Petition — Epperson v. Missouri

Supreme Court brief1979

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IN THE SODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1979

"78-1310

RUSSELL LEE EPPERSON,

Petitioner,

STATE OF MISSOURI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF MISSOURI

THOMAS A. GUIDOBONI

MICHAEL G. SCHEININGER

BONNER, THOMPSON, O’CONNELL

& GAYNES

Of Counsel: _. 900 Seventeenth Street, N.W.

DAVID V. BEAR, Il Washington, D.C. 20006

: BEAR, HINES & THOMAS = (202) 452-1300

609 East Broadway Counsel for Petitioner

: Columbia, Missouri 65201

(314) 443-3101

ES Se ER

THE CASILLAS PRESS. INC.-1717 K Street NW —Weshington, O. C.-223-1220

ESET EE TO TE ee

(i)

INDEX

Opinions Below .

Jurisdiction

Question Presented .

Constitutional Provisions Involved .

Statement of the Case .

Facts and Circumstances Surrounding

the Entry and Search

Judicial Proceedings .

Reasons for Granting the Petition

Conclusion .

Appendix A

Appendix B —

Appendix C —

Appendix D —

— Motion to Suppress .

Order Overruling Motion to Suppress .

Judgment of dannibal Court of Common

Notice of Appeal .

Opinion of the Supreme Court of Missouri

Order of the Supreme Court of Missouri

Overruling Petitioner’s Motion for

Rehearing . “ne gaan

Opinion of the Missouri Court of -—

St. Louis District .

- ~

8 £

36a

39a

(ii)

CITATIONS

Cases:

Adams v. Williams,

407 US. 143 (1972)

Agnello v. United States,

269 US. 20 (1925) .

Camara v. Municipal Court,

387 U.S. 523 (1967)

Coolidge v. New Hampshire,

403 US. 443 (1971)

Johnson v. United States,

- 333 US. 10(1948) .

Jones v. United States,

362 US. 257 (1960)

- Katz v. United States,

389 US. 347 (1967)

McDonald v. United States,

335 US. 451 (1948)

Michigan v. Tyler,

___US.__, 98 S.Ct. 1942 (1978) .

Mincey v. Arizona,

__ U.S. __, 98 S.Ct. 2408 (1978) .

Patrick v. State,

227 A.2d 486 (Del. 1967) .

People v. Clayton,

34 Ill. App. 3d 376, 339 N.E.2d 783 (1975) .

12, 15

15, 16

. 8,10, 11, 12,13

(ii)

People v. Lovitz,

39 Ill. App. 3d 624, 350 N.E.2d 276 (1976),

cert. denied, 434 US. 842 (1977) .

People v. Smith,

7 Cal. 3d 282, 496 P.2d 1261, 101 Cal. Rptr.

TE a an cn es a ae ee

People v. Sutton,

65 Cal. 3d 341, 134 Cal. Rptr. 921 (Ct. App. 1976)

Root v. Gauper,

438 F.2d 361 (8th Cir. 1971)

South Dakota v. Opperman,

428 US. 364 (1976)

State v. Hardin,

90 Nev. 10, 518 P.2d 151 (1974)

State v. Nichols,

20 Wash. App. 462, 581 P.2d 1371 (1978)

State v. Sutton,

454 S.W.2d 481 (Mo. 1970) .

United States v. Dunavan,

485 F.2d 201 (6th Cir. 1973)

United States v. Goldenstein,

456 F.2d 1006 (8th Cir. 1972), cert. denied,

416 US. 943 (1974) se

United States v. Martinez-Fuerte,

428 US. 543 (1976)

Vale v. Louisiana,

399 U.S. 30(1970) .

Page

13, 14

911,13

(iv)

Wayne v. United States,

318 F.2d 205 (D.C. Cir.),

cert. denied, 375 U.S. 860(1963) .

Warden v. Hayden,

387 U.S. 294 (1967)

Fag?

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

RUSSELL LEE EPPERSON,

Petitioner,

STATE OF MISSOURI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF MISSOURI

The Petitiorer, RUSSELL LEE EPPERSON, respectfully

prays that a Writ of Certiorari be issued to review the judg-

ment and opinion of the Supreme Court of Missouri, entered

in this case on September 12, 1978, and made final by Or-

der of the Supreme Court of Missouri denying Petitioner’s

Motion for Rehearing, entered on October 10, 1978.

OPINIONS BELOW

The opinion of the Supreme Court of Missouri, filed Sep-

tember 12, 1978, is reported at 571 S.W.2d 260 (Mo. 1978)

(en banc) and is printed as Appendix B. The Order of the

Supreme Court of Missouri denying Petitioner’s Motion for

Rehearing is unreported, and is printed as Appendix C. The

opinion of the Missouri Court of Appeals, St. Louis District,

filed July 26, 1977, is unreported, and is printed as Appen-

dix D.

JURISDICTION

The judgment of the Supreme Court of Missouri was en-

tered on September 12, 1978. A timely Motion for Rehear-

ing was denied on October 10, 1978. Mr. Justice Blackmun

extended the time for filing a Petition for a Writ of Certio-

rari to and including February 23, 1979. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1257(3).

QUESTION PRESENTED

Was warrantless entry into Petitioner’s home justified under

the emergency exception to the Fourth Amendment warrant

requirement where the police did not know whether the cir-

cumstances required emergency action, their further prelimi-

nary investigation failed to convince them of the need for

an urgent response, and they waited over two hours before

making a forcible entry?

CONSTITUTIONAL PROVISIONS

INVOLVED

The Fourth Amendment to the United States Constitu-

tion provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures shall not be vio-

lated, and no Warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized.

The Fourteenth Amendment to the United States Con-

stitution, Section I, provides:

{N]or shall any State deprive any person of

life, liberty, or property, without due process of

STATEMENT OF THE CASE

Facts and Circumstances Surrounding

the Entry and Search

This Petition arises out of the warrantless entry into and

search of Petitioner’s home in Mexico, Missouri, on March

26, 1975.! On that date, shortly after 9:00 a.m., Mrs.

Harold Smith contacted the Mexico Department of Public

Safety (Police) concerning the whereabouts of her daughter,

Fern Epperson, who was also Petitioner’s wife. Officer Wil-

liam Schindler was dispatched to interview Mrs. Smith about

a missing person report.

Mrs. Smith told Schindler that she had not seen or heard

from her daughter in two days, which was unusual, and that

she was concerned that something may have happened be-

tween Fern and her husband (63). She related that by pre-

arrangement, Russell Epperson, the Petitioner, had picked

her up at about 9:00 that morning and driven her to his

residence to await the arrival of Fern. When they entered

! References will be to pages of the trariscript of the hearing on

the Motion to Suppress Evidence, held May 21, 1975. See Appen-

dix A at la-4a.

Petitioner’s home, he explained that Fern had not yet ar-

rived, however, Mrs. Smith noticed Fern’s only pocket book,

without which Fern never left home. Mrs. Smith also thought

that Petitioner was behaving strangely, so she made an excuse

and promptly left. Mrs. Smith claims to have told Schind-

ler that, “I feel like there was death, because of the odor, but

I wasn’t certain” (92). Officer Schindler, however, denied

that he had been told about any unusual odor in Petitioner’s

home (80).

The interview lasted ten to fifteen minutes, during which

time Mrs. Smith was crying and at times incoherent (65-66).

At its conclusion, Officer Schindler contacted a superior, Ser-

geant Richard Duffner, and requested the Sergeant to meet

him in the vicinity of Petitioner’s home. Upon meeting

Duffner, Schindler related the nature of his interview with

Mrs. Smith. Both officers then proceeded to the Epperson

residence.

After arriving at the house, Duffner and Schindler knocked

on the doors, but received no response. They then attempted

to look through the windows, but were unsuccessful, the

blinds being shut and the draperies drawn. A second check

on the doors revealed all were locked. Sergeant Duffner

then questioned Petitioner’s next-door neighbor, who told

him where Petitioner and his wife were employed, and iden-

tified the school attended by their oldest child. Instructing

Schindler to remain at the house “in case any member of

the family returned home” (68), Sergeant Duffner left the

area.

Duffner first visited Fern Epperson’s job, where he learned

that she was on a week’s vacation and had missed her weekly

bowling date. He then returned to the police station and

telephoned Petitioner’s employer, who told him Epperson

had been in briefly the previous day to state that he was

taking his wife to the hospital. A call by Duffner to the

family’s physician revealed that he had not seen Petitioner

or his wife for three months. Finally, Duffner placed a

call to the school attended by Petitioner’s son, and was in-

formed that Petitioner had called the day before and re-

ported that his son was sick.

Duffner returned to the house and conferred briefly with

Schindler. He then drove back to the police station to dis-

cuss the situation with the Chief of Police. Duffner’s con-,

versation with the Chief centered on gaining entry into the

house (40), but they never discussed the possibility of seek-

ing a search warrant (54). Instead, the Chief told Duffner

that he and Schindler were not to break into the house (55),

but should contact Petitioner’s parents and “see if we can

arrange it from there” (13). Duffner then telephone Peti-

tioner’s parents, who agreed to meet him at Petitioner’s

home.

At the house, Petitioner’s mother and father tried to

arouse someone inside by knocking and calling out. Epper-

son’s father refused to break into the house (35), and after

pointing out that his son’s motorcycle was not in the garage,

he and his wife left. Duffner and Schindler also departed,

proceeding once again to the police station. After Schind-

ler determined that Petitioner’s motorcycle was at his place

of employment, the two officers had another conference

with Chief of Police Bolli. Again, no mention was made of

a search warrant (54). The Chief suggested that the officers

try to get Petitioner’s father to break in, but told Sergeant

Duffner that “we probably wouldn’t find anything in the

house, and the people had perhaps just left town for some

reason or other” (57).

Following up on Chief Bolli’s suggestion, the officers

again contacted Mr. Epperson, who agreed to meet them

at Petitioner’s house. At this point, Sergeant Duffner was

not alarmed, but simply “curious” (52), since as he admit-

ted, “it is not unusual that people don’t answer their door

and that the blinds were closed” (52). In the Sergeant’s

words:

. . . I really didn’t know what I had. I didn’t

know — I knew the circumstances, that Russell

Epperson and his wife were gone, and as far as

I was concerned, I was just looking to try to

find them to see if they had skipped the coun-

try or they were injured or what. I didn’t really

know what I had. I mean there was no indica-

tion further to my prior investigation of any

foul play involved of anything. As far as I

knew they were just gone wherever they went;

I couldn’t tell. (49-50.)

Officer Schindler was similarly unalarmed (82, 83), his state

of mind being one of unfocused suspicion (81-82). He did

not necessarily suspect injury or foul play (83), but “just

wanted to locate somebody ... to be able to find the

whereabouts of Mrs. Epperson and the children’ (84).

Nevertheless, upon meeting the senior Mr. Epperson back

at Petitioner’s house, the officers, acting in concert with Mr.

Epperson, obtained a ladder, unscrewed a storm window on

the second story, raised the inside window, pulled back the

blinds, and entered the room where they discovered the bo-

dies of Fern Epperson and her two children. Petitioner’s

home was entered at approximately 11:50 a.m., about two

and one-half hours after the initial report.

Following discovery of the bodies, a thorough search of

the premises was made and a number of items seized by

the police, including a chisel wrapped in towels and a bot-

t's of chloroform. Later autopsies determined that the vic-

tims had been struck with a blunt instrument and chloro-

formed. Numerous photographs were taken and diagrams

made. These items, and the results of tests performed on

the items, were later offered into evidence against the Peti-

tioner.

Judicial Proceedings

Ten days after the search of his home, Petitioner surren-

dered to the authorities and was charged with three counts

of murder in the first degree. A preliminary hearing was

held on April 15, 1975, at which time Petitioner first ob-

jected to the legality of the search by filing a Motion to

Suppress (See Appendix A, 2a). The Motion was overruled

and Petitioner was bound over for trial in the Circuit Court

of Audrain County, Missouri.

In the Circuit Court, Petitioner again challenged the legal-

ity of the warrantless search of his home by way of a Mo-

tion to Suppress filed on May 9, 1975 (Appendix A, 2a-3a).

An evidentiary hearing was held on the Motion on May 21,

1975 (Appendix A at 3a), and the Motion was taken under

advisement. On June 27, 1975, in a one-line Order, the

Court overruled Petitioner’s Motion (Appendix A at 4a).

Subsequently, Petitioner moved for and was granted a

change of venue to the Hannibal Court of Common Pleas

in Hannibal, Missouri. Prior to trial, the Petitioner sought

a rehearing on his Motion to Suppress, but the request was

denied. The trial commenced on January 12, 1976. Dur-

ing the trial, Petitioner’s counsel objected to the admission

of numerous items of evidence on the ground that they

were obtained by an illegal search and seizure. He also

sought to renew his Motion to Suppress. The Court over-

ruled the objections and again refused to reopen the Motion.

