Opposition — Epperson v. Missouri

= Suprema Court, U.

FILED

MAY 2 1979

MICHABL RODAK, JR., CLERR

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1310

RUSSELL LEE EPPERSON,

Petitioner,

VS.

STATE OF MISSOURI,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSOURI

BRIEF FOR RESPONDENT IN OPPOSITION

JOHN ASHCROFT

Attorney General

PauL RoBert Otro

Assistant Attorney General

P. O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Respondent

E. L. MEenpEeNHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

INDEX

Citations ........... I

NIN UE CII RID oa en caste csinsnstcdtepecinasinasinccssnsianicnliantesh 1

Reasons Why the Writ Should Be Denied .................... 8

III cihtcsnchictriiecsmninciaieinsiniaibGdecitics Setiiinddiasatebsesnanasuastenipuatiin 15

TI, BO. setinensticienesssectanbicessttiidiinstiaidbicinia 17

Citations

Klingler v. United States, 409 F.2d 299 (8th Cir. 1969);

cert. denied, 396 U.S. 859 (1969) 2.0... eet eeeeeee 14

Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.

Be SO: ID isi acibikk ca ti vigelnialabaiphaiteetiavitanebserensibcanakued 9,12

Mincey v. Arizona, ........ [1s Seumees , 98 S.Ct. 2408, 57

sm oe. | peeennnenennre 8, 9, 12

Payne v. United States, 111 U.S. App. D.C. 94, 294 F.2d

723 (1961); cert, denied, 368 U.S. 883 (1961) ............ 14

State v. Epperson, 571 S.W.2d 260 (Mo. banc 1978)

eiaphecbualidedtatstel 10, 11,14

State v. Vanzant, 14 Wash. App. 679, 544 P.2d 786

(1975) .. mbisesccietasndacibinancai ia ciaemsisdadid 14

Terry v. Ohio, 392 US. 1, 88 S, Ct. 1868, 20 L.Ed.2d 889

(1968) . 14

United States v. Carr, 445 tin, 1383 (D. Con, 1978)

14-15

United States ex rel. Senk v. Bint, 381 F.Supp. 447

(M.D.Penn. 1974); affirmed without opinion, 511

F.2d 1396 (3rd Cir. 1975); cert. denied, 423 U.S. 843

(1975) _ ...... 14

Oran re i ssetdnnsenanmotl 8, 10

LaFave, Search and Seizure, Section 3.2, pages 460-461 15

LaFave, Search and Seizure, Section 6.6(a), pages 467-

SII sasscheaithd sichineninicokeimbaiphecnbnaet-dastoamacndositoed =e

na

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1310

RUSSELL LEE EPPERSON,

Petitioner,

VS.

STATE OF MISSOURI,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSOURI

BRIEF FOR RESPONDENT IN OPPOSITION

STATEMENT OF THE CASE

Petitioner was convicted of three counts of murder

in the first degree in 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. The

conviction was obtained in the Hannibal Court of Common

Pleas after a change of venue from the Circuit Court

of Audrain County. The convictions arose from the fol-

lowing events:

2

Petitioner lived with his wife, Fern, and their two

children at 608 West Pearson in Mexico, Missouri. On

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

attempted to telephone her daughter at her home. Mrs.

Smith called petitioner at his job inquiring about the

whereabouts of her daughter. He told her that she and

the children had gone to Columbia to do some shopping.

This was unusual because Fern usually left the children

with Mrs. Smith when she went shopping. The next day,

Mrs. Smith tried calling her daughter at home again but

received no answer. That evening she and her husband

saw petitioner on the town square in Mexico. He told

them that Fern was with his mother. However, after

Mrs. Smith informed him that Fern and the children were

not with his mother, he said that he did not know where

they were. After Mrs. Smith went home, she received

a call from petitioner who told her that Fern had tele-

phoned him and told him that she would be home in

the morning with the children.

