Porter D. White v. Merle Schneckloth, Warden-Supt., and E. K. Stevens, Camp Commander

Porter D. White, a California prisoner, appeals from a judgment of the district court denying him a writ of habeas corpus.

One of the issues, indeed the only issue which was fairly debatable, concerned the correctness of the district court’s decision that the Fourth Amendment did not taint evidence, adduced by the state at the criminal trial, consisting of tape recordings which a police informer surreptitiously made of conversation between herself and appellant.

We were fully aware that the Supreme Court in Lopez v. United States, 373 U.S. 427 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 (1963), a case factually “on all fours” with the one before us, had held evidence so secured was not illegally seized and was properly admitted. If Lopez remained viable then, of course, our plain duty was to summarily resolve the issue against appellant. However, we deferred submission. Lopez had been decided by a sharply divided Court and it was not altogether clear whether the majority of the justices had not rested decision, at least in part, on the absence of an unlawful physical invasion of a constitutionally protected area, a ground subsequently rendered untenable by Katz v. United States, 389 U.S.…