Various items seized from Petitioner’s house and testimony

derived therefrom were admitted into evidence against him.

Petitioner offered no evidence in his own behalf at trial,

and on January 14, 1976, the jury returned verdicts of

guilty on each of the three counts of first-degree murder,

and sentenced Petitioner to life imprisonment on each count.

A Motion for New Trial was filed on Petitioner’s behalf,

raising, inter alia, the Court’s refusal to suppress items and

testimony obtained as a result of the warrantless search of

Petitioner’s home. On February 25, 1976; the Motion for

New Trial was overruled, and the Court entered Judgment,

imposing a life sentence on each count and ordering that

the sentences run consecutively (Appendix A at 4a-5a).

From this Judgment, Petitioner noted an appeal to the

Missouri Court of Appeals, St. Louis District (Appendix A,

6a). In an unpublished opinion filed July 26, 1977 (Appen-

dix D), the Court of Appeals suggested affirmance, but de-

termined that the case required resolution of issues involv-

ing an original construction of the Fourth Amendment to

the United States Constitution and its Missouri counterpart.”

In these circumstances, the case fell within the exclusive

jurisdiction of the Supreme Court of Missouri. Accordingly,

it was ordered transferred to that Court without a final de-

cision by the Court of Appeals.

Sitting en banc, the Supreme Court of Missouri affirmed

Petitioner’s conviction, with one Judge dissenting. The Court

concluded that the entry into Petitioner’s house without a

warrant fell within the “emergency” or “need for help”

2 The Court of Appeals indicated that much of the evidence seized

would be admissible under the “murder scene exception” to the Fourth

Amendment warrant requirement. Appendix D at 50a-Sla. Since the

Supreme Court of Missouri had not previously adopted this “exception”,

the case was ordered transferred to the State Supreme Court. While

the case was pending decision, this Court rejected the “murder scene

exception” in Mincey v. Arizona, US. , 98 S. Ct. 2408 (1978).

exception to the warrant requirement,’ and was therefore

permissible (Appendix B at 14a-l6a). It also held that the

facts known to the police at the time of entry were suf-

ficient to justify the officers’ initial entry into Petitioner’s

home (/d. at 18a), and that the subsequent search was within

the scope of the “emergency” exception as well (/d. at 25a).

Judge Seiler, in dissent, took the position that the entry

could not be justified on the grounds of an emergency, since

the police delayed two and one-half hours before entering

the premises (/d. at 31a). He noted the absence of any

suggestion that a “warrant could not easily and conveniently

been obtained” (/d. at 34a), and set forth his disagreement

with the majority rather succinctly:

If the police are confronted with an emergency

they should act. If they choose to delay then

they should obtain a search warrant. They

should not be perinitted both to delay and to

dispense with a search warrant. That is not

‘vhat is called for by the Fourth Amendment.

(Appendix B at 32a).

Petitioner timely moved for rehearing before the Supreme

Court of Missouri. His Motion was denied on October 10,

1978 (Appendix C).

3 The Supreme Court of Missouri had previously recognized the

“emergency” exception in State v. Sutton, 454 $.W.2d 481 (Mo.

1970) (en banc). Missouri’s application of this doctrine under the

circumstances of Sutton was ruled unconstitutional in Root v. Gauper,

438 F.2d 361 (8th Cir. 1971).

REASONS FOR GRANTING THE PETITION

1. The entry into and earch of Petitioner’s home involves

the yet unresolved issue of where the balance is to be struck

between two of our society’s most fundamental values: the

sanctity of the home and the rendering of aid to citizens whose

life or health is threatened. In simple terms, the question

here is whether the police may dispense with a warrant and

break and enter a private citizen’s home for the purpose of

preventing injury or death when they do not perceive the

necessity for immediate action on their part. More generally

stated, the issue is when may a warrantless and forcible entry

be made into a private dwelling based on a need to render

assistance.

_The Supreme Court of Missouri’s holding validating entry

into Petitioner’s heuse without a warrant, although the of-

ficers perceived no need for immediate action and had am-

ple opportunity to secure a warrant, illustrates the confu-

sion extant in the federal and state courts over the nature

and scope of the “emergency” exception to the Fourth

Amendment warrant requirement. A call for assistance in

avoiding injury or death is among the most frequently oc-

curring incidents of police work. It is also a situation which

often requires an immediate determination by the officer on

the scene. For these reasons, this Court should take this op-

portunity to supply meaningful guidelines to those who must

make such judgments.

2. Although this Court has on occasion referred to the

right of police to make a warrantless entry and search in

response to the belief that a person is in need of immediate

aid, Mincey v. Arizona, U.S. . , 98 S. Ct. 2408,

2413-14 (1978),4 “{n]o emergency life-saving exception to

4 See McDonald v. United States, 335 U.S. 451, 454-46 (1948); John-

son v. United States, 333 US. 10, 14-15 (1948).

the Fourth Amendment’s warrant requirement . . . [has]

been spelled out in any Supreme Court case up to this

point.” United States v. Dunavan, 485 F.2d 201, 203-4

(6th Cir. 1973). Nevertheless, the “emergency” exception

has received wide recognition in state and federal cases.

Mincey v. Arizona, supra, __ U.S. __, 98 S. Ct. 2413-14, ns.

6 & 7. The lack of specific parameters drawn by this Court is in

apparent contradiction with the often repeated axiom that

exceptions to the requirement of a warrant are “.. . speci-

fically established and well-delineated.”’ Katz v. United

States, 389 U.S. 347, 357 (1967).

3. As generally recognized in the lower courts, the emer-

gency doctrine constitutes an exception to the Fourth Amend-

ment warrant requirement which permits police officers to

“enter a dwelling without a warrant to render emergency

aid and assistance to a person whom they reasonably believe

to be in distress and in need of that assistance.”5 Root v.

Gauper, 438 F.2d 361, 364 (8th Cir. 1971).

Under established principles justifying exceptions to the

warrant requirement, failure to obtain a warrant in the case

of police intrusion into a dwelling is excused only upon the

existence of both probable cause to enter, and “exigencies

of the situation . . . [which make] that course imperative.”

Warden v. Hayden, 387 U.S. 294, 298 (1967). Probable

cause alone, no matter how strong, is insufficient to justify

a warrantless entry into a dwelling. Thus, this Court has

stated:

> The “emergency doctrine” has also been invoked in situations which

do not fall within this definition. F.g., United States v. Goldenstein,

456 F.2d 1006 (8th Cir. 1972), cert. denied, 416 U.S. 943 (1974). In

fact, every exception to the requirement of a warrant before a dwell-

ing is searched can be said to derive from an emergency. See Vale v.

Louisiana, 399 US. 30, 35 (1970); Warden v. Hayden, 387 US. 294,

298-99 (1967).

Belief, however well founded, that an article

sought is concealed in a dwelling house, furnishes

no justification for a-search of that place without

a warrant. And such searches are held unlawful

notwithstanding facts unquestionably showing

probable cause. Agnello v. United States, 269

U.S. 20, 33 (1925).

That is not to say that when the police find probable

cause they may not enter a dwelling, rather it simply evi-

dences the Fourth Amendment requirement that probable

cause judgments be made in the first instance by “a neutral

magistrate.” Mincey v. Arizona, supra, _US. at __, 98

S. Ct. at 2415; Camara v. Municipal Court, 387 U.S. 523,

532 (1967).

‘The sole instance in which the decision to intrude into

a dwelling is left to the discretion of the official in the field

is when there exists a “compelling need for official action

and no time to secure a warrant.” Michigan v. Tyler,

US. _, 98 S. Ct. 1942, 1950 (1978). Only when “the

burden of obtaining a warrant is likely to frustrate the gov-

ernment purpose behind the search” may the police make a

warrantless entry even where probable cause exists. Camara

v. Municipal Court, supra at 533. Thus, approval of a war-

rantless entry into a man’s home must turn upon an analysis

of two separate factors: first, the existence of probable cause

to enter the particular dwelling; and second, the existence of

exigent circumstances sufficient to dispense with the warrant

requirement. Coolidge v. New Hampshire, 403 U.S. 443, 474-

75 (1971).

It is our submission that this same two-part analysis must

be applied in situations in which the police, with benevolent

motives, forcibly enter a dwelling to render emergency aid

and assistance. The failure thus far of this Court to clarify

the parameters of this ““emergency”’ exception has resulted

in substantial confusion in the lower courts.

The opinion of the Missouri Supreme Court in the instant

case reflects this problem. While going to great lengths to

establish the existence of probable cause to enter Petitioner’s

home, the decision fails to recognize that a warrant may

not be dispensed with absent the compelling need for im-

mediate action. The Court nowhere analyzes this second

factor of the warrant exception. Instead, from the opin-

ion, it would appear that the mere incantation of the

word “emergency” obviates the need to establish that an

“exigency” indeed existed. Such truncated analysis is per-

vasive among decisions in this area,® and necessitates clarifi-

cation by this Court so that the emergency exception will

“not be permitted to swallow the rule: in the absence of

a showing of true necessity — that is, an imminent and sub-

stantial threat to life, health, or property — the constitu-

tionally guaranteed right to privacy must prevail.” People

(1978); People v. Sutton, 65 Cal.3d 341, 134 Cal. Rptr. 921 (Ct.

App. 1976); People v. Lovitz, 39 Ill. App. 3d 624, 350 N.E.2d 276

(1976), cert. denied, 434 U.S. 842 (1977); People v. Clayton, 34 IIL.

App. 3d 376, 339 N.E.2d 783 (1975); State v. Hardin, 90 Nev. 10,

518 P.2d 151 (1974); State v. Sutton, 454 S.W.2d 481 (Mo. 1970),

rev'd sub nom., Root v. Gauper, 438 F.2d 361 (8th Cir. 1971) (aff

District Court’s grant of habeas corpus); Patrick v. State, 227 A.2d

486 (Del. 1967). In each of these cases, the failure to analyze the

“exigency” aspect of the “emergency exception” resulted in the ap-

plication of what was essentially a “murder scene exception” of the

kind struck down by this Court in Mincey v. Arizona, supra. It

is instructive to note that the lower court opinion in the case at

bar relied principally on the murder scene exception in upholding

the intrusion into Petitioner’s home. See Appendix D. The Missouri

Supreme Court acknowledged and attempted to distinguish Mincey.

Appendix B at 24a.

v. Smith, 7 Cal. 3d 282, 285, 496 P.2d 1261, 1264, 101

Cal. Rptr. 893, 896 (1972) (emphasis in original).

4. The failure of many courts to recognize the necessity

of employing a full Fourth Amendment analysis to situations

arising under the “emergency exception” has also reduced

their ability to provide the policeman on the street with

definitive guidelines for the proper response in situations

where the existence of an emergency is less than clear.

Where obvious circumstances require the policeman “‘to

enter a burning home to rescue occupants or extinguish a

fire, to prevent a shooting or to bring emergency aid to an

injured person,” the authority of the police to break and

enter is plain and little additional guidance is needed. Wayne

v. United States, 318 F.2d 205, 212 (D.C. Cir.), cert. denied,

375 U.S. 860 (1963) (Burger, J. concurring). However, in

a great number of instances — perhaps a majority — the cir-

cumstances that confront the policeman are not so distinct

as those posited by Chief Justice Burger in Wayne.’ Often

the policeman, like Officer Schindler, Sergeant Duffner, and

Chief of Police Bolli in the instant case, are confronted with

at best the possibility of an emergency which initially, and

even after preliminary investigation,® remains ambiguous. In

these situations, a decision by this Court emphasizing the

7 By way of example, Judge Seiler noted in his dissent in the in-

stant case that “a search for missing persons, while a serious matter,

is not per se an emergency of the kind under discussion... .” Ap-

pendix B at 32a-33a. See People v. Smith, supra.

8 We do not advocate that a policeman who lacks the precise level

of information necessary to act must simply shrug his shoulders and

walk away. It is our position, however, that when “an intermediate

response” fails to convince the police of the need for immediate action,

see Adams v. Williams, 407 U.S. 143, 145 (1972), the next appropriate

step is to seek a warrant.

primacy of the warrant requirement in the absence of clear-

cut evidence of an emergency, would supply a decisive cla-

rification. Indeed, in the instant case, where “[t]he magis-

trate, the circuit judge, and the prosecutor were close at

hand,”? had the police sought a warrant, entry into Peti-

tioner’s home would doubtless have been accomplished much

more quickly.

