Petition for A Writ of Certiorari — Wright v. Washington

LIPrA Fey ’

“IPR ASS Cowior Ee -

JAN 25 1969 |

JOHN F, DAWS, CLERK | .

IN THE

Supreme Court of the United Stites

OCTOBER TERM, 1968

NO 977

SIDNEY R. WRIGHT, Petitioner

VS. |

STATE OF WASHINGTON

PETITION FOR A WRIT OF CERTIORARI TO :

THE SUPREME COURT OF THE F

STATE OF WASHINGTON

R. MAX ETTER, SR.

511 Spokane & Eastern Bldg.

Spokane, Washington 99201

Counsel for Petitioner

KERSHAW'S, INC. SPOKANE, WASHINGTON

INDEX

Page

OPINION BELOW we

JURISDICTION ids 2

QUESTIONS PRESENTED 2

CONSTITUTIONAL PROVISIONS

AND STATUTES ..... 3

STATEMENT OF THE CASE . 4

REASONS FOR GRANTING THE WRIT.......... 7

EE a 12

APPENDIX “A”

(1) Opinion below Al

(2) Judgment below (remittitur) A10

AUTHORITIES

Cases

Dancy v. United States, 390 F. 2d 370,

(5th Cir. 1968) 7, 8

Gouled v. Umied States, 255 U.S. 298 8

Hajdu v. State, 189 SO 2d 230 (Florida 1966).......... &

Hester v. United States, 265 U.S. 57, 68 L.Ed. |

898, 44 Sup. Ct. 445 (1924) nee eee eecceeceeneecoees 8

Katz v. Umted States, 389, U.S. 347 8, 10, 11

Long v. United States, 387 F. 2d 377

(Sth Cir. 1967)..... 7

Lopez v. United States, 373 U.S. 427, 10 L.Ed.

2d 462, 83 Sup. Ct. 1381 (1963) 8, 10

—

ut

INDEX—Continued

Page

Mapp v. Ohio, 367 U.S. 643, 6 L.Ed. 2d 1081,

81 Sup. Ct. 1684 (1961) 2

Monroe v. United States, 234 F. 2d 49, 54, 55............ 10

On Lee v. United States, 343 U.S. 747, 96 L.Ed.

1270, 72 Sup. Ct. 1967 (1952)..... 8

Osborn v. United States, 385 U.S. 323, 17 L.Ed.

2d 394, 87 Sup. Ct. 429 (1966) 8

Rathbun v. United States, 355 U.S. 107... 10

Silverman v. United States, 365 U.S. 505;

5 L.Ed. 2d 734 (1961) 11

State v. Wright, 74 W.D. 2d 361,

444 P. 2d 676. 1

United States v. Haggarty, 388 F. 2d 713

(7th Cir. 1968) 8

United States v. Laughlin, 226 F. Supp. 112

ence? 11

Wattenburg v. United States, 388 F. 2d 853

(9th Cir. 1968)..... ‘ 9

CONSTITUTION AND STATUTES

Fourth Amendment, United States Constitution...... 3

28 U.S.C.A. 1257(3) 2

47 U.S.C. Section 605 3

IN THE

Supreme Court of the Huiied States

OCTOBER TERM, 1968

NO.

SIDNEY R. WRIGHT, Petitioner

vs.

STATE OF WASHINGTON

POO NG Pe eee ee a

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE

STATE OF WASHINGTON

Petitioner , Sidney R. Wright, prays that a writ of

certiorari issue to review the judgment of the Supreme

Court of the State of Washington entered in the above-

entitled case on September 23, 1968. (Appendix “A”,

infra, p. A 10, 11).

OPINION BELOW

The opinion of the Supreme Court of Washington

(Appendix “A”, infra, pp. A 1-9) is reported at 74 W.D.

2d 361, 444 P. 2d 676.

7 a a Te NE en ee

NOTE: Transcript paging is marked 0000 to 0427. For clarity, our

references will thus be 0 to 427.

2

JURISDICTION

The opinion of the Washington State Supreme Court

was filed on August 22, 1968, and the judgment of the

Court was entered and became final on September 23,

1968, An order extending time for filing petition for

writ of certiorari was signed by Justice Douglas on De-

cember 11, 1968, which extended the time for filing

petition for certiorari until January 27, 1969.

