State v. Cartwright

• Decision Date: 28 September 1966
• Citation: 418 P.2d 822,246 Or. 120
• Parties: STATE of Oregon, Respondent, v. Maurice Wheeler CARTWRIGHT, Jr., Appellant.
• Court: Oregon Supreme Court

Page 822

418 P.2d 822

246 Or. 120

STATE of Oregon, Respondent, v. Maurice Wheeler CARTWRIGHT, Jr., Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 28, 1966.

Decided Sept. 28, 1966.

Lawrence A. Aschenbrenner, Public Defender, Salem, and Howard R. Lonergan, Portland, co-counsel, argued the cause and filed briefs for appellant.

George M. Joseph, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before McALLISTER, C.J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN, and LUSK, JJ.

LUSK, Justice.

The defendant, Maurice Wheeler Cartwright, Jr., is an ex-convict who was convicted of the crime of possession of a pistol in violation of ORS 166.270, ¹ and has appealed.

Defendant assigns numerous errors, one of which raises the important question of the validity of a search and siezure made under a search warrant which was issued on the basis of information obtained by eavesdropping, not with the aid of any electronic device. The pistol designated in the indictment was seized in the search and error is assigned to the court's denial of a motion to suppress its use as evidence.

Alleged illegality of search warrant.

It appears that Orville Luther, a deputy sheriff for Multnomah County, having reason to suspect that the defendant and his wife, Judith (sometimes referred to in the record as Judith Hardin), were in possession of narcotics at their place of abode at 8304 SE Brooklyn Street in Portland, on July 14, 1964, rented an apartment in the adjoining house, 8302 SE Brooklyn Street, and over a period of eleven days, with other officers, listened at the party wall to conversations between the defendant and his wife. On July 21, 1964, Luther swore to an affidavit reading as follows:

'I am a deputy sheriff for Multnomah County, Oregon, and in such capacity and pursuant to an undercover investigation, I have rented an apartment at 8302 S.E. Brooklyn Street, in the County of Multnomah, State of Oregon, and have been residing there since July 14, 1964; that there resides in the adjacent apartment in the same building, 8304 S.E. Brooklyn Street, one Maurice Cartwright and one Judith Hardin; that both of these subjects are known to me as narcotics users; that I have personally seen these subjects in company with other known narcotics users enter and depart from 8304 S.E. Brooklyn Street at late and unusual hours on many occasions;

'That I have personally overheard through the walls of the said apartment conversations carried on by the said Maurice Cartwright and Judith Hardin relating to their present possession of narcotics; that based upon these conversations which I have overheard I have good reason to believe that there is presently in the possession of the said Maurice Cartwright and Judith Hardin in the aforementioned premises at 8304 S.E. Brooklyn Street, the following personal property:

'26 capsules of heroin, and assorted quantities of Methedrine, Tuinal and Cocaine.

That this property is possessed by them in violation of ORS 474.020 and ORS 475.100.'

On the basis of this affidavit a district judge for Multnomah County issued a warrant for a search of the premises occupied by the Cartwrights. The warrant was executed by Luther, assisted by other officers, on July 25, 1964. In addition to the pistol and clip, containing six rounds of ammunition, a quantity of narcotics, hypodermic needles and other equipment used by narcotic addicts, was taken in the search.

Since the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933 (1961), the Federal rule excluding evidence obtained in violation of the provisions of the Fourth Amendment of the Constitution of the United States ² must be applied in criminal prosecutions in the state court: Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Krogness, 238 Or. 135, 138, 388 P.2d 120 (1963).

In the Schmerber case, the Supreme Court's most recent decision upon the subject, it was held that, under the 'stringently limited conditions' there shown, blood might be taken from a person under arrest against his will, to be analyzed for alcoholic content, without violating the right of privacy protected by the Fourth Amendment. In this context the court said:

'* * * the Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.'

The question here is whether the conduct of the officers in listening to the conversations between the defendant and his wife in the constitutionally protected area of their home was an unjustified intrusion upon the defendant's privacy. If so, the information thus obtained could not be the basis of a valid search warrant: McGinnis v. United States, 227 F.2d 598, 603 (1st Cir); Fraternal Order of Eagles, No. 788 v. United States, 57 F.2d 93, 94 (3d Cir).