As this Court recognized in Camara v. Municipal Court,

supra at 533:

In assessing whether the public interest demands

creation of a general exception to the Fourth

Amendment’s warrant requirement, the question

is not whether the public interest justifies the

type of search in question, but whether the au-

thority to search should be evidenced by a war-

Despite what may be benign motives of the police in emer-

gency situations, warrantless entry into a home, the place

“ordinarily afforded the most stringent Fourth Amendment

protection,” United States v. Martinez-Fuerte, 428 U.S. 543,

561 (1976), constitutes the most serious invasion of the very

site where “the expectation of privacy” is greatest. See, e.g.,

South Dakota v. Opperman, 428 U.S. 364, 367 (1976). It

is for these reasons this Court has previously held that:

In a doubtful case, when the officer does not

have clearly convincing evidence of the immediate

need to search, it is most important that resort

be had to a warrant, so that the evidence in

the possession of the police may be weighed by

an independent judicial officer, whose decision,

9 Appendix B at 34a (Seiler, J., dissenting).

16 17

not that of the police, may govern whether lib- CERTIFICATE OF SERVICE

erty or privacy is to be invaded. Jones v, United

, Merk ve = S. 257, 270-71 (1960). I hereby certify that on this 23rd day of February, 1979,

three copies of the Petition for Writ of Certiorari were mailed,

The problem of a policeman’s responsibilities in the face : postage prepaid, to the office of the Attorney General of the

of a potential emergency is one which arises often in law State of Missouri, Attention: Paul R. Otto, Esquire, Assistant

enforcement, and the difficulties are real. We submit that Attorney General, Supreme Court Building, Jefferson City, Mis-

the Court should resolve this dilemma by addressing itself souri 65101, Counsel for the Respondent. I further certify

to the instant case. that all parties required to be served have been served.

CONCLUSION /s/ Thomas A. Guidoboni

A. Guidoboni

For these reasons, a Writ of Certiorari should be issued basa

, bias 900 Seventeenth Street, N.W.

to review the judgment and opinion of the Supreme Court Washington, D.C. 20006

of Missouri. | fh

Counsel for Petitioner

Respectfully submitted,

THOMAS A. GUIDOBONI |

MICHAEL G. SCHEININGER

BONNER, THOMPSON, O’CONNELL

& GAYNES

900 Seventeenth Street, N.W.

Washington, D.C. 20006

(202) 452-1300

Of Counsel: Counsel for Petitioner

DAVID V. BEAR, III

BEAR, HINES & THOMAS

609 East Broadway

Columbia, Missouri 65201

(314) 443-3101

APPENDIX

APPENDIX A

IN THE MISSOURI COURT OF APPEALS

ST. LOUIS DISTRICT

STATE OF MISSOURI,

Respondent,

Vs. No. 37929

RUSSELL LEE EPPERSON,

Appellant.

— EM ES

IN THE HANNIBAL COURT OF COMMON PLEAS

Honorable James R. Reinhard, Judge

STATE OF MISSOURI,

Plaintiff,

VS. No. 5133

RUSSELL LEE EPPERSON,

Defendant.

re a a a

TRANSCRIPT ON APPEAL

Mr. Thomas I. Osborne, Prosecuting Attorney, Audrain

County, Court House, Mexico, Missouri, and

Mr. Ronald R. McKenzie, Prosecuting Attorney, Marion

County, Tower Plaza, Clinic Road, Hannibal, Missouri,

Attorneys for Respondent

Mr. David V. Bear, III, Bear, Hines & Thomas, 609 East

Broadway, Columbia, Missouri,

Attorney for Appellant.

* * *

(Under date of May 9, 1975, the following entry appears

of record in the office of the Clerk of the Circuit Court of

Audrain County, Missouri:)

May 9, 1975. Now on this day comes the defendant

herein by counsel and files Motion to Suppress and Notice

to Thomas I. Osborne Prosecuting Attorney that the above

Motion will be called on Wednesday, May 21, 1975, at

10:00 A.M., in the above entitled cause.

(Said Motion is as follows:)

MOTION TO SUPPRESS

The defendant for his motion states:

1. That he was arrested on April 4, 1975, and was sub-

sequently charged, in this case, with three (3) counts of first

degree murder.

2. That on April 15, 1975, a preliminary hearing was

held, on the said charges and the defendant was bound over

for trial in the Circuit Court.

3. That at the time of the preliminary hearing, the defen-

dant filed a MOTION TO SUPPRESS, and the motion was

taken up, in conjunction with the preliminary hearing, and

the motion, was overruled by the Magistrate Judge.

4. That prior to the time the defendant was arrested,

various law enforcement officers of the State of Missouri,

conducted a warrantless search of the defendant’s home,

and during the course of the said search three (3) dead

bodies were discovered along with numerous items of evi-

dence. In conjunction with the search, pictures were ta-

ken and various items of evidence were sent off to the

Highway Patrol Laboratory and a laboratory at the Uni-

versity of Missouri, so that various tests could be conducted

upon the said evidence.

5. The search of the defendant’s home was unlawful and

unreasonable and the seizure of the various items of evi-

dence from the defendant’s home was also unlawful and un-

reasonable, in that the arresting officer did not have a search

warrant ner did the persons acting at the arresting officer’s

request and as their agents.

WHEREFORE, the defendant prays the Court to enter

an order suppressing and barring as evidence all photographs

taken as a result of the search of the defendant’s home on

the 26th day of March, 1975, and for a further order sup-

pressing and barring from evidence all testimony of witnesses

which relates to any facts and circumstances discovered as

a result of the search in the defendant’s home, and for a

further order suppressing and barring from evidence any and

all items removed from the home of the defendant and any

and all tests performed upon the said items or any bodies

or parts of bodies which may have been tested.

FILED: May 9, 1975.

(Under date of May 21, 1975, the following entry appears

of record in the office of the Clerk of the Circuit Court of

Audrain County, Missouri:)

May 21, 1975. Comes State by Prosecuting Attorney.

Comes Defendant in person and in custody of Sheriff and

with self-selected counsel, David V. Bear, III. Defendant’s

motion to suppress presented. Evidence adduced. Motion

argued, submitted and taken under advisement. Court Re-

porter directed to transcribe summations and argument of

counsel and fees for same ordered taxed as costs as pro-

vided in 485.100. (Initialed GPA.)

* * *

(Under date of June 27, 1975, the following entry ap-

pears of record in the office of the Clerk of the Circuit

Court of Audrain County, Missouri:)

June 27, 1975. Defendant’s Motion to Suppress over-

ruled.

* * *

(Under date of February 25, 1976, the following entry

appears of record in the office of the Clerk of the Han-

nibal Court of Common Pleas:)

February 25, 1976 — Comes now Prosecuting Attorneys

of Audrain and Marion County, Missouri. Comes defendant

in custody of Sheriff and with his attorney by choice. De-

fendant’s motion for new trial is argued and the Court over-

rules defendant’s motion for a new trial.

The Court informs defendant as follows:

“Russell Lee Epperson, the Court informs you of the verdicts

of the jury returned on January 14, 1976: As to Count I

finding you guilty of Murder in the First Degree and fixing

your punishment at life imprisonment by the Department

of Corrections; As to Count II finding you guilty of mur-

der in the First Degree and fixing your punishment at life

imprisonment by the Department of Corrections; As to

Court III “finding you guilty of murder in the First Degree

and fixing your punishment at life imprisonment by the De-

partment of Corrections. Do you have any legal cause to

show why judgment and sentences should not now be pro-

nounced against you?”

The court hearing no legal or sufficient cause, judgment

is entered in accordance with the verdicts of the jury as

to Count I, Count II, and Count III. As to Count I de-

fendant is sentenced to be committed to the State Depart-

ment of Corrections to serve a term during his natural

life for the offense of Murder in the First Degree; As to

Count II defendant is sentenced to be committed to the

State Department of Corrections to serve a term during

his natural life for the offense of Murder in the First De-

gree. The sentence as to Count II shall be consecutive

to that one in Count I; As to Count III defendant is sen-

tenced to be committed to the State Department of Cor-

rections to serve a term during your natural life for the

offense of Murder in the First Degree. The sentence as

to Count III shall be consecutive to those received in

Counts I and II.

The court has used its own discretion as to the setting

of consecutive sentences. Among the factors considered

are the seriousness of the offenses and the factual circum-

stances surrounding the offenses.

The defendant is remanded to the custody of the Sheriff

of Marion County, Missouri, who shall transport defendant

to the State Department of Corrections. He shall be allowed

an extra guard. Appeal bond set at $250,000.00. The de-

fendant indicates that he does not have any funds in which

to pay court costs. The court finds that the expenses sub-

mitted by the Sheriff were necessary and reasonable. Au-

drain County is ordered to reimburse Marion County for

expenses of this case that Marion County has incurred and

to pay those that are not paid.

* * *

NOTICE OF APPEAL TO

MISSOURI COURT OF APPEALS,

ST. LOUIS DISTRICT

Notice is given that Russell Lee Epperson, Defendant ap-

peals from the sentence entered in this action on the 25th

day of February, 1976.

Appellant was convicted of murder in three (3) counts

of first degree, a felony, under Section 559.010, RSMo 1969,

which offenses are punishable exclusively by life sentences.

The Court impose the sentence to run consecutively. This

appeal does involve a construction of the Constitution of

the United States and the Constitution of the State of Mis-

souri. The Missouri Court of Appeals has jurisdiction. Arti-

cle V, Section 3, Constitution of Missouri, as amended 1970.

The case number assigned to this case by the Court of Com-

mon Pleas at Hannibla, Missoun, is 5133. The name of the

Judge who heard the case is the Honorable James R. Rein-

hard. The reporter’s name is Bettye S. Calnan. The Hanni-

bal Court of Common Pleas is in the 10th Judicial Circuit.

Appellant’s bond is set at $250,000.00 and the defendant

has not posted that bond.

MEMORANDUM OF THE CLERK

I have this day mailed by registered mail a copy of the

within notice of appeal to each of the following persons at

the address stated:

Missouri Court of Appeals Mr. John C. Danforth,

St. Louis District Attorney General

Civil Courts Building State of Missouri

St. Louis, Missouri State Capitol

Jefferson City, Mo.

Mr. Thomas Osbourne (sic)

Prosecuting Attorney

Audrain County

Court House

Mexico, Mo.

I have also mailed a copy of the notice of appeal to

the clerk of the Missouri Court of Appeals, St. Louis Dis-

trict, together with the docket fee deposited by appellant.

/s/ Robert J. Mulvihill

Clerk

Dated March 1, 1976

Also, furnished copy to Ronald R. McKenzie, Prosecuting

Attorney of Marion County, Mo.

FILED: March 1, 1976.

APPENDIX B

STATE of Missouri, Respondent,

Vv.

Russell Lee EPPERSON, Appellant.

No. 60308.

Supreme Court of Missouri,

En Banc.

Sept. 12, 1978.

Rehearing Denied Oct. 10, 1978.

o* a >

David Bear, Columbia, for appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty.

Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Defendant Russell Lee Epperson was convicted on three

counts of murder in the first degree for killing his wife Fern

and their two children, Richard and De Ann. The jury as-

sessed punishment on each count at life imprisonment and

the court ordered that the sentences run consecutively.

On appeal, defendant contends that evidence used against

him in the prosecution of the case was obtained during a

warrantless search of his home by members of the municipal

police force of the City of Mexico, Missousi, in violation of

his rights under the Fourth Amendment to the Constitution

of the United States and Art. I, § 15 of the Constitution

of the State of Missouri. This contention turns on the an-

swers to the following questions: (1) Was there an emer-

gency situation justifying the warrantless entrance of de-

fendant’s house by the police which led to the discovery

of the bodies? (2) Can the initial entry and discovery be

justified only by the subjective rationale and beliefs of the

searching police officers or may it be based upon the objec-

tive facts known to the police officers and the logical de-

ductions based thereon? (3) Was the additioinal warrant-

less search of the defendant’s home immediately after the

police had found the bodies of the three missing persons

and ascertained that the defendant probably was not pre-

sent, justified by the exigencies of the situation?

Appeal was taken to the Court of Appeals, St. Louis

District, which in an opinion suggesting affirmance, deter-

mined that resolution of the issues involved an original

construction of the Fourth Amendment to the Constitution

of the United States and Art. I, 8 15 Mo.Const.1945, and

thus fell within the exclusive jurisdiction of this Court un-

der Art. V, § 3, Mo.Const., as amended 1970. See City of

St. Louis v. Tinker, 542 S.W.2d 512, 513[1] (Mo.banc

1976). Accordingly the Court of Appeals, without render-

ing a final decision, ordered the case transferred here. Por-

tions of the well reasoned Court of Appeals’ opinion have

been utilized without quotation marks.

Defendant Epperson and his wife, Fern, lived with their

two small children at 608 West Pearson, Mexico, Missouri.

On Monday, March 24, 1975, Fern’s mother, Mrs. Mary

Ann Smith, attempted unsuccessfully to telephone her daugh-

ter at the Epperson home. Mrs. Smith then called de-

fendant at his place of employment and inquired concern-

ing the whereabouts of her daughter. He told her that

Fern and the children had gone to Columbia to do some

shopping, which Mrs. Smith considered strange as Fern

usually left the children with her when shopping.