On March 26, 1976, at approximately 8:30 a.m., peti-

tioner called Mrs. Smith on the telephone and asked her

to come over to his house. She refused at first but then

agreed to come. Petitioner informed her that Fern would

be there about 9:00 o’clock. At 8:45 a.m., petitioner picked

up Mrs. Smith in his pickup truck and took her to his

home at 608 West Pearson. As she and the petitioner

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. Peti-

tioner 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 spotted her daughter’s purse

on the dryer and remembered that Fern never left the

house without it. Mrs. Smith also smelled a strong sweet

odor which she associated with death. After making up

3

an excuse, she left the house and went to the residence

of a neighbor, Mrs. Gloria Mitchell, where someone called

the police.

Officer William Schindler of the Mexico Public Safety

Department responded to the call and met Mrs. Smith

at 810 North Wade, the home of Gloria Mitchell. Mrs.

Smith related to Officer Schindler the facts and events

described above. Officer Schindler summoned Sergeant

Duffner and told him what Mrs. Smith had related. This

occurred at 9:34 am. While Officer Schindler testified

at the hearing on the motion to suppress that Mrs. Smith

did not tell him about the odor of death, Mrs. Smith

testified that she did tell him. Sergeant Richard Duffner

testified that Officer Schindler related to him later that

morning that Mrs. Smith had told him about the odor.

Both officers went to 608 West Pearson, knocked on

the doors without getting a response, and found that all

the windows were covered.with drapes or blinds. Sergeant

Duffner returned to the police station having ordered Of-

ficer Schindler to remain near the house in order to observe

if anyone left or entered it. After returning to the police

station, Sergeant Duffner commenced an investigation

which began with his talking to petitioner’s next door

neighbor.. He learned from her the places of employment

of petitioner and his wife and the school in which peti-

tioner’s son, Richard, was enrolled. Sergeant Duffner de-

termined that Fern Epperson had been on vacation that

week but had not shown up for bowling on Tuesday eve-

ning as she usually did. He also discovered from peti-

tioner’s employer that petitioner had stated the day before

that he had taken his wife to the hospital for Xrays.

A call to the Eppersons’ family doctor revealed that he

had not seen her since December, 1974. The personnel

of the school in which Richard Epperson was enrolled

4

told Sergeant Duffner that a person identifying himself

as Russell Epperson had called the school Monday and

told them that his son Richard would be absent because

of illness. Sergeant Duffner informed Officer Schindler

and the chief of police of the results of his investigation.

The chief ordered Sergeant Duffner to get in touch with

petitioner’s parents to find out if they had seen petitioner

or to request them to come to the house. The sergeant

arranged to meet the parents at petitioner’s home. He

then stopped by to talk to Mrs. Smith and was informed

by her that the local hospital had no record of Fern’s

having had Xrays.

Sergeant Duffner and Officer Schindler met peti-

tioner’s parents at 608 West Pearson shortly thereafter

and again failed to get a response by knocking on the

doors. Petitioner’s father, hereafter referred to as Mr.

Epperson, told them that he did not see petitioner’s motor-

cycle there and that he might be riding around on it.

After telling the police officers that they would not break

into their son’s house, the Eppersons went to the home

of Mrs. Mitchell, where Mrs. Smith still was present. Of-

ficer Schindler then went to the police department where

he found out by means of a telephone call that petitioner’s

motorcycle was found at his place of employment. «he

chief of police had previously told Duffner and Schindler

that they could not break into the house themselves but

that perhaps Mr. Epperson could. Officer Schindler called

Mr. Epperson at the Mitchell residence and told him about

locating the motorcycle without having located the peti-

tioner. Epperson told Schindler that he would give them

some help in entering the house. After the telephone

call, Mrs. Mitchell heard Mr. Epperson tell them that they

had to go and try to get in because if anything had hap-

pened his son might be dead also.

5

The Eppersons and Diffner and Schindler met again

at petitioner’s home. Petitioner’s car and truck were also

there. The officers told the Eppersons that if there would

be any breaking into the house they should be the ones

to initiate the action. Mr. Epperson agreed to help. Mr.

