tes- motel officer emergency present” singu- was “no shows tified : appreciation problems in- lar lack area, convicting seeking
She took me to
overhead
and
volved
out
[the]
heating
which is where all the
and air
The nefari-
those
in narcotics.
who traffic
ducts,
conditioning
all the
and the
drugs
wires
ous nature of
and the evils
narcotic
was,
access
trafficking
boiler room
above
ramifying from their use and
unit
encompasses
up-
area.
the whole
by enticing
therein
victims into its toils are
story
stairs
the motel.
units or
ways
many
ingenious
known. The
well
and
And in the area above the defendant’s
concealing dope,
disguising
apartment
open
it,
we had access to an
quick
easy disposal
[lou-
have
through
vent
bathroom
subject of
and drama
vered]
so much literature
which we felt
we could make
apprehend-
visual
that
involved
difficulties
verbal observations.
ing
convicting
use and traf-
those who
exposition
therein need no further
here.
fic
open
It was
this overhead
attic
from
area, by observing
listening
lou-
at this
greatest
It should be here
with the
stated
vent,
vered
that the officer
sur-
maintained
emphasis,
to avoid diversion from
issue,
veillance of the
defendant’s motel unit.
one,
true
that no
not even the defend-
correctly
main
recites:
that “the
ant,
than
contends otherwise
when Officer
any
officer did not
to take
affirmative
felony
good
Patrick had
to believe a
reason
vent,
action,
removing
such
cover
being committed,
was
as he learned from
open
merely
but rather
observed what was
here,
entry,
his observation
the arrest
observation”;
further,
“it was
justified;
and seizure of the evidence was
possible .for someone in the bathroom
point
at
no search warrant was
* * *
readily
necessary.3
ascertain he
was
my inability
I confess
un-
days
through
observed
the vent.” It
two
anyone
derstand how
could conclude other-
later,
observation,
continuing
while
such
wise than that
those
under
circumstances
officer saw the defendant enter
absolutely
the officer did that which was
probable
3. Por a statement
as to the
U.S.
79 S.Ct.
3 L.Ed.2d necessary
(1959);
Rabinowitz,
cause
to sustain an arrest
United States v.
and a
Mc-
search incidental
thereto see
70 S.Ct.
L.Ed.
Cray
Illinois,
(1950);
California,
v. State of
386 U.S.
Ker v. State of
su-
(1967);
pra
L.Ed.2d
note
Draper
see also
*11
necessary
duty.
quick-
line
his
He
that he is
learned in
law and in
rules
ly
by two-way
made contact
radio with oth-
evidence and
is
that he motivated
a de-.
er
immediately
apply
officers who
sire
jus-
entered
to
in the interests
them
apartment,
arrest,
Furthermore,
made
and
seized
tice.
he is able make first-
to
and
parties
narcotics
other
are
materials which
hand observation of
and the wit-
the subject
nesses,
suppress
position
of the
to
evi-
and is
in a
motion
thus
of advan-
tage
is
fallacy
opinion
dence.4 The
make
main
to
essential determination:
compounded by
he had whether the
has so
the statement “if
conduct
officers
decency
leave,
transgressed
attempted
police
have
to
would
standards of common
fully
attempt,
aware
and
search
“unreason-
of his
and would
fairness that the
is
6
ruling
stop
been able
him.” There of
able.”
For
reasons his
there-
have
these
course,
evidence,
indulged
presumption
on
be
would have been no
should
in,
validity,7
plight the
of correctness
and should
police
what a
would have been
hypertechnical
clearly appears that
attitude of the
be disturbed unless it
under
against
police activities.
in error.8
main
he was
listen-
question
considering
looking
it is al-
dealing
whether
In cases
with the
invariably
ing through
opening
into an accused’s
that
most
affirmed
whether
Amend-
depends upon the
counter to the Fourth
“abode” runs
search is unreasonable
responsi- ment,
the view
particular
some courts
taken
circumstances.5 The
at all.
ini-
is not a “search”
making
such
observation
bility
détermination
this
.an
search,-the
it is
But where
assumed
tially upon the trial court. As
author-
it is
problem
ity
de-
of vital concern
whether
charge of
trial he must make
in
doctrine
fundamental
unreasonable. A
upon which admissibil-
terminations of fact
leading
in all
be found
.of
ity
It is to be assumed which will
depends.
of evidence
“
court
6.