The next day, March 25, Mrs. Smith again tried calling

her daughter at home but received no answer. That eve-

10a

ning she and her husband saw Epperson on the town

square in Mexico and he told them Fern was with his

mother. However, when Mrs. Smith informed him that

she knew Fern and the children were not with his mother

Epperson said that he did not know where they were. Af-

ter Mrs. Smith returned home she received a call from Ep-

person who told her that Fern had telephoned and said

she would be home in the morning with the children.

On March 26, at approximately 8:30 a.m., Epperson

again called Mrs. Smith and asked her to come to his house.

At first she refused but when he told her that Fern would

be there about 9:00 a.m. she agreed to go. At 8:45 a.m.

appellant picked up Mrs. Smith in his truck and took her

to his home. As she and the defendant went into the

house he removed something from a cabinet, keeping it

behind him while he locked the outside kitchen door. He

stood against the door facing Mrs. Smith, keeping his left

hand behind him and told her she should go into the front

room and sit down. He also told her several times that

“Pll sure be glad to get this all over.”” Mrs. Smith saw

her daughter’s purse on the clothes dryer in the kitchen

and knowing that whenever her daughter left the house

she took her purse with her, she became quite suspicious.

At that time she also detected an odor in the house which,

from prior experience, she associated with death. After

making the excuse that she had some food in the oven

at her home Mrs. Smith left the Epperson residence and

went to the home of a neighbor, Mrs. Mitchell, and placed

a call to the Police Department of the City of Mexico.

Officer Schindler, responding to that call, met Mrs. Smith

at the Mitchell house where she related the matter that

had occurred. Schindler promptly summoned Sergeant

Duffner and relayed this information to him.

lla

Both officers immediately went to the Epperson home

and finding all of the windows were covered with drapes

or blinds, knocked on the doors without response. Order-

ing Schindler to remain near the house to observe if any-

one left or entered, Sergeant Duffner walked next door

to the home of Epperson’s neighbor and through a series

of calls obtained information as to Epperson’s place of

employment and that of his wife, as well as the school

in which Richard was enrolled. He learned that Fern Ep-

person had been on vcaction that week but had not kept

her usual Tuesday evening bowling date. From defendant’s

employer he found that defendant had stated the day be-

fore that he had taken his wife to the hospital for x-rays

but a call to the family doctor revealed that he had not

seen Mrs. Epperson since December of 1974 and Mrs.

Smith had informed him that the hospital had no record

of Fern reporting for x-rays. School personnel where

Richard was enrolled told Sergeant Dufner that Epperson

had called the school the day before and told them that

his son Richard would be absent because of illness. Follow-

a conference with the Chief of Police, Duffner was ordered

to determine from Epperson’s parents whether they had

seen him and request that the parents come to the house.

The parents agreed to this suggestion and met the offi-

cers at the Epperson home where, again, knocking on the

doors produced no response. Epperson’s father pointed out

that his son’s motorcycle was not there and surmised he

might be elsewhere riding it. However, the motorcycle was

located at Epperson’s place of employment but he could

not be found. The parents then told the officers they

would not break into their son’s house and they then went

to the home of the neighbor where Mrs. Smith was waiting.

Nevertheless the father, accompanied by the two officers,

again went to the home and the officers told the father

12a

that he should be the one to enter the house. He event-

ually agreed to assist and after unsuccessfully trying to

open the doors, a storm window was removed and an un-

locked bedroom window opened. Duffner assisted the fa-

ther in raising the window and a ladder was placed against

the side of the building, the blinds were pulled back and

the father and two police officers entered a bedroom of

the house.

When they pulled back the blinds they saw what was

apparently a human form lying under a sheet on the

bed. While Schindler and Epperson’s father went to the

other parts of the house to see if anyone else was there

Sergeant Duffner removed the sheet and discovered the

bodies of Mrs. Epperson and the two children. The chil-

dren had plastic bags over their heads and the son had a

cord around his neck. Each showed signs of violent mis-

treatment. There was a sock in the bag over the daugh-

ter’s head and another sock was near the wife’s face.

When the others returned to the room where the bodies

were found, Duffner called his superior officers and then

made an investigation of the house. As he walked through

the house he saw a five gallon can of gasoline in the hall-

way near the bedroom, a chisel for an air hammer partially

wrapped in towels in a chair in the living room and a bot-

tle of chloroform on the top of the sewing cabinet in the

kitchen. Later during an autopsy it was determined that

blows by a blunt instrument had been inflicted on the vic-

tims and chloroform was found in their vital organs. Ep-

person, who could not be found, became the subject of an

intensive manhunt and was apprehended ten days later.

13a

Defendant contends that facts known to the police when

they broke into the defendant’s house were not sufficient

to justify the warrantless entry and original search. It first

should be noted that by objective standards sufficient facts had

been made known to the police to establish probable cause

that a crime had been committed. These facts include (1)

the defendant’s wife and children had been missing several

days; (2) defendant had given false and inconsistent explana-

tions for their absence; (3) defendant’s unusual, suspicious

and nervous manner in the days following the disappear-

ance of his family; (4) an odor of decomposing flesh had

been detected in the house, and (5) defendant’s unexplained

disappearance, though he had been in the house with Mrs.

Smith shortly before the police arrived.

[1-3] The question we first must decide is whether the

facts were sufficient to establish exigent circumstances justi-

fying a warrantless entry of the house. In general, an entry

and search without a warrant are deemed unreasonable un-

der the Fourth Amendment to the Constitution of the United

States unless the action falls within certain carefully delineated

exceptions. United States v. U.S. District Court, 407 U.S.

297, 318, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); Coolidge

v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29

L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 34,

90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). The burden is on

the State to show an exception exists. Coolidge v. New Hamp-

shire, supra, 403 U.S. at 455, 91 S.Ct. 2022; Vale v. Louisiana,

supra, 399 U.S. at 34, 90 S.Ct. 1969. Among the exceptions

are searches incident to a valid arrest, searches of cars stopped

on a road, seizures of evidence in plain view, stop and frisk

searches, searches with consent, searches to prevent destruc-

tion of evidence, searches to prevent the flight of a criminal,

and searches in response to a need for help. See Coolidge v.

l4a

New Hampshire, supra, 403 U.S. at 455-473, 91 S.Ct. 2022:

Vale v. Louisiana, supra, 399 U.S. at 34-35, 90 S.Ct. 1969;

Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d

889 (1968); Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct.

1642, 18 L.Ed.2d 782 (1967); Chapman v. United States, 365

U.S. 610, 615, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).

The State contends that the entry and search fall within

the “need for help” or the “emergency” exception, claiming

that the odor of death combined with the long, unexplained

absence of defendant’s wife and children, defendant’s suspi-

cious behavior and his disappearance at the time of the

search, gave probable cause to believe there was a medical

emergency in which someone might be ill or injured and

in need of immediate help. The State also urges these facts

constituted probable cause to believe a crime has been com-

mitted and raised the possibility that a victim might be in

need of assistance or medical aid which also justified the

warrantless search.

The Supreme Court of the United States has held a war-

rantless search was reasonable in an emergency situation

when a police officer heard a shot and a cry for help, Mc-

Donald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191,

93 L.Ed. 153 (1948). For a discussion of the emergency

doctrine and its history see State v. Sutton, 454 S.W.2d

481 (Mo.banc 1970). Because of the circumstances of the

case, the search in Sutton was subsequently ruled unconsti-

tutional in Root v. Gauper, 438 F.2d 361, 365 (8th Cir.

1971), but in Root it was recognized that Missouri had “the

prerogative” to accept that doctrine, and we reaffirmed our

adoption of the emergency exception in State v. Miller, 486

S.W.2d 435 (Mo.1972). See also Wayne v. United States,

115 U.S. App.D.C. 234, 240-243, 318 F.2d 205, 211-214

(1963).

15a

It has been persuasively stated that whenever the police

have reliable information of a death, an emergency exists

sufficient to justify an immediate search because apparent

death may turn out to be a barely surviving life, still to be

saved. Patrick v. State, 227 A.2d 486, 489[3-9] (Del.Supr.

1967). Here, although the odor of decomposing flesh would

indicate death of one of the persons involved, at least three

persons were missing under very unusual circumstances and

Epperson could not be found. One or more could have

been in immediate need of help to prevent death. Many

courts have approved searches upon the emergency exception

rationale in situations similar to the case before us. See

People v. Brooks, 7 Ull.App.3d 767, 289 N.E.2d 207 (1972);

People v. Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d

1 (banc 1974); People v. Clayton, 34 Ill.App.3d 376, 339

N.E.2d 783 (1975); People v. Lovitz, 39 Ill.App.3d 624,

350 N.E.2d 276 (1976); State v. Pires, 55 Wis.2d 597, 201

N.W.2d 153 (1972); Geary v. State, 91 Nev. 784, 544 P.2d

417 (1975); People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d

246, 347 N.E.2d 607 (1976), cert. denied, 426 U.S. 953, 96

S.Ct. 3178, 49 L.Ed.2d 1191.

[4] People v. Brooks, supra, concerned facts remarkably

similar to those at bar. There the victim and defendant,

who were mother and son, lived together in the mother’s

apartment. Friends of the victim were unable to contact

her for several days and when they questioned defendant

concerning her whereabouts they received incredulous an-

swers. After the janitor of the victim’s apartment building

noticed an odor of death in the place, he contacted the

police. Upon arrival, the police detected a strong “‘odor

of death,” entered the victim’s apartment and discovered her

body in the living room. The Illinois Court upheld the

entry and subsequent search of the apartment as a reason-

l6a

able response to an emergency situation. We hold that the

exigent circumstances presented by this record justified

the entry and original search of the house as “reasonable”

under the Fourth Amendment to the United States Consti-

tution and Art. I, § 15, Mo.Const., 1945.

Il.

The defendant, as further challenge to the entry and

search, places great emphasis on the police officers’ state-

ment of their subjective belief that no crime had been com-

mitted and their somewhat ambiguous statements as to a

possible emergency. The State counters with the conten-

tion that when the legality of a search is in question the

subjective thoughts of the police are not controlling but

instead the objective facts within their knowledge and the

reasonable conclusions objectively drawn therefrom are de-

terminative.

The Supreme Court of the United States has measured

both probable cause and the warrant requirements for

searches against objective standards. It has stated that in

determining the reasonableness of a particular search, “‘it is

imperative that the facts be judged against an objective stan-

dard: would the facts available to the officer at the moment

of the seizure or the search ‘warrant a man of reasonable

caution in the belief’ that the action taken was appropriate?”

(Emphasis added.) Terry v. Ohio, supra, 392 U.S. 1, 21-22,

88 S.Ct. 1868, 1880, 20 L.Ed.2d 889. The Court in Terry

emphasized that subjective good faith alone is not enough;

that there must also be objective reasonableness to enable

meaningful review by the court.

Many lower federal courts and some state courts have

said, sometimes in dicta, that objective reasonableness alone

17a

suffices to uphold either an arrest or a search. See United

States ex rel. LaBelle v. La Vallee, 517 F.2d 750, 754[7-8]

(2d Cir. 1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 803,

46 L.Ed.2d 655 (1976); United States v. McCoy, 517 F.2d

41, 43 n. 1[{1] (7th Cir. 1975), cert. denied, 423 U.S. 895,

96 S.Ct. 195, 46 L.Ed.2d 127 (1975); United States v. Vital-

Padilla, 500 F.2d 641, 644[2] (9th Cir. 1974); White v.

United States, 448 F.2d 250, 254[5] (8th Cir. 1971), cert.

denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798 (1972);

Sirimarco v. United States, 315 F.2d 699, 702[7] (1Oth Cir.

1963), cert. denied, 374 U.S. 807, 83 S.Ct. 1696, 10 L.Ed.2d

1032 (1963); State v. Donnell, 239 N.W.2d 575, 578[6]

(lowa 1976); Commonwealth v. Miller, 366 Mass. 387, 318

N.E.2d 909, 911[4] (1974); Commonwealth v. Donnelly,

233 Pa.Super. 396, 336 A.2d 632, 637[5-6] (1975), cert.

denied, 424 U.S. 974, 96 S.Ct. 1477, 47 L.Ed.2d 744 (1976).

Cases holding that the objective facts were not enough have

done so on the basis that the police officers’ subjective mo-

tives were demonstrably in bad faith. See Mills v. Wainwright,

415 F.2d 787, 790[1] (Sth Cir. 1969); Moss v. Cox, 311 F.

Supp. 1245, 1251-52[13-15] (E.D.Va.1970). Contra United

States v. Dunavan, 485 F.2d 201, 205[4-6] (6th Cir. 1973).

This is not a problem here as the officers in good faith were

searching for persons missing under unusual circumstances

rather than to harass the defendant or entering to search

for evidence linking him with a crime.