Epperson unsuccessfully tried to open the doors with his

key and then with a screwdriver. One of the police officers

noticed that a window in the south side of the house

was unlocked. After Sergeant Duffner got a Phillips

screwdriver from petitioner’s garage, Mr. Epperson used

the screwdriver to take the screws out of the storm window

as the officers assisted him by holding the window. All

of them helped raise the window and Officer Schindler

noticed the odor of decomposing flesh as soon as the win-

dow was raised. After a ladder was placed against the

window, they pulled the blinds back and saw a human

form lying under a sheet on the bed. Mr. Epperson entered

the room through the window first with Schindler and

Duffner following. The entry was around noon.

The form on the bed appeared to be a body with

the sheet pulled up to the back of the head. While Officer

Schindler and Mr. Epperson went to the other parts of

the house to see if anybody else was there, Sergeant Duff-

ner removed the sheet from the form and discovered the

bodies of a nude adult female with two children lying

across her back. He showed what he had found to the

other two men. The female, Fern Epperson, was lying

face down on the bed and the children had nightclothes

on and two white plastic bags over their heads. The

male child had a cord tied around his neck. A sock was

found by Fern’s face and another sock was found in the

plastic bag over the female child’s head. There were no

indications of struggle or forced entry.

6

Sergeant Duffner called his superior officers and then

made an investigation of the house. As he walked through

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

hallway near the bedroom where the bodies were found;

he found a chisel for an air hammer partly wrapped in

towels in a chair in the living room; and, he found a

bottle of chloroform on top of the sewing cabinet in the

kitchen. In the Cadillac parked near the house he observed

groceries, camping equipment and automobile equipment.

That afternoon a search was begun for the petitioner

in the City of Mexico. The search eventually extended

throughout Audrain County and several of the surrounding

counties. Petitioner was arrested on April 4, 1975, after

his father called the sheriff's department and announced

that his son was at his house and ready to give himself

up.

Tests later revealed that the bottle found in the kitchen

of the Epperson home did indeed contain chloroform, as

did the socks which were found next to the mother and

daughter. Chloroform was also found in the vital organs

of the victims. The bodies had been dead for 30 to 72

hours before the autopsies were performed at 5:00 p.m.

on March 26, 1975. The bodies showed evidence of blows

by a blunt instrument on the head and shoulders, with

the male child having suffered a skull fracture from the

blows. Fern’s cause of death was diagnosed as asphyxia

due to the administration of chloroform and smothering,

and blows from a blunt object. The male child was found

to have died by strangulation from the cord around his

neck, from probable smothering by the plastic bag and

from the skull fracture. The female child was killed by

asphyxia due to the administration of chloroform and

smothering by the plastic bag.

7

A motion to suppress all of the evidence gained as

the result of the entry of petitioner’s home was filed,

and a hearing was held before the Honorable George P.

Adams. In addition to the testimony which has been de-

scribed above, Mr. Epperson stated that he had given no

permission for the officers to enter his son’s home nor

had he voluntarily assisted them. This testimony was

despite Mr. Epperson’s previous statement given to a police

officer on March 26, 1976, in which he stated that he

assisted police officers after his wife and Mrs. Smith de-

cided that the house should be broken into. Sergeant

Duffner testified that they did not get a search warrant

because there was no indication of “foul play”. Before

entering the home, he had known of no crime which had

been committed. Officer Schindler also testified that he

had had no idea that a crime had been committed and

that he had not been alarmed by anything before entering

the house.

The motion to suppress was overruled.

Petitioner entered a plea of not guilty by reason of

mental disease or defect, and was found by the circuit

court to be competent to stand trial. After psychiatric

examinations of petitioner were completed, he withdrew

his plea prior to trial and entered a plea of not guilty.

A rehearing on the motion to suppress was denied by

the Honorable James R. Reinhard, who conducted the trial.

At trial, the state presented evidence of the facts as

related above. Petitioner rested without presenting any

evidence. The jury found petitioner guilty of three counts

of murder in the first degree and assessed his punishment

on each count at life imprisonment. The Circuit Court

ordered that the sentences run consecutively.

REASONS WHY THE WRIT SHOULD

BE DENIED

Petitioner urges this Court to issue its writ of certiorari

for two reasons. First, the medical emergency exception

to the Fourth Amendment Search Warrant Requirement

has not been clearly delineated or defined by previous

United States Supreme Court decisions and, Second, the

facts in the instant case do not render the entry into

petitioner’s home valid as a response to a medical emer-

gency.

