(concurring).
While I concur with my brothers in the result reached by them, I differ as to the path taken to reach it. I would link the inadmissibility of the guns and bullets not to the officers’ request for entry, whether lawful or not, but rather to the later, unauthorized exercise of dominion over petitioner’s apartment when an officer used it as a conduit of convenience for seizing the bag on the fire escape. That the officers could have obtained the bag without invading petitioner’s premises does not cure the defect. The mere fact that officers had previously gained access to the apartment, even if lawfully, and were conversing in it with petitioner did not, in my view, provide another officer with license to use it as a thoroughfare.
Without the guns and bullets contained in the bag, there was no probable cause for any arrest or subsequent search.
What troubles me about the opinion of my brothers is their reasoning that, since the officers harbored an improper purpose, their knocking on the door and identifying themselves was also “improper” and immunized from use any objects jettisoned into public view and beyond petitioner’s premises. I would not go so far as to say that such preliminaries could shield evidence later discovered if it were obtained without going on the premises of a suspect. Such a holding, it seems to me, would open the door unnecessarily to claims of immunity buttressed on routine and proper investigatory actions of police. Even if the request to enter in this case was improper, it by no means follows that that conduct alone was so shocking as to taint evidence virtually handed to the officers on a silver platter or, in this case, on an iron grating.