[5] Furthermore, the officers’ testimony reveals that

though they may have considered this a “missing persons”

investigation they also considered the medical emergency

factors involved. ‘In response to the question why he did

not get a search warrant Sergeant Duffner testified:

Well, I really didn’t know what I had. I didn’t know

— I knew the circumstances, that Russell Epperson and

18a

his wife were gone; and as far as I was concerned, I was

just looking to try to find them to see if they had

skipped the country or they were injured or what. I

didn’t really know what I had. I mean there was no indi-

cation further to my prior investigation of any foul play

involved of [sic] anything. As far as I knew they were

just gone wherever they went; I couldn’t tell. (Emphasis

ours.)

From this response it appears the officer in charge of the

search considered the probability that someone in the

house might be injured and need medical aid. By an ob-

jective standard there are sufficient facts to justify the of-

ficers’ initial entry into defendant’s home, despite the am-

biguous testimony as to their subjective belief.

[6, 7] Following the entry under the emergency doc-

trine, the officers could seize evidence of the crime in the

bedroom under the theory of “plain view,”! if such evi-

dence was readily observable and was discovered inadver-

tently rather than by anticipation or by a concerted search,

and was immediately recognized as evidence of a crime.

Coolidge v. New Hampshire, supra, 403 U.S. at 465, 91

S.Ct. 2022; State v. Dayton, 535 S.W.2d 479, 486[6-8]

(Mo.App. 1976). Here, following the officers’ permissible

warrantless entry through the window of the bedroom, they

could properly pull back the sheet to see if the form ob-

served on the bed was that of a living person. It is then

that evidence, such as the bodies, cord, socks and plastic

| The Supreme Court of the United States has stated, “‘Where the

initial intrusion that brings the police within plain view of such an

article is supported, not by a warrant, but by one of the recognized

exceptions to the warrant requirement, the seizure is also legitimate.”

Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022,

2037, 29 L.Ed.2d 564 (1971).

19a

bags came into “plain view,” which the police immediately

recognized as evidence of a crime. All such items found

in the bedroom, as well as the photographs taken there,

were properly admitted in evidence. For similar decisions

in other states see Patrick v. State, supra, 227 A.2d at 489-

90[9-11]. People v. Brooks, supra, 289 N.E.2d at 214;

People v. Hill, supra, 117 Cal.Rptr. at 412, 528 P.2d at 20.

Il.

The admission of evidence from rooms of the house

other than the bedroom presents a somewhat different prob-

lem and cannot be justified under the plain view doctrine

except as they might be said to have been inadvertently dis-

covered during a continuation of the emergency search for

injured or missing persons. This evidence was discovered

as a result of Sergeant Duffner’s search of the rest of the

house immediately following the initial search for defendant

(a source of potential danger) or other victims by Officer

Schindler and Epperson’s father. If the evidence had been

found moments earlier during Schindler’s cursory search, it

would clearly have been admissible under the plain view

theory. United States v. Blake, 484 F.2d 50, 57[7-8] (8th

Cir. 1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41

L.Ed.2d 669 (1974); State v. Dayton, supra, 535 S.W.2d

at 484-86[1-4].

However, the evidence adduced at the hearing for the

motion to suppress and at trial revealed that the bottle of

chloroform, the gasoline can and the chisel were found and

the photographs and diagram. of the other rooms were made

by Sergeant Duffner after he had discovered the bodies of

the three missing persons and Officer Schindler had ascer-

tained that neither defendant nor any other victim were in

the house.

20a

In People v. Brooks, supra, after the police discovered

the body of defendant’s mother in his apartment following

the warrantless entry justified by the emergency exception,

they searched the apartment and discovered a bloody rug

in the bathroom and a blood splattered shirt in one of the

bedrooms. Shortly thereafter other police personnel arrived

and photographed the apartment's interior. All of this activity

occurred without a search warrant, though upon the discov-

ery of the body defendant became the only suspect. In that

case the defendant claimed the search and seizure of physi-

cal evidence violated his rights under the Fourth Amendment.

However, the Illinois Court justified the initial entry, the im-

mediate discovery of the body, as well as the subsequent

search which yielded the rug and shirt by the emergency

exception. See also People v. Clayton, 34 Ill.App.3d 376,

339 N.E.2d 783 (1975) and People v. Lovitz, 39 Ill.App.3d

624, 350 N.E.2d 276 (1976) for remarkably similar fact

situations with the same result.

The case of Michigan v. Tyler, No. 76-1608, U.S.

98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), is clear authority to

render the warrantless entry in the case at bar “reasonable,”

under the Fourth Amendment to the Constitution of the

United States, and having discovered the victims of the

crime, to authorize the police to investigate for and seize

readily accessible evidence of the crime. In that case de-

fendants were convicted of conspiracy to burn real prop-

erty in violation of the applicable Michigan statute. Short-

ly before midnight on January 21, 1970, a fire broke out

in the building leased to the defendant, Tyler. The fire

department responded, quenched the fire and “was ‘just

watering down smoldering embers’” when Chief See arrived

on the scene about 2:00 a.m. on the morning of January

22. A Lieutenant of the fire department informed the

Chief that “two plastic containers of flammable liquid had

2la

been found in the building.”’ Using portable lights the

Chief and the Lieutenant entered the gutted store which

was filled with smoke and steam to examine the plastic

containers. They concluded that the fire “ ‘could possibly

have been an arson,’” whereupon the Fire Chief called po-

lice Detective Webb who arrived at about 3:30 a.m. and

took several pictures of the containers and the interior of

the store. However, they abandoned their efforts to search

after the Chief had “‘[1] ooked throughout the rest of the

building to see if there was any further evidence, to deter-

mine what the cause of the fire was.” By 4:00 a.m. the

fire had been finally extinguished and the firemen departed.

The Fire Chief and the Detective took the two containers

to the fire station where they were turned over to the De-

tective for safekeeping. They had neither consent nor war-

rant for the entries of the building nor for the removal of

the containers.

About four hours after leaving the premises, Chief See

with his assitant returned to the empty building to deter-

mine the origin of the fire and examine for arson. After a

cursory inspection they left but at about 9:00 a.m. that

morning the Assistant Chief and Detective Webb returned

to the building looking for evidence of arson and they dis-

covered suspicious burn marks in the carpets which Webb

could not see earlier that morning because of the heat, steam

and darkness. They also found pieces of tape, with burn

marks, on the stairway. After leaving the building to ob-

tain tools they returned and removed pieces of the carpet

and sections of the stairs to preserve these bits of evidence

suggestive of a fuse trail. The Assistant Chief also searched

through the rubble “looking for any other signs or evidence

that showed how this fire was caused.” lc. _, 98 S.Ct.

l.c. 1946. Again, there was neither consent nor warrant

for these entries and seizures. Both at trial and on appeal

22a

the defendants objected to the introduction of evidence ob-

tained during these searches. Thereafter other investigators

entered the premises on January 26 and 29, and again on

February 16 to gather evidence concerning the charge of

arson and the cause of the fire.

The Court held that Fourth Amendment protection ex-

tends to entries by officials, whether they be building in-

spectors, police, representatives of the health department,

firemen or others. That such entries are permissible only

On proper warrants or with consent or if exigent circum-

stances occur of sufficient proportions to render a warrant-

less entry “reasonable.” In that case the firemen were

deemed to have made a reasonable entry when entering

the burning structure to put out the blaze and were per-

mitted to seize the readily observable evidence of arson.

Thus the Fourth and Fourteenth Amendments were not

violated by the entry of the firemen to extinguish the fire

at Tyler’s Auction, nor by Chief See’s removal of the two

plastic containers of flammable liquid found on the floor

of one of the showrooms.

Prior to 4:00 a.m. on January 22, however, the fire-

fighters suspected arson and summoned the police whose

investigation was not only for the cause of the fire’s ori-

gin but to determine whether a crime had been commit-

ted. Defendants objected to any of the evidence following

the time the firefighters and the police detective left the

premises about 4:00 a.m., including the entries at 8:00

a.m. and 9:00 a. m. when the Assistant Fire Chief and

the Detective returned to the premises, made a detailed

inspection but left the building again to obtain tools, then

returned and removed parts of the carpet and stairs and

continued to search through the rubble. The Court stated

that the original exigent circumstance of the fire permitted

23a

the entry, noting that the officials charged with extin-

guishing the fires are also charged with prompt determina-

tion of their origin. The Court added that “[i] mmediate

investigation may also be necessary to preserve evidence

from intentional or accidental destruction. And of course,

the sooner the officials complete their duties, the less will

be their subsequent interference with the privacy and

recovery efforts of the victims.” 1. c. ——, 98 S.Ct. l. c.

1950. The Court then concluded “‘[o]n the facts of this

case, we do not believe that a warrant was necessary for

the early morning re-entries on January 22,” nor the re- .

entries at about 8:00 a. m. and 9:00 a. m. for “[u] nder

these circumstances, we find that the morning entries were

no more than an actual continuation of the first, and the

lack of a warrant thus did not invalidate the resulting

seizure of evidence.” 1]. c. ——, 98 S.Ct. l. c. 195].

Thus the investigation of the building for arson and

the taking of pieces of the stairs, carpet and the flam-

mable liquid found in the plastic containers, as well as the

search of the building for other evidence of arson, were

a continuation of the exigent entry. The right of the of-

ficers to return after daylight and continue their investiga-

tion sprang from the fact that the exigent quality of the

circumstances continued. The Court stated “[i]n determin-

ing what constitutes ‘a reasonable time to investigate,’ ap-

propriate recognition must be given to the exigencies that

confront officials serving under those conditions, as well

as to individuals reasonable expectations of privacy.” The

emergency of the fire permitted the entry. The length of

time and scope of the search for evidence of possible

arson was extended by finding the plastic containers con-

taining the flammable liquid. However, the Court held

24a

that the entries occurring after January 22 “‘were clearly

detached from the initial exigency and warrantless entry.”

In the case sub judice, the urgent circumstances permit-

ting the warrantless entry included possibility of death, ill-

ness, Or serious injury to persons in the house. After the

entry, the exigent quality of the moment was heightened

by discovery of the bodies, apparently brutally murdered.

The limited superficial search that followed and the re-

moval of the bodies, the taking of photographs of a few

scenes in the house and the removal of the few items of

personal property not located in the bedroom were within

the reasonable time, spatial scope and limited intensity

2 The United States Supreme Court has recently disapproved Ari-

zona’s “murder scene exception” to the reasonable search require-

ment of the Fourth Amendment in Mincey v. Arizona, —— U.S.

—, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), and condemned the

admission of evidence taken in an extended four day warrantless

search during which a number of police officers proceeded to gather

evidence from defendant’s apartment. This search followed the

warrantless entry and fatal wounding of a narcotics agent and the

arrest of defendant in his apartment who was also wounded in the

shootout. The officers, after the removal of defendant, the wounded

officer and other suspects, proceeded in the four day search. During

that period “the entire apartment was searched, photographed and

diagramed. The officers opened drawers, closets and cupboards, and

inspected their contents; they emptied clothing pockets; they dug

bullet fragments out of the walls and floors; they pulled up sections

of the carpet and removed them for examination. Every item in

the apartment was closely examined and inventoried and two or three

hundred objects were seized. In short, Mincey’s apartment was sub-

jected to an exhaustive and intrusive search.” 1. c. ——, 98 S.Ct. l.c.

2412. The exigency of the situation could not extend to nor ren-

der reasonable such an intensive, long term search. The facts in

Mincey were clearly distinguishable from those in Tyler, or those in

the case at bar.

25a

approved by 7yler. Thus the absence of a warrant or of

consent, as in 7yler, did not render the challenged evi-

dence inadmissible and for these reasons defendant’s con-

tention is denied.

[8] As previously discussed, the bodies, plastic bags

and chloroformed socks and venetian blind cord were

discovered in the bedroom and admissible under the plain

view doctrine and the evidence from the other part of the

house (i. e., the gasoline can, chisel, bottle of chloroform

and certain of the photographs) were within the scope of

the emergency exception to the Fourth Amendment as

deliieated in Michigan v. Tyler, No. 76-1608, —— USS.

——, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). We are also

convinced that had admission of this latter evidence been

deemed improper, such admission would have been non-

prejudicial. The evidence of defendant’s guilt was strong

and certain. Defendant fled the area and despite an

intensive search covering several counties, was not ap-

prehended until ten days after the discovery of the crime.

We are aware, as stated in State v. DeGraffenreid, 477

S.W.2d 57, 65 (Mo.banc 1972) “that error which in a

close case might call for a reversal may be disregarded as

harmless when the evidence of guilt is strong.”’ See State

v. Davis, 556 S.W.2d 45 (Mo.banc 1977) and Thomas y.

United States, 281 F.2d 132 (8th Cir. 1960).