It is respondent’s position that the medical emergency

exception has been sufficiently delineated and recognized

by United States Supreme Court opinions to allow it to

be applied in an accurate and con:titutional manner

by lower courts and that the definition of the medical

emergency exception is by the nature of its subject matter

impossible to delineate more clearly. The right of the

police to respond to emergency situations, including medi-

cal emergencies, was recognized as well established by

the Court in Mincey v. Arizona, ........ RP , 98 S.Ct.

2408, 2413-2414, 57 L.Ed.2d 290 (1978):

“We do not question the right of the police to respond

to emergency situations. Numerous state and federal

cases have recognized that the Fourth Amendment

does not bar police officers from making warrantless

entries and searches when they reasonably believe

that a person within is in need of immediate aid.

Similarly, when the police come upon the scene of

a homicide they may make a prompt warrantless

search of the area to see if there are other victims

or if a killer is still on the premises... . ‘The need

to protect or preserve life or avoid serious injury is

justification for what would otherwise be illegal ab-

9

sent an exigency or emergency.’” [Footnotes and cita-

tions omitted]. See also, LaFave, Search and Seizure,

Section 6.6(a), pp. 467-473.

The formulation which allows police to respond to

emergency situations within dwellings without a warrant

when there are reasonable grounds to believe that a person

is in need of immediate aid in order to protect or preserve

life or avoid serious injury is about as precise as is possible

given the fact that emergency situations by their very

nature are impossible to anticipate. Given the infinitely

varying and random circumstances in life, it would be

extremely unwise to attempt to further delineate the de-

scription given in Mincey of the medical emergency excep-

tion unless a legitimate instance of such emergency be inad-

vertently excluded. This same problem was recognized

in regard to the entry of burning premises in Michigan

v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978),

wherein the Supreme Court recognized that the general

rules established in their opinion would have to be applied

on a case by case basis by other courts. Id. 436 US.

at 510, note 6. The Court in Tyler attempted no further

delineation of when officers may enter and search burning

or burned premises other than the broad guidelines given

in that opinion. Likewise, no such attempt should be

made in the instant case. Any attempt made in this case

would be strictly limited to the facts of this case and

would be of little precedential value.

Petitioner points out no line of cases which deviates

from the Supreme Court’s Mincey formulation of the emer-

gency rule nor does he point out wherein the Supreme

Court of Missouri deviated from that rule in the instant

case. Indeed, the Supreme Court of Missouri emphasized

the fact that the police needed to find that there was

someone who was “in need of immediate help” because

10

of illness or injury and that in the instant case one or

more of the victims of the crime could have been in “im-

mediate need of help to prevent death”. State v. Epperson,

571 S.W.2d 260, 264 (Mo. banc 1978).

In summary, as for the need for this Court to issue

its writ in order to define or delineate further the medical

emergency exception to the Fourth Amendment search

warrant requirement, petitioner has failed to make a con-

vincing case that such an endeavor is needed and has

failed to indicate that such would change the analysis

utilized by the Supreme Court of Missouri in the instant

case.

Petitioner insists, however, that the medical emer-

gency exception, however defined, should not apply to

the facts in the instant case because there were no facts

within the knowledge of the officers which were sufficient

to sustain a reasonable basis that a medical emergency

existed and because the officers had concluded that no

emergency did exist. Essentially, the facts within the

knowledge of the officers are as summarized by the Su-

preme Court of Missouri:

“These facts include (1) the defendant’s wife and chil-

dren had been missing several days; (2) defendant had

given false and inconsistent explanations [to various

persons] for their absence; (3) defendant’s unusual,

_1. During oral argument before the Missouri Supreme Court,

petitioner’s counsel stated, after describing the information before

the officers, “Had there been a search warrant I certainly don’t

think that I’d be here making any argument that he hadn’t had

probable cause to obtain a search warrant with that kind of in-

formation.” He modified this somewhat by stating later that this

was not a case presenting a “glaring” set of facts for an emergency.