Unlike the present case, all the eavesdropping decisions of the Supreme Court deal either with wiretapping or the use of some kind of an electronic device. The decision in the wiretapping case of Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376 (1928), rejecting the claim of an unlawful search and seizure, was based on the grounds that there was no 'actual physical invasion' of the premises occupied by the defendants (277 U.S. at 466, 48 S.Ct. at 568) and no search or seizure of material things, but only the securing of evidence 'by the use of the sense of hearing.' Id. at 464, 48 S.Ct. at 568. It was further stated:

'The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house, and messages while passing over them, are not within the protection of the Fourth Amendment.' Id. at 466, 48 S.Ct. at 568.

Despite frequent attacks, both from within and without the court, upon the Olmstead decision, it remains the law of the land, though the notion that the Fourth Amendment prohibits unreasonable searches and seizures of only material things has been repudiated: Irvine v. People v. State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954); Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Clinton v. Virginia, 377 U.S. 158, 84 S.Ct. 1186, 12 L.Ed.2d 213 (1964); as has the distinction based on whether the speaker intended his conversation to be confined within the four walls of the room in which he talks: Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942).

In Goldman the officers eavesdropped with the aid of a detectaphone placed against the wall of a room adjoining that in which the defendant and others were talking. There was no trespass and the court held, on the authority of Olmstead, that there was no violation of the Fourth Amendment.

In Irvine a concealed microphone was installed in the defendant's home by the police, who had obtained entry to the home illegally for this purpose while the defendant and his wife were away. Evidence of conversations overheard by the police through the aid of the microphone and accompanying installations was held to have been obtained by an illegal search and seizure, but, as the case arose prior to Mapp v. Ohio and the prosecution was in a state court, admission of the evidence was held not erroneous.

In Silverman the officers employed a so-called 'spike mike' to listen to what was going on within the four walls of the house next door. The instrument in question was a microphone with a spike about a foot long attached to it, together with an amplifier, a power pack and earphones. The spike mike was inserted in the party wall and made contact with a heating duct serving the house occupied by the defendants, thus converting their entire heating system into a conductor of sound. The court held there was a violation of the Fourth Amendment and that evidence of what the officers heard by the means employed was erroneously admitted.

In Clinton the Supreme Court reversed a decision of the Supreme Couret of Virginia which held admissible evidence of conversations overheard by eavesdropping officers: Clinton v. Commonwealth, 204 Va. 275, 130 S.E.2d 437 (1963). As stated in the opinion of the Virginia Court, a witness testified that the instrument used was a 'spiked device,' but from further testimony the Virginia Court concluded that it was the same sort of device used in Goldman: 204 Va. at 281--282, 130 S.E.2d 437. The Supreme Court disposed of the case in a Per curiam opinion which, in addition to denying a motion to strike the supplementary brief of the respondent, reads: 'The judgment is reversed. Silverman v. United States, 365 U.S. 505 (81 S.Ct. 679, 5 L.Ed.2d 734); Ker v. California, 374 U.S. 23 (83 S.Ct. 1623, 10 L.Ed.2d 726).' Mr. Justice Clark concurred in the following words:

'Since the court finds that the 'spiked' mike used by the police officers penetrated petitioner's premises sufficiently to be an actual trespass thereof, I join in the judgment.'

The defendant contends that Silverman and Clinton, considered together, have overruled Olmstead and Goldman, and constitute, in effect, a holding that the requirement of a trespass has been abandoned by the Supreme Court.

We do not agree. In this we are in accord with the United States Court of Appeals for the Second Circuit in United States v. Pardo-Bolland, 348 F.2d 316, 321--323 (1965). The court there characterized both Silverman and Clinton as 'spike' mike cases and held, in a case of electronic eavesdropping where there was no technical trespass, that Goldman was controlling. While, in Silverman, the court said that 'we need not pause to consider whether or not there was a technical trespass under...