The jurisdiction of this Court is invoked upon the

grounds that the proceedings in the courts of the State

of Washington involved denial of petitioner’s right

against illegal search and seizure as guaranteed by the

Fourth Amendment to the United States Constitution

and made applicable to the states through the Four-

teenth Amendment by Mapp v. Ohio, 367 U.S. 643, 6

L. Ed. 2d 1081, 81 Sup. Ct. 1684 (1961). Jurisdiction

of this Court to review the judgment of the Supreme

Court of Washington is based upon 28 U.S.C.A.

1257(3).

QUESTIONS PRESENTED

1. Did electronic eavesdropping, accomplished by

physical trespass upon premises and home occupied

by petitioner, constitute an unreasonable search and

seizure in violation of the Fourth Amendment to the

Constitution ?

2. Did electronic recording of telephone conversa-

tions of petitioner by consent of one party to the con-

3

versation, a police informer, whose consent was given

to the police at a time when said informer was charged

with a narcotics violation, and at a time when her hus-

band, charged jointly with her was convicted and in

Federal prison, a violation of Section 605 of the Fed-

eral Communications Act?

CONSTITUTIONAL PROVISIONS

AND STATUTES

Amendment IV. “The right of the people to be

secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affir-

mation, and particularly describing the place to be

searched, and the persons or things to be seized.”

47 U.S.C., Section 605, provides as follows:

“Unavthorized publication or use of communica-

tions.

“No person receiving or assisting in receiving,

or transmitting, or assisting in transmitting, any

interstate or foreign communication by wire or ra-

dio shail divulge or publish the existence, contents,

substance, purport, effect, or meaning thereof, ex-

cept through authorized channels of transmission

or reception, to any person other than the ad-

dressee, his agent, or attorney, or to a person em-

ployed or authorized to forward such communica-

tion to its destination, or to proper accounting or

distributing officers of the various communicating

centers over which the communication may be

passed, or to the master of a ship under whom he

is serving, or in response to a subpena issued by

a court of competent jurisdiction, or on demand

of other lawful authority ; and no person not being

authorized by the sender shall intercept any com-

OE tld PA ge ante pm a

4

munication and divulge or publish the existence,

contents, substance, purport, effect, or meaning of

such intercepted communication to any person;

and no person not being entitled thereto shall re-

ceive or assist in receiving any interstate or foreign

communication by wire or radio and use the same

or any information therein contained for his own

benefit or for the benefit of another not entitled

thereto; and no person having received such inter-

cepted communication or having become acquaint-

ed with the contents, substance, purport, effect, or

meaning of the same or any part thereof, knowing

that such information was so obtained, shall di-

vulge or publish the existence, contents, substance,

purport, effect or meaning of the same or any part

thereof, or use the same or any information there-

in contained for his own benefit or for the benefit

of another not entitled thereto: Provided, That this

section shall not apply to the receiving, divulging,

publishing, or utilizing the contents of any radio

communication broadcast, or transmitted by ama-

teurs or others for the use of the general public, or

relating to ships in distress.”

STATEMENT OF THE CASE

Petitioner was charged by Information with Abor-

tion, Attempted Abortion, and Practicing Medicine

without a License (Tr. p. “0”). He was tried before a

jury, found guilty of Abortion and Practising Medicine

Without a License. (Tr. 1). Motion for New Trial was

made and denied. (Tr. pp. 2-4, 5). On appeal, conviction

was affirmed.

One Carolyn Singleton, while charged with narcotics

possession, embarked on an added career as an informer

and police agent. At the time she became an informer,

but before her tria!, her husband who had been charged

9)

jointly with her for narcotics violation, had been con-

victed and sentenced to MeNeil Federal Prison. The

Singleton woman had also had other criminal arrest

records at the time. (Tr. pp. 23, 40, 42). She was wired

for sound. (Tr. p. 24). A canvas harness was fitted over

her shoulder with an electronic transmitter located in

the pocket under the arm, and an antenna was wrapped

around her body at the bra location, with a tie clip

microphone attached. (Tr. pp. 27, 49, 76). In order to

make her effective, the receiving device was placed in

a police car that would pick up the transmission from

the informer. (Tr. p. 82). This conversation could be

monitored and heard by earphones through the elec-

tronic receiving device, and it was recorded. (Tr. pp.

73, 79, 225-228).

