Swygert, Chief Judge, Fairchild and Pell, Circuit Judges. Fairchild, Circuit Judge (dissenting).
The defendant-appellant William Hill entered a plea of guilty to several counts of an indictment charging him and others with violations, and conspiracy to violate, the statutes pertaining to interstate transportation of stolen motor vehicles. 18 U.S.C. §§ 2312 and 2313.
On March 11, 1969, Hill was sentenced to four years imprisonment but the sentence was suspended and he was placed on probation for the period thereof. Within approximately two months thereafter Hill was back in court (May 12, 1969) participating, although not testifying, in a hearing to show cause why his probation should not be revoked. He appeals from the revocation which followed the hearing.
The principal error urged for reversal is that the revocation was based on illegal seizure of evidence.
On April 10, 1969, at approximately 10:00 p.m., one month after the sentencing, two city police officers proceeding by vehicle northwardly on Sawyer Avenue toward Cermak Road in Chicago observed Hill by the door of a building about 150 feet north of Cermak. Sawyer at the point in question was dead-end with businesses only, none of which were open.
The police officers' suspicions were aroused by Hill's action of looking toward them after which he walked toward an automobile parked facing the wrong way and across the street from where he had been.
The officers parked their car in front of the wrong-way car and announced themselves as police officers. Upon being asked for identification, Hill produced a summons which showed his address as Elmhurst. Upon inquiry as to what he was doing in the area, he replied he was waiting for a friend, whereupon he was placed under arrest.
One of the officers observed a set of keys on the ground next to the driver's side of the automobile. Hill stated they were not his keys. One of the officers suggested attention being given to the building door and the police vehicle with Hill therein was moved in that direction. While enroute Hill said, "I wasn't by the door. You're not going to frame me." Thereupon he was handcuffed.
One of the officers tried the door and found it locked. Inserting several keys in the lock, one was found which turned the lock but the door did not open. The policeman kicked the door which "flew open." From their vantage point, the officers observed in a huge garage, tires, batteries, upholstery and several automobiles in a stripped condition.
Although the various automobiles seemed to have been generally reduced to component parts, other police were able through secret marks to identify the parts as having earlier been a part of the whole of stolen vehicles.
Evidence was also adduced at the hearing that Hill under a pseudonym had been renting the garage for approximately half a year prior to his guilty plea and was the current tenant at the time of the nocturnal door opening.
Hill at the revocation hearing timely filed a motion to suppress the evidence of the stolen goods relying then, and now in this appeal, on a claimed invasion of his Fourth Amendment rights against unreasonable searches and seizures.
Hill contends that a probationer is entitled to constitutional protection from such searches and seizures, citing, inter alia, Brown v. Kearney, 355 F.2d 199 (5th Cir. 1966), and Martin v. United States, 183 F.2d 436 (4th Cir. 1950). Agreeing with this broad statement, we do not conceive that ...