People v. Deam

Opinion

COUGHLIN, J. Defendant was charged with the offenses of attempting to commit an abortion and of committing an abortion; was acquitted of the former and convicted of the latter; was placed on probation; and appeals.

An undercover agent acting as a decoy, pretending she was pregnant, [165]solicited from and obtained an interview with defendant, a' chiropractor suspected of engaging in the practice of performing abortions-. At the time of the events under consideration defendant’s license had expired and had not been renewed. He, had studied obstetrics and gynecology. The undercover agent met with defendant pursuant to her previous arrangement; in response to his inquiry stated she had been pregnant for six weeks; asked and received information from him respecting the methods he used to effect a miscarriage; asked about and was told “his price was $250.00”; also was told the method used would depend upon the results of a physical examination; and made arrangements for further contact by telephone. Thereafter the agent telephoned defendant and arranged he should meet her at an apartment. Pursuant to this arrangement, defendant went to the apartment in an automobile which he parked near the building; took with him an attache case containing paraphernalia used to effect a miscarriage; in response to an inquiry from the agent explained what he would do would depend upon an examination of her; and suggested she put on a robe in order that he might make such an examination. The agent left the room purportedly to prepare for the examination. Thereupon a police officer entered; told defendant he was under arrest for attempted abortion; advised him of his constitutional rights; and interrogated him respecting his activity, the contents of the attache case and the purposes for which they were used. The officer had been in an adjoining room and heard all of the conversation between defendant and the agent. The attache case and its contents were taken into custody. Another officer searched defendant’s automobile and took from it a telephone directory and an appointment book belonging to defendant. The record does not show when in relation to the time of defendant’s arrest, the automobile was searched, From the appointment book the police obtained the name of a woman who was the subject of the abortion charged against him. The evidence dictates the conclusion without this information the police would not have known of the alleged abortion.

Before the trial, defendant moved to suppress all of the evidence resulting from the search of his automobile on the ground the search was illegal. It was stipulated defendant was not arrested pursuant to a warrant of arrest and the search was not conducted pursuant to a search warrant. The People contend the search was lawful as an incident to a lawful arrest based upon probable cause. We conclude the search was not made as an incident to a lawful arrest; was exploratory; and for- these reasons was illegal. As a consequence, the charge of abortion premised on the result of that search may not be maintained.