
    Announced Wednesday, March 10.
    38660.
    City of Lakewood, appellant v. Smith, appellee.
   Brown, Judge.

1. A person who admits a police officer to his premises in compliance with the officer’s request for an interview does not thereby waive his constitutional immunity from unreasonable searches, nor does he thereby consent to a search of the premises.

2. A police officer acting under color of office who enters private premises by consent of the resident and without a search warrant may not proceed to intercept an incoming telephone call without actual or implied consent of the resident, and evidence garnered by his so doing will upon proper motion be excluded as illegally obtained in violation of the resident’s rights secured by the Fourth and Fourteenth Amendments to the United States Constitution.

3.In considering whether an officer at the moment of an arrest without warrant had reasonable ground for believing that a crime had been committed so as to justify an incidental search of defendant’s person, only facts within the officer’s knowledge and obtained without violation of the suspect’s rights under tire Fourth and Fourteenth Amendments to the United States Constitution may be considered.

Judgment affirmed.

O’Neill, Herbert and Schneider, JJ., concur.

Taft, C. J., Zimmerman and Matthias, JJ., dissent.  