Petition for Writ of Certiorari — Rhode Island v. Von Bulow

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84 -106 JUL 20 1984

No. pias

ALEXANDE R Ls EVAS,

In The

Supreme Court of the United States

October Term, 1984

STATE OF RHODE ISLAND AND

PROVIDENCE PLANTATIONS,

Petitioner,

vs.

CLAUS VON BULOW,

Respondent.

— ”

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF RHODE ISLAND

Dennis J. Roserts, I

Attorney General of the

State of Rhode Island

Txomas M. Dickinson

Special Assistant

Attorney General

72 Pine Street

Providence, Rhode Island 02903

(401) 274-4400

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

—

QUESTIONS PRESENTED FOR REVIEW

1. When a private party seizes several pieces of evi-

dence, subjects some of them to chemical testing and de-

livers the evidence to police, does the Fourth Amendment

require police to obtain a warrant before conducting in-

dependent chemical tests?

2. If the police officer receiving pieces of physical

evidence is aware that the defendant’s privacy interest

in the evidence has already been substantially compro-

mised by private seizure, private examination and private

chemical testing, does the Exclusionary Rule announced

by this Court in Mapp v. Ohio, 367 U.S. 643 (1961), and

modified in United States v. Leon, No. 82-1771 (U.S. July

5, 1984), require the suppression of the results of subse-

quent warrantless chemical analysis conducted by police?

3. Whether the trial court’s refusal to suppress the

results of warrantless chemical tests conducted by police

on evidence that was privately searched, seized, examined,

and chemically tested was harmless error?

4. Whether the judgment of the Rhode Island Su-

preme Court is supported by an adequate and independent

state law basis?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW i

TABLE OF CASES, STATUTES AND AU-

THORITIES iii

OPINION OF COURT BELOW net 1

STATEMENT OF JURISDICTION 1

CONSTITUTIONAL AND STATUTORY PRO-

ee ti Bb Lk Mf | sees poneeseemncnnnceerie neo Seinen =

STATEMENT OF THE CASE 1

I. FACTUAL BACKGROUND .. 1

A. FIRST COMA .._.. ey

B. CLAUS VON BULOW’S BLACK BAG

C. THE SECOND COMA

D. VON BULOW’S MOTIVE TO KILL HIS

WIFE

Il. FACTS REGARDING SEARCH ISSUE .........

A. THE PRIVATE SEARCH

B. PRIVATE CHEMICAL TESTS

C. TESTS BY STATE OFFICIALS

ARGUMENT

I. tHE WARRANTLESS CHEMICAL TESTS

DID NOT VIOLATE THE FOURTH AMEND-

MENT. 10

Il. THE EXCLUSIONARY RULE SHOULD NOT

APPLY IN THIS CASE. 15

Ill. THE DENIAL OF THE MOTION TO SUP-

PRESS WAS HARMLESS ERROR. —

IV. THE JUDGMENT OF THE RHODE ISLAND

SUPREME COURT IS NOT SUPPORTED BY

“NY sn OO GS O

TABLE OF CONTENTS—Continued

Pages

AN ADEQUATE AND INDEPENDENT

STATE LAW BASIS. 22

CONCLUSION 27

THE APPENDIX HERETO IS BOUND SEPARATELY

IN ACCORDANCE WITH RULE 21.1.

TABLE OF AUTHORITIES

CAsEs

Abie State Bank v. Bryan, 282 U.S. 765 (1931)... 23, 24

Arkansas v. Sanders, 442 U.S. 753 (1979) 11,13

Burdeau v. McDowell, 256 U.S. 465 (1921) 10, 16

Chapman v. California, 386 U.S. 18 (1967)... 20, 22, 25

Chicago B. & Q.R.R. Co. v. Ilinois, 200 U.S. 561 (1906) 23

Commonwealth v. Varney, 391 Mass. 34 (1984) 2

Delaware v. Prouse, 440 U.S. 648 (1979) 27

Herb v. Pitcairn, 324 U.S. 117 (1945) 24

Mapp v. Ohio, 367 U.S. 643 (1961) 15

Massachusetts v. Sheppard, No. 82-963 (U.S.