Even though a transcript of the oral argument has not been

prepared by that Court, respondent’s counsel vouches for the

accuracy of the statements as having been at the argument and

as having listened to them on the tapes of the argument recorded

by the Court.

11

suspicious and nervous manner in the days following

the disappearance of his family; (4) an odor of decom-

posing 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.” State v. Epperson, supra, at 263.

These facts had also led Epperson’s mother and father to

conclude, immediately before deciding to go into the house,

that if something terrible had happened to the rest of the

family then “Russell was dead also.” Mr. Epperson later

denied saying this.

As pointed out by the Supreme Court of Missouri,

these facts are remarkably similar to the facts in the nu-

merous cases cited in State v. Epperson, supra, at 264, in

which it was found that the facts presented a reasonable

basis for concluding that there was a medical emergency

justifying officers entering a premises without a warrant.

Petitioner cites no cases which have, on similar facts, failed

to uphold a warrantless entry. Petitioner argues that, be-

cause the police delayed several hours before entering the

premises, this reenforces petitioner’s contention that there

was no true emergency. He fails to allude to the fact that

the several hours delay was caused by the police officers

investigating the whereabouts of Mrs. Epperson and her

children as well as of petitioner, which investigation re-

vealed facts further establishing the suspicious nature of

the family’s disappearance and of petitioner’s recent ac-

2. The assertion is made on page four of the petition for

writ of certiorari that Mrs. Smith, Fern Epperson’s mother, had

told Officer Schindler that she had smelled the odor of rotting flesh

when in the house that morning but that Officer Schindler denied

that he had been told about the unusual odor. Petitioner, how-

ever, fails to fully describe the testimony at the suppression hear-

ing. Sergeant Richard Duffner testified that Officer Schindler

had in fact related to him that same morning that Mrs. Smith

had told him about the odor of death.

12

tions. It was then that many of the inconsistencies in-

volved in petitioner’s previous explanations about the

whereabouts of his family and his own lack of availability

at his usual place of employment became apparent. It was

these additional factors as well as the factors that were

already within the officers’ knowledge that the Supreme

Court of Missouri relied on in concluding that there was a

reasonable basis for the officers to have believed that a

medical emergency existed at the time that they and Ep-

person’s father broke into the house. This two hour period,

then, unearthed facts and circumstances which formed a

part of the basis for entry. The implication urged by peti-

tioner that this was a period of several hours in which

nothing was done is erroneous.

The question presented by appellant for review in-

volves only the entry of the premises and does not extend

to the finding of the bodies or the subsequent observations

by one of the police officers in which he found, in plain

view, the instrumentalities of the crime and which resulted

in photographs being taken. The finding of the items ad-

ditional to the bodies also does not seem to be a subsidiary

question presented by the petitioner since, as analyzed by

the Supreme Court of Missouri, it was simply a continua-

tion of the medical emergency circumstance which justified

the initial entry. See Michigan v. Tyler, supra. None of

the egregious circumstances which existed either in those

searches in Tyler which occurred more than a day after the

fire and those searches in Mincey which occurred over a

several day period and involved ripping up the residence

are found in the instant case. Here, appellant’s where-

3. In fact during oral argument before the Supreme Court

of Missouri petitioner’s attorney stated that this further “search”

was justified if the initial entry was. Even though no transcript

was prepared of the oral argument, counsel for respondent was

present then and has listened to the Court’s tapes of the argument

to insure the accuracy of this assertion.

13

abouts had not been determined nor had it been determined

that there was evidence in the house which was safe from

removal or destruction. The officer was certainly justified

in looking for evidence, such as the instrumentalities of the

crime which he found, in view of the fact that people would

be coming to take the bodies to either the hospital or fu-

neral home and that other people would also be present in

the house who may inadvertently or deliberately remove

or destroy evidence, Because this is not a question pre-

sented by the petitioner, respondent will not engage in a

more thorough discussion of it.

