OPINION AND ORDER DENYING MOTION TO SUPPRESS
The issue here is whether a search and a seizure pursuant thereto were valid when made without a warrаnt, but pursuant ,to an arrest, and which covered a search for LSD tablets in a vacant lot adjacеnt to the defendant’s home.
The most recent Supreme Court authority on the scope of searсhes conducted pursuant to arrest is Chimel v. California,
Chimel, however, is not dispositive here beсause it appears likely that it was intended to apply prospectively only, and because even on its facts Chimel seems inapposite, since it dealt solely with the search of a dwelling.
No ruling on its possible retroactive effect was made in Chimel, and a рer curiam opinion decided the same day casts doubt on whether it would be applied retroаctively. In Von Cleef v. New Jersey,
This challenge would unquestionably be well founded if today’s decision in Chimel v. California, ante, [395 U.S.] p. 752 [89 S.Ct. 2034 ,23 L.Ed.2d 685 ], were given retroactive application. But we need not decide here whether Chimel should be applied retroactively.
Recently, however, the Ninth Circuit has been presented with the question and has decided that Chimel does not apply to searches conducted before June 23, 1969, the date of the Chimel decision. Heffley v. Hocker,
The search in question here was conducted on June 4, 1969. Consequently, the Chimel decision is inapplicable and we must turn to other sources against which to measure the legality of the present search.
Apart from Chimel, all prior law upholds just that type of search conducted here under the “open fiеld” doctrine. That doctrine was first announced in Hester v. United States,
As to that, it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the peоple in their ‘persons, houses, papers and effects,’ is not extended to the open fields. The distinсtion between the latter and the house is as old as the common law.
Numerous cases have follоwed this principle since. E. g., United States v. Campbell,
This is true whether the land is еnclosed or unenclosed, Martin v. United States,
Since the vacant lot in question does not belong to dеfendant he may well lack standing to object to the seizure of evidence, since he would have bеen a trespasser thereon. Tritico v. United States,
In Koth, supra, the court upheld a search of a still some quarter of a mile from the defendant’s house because the investigating agents had probable cause to suspect illegal whiskey was being madе there (under the “open field” doctrine).
In People v. LaRosa, 25 App.Div.2d 587,
Finally, if any of the LSD tablets were lying upon the ground, their seizure would be justifiable under the "plain view" doctrine. Harris v. United States,
In the present case, the Government contends that the LSD was found within one foot оf the defendant’s sleeping bag in the lot. Under Harris v. United States,
II. The Chimel Case is Inapplicable On Its Facts
Even were the Supreme Court to determine that Chimel is to apply retroactively, it is not necessarily dispositive in this case. Chimel dealt only with the search of a dwelling place, and the particular earlier Supreme Court cases which it disapproved dealt with dwelling places as well. (This case disclaimed, e. g., any change in the rule regarding auto searches.
Secondly, even under the language of Chimel the search and seizure here were valid if made within several feet of the defendant and his sleeping bag, since this would be “an area within his immediate control from whiсh he might gain possession of a weapon or destructible evidence.”
Accordingly, defendant’s motion to suppress is denied.
It is so ordered.
Notes
. State courts have viewed this reservation in the light of the Supreme Court's reluctance to make major constitutional changеs retroactive, and have uniformly reached the same conclusion. People v. Dominguez, Cal.App.,
. Even if the vacant lot did belong to the defendant, the search would still be valid. See State v. Zugras,
. See Call v. United States,