July 5, 1984) 15

Michigan v. Long, 103 S.Ct. 3469 (1983) 23, 24, 27

Murdock v. City of Memphis, 87 U.S. 590 (1873)... 27

Niz v. Williams, No. 82-1651 (June 11, 1984)..._._.2, 19, 20,

21, 26

People v. Adler, 50 N.Y. 2d 730, 409 N.E.2d 888 (1980) 2

Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109

(1924) 27

Schneble v. Florida, 405 U.S. 427 (1972) 21

TABLE OF AUTHORITIES—Continued

Pages

State v. Benott, 417 A.2d 895 (R.I. 1980) 2.26

State v. Ortiz, No. 8636 (Hawaii May 23, 1984) _ 2

State v. von Bulow, — R.1. —, — A.2d —, (1984)

SR 12, 13, 14, 24, 25, 26, 27

Stone v. Powell, 428 U.S. 465 (1976) 2. sees 17

Sulltvan v. Wainwright, 104 S.Ct. 450 (1983) 18

United States v. Jacobsen, 104 S.Ct. 1652 (1984)

at Nnes 2, 10, 11, 12, 13, 14, 15, 17

United States v. Barry, 673 F.2d 912 (6th Cir. 1982),

cert. denied, 103 S.Ct. 238 (1983) 0... 2

United States v. Leon, No. 82-1771 (U.S. July 5,

1984) ceplccuapecpiab vant ansideiaaiiapiae 2, 15, 16, 17, 20

Weeks v. United States, 232 U.S. 383 (1914)... 15

Williams v. Georgia, 349 U.S. 375 (1955) ... 23

STATUTES AND CONSTITUTIONAL PROVISIONS

U.S. Const. art. ITI, sec. 2 1

U.S. Const. amend. IV 1, 22,23, 3

U.S. Const. amend. XIV, see. 1 Be 1,19

28 U.S.C. see. 1257(3) 1

R.I. Const. art. I, sec. 6 1, 22, 25

R.L.Gen.L., See. 21-28-3.29 9,16

MISCELLANEOUS AUTHORITY

Cameron & Lustiger, The Exclusionary Rule:

A Cost-Benefit Analysis, 101 F.R.D. 109 (1984). =19

Now comes the State of Rhode Island and Providence

Plantations, by its attorney, and prays that this Honorable

Court issue a writ of certiorari to the Supreme Court of

Rhode Island to review said court’s erroneous decision

of federal constitutional questions.

ral

OPINION OF COURT BELOW

The opinion of the Supreme Court of Rhode Island,

as modified, is reproduced in Section A of the appendix

hereto.

STATEMENT OF JURISDICTION

The judgment of the Supreme Court of Rhode Island

was entered on April 27, 1984. A petition to reargue was

timely filed on May 2, 1984. The petition to reargue was

denied in an order dated May 24, 1984. Jurisdiction of this

court is invoked pursuant to 28 U.S.C. Section 1257(3) and

by the Rules of the Supreme Court of the United States

R. 17.1(b) (e).

ray

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Pertinent portions of the following constitutional and

statutory provisions involved in this case are set out in

Section D of the appendix in accordance with Rule 21.1(f) :

U.S. Const. art. LI, see. 2; U.S. Const. amend. IV; U.S.

Const. amend. XIV, see. 1; R.I. Const. art. I, sec. 6; 28

U.S.C. see. 1257(3).

fay

STATEMENT OF THE CASE

I. Factual Background

Martha von Bulow lies comatose in a New York hos-

pital: a silent, helpless victim of her unfaithful husband’s

attempts to end her life, capture her fortune, and marry

his mistress. A Newport, Rhode Island, jury convicted

Claus von Bulow of twice attempting to murder his wife.

Reviewing the record of von Bulow’s trial, the Rhode

Island Supreme Court found ample evidence that von

Bulow had injected his wife on two occasions with poten-

tially lethal doses of insulin, designed to induce her death

and to free him to marry his lover. Despite their con-

fidence in the evidence of von Bulow’s guilt, the court

held that the trial justice had erred in failing to suppress

certain evidence as violative of von Bulow’s Fourth

Amendment rights. Although the offending evidenee was

largely cumulative, the court coneluded that Fourth

Amendment principles required reversal of von Bulow’s

conviction.

The State of Rhode Island, Petitioner herein, submits

that the Rhode Island Supreme Court erred in reversing

von Bulow’s conviction. Petitioner suggests that the court

decided important matters of federal law in a manner con-

trary to cases decided by this Court,’ and in conflict with

the decisions of the highest courts of other states and de-

cisions of federal courts of appeals.? For the foregoing

reasons, Petitioner prays that this Honorable Court issue

a writ of certiorari to the Supreme Court of Rhode Is-

land to review that court’s erroneous decision of impor-

tant federal constitutional questions.

A. The First Coma. During December of 1979, Martha

von Bulow was celebrating the Christmas season with her

1 United States v. Jacobsen, 104 S.Ct. 1652 (1984); See

United States v. Leon, No. 82-1771 (U.S. July 5, 1984); Nix v.

Williams, No. 82-1651 (June 11, 1984).

