# Petition for A Writ of Certiorari — Wright v. Washington

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for A Writ of Certiorari
- **Published:** January 1, 1969
- **Citation:** 394 U.S. 961

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0558%3A1. Public record. Not legal advice.