Prior to the execution of the plan to secure evidence

against petitioner, who was suspected of committing

an abortion, the witness Singleton twice called him on

the telephone. These calls, along with others, were elec-

tronically monitored and recorded by the police who

were in attendance, and were so recorded with the per- _

mission of the informer Singleton. (Tr. pp. 24, 25, 26).

Witness Singleton, outfitted with the transmitter,

and with marked money, called at the petitioner’s home

and discussed the matter of abortion, returning later

the same evening at approximately 6:00 P.M. She was

full equipped with transmission device. Upon entry in-

to the home, the witness and petitioner went to the base-

ment of his home where there was a table with a plastic

PME SAL ia hee A ARI i

6

sheet and other devices. The witness removed her cloth-

ing and a colloquy ensued between petitioner and the

witness Singleton with respect to whether or not her

heart should be checked. The witness went to a hath-

room where she removed her garments and the elec-

tronic transmitting device, whispering through it to the

police who were parked on the petitioner’s premises,

“sive me five minutes.” Petitioner having examined

the bathroom, inquired about the equipment which the

witness Singleton told him was a narcotic outfit. (Tr.

pp. 24-34). Shortly after the signal of the witness was

electronically transmitted to the police, they knocked

on the door, entered and arrested the petitioner, and

without warrant seized over sixty articles, including

medical instruments, medications, ete. (Tr. pp. 35, 36,

85, 131. Index of Transcript pp. 10, 11, 147, 148, 149).

The police car and its occupants with their electronic

recording and eavesdropping equipment, received the

conversation of the police informer and petitioner and

the signal for entry, while the police car and equipment

was in the private driveway and on the premises of

the petitioner immediately adjacent to his home. It was

only at this place that intelligible conver ¢ could be

received with the transmitting and re .ng equip-

ment. (Tr. pp. 188, 189, 195, 196, 200,2° 15).

Motion was made to suppress exhibits and the testi-

mony concerning conversation received by electronic

transmission (Tr. pp. 217 et seq) and denied by the

Court. (Tr. pp. 221, 222). At the same time and in the

‘

7

same motion it was further moved to suppress the evi-

dence, and the Court denied the motion. Motion was

made to strike all conversation on the tape recording

(Tr. p. 233) and (Tr. pp. 234, 235), and the Court de-

nied both motions, (Tr. pp. 234, 235). Motion was made

to dismiss Counts I and II (Tr. p. 401, 402). Motion

was denied by the Court (Tr. p. 402). Basis of the mo-

tions was violation of federal rights guaranteed to peti-

tioner by the Fourth Amendment. No question was

raised in the Washington State Supreme Court with

respect to these motions.

REASONS FOR GRANTING THE WRIT

The posture of facts shows deceit by the police agent

Singleton in gaining entry to petitioner’s home, and an

admitted trespass upon the petitioner’s property by po-

lice officers in a police car containing an electronic re-

ceiving and recording device. The officers, while almost

immediately adjacent and within a short distance of the

outside walls of the petitioner’s home, received the con-

versations by way of an electronic transmitter hidden

upon an informer who broadcasted those conversations

_ of the petitioner which she solicited. As a part of the

plan, the informer and solicitor transmitted a signal

for the police, who being engaged in trespass, entered

the premises of the petitioner and made search and seiz-

ure without warrant.

The Supreme Court of the State of Washington re-

lied on Dancy v. United States, 390 F. 2d 370 (5th Cir.

1968), and Long v. United States, 387 F. 2d 377 (5th

8

Cir. 1967), holding that there was continued viability

of On Lee v. United States, 343 U.S. 747, 96 L. Ed. 1270,

72 Sup. Ct. 1967 (1952) ; Lopez v. United States, 373

U.S. 427, 10 L. Ed. 2d 462, 83 Sup. Ct. 1381 (1963) ; and

Osborn v. United States, 385 U.S. 323, 17 L. Ed. 2d 394,

87 Sup. Ct. 429 (1966). The Supreme Court of Wash-

ington also held that the trespass (which it conceded)

merely allowed corroboration of cvidence freely re-

vealed by the petitioner, and relied upon the “open

field” doctrine set out in Hester v. Umted States, 265

U.S. 57, 68 L. Ed. 898, 44 Sup. Ct. 445 (1924).

