State v. Kent
| Decision Date | 22 September 1967 |
| Docket Number | No. 10713,10713 |
| Citation | 432 P.2d 64,20 Utah 2d 1 |
| Parties | d 1 STATE of Utah, Plaintiff and Respondent v. Leon Marlow KENT, Defendant and Appellant. |
| Court | Utah Supreme Court |
Jimi Mitsunaga, Legal Defender, John D. O'Connell, Salt Lake City, for appellant.
Phil L. Hansen, Atty. Gen., Gary A. Frank, Asst. Atty. Gen., Salt Lake City, for respondent.
The defendant-appellant seeks reversal of his conviction of the crime of unlawful possession of a narcotic drug. He was tried by the district court, sitting without a jury. The appeal is based primarily on the ground, and for the reason, that the trial court erred in its refusal to grant the defendant's motion to suppress the evidence seized in a search of his premises by the Salt Lake City police. The facts, in connection with the seizure of the key evidence are as follows:
The defendant and his ex-wife were living together in a unit of a Salt Lake City motel. Police officers had been informed, they claim, by a 'reliable informer' that Kent had been connected with a series of drug store burglaries in which narcotics had been taken. The police officers approached the manager of the motel to obtain her consent to the use of a hidden vantage point from which they could keep Kent under surveillance. Following the contact with the manager, Officer Patrick, who with other officers had been engaged in the investigation, entered the attic of the motel where, by looking through a ventilator located in the ceiling of the bathroom of the unit in which the defendant was staying, could observe the entire bathroom and part of the bedroom of the unit. A curved metal shield prevented anyone in the bathroom from being aware that the occupants were being observed. The attic was dark. During the first day the officer did not see anything illegal taking place, but he did hear Kent's ex-wife ask him if he wanted two 'V's.' It is claimed this had to do with the amount of narcotic to be used.
On the second day Patrick observed Kent enter the bathroom and use a spoon, eye dropper, pacifier and syringe to make what he considered to be a 'fix.' Patrick radioed this information to Officers Waters and Lindsey who were outside the motel. These two officers then entered the motel unit, without a warrant, and without knocking or announcing their presence, and arrested Kent and his ex-wife. Then they searched the apartment occupied by Kent, being directed and aided by Officer Patrick, who, at his vantage point, gave verbal instructions as to where the narcotics were hidden. Thereupon Waters and Lindsey found the drug or drugs which would induce narcosis.
Prior to the trial appellant moved the court to suppress all testimony regarding what the Officer Patrick saw and heard in the interior of appellant's residence, and the physical evidence seized under his direction. The motion was denied. At the conclusion of the hearing the motion was renewed and again denied.
Appellant claims the evidence thus secured resulted from an unlawful invasion of his premises and his privacy all in violation of the Fourth and Fourteenth Amendments to the United States Constitution.
The respondent submits that the conviction of the defendant and the trial court's denial of his motion to suppress the evidence should be affirmed on the ground there was no physical trespass or unlawful entry into the premises of appellant. The State argues that from the area occupied by Officer Patrick, observation into the unit occupied by defendant was readily available by anyone. The officer did not have to take any affirmative action, such as removing a cover from the vent, but rather merely observed all that was open to observation. It was further argued that it was possible for someone in the bathroom of appellant to readily ascertain he was being observed through the vent.
Counsel for the respondent has failed to adequately answer the questions which he takes for granted. Did Officer Patrick have the right to place himself over the unit occupied by defendant so as to look down into his bathroom and bedroom? Was the area in which he made his observation a part of the rented unit? If it were, then wasn't the officer an intruder or trespasser? Is it conceivable that defendant would be gazing at the ceiling of his bathroom? Did he not have the right to assume he was in a place of seclusion?