The third question addressed by the Missouri Supreme

Court, concerning the subjective conclusion of the police

officers that no reasonable basis existed indicating a med-

ical emergency, is not explicitly presented as a question for

review by a petitioner. Although he alludes to the fact

that the officers did not conclude that a medical emergency

existed, this fact is used to corroborate his own assertion

that the facts presented by the case cannot serve as a rea-

sonable basis for the medical emergency exception. How-

ever, this question might be one which this Court would

treat as a subsidiary question of the issue presented for

review. Numerous other courts have considered it neces-

sary to determine whether the subjective erroneous deter-

mination of the police officers concerning the legality of a

search or arrest is controlling on the reviewing court or

whether an objective test should be applied. Therefore,

respondent will treat this as a subsidary question.

Respondent contends that the issue of whether or not

the subjective determination by the police officers on

whether or not a medical emergency existed should be

binding on a reviewing court should not be the basis for

the issuance of the writ of certiorari since the Supreme

Court of Missouri’s decision was based upon and in ac-

14

cordance with principles firmly established by this Court.

The Supreme Court of Missouri held that “objective rea-

sons alone suffice to uphold either an arrest or a search”

unless “the police officers’ subjective motives were demon-

strably in bad faith.” State v. Epperson, supra, at 265.

While there is no United States Supreme Court case in

which a subjective decision by officers as to the lack of

justification for a search or arrest has been ignored in

favor of justifying their actions on objective grounds, the

Missouri Supreme Court’s position is in accord with ap-

plicable decisions by this Court in which this Court set

forth an objective standard to be used to review officers’

actions. In Terry v. Ohio, 392 US. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889 (1968) this Court held that the reasonableness

of a particular search should be judged against an objective

standard, that is,

“would the facts available to the officer at the moment

of the seizure or the search ‘warrant a man of reason-

able caution in the belief’ that the action taken was

* appropriate?” Id. 392 U.S. at 21-22.

Other jurisdictions which have considered the question

have, practically unanimously, relied on the language in

Terry or on similar language in other United States Su-

preme Court cases to uphold arrests and searches made de-

spite subjective determinations by police officers which

could not have supported their actions. Klingler v. United

States, 409 F.2d 299, 304-305 (8th Cir. 1969); cert. denied,

396 U.S. 859 (1969); State v. Vanzant, 14 Wash. App. 679,

544 P.2d 786, 788 (1975); Payne v. United States, 111

U.S. App. D.C. 94, 294 F.2d 723, 725 (1961); cert. denied,

368 U.S. 883 (1961); United States ex rel. Senk v. Brierly,

381 F.Supp. 447, 463 (M.D.Penn. 1974); affirmed without

opinion, 511 F.2d 1396 (3rd Cir. 1975); cert. denied, 423

U.S. 843 (1975); United States v. Carr, 445 F.Supp. 1383,

15

1386-1387 (D.Con. 1978), and authorities cited therein.

Similar holdings from numerous jurisdictions will be found

in Appendix A of this response. Commentators have also

adopted this as the correct view. See LaFave, Search

and Seizure, $3.2, pages 460-461.

Such a universal interpretation of United States Su-

preme Court opinions show that the writ should not be

issued to review this question because the law of this

Court is being uniformly interpreted and applied by the

federal and state jurisdictions throughout this country.

In fact, petitioner never directly attacks the validity of

the Missouri Supreme Court’s holding on this issue nor

does he cite contrary authority.

CONCLUSION

WHEREFORE, respondent respectfully requests that

this Court deny the petition for writ of certiorari to the

Missouri Supreme Court.

Respectfully submitted,

JOHN ASHCROFT

Attorney General

Paut RoBert OTTO

Assistant Attorney General

P. O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Respondent

17

APPENDIX A

Decisions approving the principle that the subjective

determination by the police officer that probable cause

for an arrest or search did not exist is not binding on

the reviewing court are as follows:

United States ex rel. LaBelle v. LaVallee, 517 F.2d

750, 754 (2nd Cir. 1975); cert. denied, 423 U.S.

1062 (1976);

United States v. Day, 455 F.2d 454, 456 (3rd Cir. 1972);

State in Interest of J. B., 131 N.J. Super. 6, 328 A.2d

46, 42 (1974);

State v. Donnell, 239 N.W.2d 575, 578 (Ia. 1976).