At odds with the opinion and reasoning of the Wash-

ington State Supreme Court is United States v. Hag-

garty, 388 F. 2d 713 (7th Cir. 1968), Katz v. United

States, 389 U.S. 347, and Hajdu v. State, 189 SO 2d 230

(Florida 1966). In addition the dissent of Judge Fahy,

Senior Circuit Judge of the District of Columbia Cir-

cuit D.C., sitting by designation in Dancy, supra, more

clearly defines the view of this Court in the light of its

opinions in Katz, supra, On Lee v. United States, 343

U.S. 747, 72 S. Ct. 967, 96 L. Ed. 1270; and Osborn v.

United States, 385 U.S. 323, 17 L. Ed. 2d 394, 87 S. Ct.

429, also relied on by the Washington State Supreme

Court is clearly distinguishable from this case, for in

Osborn, supra, there was prior judicial approval of the

challenged recording. Hajdu v. State, supra, clesely

parallels in fact this present case, and there the Florida

Court, rather than attempting to justify an intrusion

as an invitation by the accused, condemned the pro-

cedure used as deceitful, citing Gouled v. United States,

9

259 U.S. 298, as authority for the rule that the Fourth

Amendment may be violated by guile as well as by fore-

seeable intrusions into a constitutionally protected

area.

Wattenburg v. United States, 388 F. 2d 853 (9th Cir.

1968) in nowise supports the reasoning of the Supreme

Court of Washington. There the defendant who was

owner, operator and resident of a lodge, had cut a num-

ber of Christmas trees, in what was claimed to be gov-

ernment forest land, and had stacked them in an area

about 20 to 35 feet of the lodge and within about 5 feet

of its parking lot. Government officials conducted a

search of the stockpile and seized certain trees and

parts of trees. These were admitted in evidence in the

trial court. It was held that Wattenburg was prutected

against unreasonable search and seizure, the Court

holding :

“The protection afforded by the Fourth Amend-

ment, insofar as houses are concerned, has never

been restricted to the interior of the house, but has

extended to open areas immediately adjacent there-

to. The differentiation between an immediately ad-

jacent protected area and an unprotected open

field has usually been analyzed as a problem of de-

termining the extent of the ‘curtilage.’ ”

The Court held that the stockpile of trees was within

the curtilage of the house, and added:

“We wish to add, however, that it seems to us a

more appropriate test in determining if a search

and seizure adjacent to a house is constitutionaily

forbidden is whether it constitutes an intrusion up-

on what the resident seeks to preserve as private

10

even in an area which, although adjacent to his

home, is accessible to the public. See Katz v. Unit-

ed States, 389 U.S. 347, 88 S.Ct. 507, 19 L. Ed. 2d

576, decided December 18, 1967. As the Supreme

Court said in Katz, ‘the Fourth Amendment pro-

tects people, not places.’ ”

The Washington State Supreme Court attempting

to sustain the admission of the electronically trans-

mitted evidence, held that it was corroborative of the

informer, and disregarded the plain fact that the eaves-

dropping and transmission was for the purpose of en-

abling the police to seize evidence and catch the peti-

tioner. Under the circumstances, transmission record-

ing here was independent third party evidence. ( Mon-

roe v. United States, 234 F. 2d 49, 54, 55).

The Washington State Supreme Court gave no heed

to objections to tie use of electronic recording of tele-

phone conversations taken by the police with the con-

sent of their own prisoner. Here the police in fact in-

tercepied the telephone message. And reliance by the

Washington State Supreme Court on Rathbun v. Unit-

ed States, 355 U.S. 107, is misplaced. It was nowhere

held there that all electronic transcription of telephone

conversations was approved, if there was one consent-

ing party, and the decision was limited to the ques-

tion of statutory construction. See Dissent, Mr. Jus-

tice Brennan, Lopez v. United States, 373 U.S. 427, ©

10 L. Ed. 2d 463, 83 S. Ct. 1381. Furthermore, this case

presents an involuntary rather than a voluntary con-

sent, for here the consenting party was an individual

charged with narcotics possession, whose husband had

11

already been committed to prison for the same transac-

tion. It would be the height of naivete’ for one to believe

that the witness Singleton voluntarily consented to the

interception of telephone conversations by the police.

See United States v. Laughlin, 226 F. Supp. 112. (DDC

1964).