The State's dependence on the purported lack of a trespass, according to local property law, as a determinative factor in whether there has been an intrusion into a constitutionally protected area is clearly refuted by Silverman v. United States. 1 It is difficult to distinguish between the vent located in the bathroom in the instant case and the heating system in Silverman which was described as an integral part of the premises occupied by petitioners. The court stated:
Here, by contrast, the officers overheard the petitioners' conversation only by usurping part of the petitioners' house or office--a heating system which was an integral part of the premises occupied by the petitioners, a usurpation that was effected without their knowledge and without their consent. In these circumstances we need not pause to consider whether or not there was a technical trespass under the local property law relating to party walls. Inherent Fourth Amendment rights are not inevitably measurable in terms of ancient niceties of tort or real property law. (Citations omitted.)
The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion. (Citations omitted.)
* * * But decision here does not turn upon the technicality of a trespass upon a party wall as a matter of local law. It is based upon the reality of an actual intrusion into a constitutionally protected area. * * * (Emphasis mine.)
The California courts have adopted the principle that although a trespass is a factor to be considered in determining the reasonableness of a search, a minor or technical trespass not involving physical entry into a building does not derogate from the otherwise reasonable nature of the search. Rather it is the degree of privacy which defendant enjoyed in the place involved that is the important factor in determining the reasonableness of the search and essentially that determination must depend upon the facts and circumstances of the particular case. 2
Having pleaded a violation of both the Fourth and Fourteenth Amendments, we must determine if the Fourth Amendment applies to the states.
If there was such a query before the adoption of the Fourteenth Amendment it has now been definitely settled that the provisions of the Fourth Amendment do apply with equal force to the states and in particular to questions of search and seizure. 3
It has also been clearly established by a number of Supreme Court decisions that leased and rented premises would come under the protection of the Fourth Amendment. 4 By the same decisions and others, 5 it now appears to be settled that, in the absence of abandonment, expiration of lease, or other extraordinary circumstances, such as to suppress a riot, save life or property in case of fire, or to prevent escape of a fleeing suspect or to prevent the destruction of evidence, the consent of a landlord or hotel or motel manager would not be sufficient to justify an officer to make a search of tenant's premises without a warrant. A landlord has a duty, as well as a vital interest in cooperating with officers so as to remove himself of suspicion and the right to promptly exculpate himself by allowing a search, but the permission of an innkeeper will not constitute an ersatz in place of a warrant. It is not so much a matter of the officer proceeding in a manner approved by a court, as it is to operate in a way required by law.
The conditions and circumstances of the present case would indicate no emergency was present which would justify the search and seizure effected by the police. If, as the police suspected, the defendant was guilty of stealing narcotics, he would most probably intend to keep them for his own use or for sale to others. In either case he would not be likely to destroy the narcotics except as a last resort to prevent them from being found. Since the defendant apparently had no suspicion that he was being watched, the emergency had not arisen. Also, if he had attempted to leave, the police would have been fully aware of his attempt, and would have been able to stop him. Therefore, no emergency situation existed which justified the police in their search and seizure without a warrant.
There can be no denial that the major duty of the police is to diligently and fearlessly investigate crime and enforce the law. It is their task to apprehend the criminal, and to aid in the determination of his guilt. This is required whether the offense be a misdemeanor of little concern or a felony of great importance and far-reaching effect. It would be inclusive of a charge of jaywalking or of murder. Certainly the apprehension of a miscreant in possession of narcotics, and particularly of one engaged in its sale, demands vigorous and continuing inquiry by the police. No one is more pathetic than a drug addict. No criminal is more venal or despicable than the one who seeks a state of affluence by selling the poison to the degenerate, who, bereft of hope, makes alternate flights into abnormal tensions of euphoria, ecstasy and frenzy, often resulting in psychosis. Yet in ferreting out the iniquitous malefactor responsible for such nefarious trade, the policeman is restricted, prevented from ramifying his search beyond the limitations set by law. The interstice may be narrow between what he may do and what he cannot do. He should avoid furtive procedures and surreptitious methods.
There are those who say in such cases as this that the end would justify the means....
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