*1 Argued July August 12, 1974 19, reversed and remanded LARRY Appellant, OREGON, STATE OF Respondent. WHITE, GORDON Rhidian M. M. Morgan, Assistant Attorney Gen- eral, Salem, argued the cause him With appellant. on the brief were Lee Johnson, Attorney General, W. Michael Solicitor Gillette, General, Salem. argued the cause Portland, Bannon, Albert J. respondent. filed brief Judge, and Port Before Chief Tanzer, Schwab, Judges.
TANZER, J. order appeal from an an state This is in a war- suppressing evidence marihuana taken as in a warrantless of defendant rantless arrest his home. Trummer 1973, Officer On November Detail received an Narcotics Portland Police Bureau anonymous advising phone him that the residents call dealing drugs. possibly in Around of 2043 Pine were began midnight observ- and Baxter Officers Trummer period ing a half-hour the defendant’s house. Over leaving playing people officers a stereo observed away. loudly two blocks An so as to be heard over walked undercover officer arrived and he and Baxter intending purchase some door, to the front offer drugs. porch approaching on While front necessarily passed the officers There was a a window. gap six-inch vertical between the window curtains. Through gap lamp saw a officers table plastic bag green containing loose material which proved pound resembled and later to be a of marihuana. Through front The two officers moved to the door. they door window saw table which were bags, plastic pounds small and at two scales, least apparent large marihuana. A in fire burned the fire- place. The officers knocked on the door for over two minutes but could be heard the loudness of due to high door The was so
the stereo. They defendant arrested house, entered the trembled. in view. and seized the evidence successfully in the trial contended The defendant his Fourth Amendment court violated by going upon right The marihuana, observation and seizure of the therefore unlawful. contends, were presence upon officers’ The lawfulness light determined must be defendant’s validity of an of defendant’s claim is measured there. The claim against test enunciated the twofold States, 389 Harlan in Katz United (1967), adopted by this court L Ed 2d 576 507, 19 Stanton, 286, 293-94,490 (1971), applied Corbett, (1974): (1973), rev den *3 a i# * * requirement, [T]h.ere first is a twofold (subjective) person an actual have exhibited that a expec- that and, second, of recognize society prepared to tation be one * * *’ at 361.” as “reasonable”. any expectation the circumstances, these Under porch regarding had of regarded held in As we as reasonable. could not be public approach a house is less to of Corbett, the area private reasonably expected areas. than other to be being Particularly with music broadcast case, in this neighborhood it would volume, at tremendous to the somebody approach expect to not to be unreasonable way the house of concurring statement of the Harlan’s Kats, explain goes how observations on to
rule in regarded: plain property are to be view place purposes, a most home is, “A man’s objects, or privacy, activities expects but he where of out- exposes view to statements he siders are to protected no intention because keep has been exhibited.” them to himself at 361. as basis available are therefore
Such observations App Brown, Or v. cause. State P2d 838 easily dispos plain view of
The observation possession the defendant con able substances in the justifying exigent stitutes circumstances Drummond, of contraband. State seizure (1971); App Huddleston, P2d 958 6 Or den rev Robbins, 3 and remanded.
Reversed concurring. specially PORT, J., I in the result. I believe concur totality had reasonable because cause, extraordinary relating circumstances ap- surrounding area, noise disturbance of the investigate proach reason home to clearly activity the home Here such therefor. unreasonably public indeed, extended into and, areas expectations of other violated the reasonable private premises area over a two-block early morning. night or at hour of a late declared was, onto the front whatever the *4 entry, purpose Upon police, such reasonable. pro- the of the noise was such that extreme volume longed response from to attract a efforts shouting hammering by police, the the presumably thus unheard. unheeded, went exigent circumstances, Under such unusual and the entry into the in the used no house manner here was police had more unreasonable than been drawn premises signs dwelling fire and entered under similar circumstances. long
It has been rule that where there probable person, cause to arrest a fact that the wrong him for arrest reason, i.e., one which cause does does not exist, invali- nor date arrest a reasonable search incident thereto. Cloman, 1, 12, Somfleth, State v. 492 P2d Sup entry review Ct denied onto the dwelling and also into the were lawful on Following these unusual facts. into the home, the contraband was in view and thus its seizure was valid.
Accordingly, necessary I do not find it to decide opinion majority whether the is consistent with Coolidge Hampshire, rationale of v. New (1972) S L Ct 29 Ed 2d and cases therein discussed. Nor I do understand as the that, imply, court seems into and home is to be measured the same governing standards as those the seizure of evidence Cady in a motor See, vehicle. Dombrowski, 413 433, 439, 39 L Ed 2d 706