The Supreme Court of the State of Washington en-

tirely overlooked the admitted, continuing trespass by

the police officers engaged in eavesdropping, a pro-

cedure condemned in Silverman v. United States, 365

U.S. 505; 5 L. Ed. 2d 734 (1961). And in its holding

sustaining the arrest (and search and seizure) the

State Court overlooked this Court’s language in Katz,

supra:

“Searches conducted without warrants have been

heid unlawful ‘notwithstanding facts unquestion-

ably showing probable cause,’ Agnello v. United

States, 206 U.S. 20, 33, for the Constitution re-

quires ‘that the deliberate, impartial judgment of

a judicial officer ... be interposed between the citi-

zen and the police...’ Wong Sun v. United States,

371 U.S. 471, 481-482. ‘Over and again this Court

has emphasized that the mandate of the (Fourth)

Amendment requires adherence to judicial proc-

esses,’ United States v. Jeffers, 342 U.S. 48, 51,

and that searches conducted outside the judicial

process, without prior approval by a judge or a

magistrate, are per se unreasonable under the

Fourth Amendment—subject only to a few specif-

ically established and well-delineated exceptions.

“It is difficult to imagine how any of these ex-

ceptions could ever apply to the sort of search and

seizure involved in this case. Even electronic sur-

veillance substantially contemporaneous with an

12

individual’s arrest could hardly be deemed an ‘in-

cident of that arrest.’ Nor could the use of elec-

tronic surveillance without prior authorization be

justified on grounds of ‘hot pursuit.’ And, of

course, the very nature of electronic surveillance

precludes its use pursuant to the suspect’s consent.”

(pp. 355, 356, 357).

CONCLUSION

For the reasons set out above, we believe the writ of

certiorari should be granted.

Respectfully submitted,

R. MAX ETTER, SR.

511 Spok ne & Eastern Bldg.

Spokane, Washington 99201

Counsel for Petitioner

January, 1969.

Al

APPENDIX A

OPINION BELOW

IN THE

Supreme Court of the State of Washington

STATE OF WASHINGTON, No. 39650

Respondent,

a Department Two

SIDNEY R. WRIGHT, Filed

Appellant. ] AUG. 22, 1968

WIEHL, J,*—Defendant, Sidney R. Wright, was

convicted by a jury of the crimes of abortion and the

unlawful practice of medicine. Both crimes were com-

mitted on December 9, 1966. A third count of the infor-

mation charging defendant with attempted abortion

upon a police agent on December 21, 1966, was dis-

missed for want of an overt act.

Investigation commenced when the police were noti-

fied by hospital authorities that Sandra Murray had

been admitted as an emergency case suffering from the

effects of an apparent abortion upon her. She was ap-

proximately 214-months pregnant. The police asked

Murray for a statement, and on advice from her attor-

ney, she decided to admit to the prosecuting attorney

that she had engaged defendant to induce an abortion

on her. At trial, both Murray and her mother, who had

paid for the abortion, testified that defendant had used

* Judge Wiehl is serving as a judge pro tempore of the Supreme

Court pursuant to Art. 4, § 2(a) (amendment 38), state constitution.

Ne

ParesrBerhees .- &

A2

abortifacients on her which were successful a‘ cording

to testimony by examing physicians.

The police procured the services of Carolyn Single-

ton, who agreed to act as a police agent. She telephoned

the defendant on two occasions and arranged an ap-

pointment in his home. The calls were monitored and

recorded by the police. The agent kept the appointment

and arri ed armed with a radio transmitting device

concealed in her clothing. Defendant escorted her to his

basement wL.ch was outfitted with medical equipment,

explained the abortion procedure, asked a fee of $300

and requested the agent to return that evening for the

abortion. Prior to her return, the agent made a tnird

telephone call to the defendant which was also moni-

tored. Defendant asked the agent to come to his home

immediately. The agent, who had been in contact with

the police in the interim, returned, again equipped with

the transmitter. Defendant again led her to his base-

ment where the $300 fee was paid in marked currency.

Upon defendant’s insistence that he must check her

heart before proceeding with the abortion, the agent

went to the bathroom, removed the transmitter and re-

quested the monitoring police to wait five minutes be-

fore intruding. The police who were monitoring and

recording the conversation had by this time pulled their

unmarked vehicle into defendant’s driveway as an aid

to their electronic reception of the conversation.

