State v. Allen ( 1973 )

FORT, J.,

specially concurring.

The majority points out that earlier in the day of July 7, an informant purchased heroin from the defendants in Room 45. It is conceded that this informant was reliable. It is clear that at that point the police had ample probable cause to obtain a search warrant for Room 45 and an arrest warrant for the defendants. No effort was made to obtain either a search or an arrest warrant. Instead, the police at 1:00 a.m. on July 8, with the manager’s key, let themselves into Room 45, arrested the defendants while they were asleep in bed, and after securing them made the search which disclosed the heroin here sought to be suppressed. Rooms 45 and 43 were not adjoining rooms.

The majority concludes the entry into Room 45 without a warrant was lawful for the reasons set forth in the opinion. I disagree. In my view there were no exigent circumstances which would support the failure to have secured a warrant during the afternoon or evening of July 7. I am, however, in agreement that the search of Room 45 was unlawful for the reasons stated by the majority as well.