‘It
enter
seize
Hornbook
4.
toAs
destroyed
second-guess
quickly
who
a trier of fact
cannot
which can be
narcotics
testimony,
supra
California,
scrutinized
heard
has
witnesses,
Ker v. State of
see
States,
2;
their demeanor
357
and noted
Miller v. United
note
*
* *
1190,
301,
on
stand
1332
the witness
2 L.Ed.2d
behavior
78 S.Ct.
U.S.
*
* *
481,
opportunity
Smith,
(1959);
and had the
v.
37 N.J.
State
those
(1962),
on
whom
374
reliance
cert.
761
denied
A.2d
181
”
telling
1879,
truth.’
835,
1055
have been
L.Ed.2d
believes
10
83
U.S.
S.Ct.
supra
States,
note
United
(1963).
Davis v.
California,
supra
California,
note
Cooper
7. Ker v. State of
U.S.
v. State of
386
supra
Rabinowitz,
2;
(1967);
788,
States v.
United
L.Ed.2d 730
17
S.Ct.
87
3;
California,
States,
F.
supra
354
Miller
note
note
v. United
v. State of
Ker
1966).
(8th
Cir.
2;
2d 801
364
U.S.
Rios
Tuttle,
P.
(1960);
2d
v.
Utah
8. State
4 L.Ed.2d
80 S.Ct.
(1965),
supra
Rabinowitz,
cert. denied
2d
United
States
L.Ed.2d
note 3.
subject
dealing
cases
with this
placed
requirement
that.where
stress on the
aof
physical
physical
there is no
and no
inva-
intrusion into the defendant’s
sion
premises
defendant’s abode there
un-
is no
in accordance with the rule as es
reasonable search.
doctrine
an-
cases,
was
tablished in the Goldman and
Lee
On
States,9
in
nounced Goldman v. United
supra, which rule has
departed
never been
On Lee v. United States.10
that,
from. He
eavesdropping
stated
“the
accomplished
by means of an unau
paradox quite incomprehensi
There is a
thorized physical penetration
prem
into the
ble
opinion’s citing
to me
the main
occupied by
petitioners.”
ises
Inciden
case of Silverman v.
United States11
tally, there was no dissent in that case. Jus
support
join
its
I
conclusion.
wholeheart
tices Clark
concurring
and Whittaker
edly
citing
say
case
without fear
part,
stated in
physi
unauthorized
“[T]he
*12
reasonable
fair
contradiction that a
penetration
cal
petitioner's premises
into
comparison with the instant one will clear
constituted
to remove
sufficient
ly
unequivocally
defeat the reversal of
this case
coverage
from the
earlier
deci
1961,
here.
nine
conviction
There in
sions,
obliged
join
we feel
in the Court’s
years
case,
after
Lee
the On
the U. S. Su
12
opinion.”
preme
rejected
plea
Court
a
to overrule
requirement
phys
ánd reaffirmed the
of a
physical
requirement
This
has
invasion
ical invasion to constitute an unreasonable
been
practically
adhered to with
invariable
peace
search. The
officers used what
uniformity even where the observation has
“spike
called a
mike” driven
into
wall to
sensory
types
made
various
make
heating system
contact with a
aids,13
looking
in such circumstances as
sounding
was used
a
de
window,14
device. In the
through
looking
a
and even
cision
Stewart
fact
discussed this
through keyholes, cracks and
in walls
vents
Justice
129,
993,
9.
position
Lopez
316 U.S.
62
L.Ed.
S.Ct.
86
13.
in
This
was reaffirmed
.
(1942)
12,
1322
States,
supra
v. United
note
747,
967,
10. 343
Virginia,
158,
U.S.
72
L.Ed.
S.Ct.
96
Clinton v.
84 S.
377 U.S.
(1952).
(1964);
1270
nia,
See also: Ker
1186,
v. Califor
Ct.
crime must be alerted
or warned
[Citing
watched.
the Goldman
and On Lee cases referred to above.]
That assertion is
incontestable.
I think
unfair,
illogical
and does violence to
On the foregoing basis of the discussion application facts and the of law is my conviction justification that there is no suppressing upsetting evidence and *14 (9th 1965),
17. 352 F.2d
cert.
Cir.
denied 382 U.S.