State v. White

TANZER, J.

This is an appeal by the state from an order suppressing marihuana taken as evidence in a warrantless arrest of defendant and in a warrantless search of his home.

On November 8, 1973, Officer Trummer of the Portland Police Bureau Narcotics Detail received an anonymous phone call advising him that the residents of 2043 Pine were possibly dealing in drugs. Around midnight Officers Trummer and Baxter began observing the defendant’s house. Over a half-hour period the officers observed people leaving and a stereo playing so loudly as to be heard over two blocks away. An undercover officer arrived and he and Baxter walked to the front door, intending to offer to purchase some drugs. While on the front porch approaching the door, the officers necessarily passed a window. There was a six-inch vertical gap between the window curtains. Through the gap the officers saw on a lamp table a plastic bag containing loose green material which resembled and later proved to be a pound of marihuana.

The two officers moved to the front door. Through the front door window they saw a table on which were scales, small plastic bags, and at least two pounds of apparent marihuana. A large fire burned in the fireplace. The officers knocked on the door for over two minutes but could not be heard due to the loudness of the stereo. The volume was so high that the door trembled. They entered the house, arrested defendant and seized the evidence in plain view.

The defendant contended successfully in the trial court that the police violated his Fourth Amendment right of privacy by going upon his front porch. The observation and seizure of the marihuana, defendant contends, were therefore unlawful.

The lawfulness of the officers’ presence upon defendant’s front porch must be determined in light of the validity of defendant’s claim of an expectation of privacy there. The claim of privacy is measured against the twofold test enunciated by Mr. Justice Harlan in Katz v. United States, 389 US 347, 88 S Ct 507, 19 L Ed 2d 576 (1967), adopted by this court in State v. Stanton, 7 Or App 286, 293-94, 490 P2d 1274 (1971), and applied in State v. Corbett, 15 Or App 470, 474, 516 P2d 487 (1973), rev den (1974):

a i# * * [T]h.ere is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable”. * * *’ 389 US at 361.”

Under these circumstances, any expectation the defendant had of privacy regarding his front porch could not be regarded as reasonable. As we held in Corbett, the area of public approach to a house is less reasonably expected to be private than other areas. Particularly in this case, with music being broadcast to the neighborhood at tremendous volume, it would be unreasonable not to expect somebody to approach the house by way of the front porch.

Mr. Justice Harlan’s concurring statement of the rule in Kats, goes on to explain how observations of property in plain view are to be regarded:

“A man’s home is, for most purposes, a place where he expects privacy, but objects, activities or statements he exposes to the plain view of outsiders are not protected because no intention to keep them to himself has been exhibited.” 389 US at 361.

Such observations are therefore available as the basis for probable cause. State v. Brown, 1 Or App 322, 461 P2d 838 (1969).

The observation in plain view of easily disposable substances in the possession of the defendant constitutes exigent circumstances justifying a warrantless entry and seizure of contraband. State v. Drummond, 6 Or App 558, 489 P2d 958 (1971); State v. Huddleston, 5 Or App 9, 480 P2d 454, rev den (1971); State v. Robbins, 3 Or App 472, 474 P2d 772 (1970).

Reversed and remanded.