Having satisfied himself that the agent’s heart was

sound, defendant approached his instrument tray and

removed the lid, when he was interrupted by a noise

A3

which he felt compelled to check. At this point, the po-

lice knocked, informed defendant of their identity and

his arrest.

Approximately 60 pieces of evidence were seized and

ultimately admitted into evidence. Most of the exhibits

consisted of medical paraphernalia and equipment

which were seized in defendant’s basement “clinic.” The

marked money and the tape recording containing all

the monitored conversations were also admitted.

The sole issue presented to this court is whether the

seized exhibits, the tape recording and the testimony

of the monitored conversations should have been sup-

pressed as the products of an illegal search and seizure

violative of the Fourth Aimendment of the United

States Constitution made applicable to the states

through the Fourteenth Amendment by Mapp v. Ohio,

367 U.S. 643, 6 L. Ed. 2d 1081, 81 Sup. Ct. 1684 (1961).

Defendant urges that Katz v. United States, US.

L. Ed. 2d , 88 Sup. Ct. 507 (1967),

is dispositive of the question presented. Having exam-

ined the opinion closely, we are constrained to disagree.

In Katz, government agents attached an electronic

listening and recording device to the outside of a public

telephone booth to procure evidence of defendant’s sus-

pected illegal interstate transmittal of wagering infor-

mation. The Court of Appeals held there was no Fourth

Amendment violation because there was no physical en-

trance into an area occupied by the defendant. The Su-

preme Court, reversed, holding the recordings of the

A4

defendant’s part in the conversations were inadmissible

and said at 512 that the “reach of that Amendment can-

not turn upon the presence or absence of a physical in-

trusion into any given enclosure.” Neither party to the

conversations had consented to the surveillance and the

court found that the Fourth Amendment protected de-

fendant’s right to exclude the “uninvited ear” even

though the calls were placed from a public telephone

booth.

In the instant case, the defendant invited the inform-

er into his home, fully cognizant of the risk that she

might be a police agent, who could testify against him

in a subsequent prosecution.’ In the present case, the

police agent concealed on her person the transmitter

which she carried into the confines of defendant’s es-

tablishment enabling the conversation between her and

the defendant to be monitored and recorded.

Mr. Justice White in his concurring opinion in Katz,

supra, points out in a footnote at 88 Sup. Ct. 507, 517,

that Katz does not affect previous cases which have al-

lowed admission of evidence obtained:

(2) by a recording device hidden on the person

of such an informant, Lopez v. United States, 373

U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963) ;

Osborn v. United States, 385 U.S. 323, 87 S. Ct.,

429, 17 L. Ed. 2d 394 (1966) ; and (3) by a police-

man listening to the secret micro-wave transmis-

sions of an agent conversing with the defendant in

another location. On Lee v. United States, 343 U.S.

"Hoffa v. United States, 385 U.S. 293, 17 L. Ed. 2d 374, 87 Sup. Ct.

408 (1966), held that the Fourth Amendment does not protect a de-

fendant from the risk of misplaced confidences.

Ad

747, 72 8. Ct. 967, 96 L. Ed. 1270 (1952). When one

man speaks to another he takes all the risks ordi-

narily inherent in so doing, including the risk that

the man to whom he speaks will make public what

he has heard. The Fourth Amendment does not

protect against unreliable (or law-abiding) asso-

ciates. Hoffa v. United States, supra (385 U.S.

293, 17 L. Ed. 2d 374, 87 Sup. Ct. 408 (1966) ).

It is but a logical and reasonable extension of this

principle that a man take the risk that his hearer,

free to memorize what he hears for later verbatim

repetitions, is instead recording it or transmitting

it to another.

Dancy v. United States, 390 F. 2d 370 (5th Cir. 1968),

decided subsequent to the Katz decision, and Long v.

United Siates, 387 F. 2d 377 (5th Cir. 1967), published

subsequent to the Katz decision, ruled admissible, evi-

dence procurred by a government agent or informer

who carried a concealed transmitter while engaging

defendant in incriminatory conversations. The basis of

the holdings was the ccntinued viability of On Lee v.

United States, 345 U.S. 747, 96 L. Ed. 1270, 72 Sup. Ct.

967, (1952) ; Lopez v. United States, 373 U.S. 427, 10

L. Ed. 2d 462, 83 Sup. Ct. 1381 (1963) ; and Osborn v.

United States, 385 U.S. 323, 17 L. Ed. 2d 394, 87 Sup.

