United States v. Hersh

• Citation: 464 F.2d 228
• Decision Date: 07 July 1972
• Docket Number: No. 72-1268.,72-1268.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifford HERSH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

464 F.2d 228 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Clifford HERSH, Defendant-Appellant.

No. 72-1268.

United States Court of Appeals, Ninth Circuit.

July 7, 1972.

Michael H. Metzger (argued), of Hallinan, Rice, Metzger & Hallinan, San Francisco, Cal., for defendant-appellant.

John G. Milano, Asst. U. S. Atty. (argued), F. Steele Langford, Asst. U. S. Atty., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before BARNES and GOODWIN, Circuit Judges, and McGOVERN, District Judge.^*

PER CURIAM:

Appellant Clifford Hersh was tried under a three-count indictment involving two counts of sale of dangerous drugs and one count of conspiracy to sell dangerous drugs. He was found guilty on the conspiracy count, and appeals from the judgment and sentence entered upon the verdict of guilt.

There are two main assignments of error on appeal. The first is that the trial court incorrectly denied appellant's Motion to Suppress certain evidence gathered as a result of a search conducted by law enforcement officials on March 6, 1969 at Yountville, Napa County, California. The second is that the appellant was denied a fair trial because of the prosecutor's repeated reference to one Brovko, who did not testify.

March 6, 1969, two deputy sheriffs of Napa County visited a house in Yountville after receiving information from a roof repairman, McGregor, that he was suspicious that a laboratory was being operated on premises where he had made some roof repairs. The deputies did not have a search warrant. They knocked on the front door, but no one was home. While standing on the front porch, they peered through a window which was only partially covered with a drape. They saw oxygen tanks, beakers, other paraphernalia, and some white powdery substance on the floor. They then checked next door with a neighbor, one Milhouse, who told them that he had been keeping a log of the movements of his neighbors. Milhouse said that he had seen the neighbors bringing chemicals into the house. The next day, March 7, 1969, following a telephone call from Milhouse, the deputies returned to the house and arrested appellant and others as they were leaving in a car. The deputies seized some chemicals (at that time legal) that were in the car, and a small quantity of phencyclidine. The arrest and seizure were without warrant.

Appellant first argues that when the deputies peered through the window of the house on March 6th, it was a search within the meaning of the Fourth Amendment (People v. Hurst, 325 F.2d 891 (9th Cir. 1963)) and that since it was without a warrant, the subsequent seizure of evidence and arrest were the improper fruit of that unconstitutional act, and therefore invalid. He argues that he reasonably relied upon his right to privacy by drawing his blinds, by posting "No Trespassing" signs, and insists that the Fourth Amendment protects against searches outside the house as well as within.

The trial court, however, was satisfied that the observations through the window were not illegal, and we concur. This showing is based upon five facts established in the record:

(1) Signs reading "No Trespassing" were not posted on the premises.

(2) The property was not enclosed with a fence.

(3) The deputies went to the house only to talk with the person or persons living there.

(4) The officers approached the house openly in broad daylight, and

(5) The deputies merely looked through a window located immediately available to the left of the front door and did not have to move bushes or other objects out of the way to do so.

The Government relies on the following statement from Davis v. United States, 327 F.2d 301 (9th Cir. 1964), for authority that the actions of the deputies were proper:

"Absent express orders from the person in possession against any possible trespass, there is no rule of private or public conduct which makes it illegal per se, or a condemned invasion of the person\'s right of privacy, for anyone openly and peaceably, at high noon, to walk up the steps and knock on the front door of any man\'s `castle\' with the honest intent of asking questions of the occupant thereof—whether the questioner be a pollster, a salesman, or an officer of the law."

Summarized, it's the Government's position that the deputies were in a place where they had a right to be, and that whatever they saw through the window was in plain sight, i. e., it was there to be seen, and was not therefore an improper search.

Appellant unsuccessfully argues his version of the facts, i. e., that the deputies did not just walk up to the door, knock and peer in one window, but rather, that they walked around the house and peered into all the windows. He claims that the plain sight doctrine is not here applicable because the deputies did not have just the intention to interview the occupants of the house, but rather, that they at all times intended to search the premises. However, the Motion to Suppress was argued on four separate occasions, and two different trial judges properly decided the issue against the appellant.

Additionally, the arresting officers received sufficient evidence from sources independent of the claimed illegal search to give them probable cause to arrest the appellant on March 7, 1969. The exclusionary rule of Wong Sun v. United States, 371 U.S. 471, 487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), is not applicable here because sufficient information to support the arrest and seizure came from untainted sources. The following facts support this contention.

(1) McGregor, a roofer, saw laboratory apparatus in the house.

(2) Milhouse, the neighbor, gave the deputies a list of chemicals he had seen carried into the house.

(3) Milhouse gave the deputies a record of the odd hour arrivals to and departures from the house.

(4) The officers checked and determined to their satisfaction that no license or permit had been issued for the operation of a laboratory on the premises.

(5) A man named Powell had rented the house ostensibly for use as a vacation spot in the country.

(6) The vehicle at the house was not owned by a man named Powell, but by a person named Hersh.

(7) The premises were being evacuated at an unusual time of the month.

(8) The deputies observed oxygen tanks and boxes being moved from the house on March 7th, and saw smoke emanating from the chimney.

The Government argues that these sources and bits of information were independently sufficient to support the arrest on March 7th...