The body of testimony from thirteen Stzte’s witnesses

occupying almost two hundred transcript pages and some

twenty-six exhibits, not including those discovered in

Duffner’s search, were unrebutted. Defendant offered no

evidence. We believe beyond a reasonable doubt the

overwhelming weight of the evidence was such that the

claimed error, and we find none, could only have been

non-prejudicial. The judgment of the trial court is affirmed.

26a

MORGAN, C. J., and BARDGETT, FINCH and

DONNELLY, JJ., concur.

SEILER, J., dissents in separate dissenting opinion filed.

SIMEONE, J., not participating because not a member

of the Court when cause was submitted.

SEILER, Judge, dissenting.

I respectfully dissent. What the police did here was to

break into a man’s home. It is true that they did so

rather politely, using defendant’s father as their arm, and

not resorting to a sledge hammer, but the fact reme‘ns

that they entered a man’s home, a cherished and well

nigh sacred place to most*of us, by force, without first

obtaining a search warrant to do so.

This is being justified on the ground it was warranted

by an emergency. In my opinion, we are providing a

dangerous and alarming precedent here, one which will

give the police extremely broad powers and which serious-

ly reduces the protection of the Fourth Amendment

against unreasonable seraches and seizures. We are devel-

oping a new doctrine for the police—the delayed response

doctrine or once an emergency, always an emergency,

with no need for a search warrant thereafter.

Wiser men than I have pointed out the dangers of relax-

ing Fourth Amendment standards.

As said in McDonald v. United States, 335 U.S. 451,

455-56, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948):

“We are not dealing with formalities. The pre-

sence of a search warrant serves a high function.

Absent some grave emergency, the Fourth Amend-

ment has interposed a magistrate between the

27a

citizen and the police. This was done not to

shield criminals nor to make the home a safe

haven for illegal activities. It was done so that

an objective mind might weigh the need to in-

vade that privacy in order to enforce the law.

The right of privacy was deemed too precious to

entrust to the discretion of those whose job is

the detection of crime and the arrest of criminals.

Power is a heady thing; and history shows that

the police acting on their own cannot be trusted.

And so the Constitution requires a magistrate to

pass on the desires of the police before they

violate the privacy of the home. We cannot be

true to that constituional requirement and excuse

the absence of a search warrant without a show-

ing by those who seek exemption from the con-

stitutional mandate that the exigencies of the

situation made that course imperative.”

See also, Brinegar v. United States, 338 U.S. 160, 182,

69 S.Ct. 1302, 93 L.Ed. 1879 (1948) (per Jackson, J., dis-

senting):

“We must remember that the extent of any

privilege of search and seizure without warrant

which we sustain, the officers interpret and apply

themselves and will push to the limit.

“ec

“And we must remember that the authority

which we concede to conduct searches and

seizures without warrant may be exercised by

the most unfit and ruthless officers as well as by

the fit and responsible, and resorted to in case

of petty misdemeanors as well as in the case of

the gravest felonies.”

‘

28a

The question before us is not simply whether there was

an emergency making reasonable a warrantless entry and

search of defendant’s home. The question is whether this

particular warrantless entry, search and seizure can be up-

held under the emergency doctrine in light of the almost

two and a half hour delay by the officers. The proposed

opinion does not address this critical difference between

this case and those on which it relies. The latest United

States Supreme Court case on the subject states: “[A]

warrantless search must be ‘strictly circumscribed by the

exigencies which justify its initiation.’”’ Mincey v. Ari-

zona, —— U.S. ——, ——, 98 S.Ct. 2048, 2414, 57 L.Ed.2d

Ed.2d 290 (June 21, 1978).

Under part I, the opinion discusses the state’s conten-

tion that the entry was justified under the “need for help”

or “emergency” exception, saying the circumstances gave

probable cause to believe there was a medical emergency

“in which someone might be ill or injured and in need of

immediate help” (emphasis supplied). Then the opinion

refers to the rule of certain cases that whenever the police

had reliable information of a death, an emergency exists

sufficient to justify an immediate search, because apparent

death may turn out to be barely surviving life, still to be

saved. The opinion points out the odor of decomposing

flesh indicated death of at least one person, but there

were three persons missing and “one or more could have

been in immediate need of help to prevent death.”’ But

this justification was not acted on by the police for over

two and a half hours. I fail to see how the belated war-

rantless entry made by the police can be justified as being

appropriate under an emergency calling for immediate

entry to help someone inside the house in need of im-

mediate assistance.

ee ee ee

29a

The exigency of the situation when it first became ap-

parent objectively, whether the police appreciated it or

not, that something was seriously wrong inside the Epper-

son house cannot be extended to, nor render reasonable,

in my opinion, a forcible entry made several hours later,

during which interval the police could have obtained a

search warrant. What we are developing here is a new

weapon for the police—the continuing exigency justifica-

tion, where a delayed entry will be held to relate back to

the original emergency, thus obviating the need for a

search warrant even though there was ample time in which

to obtain one.

Not only does such a doctrine fail to comport with the

way reasonable people, including policemen, ordinarily react

to emergency “need of help” situations, it means the

police can safely delay entry, so far as entering legally is

concerned. This is not calculated, in my opinion, to

produce prompt action by the police in an emergency

and this may delay legitimate investigation.!

In Michigan v. Tyler, —— U.S. — 98 S.Ct. 1942,

56 L.Ed.2d 486 (1978) there was a lapse of one and a

half to two hours between the initial appearance of the

police investigator on the scene and the second appear-

ance around 4:00 a. m. Then there was a third entry

around 9:00 a. m. All three entries were held valid and

a search warrant was not required. But the difference in

the cases is that in Michigan v. Tyler the first entry was

I To illustrate, the search for Epperson did not get under way un-

til in the afternoon, hours after the emergency first came to the

attention of the officers. The delay on the part of the police ap-

parently enabled him to get a good head start, because, despite an

extensive search, he was not arrested until ten days later, when he

voluntarily surrendered.

30a

made at the time the emergency arose, while the smolder-

ing embers of the arson were still being extinguished, and

the court found that the subsequent warrantless entries

mentioned above “were no more than an actual continua-

tion of the first”, Jd. at ——, 98 S.Ct. at 1951, not de-

tached from the initial exigency. In the case at bar there

was no entry at the initial exigency. The entry came

several hours later, long after the objective indicia first

Suggested the possibility of death or need for help within

the Epperson house.

In Patrick v. State, 227 A.2d 486, 489 (Del.Supr.1967),

cited as supporting the action of the police, the court

speaks in terms of the police duty “to act forthwith upon

the report of the emergency’”’, not to miss the chance that

“a spark of life remains”, as the basis for the emergency

situation exception. In the Patrick case, the police “im-

mediately entered the premises”, id. at 488, upon their

arrival at the scene. In the present case, if there had

been a spark of life existing at 9:15 a.m. (which is when

the police first learned of the situation) in someone need-

ing immediate aid, it would have died out long before the

police finally entered at approximately 11:50 a. m.

People v. Brooks, 7 Ill.App.3d 767, 289 N.E.2d 207

(1972), also relied upon and discussed in the proposed

opinion, likewise speaks in terms of an emergency which

required “immediate action.” In the Brooks case, the

janitor in the apartment building caused the police to

be called. When they were going up the stairs to the

deceased’s apartment they notice the odor of decomposing

flesh. When they got to the front door of the apartment

the police opened the door and promptly went in and

found the deceased (who had been dead for several days)

on the couch in the living room. /d. at 210. There was

3la

no delay on the part of the police in acting. The Brooks

case, id. at 213, quotes with approval the language of Mr.

Justice Burger in Wayne v. United States, 115 U.S.App.D.C.

234, 318 F.2d 205, 212 (1963), cert. denied 375 U.S.

860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963). in which he

stresses the duty of the police, when confronted by an

emergency, to act and the need for swift police response

in order to support what would otherwise be an illegal

entry.

The facts in Brooks are significantly different from the

facts in the present case, in which we have no such swift

response. The police knew as early as 9:15 to 9:20 a. m.

that Mrs. Smith noticed the oder of decomposing flesh in

the Epperson house and that her son-in-law was acting

suspiciously and that she had reason not to believe his ex-

planations of the wher&&bouts of her daughter and two

grandchildren.”

The state in its brief states that “speed was of the es-

sence to bring aid to anyone who needed it...” But

the police took no action then. Instead, as the facts re-

lated in the proposed opinion show, the police tried to figure

figure out some way by which they could induce someone

else to break in the house so that the entry would not be

charged to them. It was almost noon, two and a half

hours later, when the police finally entered the bedroom.

If entry to the premises could be delayed this long,

obviously there was no immediate need emergency. A

true emergency does not invite delayed action. The two

are mutually inconsistent.

2 One analyzing the facts of this case finds himself returning again

and again to the fact that Mrs. Smith noticed the odor of death—

decomposing human flesh—in the Epperson house. It was this fact

that made it apparent that something was very, very wrong in the

Epperson house, as she made clear to the police in her initial report.

32a

Someone may say, however, that despite the delay by

the police, the need for help and in that sense the emer-

gency, continued throughout the period of delay. But

the point is that if so, the justification for dispensing with

a search warrant did not, because one could easily have

been obtained during that time, as discussed later herein.

If the police are confronted with an emergency they should

act. If they choose to delay, then they should obtain a

search warrant. They should not be permitted both to

delay and to dispense with a search warrant. That is not

what is called for by the Fourth Amendment.

Under part II, the opinion takes up the matter of

objective standards, quoting from Terry v. Ohio, 392 U.S.

1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) about

whether the facts available at the moment of the search

would warrant a man of reasonable caution in believing

what was done was appropriate. The moment of search

here was shortly before noon, over two and a half hours

after the officer had reason to believe there was a dead

body in the house and that three people were missing. I

do not believe a reasonable man would consider it was ap-

propriate to wait two and a half hours and then enter the

premises to see if there might be someone inside alive and

in need of help.

The opinion then, still under part II, says that what the

officers were doing was in good faith searching for persons

missing under unusual circumstances. I agree. But a

search for missing persons, while a serious matter,’ is not

3 In Mincey v. Arizona, supra, —— US. at —, 98 S.Ct. at 2410,

the court declined “to hold that the seriousness of the offense under

investigation [there murder, assault and narcotics} itself creates

exigent circumstances of the kind that under the Fourth Amend-

ment justify a warrantless search.”

33a

per se an emergency of the kind under discussion, nor

did the police consider it such, as shown by the unhurried

way in which they went about it.

The opinion states that the validity of the search must

be judged on objective reasonableness, but then quotes

Sgt. Duffner’s subjective thoughts “‘as far as [he] was con-

cerned” that he really didn’t know what he had, that he

was just looking to see “if they had skipped the country

or they were injured or what.” There is no testimony in

the record that Sgt. Duffner ever expressed these thoughts

to anyone. In fact, he testified he did not think anyone

was in the house, that he was not alarmed, but was ex-

tremely curious. The record shows that Duffner consulted

several times during the morning with the chief of police,

Chief Bolli, as well as with Officer Schindler. Chief Bolli

told them the police were not to break in the house.

Much of the police discussion related to the possibility of

getting defendant’s father to do the breaking in. There is

no mention (except for Duffner’s thought to himself) of

there being any need to break in because someone inside

needed help and quickly.

As the proposed opinion states, the general rule is that

an entry and search without a warrant is unreasonable

and the burden is on the state to show an exception exists.

The state has failed to do so. The “need for help” or

“emergency” justification comes from the state as an after-

thought to justify a belated entry. The officers were

curious about what had happened to Epperson, his wife, —

and children. They wanted to enter the house to investi-

gate, not to try to give first aid to someone who might

be in dire circumstances.

Defendant’s motion to suppress the evidence discovered

and seized after the unlawful entry should have been sus-

34a

tained. It is true this would result in a reversal and a

new trial for a defendant who no doubt is guilty as

charged. But we cannot disregard the Fourth Amendment

in cases where to do so will benefit the defendant. Having

seen fit not to act promptly upon the information furnished

by Mrs. Smith, the police should have obtained a search

warrant and entered the house legally. They could easily

have done so. It was a weekday, Wednesday. The court

house is located in Mexico. The magistrate, the circuit

judge, and the prosecutor were close at hand. The police

had control of the situation at the house because they

were watching and standing guard over it. There was no

need for them to break into defendant’s home two and

one half hours later. They were in possession of facts

which they should have presented to a neutral magistrate

for his determination as to whether there was probable

cause that a crime had been committed and that a search

of the house was warranted. It is noteworthy that no

suggestion is made by the state that a search warrant could

not easily and conveniently have been obtained.