Ct. 429 (1966).?

"Defendant urges that United States v. White F. 2d (7th

Cir. 1968), slip opinion, March 18, 1968, is contra to the Lopez v.

Osborn and On Lee cases, supra, and is a correct interpretation of the

Katz decision, supra, but in White, the police t monitoring the

conversation was not allowed to testify * seronedly. cag. soon himself

did not testify. In the present case, the agent testified, two of the

monitoring police testified, and the tape recording was admitted. Thus,

the defendant was not deprived of his rigist of cross-examination which

seems to be the evil sought to be protected against by Chief Justice

Warren in his concurring opinion in Lopez, supra.

en ee ee

A6

We agree with these interpretations of the Katz case,

supra, and find no violation of defendant’s rights by

virtue of the concealment of the transmitter on the per-

son of the police informer making possible the monitor-

ing and transcription of the conversations,

Defendant contends that the trespass into his drive-

way for the purpose of a clearer reception of the trans-

mitted conversation taints all evidence seized subse-

quent to the trespass. We cannot agree. Any search and

seizure which took place by virtue of the transmittal

and recording of the conversation, took place within the

defendant’s home and is permissible under the rationale

of the On Lee, Lopez, and Osborn cases cited above.

There was no invasion of defendant’s privacy com-

mitted in the driveway. The trespass made possible no

probe ‘nto secret places or conversations. It was within

. the confines of his “clinic” that defendant knowingly

and willingly surrendered his privacy by exposing both

his occupation and the tools of his trade to the agent,

thus risking that the person whom he invited inside

would make public what she had heard and seen.* The

*Even if we assume that the seizure of the conversation took place

in the driveway by means of a trespass, defendant’s argument urging

suppression of the recording and testimony of the monitoring police

must fail because of the “open field” doctrine set out by Mr. Justice

Holmes in Hester v. United States, 265 U.S. 57, 68 L. Ed. 898, 44

Sup. Ct. 445 (1924), and the cases adhering to that rule. McDowell

v. United States, 383 F. 2d 599 (8th Cir. 1967); United States v.

Benson, 299 F. 2d 45 (6th Cir. 1962) ; Giacona v. United States, 257

F. 2d 450 (5th Cir, 1958); Hodges v. United States, 243 F. 2d 281

(5th Cir. 1957) ; Care v. United States, 231 F. 2d 22 (10th Cir. 1956) ;

Martin v. United States, 155 F, 2d 503 (5th Cir. 1946); Koth v.

United States, 16 F. 2d 59 (9th Cir. 1926); United States v. Myers,

219 F. Supp. 908 (E.D. Pa. 1963); United States v. Rogato, 39 F.

2d 171 (M.D. Pa, 1930); State v. Gillingham, 36 Wn. 2d 655, 220

P. 2d 333 (1950).

AT

trespass merely allowed corroboration of evidence free-

ly revealed by defendant, and thereby insured the reli-

ability of that evidence. Thus, in the words of Mr. Jus-

tice White quoted above:

It is but a logical and reasonable extension of

this principle that a man take the risk that his

hearer, free to memorize what he hears for later

verbatim repetitions, is instead recording it or

transmitting it to another.

The seizure of the medical paraphernalia and equip-

ment was not violative of the Fourth Amendment since

it was made incident to a valid arrest. The police had

probable cause to arrest the defendant, independent of

any information gained by use of the conversation

monitored on defendant’s premises. The police, in the

instant case, had been informed of a prior abortion com-

mitted by the defendant at the same location, they had

been in close contact with their agent immediately prior

to her entry into defendant’s home and knew the pur-

pose for which defendant had invited the agent into his

Although exactly where the curtilage ends and the open field be-

ee ee ee ee we do not consider de-

endant’s driveway in the present case to fall within the curtilage. Nor

do we consider the driveway within the protection accord d the de-

fendant in Wattenburg v. United States, 388 F. 2d 853, 857 (9th

Cir. 1968), wherein the court found an area immediately adjacent to

defendant’s abode within the curtilage and stated: “We wish to add,

however, that it seems to us a more appropriate test in determining if

a search and seizure adjacent to a house is constitutionally forbidden

is whether it constitutes an intrusion upon what the resident seeks to

—_— as private even in an area which, although adjacent to his

ome, is accessible to the public.” The court decided defendant, by

placing a stockpile of trees near his abode, sought to protect it from

a warrantless meticulous examination by government agents. The

agents seized several trees from the stockpile which were found to

match stump cuts made on government lands. The evidence so ac-

quired was used in the prosecution of the defendant.

