Summary
In City of Lakewood v. Smith, 1 Ohio St.2d 128, 205 N.E.2d 358, three detectives went to the defendant's home based on an anonymous report that he was "booking" horse racing bets at his residence.
Summary of this case from State v. Carr-PoindexterOpinion
No. 38660
Decided March 10, 1965.
Search and seizure — Admitting police officer to premises — Not waiver of constitutional immunity — Not consent to search — Police officer without authority to intercept incoming telephone call — Officer's right to search person arrested — Facts considered in determining.
1. A person who admits a police officer to his premises in compliance with the officer's request for an interview does not thereby waive his constitutional immunity from unreasonable searches, nor does he thereby consent to a search of the premises.
2. A police officer acting under color of office who enters private premises by consent of the resident and without a search warrant may not proceed to intercept an incoming telephone call without actual or implied consent of the resident, and evidence garnered by his so doing will upon proper motion be excluded as illegally obtained in violation of the resident's rights secured by the Fourth and Fourteenth Amendments to the United States Constitution.
3. In considering whether an officer at the moment of an arrest without warrant had reasonable ground for believing that a crime had been committed so as to justify an incidental search of defendant's person, only facts within the officer's knowledge and obtained without violation of the suspect's rights under the Fourth and Fourteenth Amendments to the United States Constitution may be considered.
APPEAL from the Court of Appeals for Cuyahoga County.
Prior to August 31, 1961, police officers of the city of Lakewood received anonymous telephone calls advising them that the defendant, appellee herein, was "booking" horse-race bets at his residence. In reliance upon this information, three Lakewood detectives, on August 31, 1961, went to the home of the defendant which was an apartment in a multiple-apartment dwelling house. The officers rapped upon the door, and when the defendant answered they stated that they wanted to come in to ask him some questions. After a delay to permit defendant's wife who was dressing to conclude that operation, the door was opened and the officers were admitted. A "consensus sheet," a scratch pad, lead pencils and a daily racing form were observed by the officers on casual observation of the interior of the premises. Shortly thereafter, the telephone rang, and one of the police officers answered. He reported that the person calling stated that he wished to speak to "Pete," a variant of defendant's given name, and that, when advised that Pete was not there, the person calling tried to place a bet on a horse. The officer thereafter dared the defendant to empty his pockets. He did empty one but refused to empty the other. At that point, the officer placed the defendant under arrest, stated, "You are under arrest on suspicion that the evidence is in that pocket," forcibly examined another pocket and found betting slips. Defendant was charged with keeping a room in which gambling was permitted.
At the trial, a motion to suppress the evidence so discovered was overruled, and defendant was convicted. The Common Pleas Court, upon appeal, found that ruling to be correct and affirmed the conviction.
The Court of Appeals found that the motion to suppress should have been sustained, reversed the judgment and rendered final judgment for the defendant.
The cause is before this court upon an allowance of a motion to certify the record.
Mr. William E. Blackie, for appellant.
Messrs. Savage, Zito O'Malley and Mr. Thomas F. O'Malley, for appellee.
The original entrance in this case was without warrant. It is not represented or argued that the entrance, as in Ker v. California, 374 U.S. 23, 10 L. Ed. 2d 726, was for the purpose of making an arrest, but it is unquestioned that the officers did not have probable cause for making an arrest at the time of entering defendant's residence. The entrance was justified only if consented to by the defendant. This entrance was the beginning of the search and was acquiesced in only because the persons requesting entrance were police officers acting under color of office. The consent to entrance was granted in submission to authority rather than as an understanding and intentional waiver of the defendant's constitutional right to be free from unreasonable search and seizure. Johnson v. United States, 333 U.S. 10; Amos v. United States, 255 U.S. 313, and numerous cases there cited. See, also, 4 Wharton's Criminal Procedure, 212, Section 1578. Johnson v. United States is particularly significant if read in conjunction with Justice Stewart's opinion in Silverman v. United States, 365 U.S. 505, wherein a rather more obvious trespass upon a residence area was referred to as "an actual intrusion into a constitutionally protected area." One may trespass even after being admitted by the limited consent described in Johnson.
With this in mind, the act of answering the defendant's telephone under the above circumstances was a trespass and an invasion of the defendant's privacy, which violated the defendant's rights under the Fourth and Fourteenth Amendments to the United States Constitution. The telephone call, if intercepted after entrance pursuant to a lawful search warrant, would have been admissible as a "verbal fact" going to prove the nature of the illegal business being conducted in the home. Chacon v. State (Fla.), 102 So.2d 578; 20 American Jurisprudence 664.
Excluding it for the reason stated, we come to consider whether the officers at the moment of arrest and without the information obtained from the telephone call had probable cause for an arrest and justification for a search incidental to such arrest. We consider that at that point they did not have such probable cause. The anonymous telephone calls which had originally directed them to the defendant's apartment had been supplemented by a racing form and a "consensus" sheet which can be lawfully purchased at any major newsstand.
Even though we add the acceptance by the defendant of the dare to empty one pocket and his refusal to accept the dare to empty the remaining pocket, we are still unable to justify a conclusion by the officers that a crime probably had been or was being committed. It has been held that a consent to a search of a portion of one's premises is not a consent to a search of other portions. Strong v. United States, 46 F.2d 257. It follows that the acceptance of the dare to empty one pocket under these facts was not a consent to a search of the other pocket or to a general search of the defendant's entire person.
Since there was no probable cause at the moment of arrest and since there was no consent to the search of defendant's person, the search cannot be sustained as being incident to a valid arrest ( Johnson v. United States, supra, paragraph four of the syllabus), and the evidence obtained from the defendant's pocket should also have been suppressed upon the timely motion of the defendant.
Nothing remains to justify the conviction of the defendant for the crime charged.
There were no circumstances in this case sufficient to justify the failure of the officers to investigate further and obtain additional evidence justifying the issuance of a search warrant before invading the defendant's privacy. As was remarked by the court in Johnson v. United States, supra, "if the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of a case in which it should be required."
It is seldom that a finding of a Court of Appeals excluding evidence on grounds that it was illegally obtained will be reviewed by this court, since such rulings will normally be made upon an ad hoc basis and will be deemed not of sufficient general interest. As stated by Justice Clark in Ker v. California, supra, this court will "not sit as in nisi prius to appraise contradictory factual questions, it will, where necessary to the determination of constitutional rights, make an independent examination of the facts, the findings, and the record so that it can determine for itself whether * * * the constitutional criteria established by the Supreme Court have been respected."
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, HERBERT and SCHNEIDER, JJ., concur.
TAFT, C.J., ZIMMERMAN and MATTHIAS, JJ., dissent.