The recent Mincey decision, mentioned earlier, states:

“There was no indication that evidence would be lost,

destroyed or removed during the time required to obtain

a search warrant. Indeed, the police guard at the apart-

ment minimized that probability. And there is no sug-

gestion that a search warrant could not easily and conve-

niently have been obtained.”” Jd. at ——, 98 S.Ct. at

2415. See, also United States v. Donovan, 429 U.S. 413,

436 n. 24, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977), as fol-

lows: “Although law enforcement officials can often take

action without a warrant when they have been unable to

foresee the circumstances that eventually confronted them,

they still must obtain a search warrant when their prior

- knowledge is sufficient to establish probable cause .. .”

il le Cla + tent alt

35a

Here there can be no doubt that for a considerable period

of time prior to their breaking into the house, the police

officers had sufficient knowledge to establish probable

cause. See also Vale v. Louisiana, 399 U.S. 30, 34-35, 90

S.Ct. 1969, 26 L.Ed.2d 409 (1970).

“The point of the Fourth Amendment, which often is

not grasped by zealous officers, is not that it denies law

enforcement the support of the usual inferences which

reasonable men draw from evidence. Its protection con-

sists in requiring that those inferences be drawn by a

neutral and detached magistrate instead of being judged

by the officer engaged in the often competitive enterprise

of ferreting out crime.” Johnson v. United States, 333

U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948), as

quoted with approval in Mincey v. Arizona, supra.

It is our duty to uphold defendant’s constitutional

rights under the Fourth Amendment, whether or not he

is guilty. If we do not enforce the Fourth Amendment,

no one will. Here defendant’s counsel carefully and

properly raised the constitutional question and has

preserved it throughout. The motion to suppress should

have been sustained. I therefore respectfully dissent.

36a

APPENDIX C

CLERK OF THE SUPREME COURT

State of Missouri

Jefferson City, Missouri

65101

THOMAS F. SIMON TELEPHONE

Clerk (314) 751-4144

October 10, 1978

Mr. David V. Bear, III

609 East Broadway

Columbia, MO 65201

In re: State of Missouri vs. Russell Lee

Epperson - No. 60308

Dear Mr. Bear:

This is to advise that the Court this day has

made the following order in the above-entitled cause:

“Appellant’s motion for rehearing overruled.”

Yours very truly,

/s/ Thomas F. Simon

Thomas F. Simon

cc: Attorney General

Thomas Osborne

37a

IN THE SUPREME COURT OF MISSOURI

STATE OF MISSOURI:

I, THOMAS F. SIMON, Clerk of the Supreme

Court of Missouri, do hereby certify that the attached

letter is a true copy of the letter sent to the attorneys

of record transmitting this court’s order of October

10, 1978 denying appellant’s motion for rehearing in

cause No. 60308 entitled State of Missouri vs. Russell

Lee Epperson.

IN TESTIMONY WHEREOF, I hereunto

set my hand and affix the Seal of the

Supreme Court of the State of Missouri,

at my office in the City of Jefferson,

State aforesaid this 22nd day of

December, 1978.

/s/ Thomas F. Simon

Clerk, Supreme Court of Missouri

Banc Minutes - October 10, 1978 - Page 6

60308 State of Missouri, resp., vs. Russell Lee Epperson, app.

Appellant’s motion for rehearing overruled.

60515 State of Missouri, resp., vs. Johnny Lee Mason, app.

Respondent’s motion for rehearing overruled.

60106 Vic Koepke Excavating and Grading Company, a corp.,

resp. Respondent’s motion for rehearing overruled.

60991 State of Missouri, resp., vs. Omer Ray Burns, app.

Appellant’s motion for leave to file an untimely

notice of appeal overruled.

38a

60999 Willis L. Rodgers, pet., vs. State of Missouri, resp.

Petitioner’s motion for leave to file application to

transfer out of time from the Missouri Court of

Appeals, St. Louis District No. 39319, sustained;

application is denied.

61012 State of Missouri, resp., vs. Lee A. Hoy, app.

Appeilant’s motion for leave to file application to

transfer out of time from the Missouri Court of

Appeals, Kansas City District No. 28480 sustained;

application is denied.

60939 LeRoy Reynolds, pet., vs. Missouri Department of

Corrections, resp.

Petitioner’s petition for writ of habeas corpus denied.

Day - to - Day,

J. P. Morgan, Chief Justice

STATE OF MISSOURI-SCT.::

I, THOMAS F. SIMON, Clerk of the Supreme Court of

Missouri, do hereby certify that the foregoing is a true

copy of the orders of said court on p. 6 of the Banc

Minutes entered on the 10th day of October 1978, as

fully as the same appears of record in my office.

IN TESTIMONY WHEREOF, I have hereunto set

my hand and affixed the seal of said Supreme

Court. Done at office in the City of Jefferson,

State aforesaid, this 22nd day of December, 1978.

/s/ Thomas F. Simon, Clerk.

By Mary Elizabeth McHaney, D.C.

hinted GOS an ls

at Me eects

ee ee

(OE Nl er ee Ne a al hi. mete" cient le 2 nome ens omen

39a

APPENDIX D

IN THE MISSOURI COURT OF APPEALS

ST. LOUIS DISTRICT

DIVISION THREE

STATE OF MISSOURI, No. 37927

Appeal from the Hannibal

Court of Common Pleas,

Hannibal, Mo. .

Plaintiff-Respondent,

Vs.

RUSSELL LEE EPPERSO Judge

OPINION FILED

July 26, 1977

)

) Hon. James R. Reinhard,

N, )

)

Defendant-Appellant. _)

)

Defendant Russell Lee Epperson was convicted on three

counts of first degree murder for the killing of his wife

Fern and his two children Richard and DeAnn. The jury

assessed punishment on each count at life imprisonment

and the court ordered the sentences to run consecutively.

On appeal the defendant contends that the evidence used

against him in the prosecution of the case came from a

warrantless search of his home by members of the

municipal police force of the City of Mexico, Missouri, in

violation of his rights under the Fourth Amendment of

the Constituion of the United States and Article I, Section

15 of the Constitution of the State of Missouri. We con-

sider the facts presented by the evidence in the hearing

on defendant’s motion to suppress and the evidence in the

trial of the case as they concern the defendant’s conten-

tion.

40a

Defendant Epperson lived with his wife Fern and their

two small children at 608 West Pearson, Mexico, Missouri.

On March 24, 1975, Fern’s mother, Mrs. Mary Ann Smith,

unsuccessfully attempted to telephone her daughter at her

home. Mrs. Smith then called Epperson at his place of

employment inquiring about the whereabouts of her

daughter. He told Mrs. Smith that Fern and the children

had gone to Columbia to do some shopping. Mrs. Smith

considered that this was unusual because Fern usually left

the children with her when Fern went shopping. The next

day Mrs. Smith again tried calling her daughter at home

but received no answer. That evening she and her husband

saw Epperson on the town square in Mexico. He told

them at that time that Fern was with his mother. How-

ever when Mrs. Smith informed him that Fern and the

children were not with his mother, Epperson then said

that he did not know where they were. After Mrs. Smith

returned home she received a call from Epperson who told

her that Fern had telephoned him and had informed him

she would be home in the morning with the children. On

March 26, 1975, at approximately 8:30 a.m., appellant

called Mrs. Smith and asked her to come over to his

house. She refused at first but then agreed to come. At

8:45 a.m. appellant stopped for Mrs. Smith in his pickup

truck and took her to his home. He informed her that

Fern would be there about 9 o’clock. As she and the

defendant went into the home, he removed something

from a cabinet and kept it behind him while he locked

the kitchen door. He then stood against the door facing

Mrs. Smith. He asked Mrs. Smith to go into the living

room and told her several times that he would be glad

when this was all over. Mrs. Smith saw her daughter’s

purse on the dryer and remembered her daughter never

left the house without taking it with her. She also

smelled an odor which, from prior experience, she asso-

ee ee Oe ee ee ees

4la

ciated with death. After making up an excuse that

she had some food in the oven at her home, she left

the Epperson residence and went to the home of the

neighbor. A call was then placed to the Department of

Public Safety of the City of Mexico and Office Schindler

responded. He met Mrs. Smith at the neighbor’s house

where she related to him the facts and events described

above. Officer Schindler then summoned Sergeant

Duffner and imparted to him the information Mrs. Smith

had given.

Both officers then went to the Epperson home, knocked

on the doors without getting a response and found that

all of the windows were covered with drapes or blinds.

After ordering Officer Schindler to remain near the house

in order to observe if anyone left or entered it, Sergeant

Duffner returned to the police station. He thereupon

called Epperson’s next door neighbor and obtained infor-

mation as to the places of employment of the defendant

and his wife and the school in which Richard was enrolled.

He determined that Fern Epperson had been on vacation

that week but had not attended her usual Tuesday even-

ing bowling. From defendant’s employer he found that

the defendant had stated the day before that he had

taken his wife to the hospital for x-rays but a call to the

family doctor revealed that he had not seen Mrs. Epperson

since December of 1974. Mrs. Smith had informed him

that the hospital had no record of Fern reporting for x-

rays. School personnel where Richard was enrolled told

Sergeant Duffner that Epperson had called the school

Monday and told them that his son Richard would be

absent because of illness. Following a conference with

the Chief of Police, the chief ordered Duffner to find out

from Epperson’s parents whether Epperson had been seen

42a

by them and to request them to come to the house. The

sergeant then arranged to meet Epperson’s parents at the

defendant’s home.

Duffner and Schindler met the parents at the Epperson

home and again failed to get a response by knocking on

the doors. Epperson’s father told him that he did not

see his son’s motorcycle there and that he might be riding

on it. The parents told the officers that they would not

break into their son’s house and the parents then went to

the home of the neighbor where Mrs. Smith was still

present. Epperson’s motorcycle was found at his place of

employment but he was not there. The father and the

two police officers again went to the home and the of-

ficers told the father that he should be the one to enter

the house. The father eventually agreed to assist and

after unsuccessfully trying to open the doors, a storm

window was taken off a window where the inner window

was unlocked. Duffner assisted the father in raising the

window and a ladder was placed against the side of the

building, the blinds were pulled back and the father and

two police officers entered a bedroom in the house.

When they pulled the blinds back they saw a human form

lying under a sheet on the bed. While Schindler and

Epperson’s father went to the other parts of the house to

see if anyone else was there, Sergeant Duffner removed

the sheet from the form and discovered the bodies of

Mrs. Epperson and the two children. The children had

plastic bags over their heads and the son had a cord

around his neck. There was a sack in the bag over the

daughter’s head and another sack was near the wife’s face.

The other two returned where the bodies were located

and Duffner called his superior officers and then made an

investigation of the house. As he walked through the

house he then found a five-gallon can of gasoline in the

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ee es ee eee

ahs eee! <n th we

Ne et ee ne a te le De Re

43a

hallway near the bedroom. He found a chisel for an air

hammer partly wrapped in towels in a chair in the living

room and a bottle of chloroform on top of the sewing

cabinet in the kitchen. Chloroform was found in the

vital organs of the victims and blows by a blunt instrument

had been inflicted on some of the victims.

It is the defendant’s contention that the facts known

to the police when they broke into the defendant’s house

were not sufficient to justify a warrantless search. On

the other hand the State contends that the known facts

were sufficient to lead a police officer to believe both that

a crime had been ccmmitted and that exigent circum-

stances required an immediate entry in that there was

someone in the house who might need immediate medical

aid.

Objectively speaking, there were sufficient facts known

to the police to establish probable cause that a crime had

been committed. The defendant’s wife and children had

been missing several days; defendant had given false and

inconsistent explanations for their absence; defendant was

acting in a strange and nervous manner; there was an odor

of decomposing flesh in the house; and the defendant

could not be located.

The question remains, however, as to whether there

were sufficient facts to establish exigent circumstances

justifying a warrantless search. In general a search with-

out a warrant is unreasonable and there are few exceptions

and these are carefully delineated. United States v. U.S.

District Court, 407 U.S. 297, 318 (1972); Coolidge v.

New Hampshire, 403 U.S. 443, 454, 455 (1971); Vale v.

Louisiana, 399 U.S. 30, 34 (1970). The burden is on the

State to show an exception exists. Coolidge v. New

Hampshire, supra, 403 U.S. at 455; Vale v. Louisiana,

44a

supra, 399 U.S. at 34. The exceptions are searches in-

cident to a valid arrest, searches of cars stopped on a road,

seizures of evidence in plain view, stop and frisk searches,

searches with consent, searches to prevent destruction of

evidence, searches to prevent the flight of a criminal, and

searches in response to a need for help. See Coolidge v.

New Hampshire, supra, 403 U.S. at 455-473; Vale v.

Louisiana, supra, 399 U.S. at 34-35; Terry v. Ohio, 392

U.S. 1, 27 (1968); Warden v. Hayden, 387 U.S. 294, 299

(1967); Chapman v. United States, 365 U.S. 610, 615

(1961); McDonald v. United States, 335 U.S. 451, 454-455

(1948).