it Ct etd DB BIA I ae ALBA AB ABE ab 00k Caner ENOL MR NE s

A8

home. The police had sufficient knowledge of the cir-

cumstances to support the belief of a cautious but dis-

interested man that defendant had committed a felony

and was about to commit another. State v. Bellows, 72

W.D. 2d 263, 432 P. 2d 654 (1967) ; State v. Green, 70

W.D. 2d 926, 425 P. 2d 913 (1967) ; State v. Davis, 69

Wn, 2d 127, 417 P. 2d 622 (1966) ; State v. Baxter, 68

Wn. 2d 416, 413 P. 2d 638 (1966) ; State v. Massey, 68

Wn. 2d 88, 411 P. 2d 422 (1966) ; State v. Biloche, 66

Wn. 2nd 325, 402 P. 2d 491 (1965); State v. Darst, 65

Wn. 2d 808, 399 P. 2d 618 (1965).

Defendant was arrested upon the entry into his base-

ment by the police and the subsequent search of the

basement “clinic” was incident to the arrest. This court

in State v. Cook, 70 W.D. 2d 691, 694, 424 P. 2d 1006

(1967), quoted State v. Biloche, supra, at 327:

The law is equally clear that a search without a

warrant may be made incident to an otherwise law-

ful arrest without a warrant where the arresting

officers had reasonable grounds to believe that a

felony had been, was being or was about to be com-

mitted by the person arrested. State v. Darst, 65

Wn. 2d 808, 399 P. 2d 618 (1965) ; State v. Hugh-

lett, 124 Wash. 366, 214 Pac. 841 (1923); Ker v.

California, 374 U.S. 23, 10 L. Ed. 2d 726, 83 Sup.

Ct. 1623 (1963).

The trial court committed no error in admitting the

evidence which defendant sought to st_ppress.

The state cross-appeals, urging the trial court’s dis-

missal of the charge of attempted abortion was error.

A9

We find no error. In State v. Lewis, 69 Wn. 2d 120, 123,

417 P. 2d 618 (1966), we said:

The state, in a prosecution for an attempted

crime, must prove that the defendant actually in-

tended to commit the target crime, and that he per-

formed an overt act directed toward its commis-

sion. There must be a unity of intent and overt act.

Both elements must coincide. State v. Christensen,

559 Wn. 2d 490, 348 P. 2d 408 (1969); State v.

Leach, 36 Wn. 2d 641, 219 P. 2d 972 (1950); 1

Wharton, Criminal Law and Procedure § 71, p. 152

(1957) ; 21 Am. Jur. 2d Criminal Law § 110 (1965).

The judgment is in all respects affirmed.

WIEHL, J, Pro Tem

WE CONCUR:

HILL, J.

ROSELLINI, J.

HAMILTON, J.

NEILL, J.

as bi 3 a. |

A10

IN THE

Aupreme Court of the State of Washington

STATE OF WASHINGTON,

REMITTITUR

No. 39650

Respondent,

vs.

Spokane County

SIDNEY R. WRIGHT, No. 18481

Appellant

The State of Washington to: The Superior Court of

the State of Washington, in and for Spokane County.

This is to certify that the opinion of the Supreme

Court of the State of Washington filed on August 22,

1968, became the final judgment of this court in the

above entitled case on September 23, 1968. This cause

is remitted to the Superior court from which the appeal

was taken for further proceedings in accordance with

the attached true copy of the opinion.

(43) Pursuant to Rule 55 on Appeal, costs are taxed as

follows:

One hundred ninety-nine and 44/100 dollars

($199.44) in favor of respondent and against appellant.

All

IN TESTIMONY WHEREOF, I have hereunto set

my hand and affixed the seal of said Court at Olympia,

this 30th day of September, A.D. 1968.

(Signed) WILLIAM M. LOWRY

WiLLIAM M. LOWRY

Clerk of the Supreme Court,

State of Washington

(SEAL)

FILED

OCT. 1, 1968

Geo. E. Fallquist, Clerk

Spokane County

EXECUTION 92, PAGE 617 MICROFILM