This principle has also been approved in cases in which

a defendant has attacked the legality of the search or

arrest on the basis that the officer did not later testify

as to which theory he was basing his actions on.

Dodd v. Beto, 435 F.2d 868, 870 (5th Cir. 1970); cert.

denied, 404 U.S. 845 (1971);

Guzman v. Estelle, 493 F.2d 532, 536 (5th Cir. 1974);

Commonwealth v. Donnelly, 233 Pa.Super. 396, 336

A.2d 632, 637 Note 3 (1975); cert. denied, 424

U.S. 974 (1976).

For decisions upholding this principle on the basis

that it was amenable with the rationale behind the Fourth

Amendment exclusionary rule, see the following:

State v. Zito, 54 N.J. 206, 254 A.2d 769, 771-772 (1969);

United States v. Darrow, 499 F.2d 64, 69 (7th Cir.

1974) ; cert. denied, 419 U.S. 1013 (1974).

18

The following cases stand for the application of this

principle to situations in which police officers acted, or

the court assumed they acted, on erroneous conclusions

as to the extent of their authority to arrest or search:

United States v. Imbruglia, 397 F.Supp. 1206 (D.Mass.

1975);

United States v. Vital-Padilla, 500 F.2d 641, 644 (9th

Cir. 1974);

United States v. Gilbert, 378 F.Supp. 82, 87 (D.S.D.

1974);

Bailey v. United States, 279 A.2d 508, 511 (D.C.Ct.App.

1971).

Relying on the above principle, the following cases

have held that a search of an automobile which would

have been justified without a warrant was not rendered

invalid simply because the officers relied on a legally

insufficient warrant:

United States v. Darrow, 499 F.2d 64, 69 (7th Cir.

1974) ; cert. den., 419 U.S. 1013 (1974);

White v. United States, 448 F.2d 250, 254 (8th Cir.

1971); cert. den., 405 U.S. 926 (1972).

The courts in the following opinions have found that

an arrest or search is not illegal simply because the deter-

mination of probable cause by the officer was partially

the result of his considering illegal factors if other facts

within his knowledge would also have established probable

cause:

Smith v. United States, 402 F.2d 771, 772 (9th Cir.

1968) ;

United States v. Skinner, 412 F.2d 98, 102 (8th Cir.

1969) ; cert. den., 396 U.S. 967 (1969); }

State v. Waltz, 61 N.J. 83, 293 A.2d 167, 170 (1972).

19

Courts also have found that a warrantless arrest made

on a misdemeanor charge which would call for the author-

ity of a warrant would not be rendered invalid if there

was probable cause to believe that a felony had been

committed which would not require the authority of a

warrant:

State v. Zito, 54 N.J. 206, 254 A.2d 769, 771-772 (1969);

United States v. Rickus, 351 F.Supp. 1379, 1382 (E.D.

Pa. 1972); affirmed, 480 F.2d 919 (3rd Cir. 1973);

cert. den., 414 U.S. 1006 (1973).

Courts have also upheld searches and arrests because

there were facts within the knowledge of arresting officers

which would have justified arrests on legal grounds even

though the grounds stated at the time of the action by

the officers did not provide legal justification:

Commonwealth v. Miller, 318 N.E.2d 909, 911 (Mass.

1974);

United States v. McCoy, 517 F.2d 41, 43, n. 1 (7th

Cir. 1975) ; cert. den., 423 U.S. 895 (1975);

State v. Wade, 206 Kan. 347, 479 P.2d 811, 813 (Kan.

1971);

State v. Spry, 87 S.D. 318, 207 N.W.2d 504, 509 (1973);

United States v. Dunavan, 485 F.2d 201, 205 (6th Cir.

1973).

See also, Sirimarco v. United States, 315 F.2d 699,

702 (10th Cir. 1963); cert. den., 374 U.S. 807 (1963); for

the following proposition:

“A lawful search, though not made under subjective

claim or knowledge of right, remains lawful and evi-

dence so obtained is admissible.”