The State contends that the situation here fits into the

need for help or the emergency exception. It contends

that the odor of death combined with the defendant’s

strange behavior and the long absence of defendant’s wife

and children, as well as his absence at the time of the

search, would give probable cause to believe that there

was a medical emergency in which someone might be

injured and in need of immediate help. This contention

is actually two-fold. The State says that probable cause

to believe that a crime has been committed and that some-

one may be hurt because of it justifies a warrantless search.

Also, the bare probable cause to believe someone is hurt,

regardless of lack of probable cause to believe a crime

caused it, justifies a warrantless search.

The Supreme Court of the United States has held

reasonable a warrantless search in the first kind of emer-

gency situation, as when a police officer hears a shot and

a cry for help. McDonald v. United States, supra, 335

U.S. at 454. For a discussion of the emergency doctrine

and its history see State v. Sutton, 454 S.W.2d 481 (Mo.

—— ee

ee Re, nn abe a on Se er

ane.

45a

banc 1972).! See also, Wayne v. United States, 318 F.2d

205, 211-214 (D.C. Cir. 1963). It has been persuasively

stated that whenever the police have reliable information

of a death an emergency exists sufficient to warrant an

immediate search because apparent death may turn out to

be a barely surviving life, still able to be saved. Patrick

v. State, 227 A.2d 486, 489 [3-9] (Del. 1967). Our

Supreme Court has adopted the emergency exception on

facts dissimilar to those here presented. State v. Miller,

486 S.W.2d 435 (Mo. 1972).

The defendant in his brief places a great deal of em-

phasis on the police officers’ belief that no crime had been

committed and no emergency existed. The State counters,

however, by stating that when it comes to determining

the legality of a search the subjective thoughts of the

police are irrelevant and only the objective facts within

their knowledge as well as reasonable conclusions objective-

ly drawn from them are determinative.

The Supreme Court of the United States has discussed

both probable cause and the warrant requirements for

searches in terms of an objective standard. It has said

that in determining the reasonableness of a particular

search, “it is imperative that the facts be judged against

an objective standard: would the facts available to the of-

licer at the moment of the seizure or the search ‘warrant

a man of reasonable caution in the belief’ that the action

taken was appropriate?” Terry v. Ohio, supra, 392 U.S. 1,

21-22. The court was emphasizing that at some point the

| The search there made was ruled unconstitutional under the facts

of the case but it was recognized that Missouri had “the prerogative”

to accept that doctrine. Root v. Gauper, 438 F.2d 361, 365 (8th

Cir. 1971).

46a

subjective determination by the police that a search is

justified must be checked against an objective determina-

tion by a court. It was saying subjective good faith alone

is not enough; there must also be objective reasonableness.

Many lower federal courts and some state courts have

said, sometimes in dicta, that objective reasonableness

alone suffices to uphold either an arrest or a search. See,

e.g., United States ex rel. LaBelle v. LaVallee, 517 F.2d 750

754 [7-8] (2d Cir. 1975), cert. denied, 423 U.S. 1062

(1976); United States v. McCoy, 517 F.2d 41, 43 n.1 [1]

(7th Cir. 1975), cert. denied, 423 U.S. 895 (1975); United

States v. Vital-Padilla, 500 F.2d 641, 644 {2] (9th Cir.

1974); White v. United States, 448 F.2d 250, 254 [5]

(8th Cir. 1971), cert. denied, 405 U.S. 926 (1972); Siri-

maco v. United States, 315 F.2d 699, 702 [7] (10th Cir.

1963),.cert. denied, 374 U.S. 807 (1963); State v. Donnell

239 N.W.2d 575, 578 [6] (lowa 1976); Commonwealth e

Miller, 318 N.E.2d 909, 911 [4] (Mass. 1974); Common-

wealth v. Donnelly, 336 A.2d 632, 637 [5-6] (Pa.Super

1975), cert. denied, 424 U.S. 974 (1976). The only cases

that disagree with this purely objective standard have done

so on the basis that the police officer’s subjective motives

were bad faith ones in the particular situation. See, e.g.,

Mills v. Wainwright, 415 F.2d 787, 790 [1] (Sth Cir. 1969);

Moss v. Cox, 311 F.Supp. 1245, 1251-52 [13-15] (E.D.

Vir. 1970). Contra United States v. Dunavan, 485 F.2d

201, 205 [4-6] (6th Cir. 1973). This is not a problem

here, however, because the officers in this case had a good

faith motive of searching for persons missing under unusual

circumstances rather than of finding evidence to tie de-

fendant in with a crime or of harassing defendant.

Missouri courts have accepted this objective standard in

two cases. State v. Miller, supra, 486 S.W.2d 435; State

47a

v. Deffenbaugh, 534 S.W.2?d 565, 567-568 [1] (Mo.App.

1976). We believe that these cases, along with the over-

whelming agreement by other courts, provides a firm basis

for using an objective standard in this case and upholding

the officers’ initial entry into the defendant’s home despite

their possible lack of correct subjective motivation. Here,

although the odor of decomposing flesh would indicate

death of at least one of the persons involved, Fern and

the two children were missing under most unusual circum-

stances and Epperson could not be found. One or more

of the remaining three could be in immediate need of

help to prevent death.

Furthermore, a careful analysis of the officers’ testimony

reveals that although they frequently considered this a

“missing persons” investigation they also considered the

medical emergency factors involved. As Sergeant Duffner

testified in response to the question of why he did not

get a search warrant:

“A Well, I really didn’t know what I had. I

didn’t know—I knew the circumstances, that

Russell Epperson and his wife were gone, and

as far as I was concerned, I was just looking to

try to find them to see if they had skipped the

country or they were injured or what. I didn’t

really know what I had. I mean there was no

indication further to my prior investigation of

any foul play involved of [sic] anything. As

far as I knew they were just gone wherever

they went; I couldn’t tell.’’ (Emphasis ours).

Obviously from this response it can readily be found and

inferred that Duffner who was in charge of the search

considered the probability that someone inside the house

might be injured and need emergency aid.

48a

It is clear that once the officers had made a permissible

entry into the house under the medical emergency doc-

trine, they could seize evidence of the crime in the bed-

room under the plain view doctrine. The Supreme Court

of the United States has said, “Where the initial intrusion

that brings the police within plain view of such an article

is supported, not by a warrant, but by one of the recog-

nized exceptions to the warrant requirement, the seizure

is also legitimate.”” Coolidge v. New Hampshire, 403 U.S.

443, 465 (1971).

In order to uphold a seizure of evidence under the plain

view doctrine, the police must be justified in making their

initial intrusion, they must discover the evidence inadver-

tently rather than by anticipation or by a concerted

search, and they must immediately recognize that the

objects viewed are evidence of a crime. Coolidge v. New

Hampshire, supra, 403 U.S. at 465; State v. Dayton, 535

S.W.2d 479, 486 [6-8] (Mo. App. 1976). Here, the of-

ficers’ initial warrantless entry was justified under the

emergency doctrine. They did not search for the evidence

in the bedroom nor did they know it would be there.

At most, they could expect to find someone hurt or dead

but they could not anticipate finding evidence of a crime.

Under the emergency doctrine they had a right to look

under the sheet to see if the forms under it were those

of people still alive. It is then that the other evidence,

that is, the bags, sacks and cord, came into plain view

and could be seized. As for the bodies themselves, they

could be seized because they were the objects of the

initial, justifiable emergency search. They immediately

recognized that the objects were evidence of a crime.

Thus all evidence found in the bedroom was admissible

under the plain view doctrine. For a similar decision in

another state see Patrick v. State, supra, 227 A.2d at 489-

90 [9-11].

49a

There is no way, however, that the evidence found in

rooms of the house other than the bedroom where the

bodies were located can be justified under the plain view

doctrine except as they might have been seized in the

first search for injured persons. This evidence was found

as the result of a concerted search of the rest of the house

by the sergeant looking for further evidence of the crime

after the original search for possible injured persons by Of-

ficer Schindler and Epperson’s father. Thus the inadvert-

ence requirement of the plain view doctrine is not met

here. On the other hand, if the evidence had been found

while Officer Schindler made his previous, cursory search

of the house for the defendant, it would have been ad-

missible under the plain view doctrine, for such a cursory

search for someone potentially dangerous in a house is

allowed and objects in plain view discovered during such

a serach are admissible. United States v. Blake, 484 F.2d

50, 57 [7-8] (8th Cir. 1973), cert. denied, 417 U.S. 949

(1974); State v. Dayton, supra, 535 S.W.2d at 484-86 [1-4].

No other exceptions so far recognized by the United

States Supreme Court fit this situation either. In partic-

ular, this additional search was not necessary to prevent

the known probable flight of a criminal (here, the defen-

dant). It is true the defendant’s location on the morning

of March 26 was unknown at the time of the search. But

he had been seen in his house earlier that morning. All

his vehicles were accounted for. The fact of there being

camping equipment, groceries, etc., in one of the family

vehicles cannot be relied on because the police didn’t

notice this until after the search. Moreover, if anything,

there was evidence the defendant was going to stay around

since he had already done that despite enough time having

passed for the victims to be missing several days and for

a body to decompose some. Certainly there is little simil-

50a

arity between this case and the “thot pursuit” case of

Warder v. Hayden, supra, 387 U.S. 294.

There are, however, numerous cases in which other

courts have upheld warrantless searches at the scene of

homicides even in the absence of specific facts showing

likely flight of the criminal or other usually recognized

exigent circumstances. See, e.g., United States v. Birrell,

470 F.2d 113, 116-17 [6] (2d Cir. 1972); United States

v. Keeble, 459 F.2d 757, 762 [6] (8th Cir. 1972), re-

versed on other grounds, 412 U.S. 205 (1973); Brown v.

Jones, 407 F. Supp. 686, 691 [8] (W.D. Texas 1974);

affirmed per curiam, 526 F.2d 1391 (5th Cir. 1976);

State v. Sample, 489 P.2d 44, 46-47 [2] (Ariz. 1971);

State v. Chapman, 250 A.2d 203, 208-11 [3-6] (Me.

1969); People v. Neulist, 43 A.D.2d 150, 350 N.Y.S.2d

178, 183-85 [2-5] (1973); Brown v. State, 475 S.W.2d

938, 948-50 [11,12] (Tex. App. 1971). The rationale of

these decisions has been the great need to protect society

from murderers, the need to protect against any possible

flight of the criminal, and the pointlessness of requiring a

warrant. United States v. Birrell, supra, at 117; Brown v.

Jones, supra, at 691; State v. Sample, supra, at 47.

This relatively new exception is not based on the usual

finding of specific facts that flight is likely but is based

on a general recognition of the seriousness of the crime

and the overwhelming need to protect society against its

perpetrators. Not all courts agree such an exception is

constitutionally permissible. See, e.g., Sample v. Eyman,

469 F.2d 819, 821-22 [6] (9th Cir. 1972) (overturning

conviction in State v. Sample, supra); People v. Williams,

557 P.2d 399, 403-05 [1-5] (Colo. 1976); State v.

Brothers, 478 P.2d 442 (Ore.App. 1970). One court has

tried to reconcile two of the conflicting opinions on this

5la

question by upholding a warrantless search of a murder

scene only if made contemporaneously with the discovery

of the body. See State v. Duke, 518 P.2d 570, 574 [3]

(Ariz. 1974) (distinguishing State v. Sample, supra).

It is on this exception that this case can be differentiated

from Root v. Gauper, supra, 438 F.2d 361, (overturning

conviction in State v. Sutton, supra, 454 S.W.2d 481). In

that case the search took place after the body was removed

from the scene. Here, it took place immediately upon dis-

covery of the bodies. Also, in Root v. Gauper, the court did

not have, as here, a situation in which the initial entry was

justified on another basis and only an additional search was

in question under the homicide scene exception. There,

the initial search was not able to be justified under the

emergency or other doctrine.”

We find those cases upholding the homicide scene excep-

tion to warrantless searches most persuasive and in this

situation, we believe it applicable to uphold the search of

the other rooms of defendant’s house. Under this excep-

tion all evidence pertaining to the warrantless search of

defendant’s house was admissible.

No decision of our Supreme Court, however, has adopted

this exception to validate a warrantless search. Because

this issue involves an interpretation of a provision of the

Constitution of the United States and the Constitution of

Missouri which has not been previously construed, the

Supreme Court of Missouri has exclusive jurisdiction of

this appeal under Article V, Section 3, M‘ssouri Constitu-

tion, as amended 1970. City of St. Louis v. Tinker, 542

S.W.2d 512, 513 [1] (Mo.banc 1976).

2 In Root v. Gauper, the homicide scene doctrine was apparently

not advanced to justify the initial intrusion.

52a

In accordance with Article V, Section 10, Missouri

Constitution, as amended 1970, this case is transferred to

the Supreme Court of Missouri.

/s/ Harry L. C. Weier

HARRY L. C. WEIER, JUDGE

John J. Kelly, Jr. Presiding Judge concurs

George F. Gunn, Jr. Judge concurs

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.