2 United States v. Barry, 673 F.2d 912 (6th Cir. 1982), cert.

denied, 103 S.Ct. 238 (1983); Commonwealth v. Varney, 391

Mass. 34 (1984); People v. Adler, 50 N.Y. 2d 730, 409 N.E.2d

888 (1980); See State v. Ortiz, No. 8636 (Hawaii May 23, 1984).

family at Clarendon Court, her Newport, Rhode Island

vacation home. Present for the holidays were her hus-

baud, Claus von Bulow, (the Respondent iferein); their

daughter, Cosima; and Mrs. von Bulow’s son and daugh-

ter by a previous marriage, Alexander von Auersperg and

Annie Laurie (Ala) Kneissl. Maria Schrallhammer, Mrs.

von Bulow’s personal maid, was also in Newport that

December. On December 26, 1979, Martha von Bulow

suffered an unexplained coma. Alexander testified that

he had sat with his mother that evening as she sipped

holiday eggnog in the library at Clarendon Court. (Tr.

VI-1021) Alexander noticed his mother’s voice becoming

weak and that she had difficulty walking. (Tr. VI-1020-

1026) The vonng man helped his mother to her bedroom,

where he told von Bulow of her problems. (Tr. VI-1027)

Von Bulow left the room and returned with a drink for

his wife. (Tr. VI-1028) When Alexander left his mother

that evening, she was in her bedroom, conscious and talk-

ing with her husband. (Tr. VI-1030)

The next morning, Mrs. von Bulow’s maid, Maria

Schrallhammer, was surprised that her employer had not

rung for breakfast by 9:30. (Tr. VITI-323) Von Bulow

intercepted Maria and discouraged her from checking on

his wife’s condition. (Tr. VIII-325) When Maria’s per-

sistence resulted in her discovery that Mrs. von Bulow

was unconscious and breathing with difficulty, Claus von

Bulow refused to call a doctor. (Tr. VIII-327 to 330) Von

Bulow finally spoke to the doctor in the afternoon. Maria

overheard him misrepresenting his wife’s symptoms and

condition. (Tr. VIII-344) Mrs. von Bulow’s local physician

arrived in the early evening, finding his patient uncon-

scious, barely breathing, and in need of mouth-to-mouth

resuscitation. (Tr. VI-1040; VIII-346 to 348) After a

brief stay at Newport Hospital, Mrs. von Bulow recov-

ered and returned to her year-round home in New York.

(Tr. VI-1043) The cause of her December 1979 episode

remained a mystery.

B. Claus von Bulow’s Black Bag. Von Bulow’s strange

behavior—refusing at first to call for medical help and

later reporting false symptoms—did not go unnoticed by

his wife’s maid, Maria Schrallhammer. (Tr. VIII-344, 369)

A few months after the December 1979 incident, Maria

was cleaning a closet in the von Bulow’s New York apart-

ment. (Tr. VIII-365) In one of Claus von Bulow’s travel

bags, she observed a small black bag containing pills,

powders, and liquids. (Tr. VIII-367) Maria showed some

of these items to Mrs. von Bulow’s daughter, Ala, who

arranged to have them chemically analyzed. (Tr. VIII-

384) In November 1980, Maria again noticed the small

black bag among Claus von Bulow’s things. (Tr. VIII-

386) On this occasion Maria saw a hypodermic syringe,

several needles and a bottle labeled “insulin”. (Tr. VIII-

388 to 389) Confused by the presence of insulin, Maria

summoned Alexander to show him her discovery. Maria

again saw the black bag in December 1980 as she helped

the family prepare to go to Newport for the holidays.

Tr. VIII-391) This time the bag contained, in addition

to the insulin and needles, a greenish liquid. (Tr. VIII-

392)

C. The Second Coma. As Christmas of 1980 approach-

ed, a smaller group gathered at Clarendon Court. Ala

was not present, having married that previous summer.

Maria Schrailhammer was also absent. She had planned

to accompany the family for the holidays, but Claus von

Bulow had insisted that his wife’s maid take a few days

off and remain behind in New York. (Tr. VIII-406) On

the evening of December 20, 1980, Alexander sat with his

mother in the library at Clarendon Court as the two had

done the previous December. (Tr. VI-107) Von Bulow

joined them briefly offering his wife a bowl of soup. (Tr.

VI-1075) Alexander noticed that after his mother con-

sumed the soup her voice became weak, much as it had

a year earlier. (Tr. VI-1077) Attempting to stand, Mrs.

von Bulow staggered. (Tr. VI-1079) Alexander once again

helped his mother to her bedroom. (Tr. VI-1081) The

young man summoned Claus von Bulow to alert him to

his wife’s condition. (Tr. VI-1081) Eventually Alexander

left h.s mother and von Bulow conversing in the bedroom.

(Tr. VI-1083)

The following morning, Maria’s absence—effectuated

by von Bulow’s insistence that his wife’s maid stay behind

in New York—prevented her normal 9:30 a.m. check on

her employer. Around 11:00 a.m., Alexander met von

Bulow in the hallway and inquired about his mother’s

condition. (Tr. VI-1090) Von Bulow expressed surprise

that his wife had not yet appeared for breakfast. (Tr.

VI-1090) Von Bulow shortly summoned Alexander (Tr.

VI-1091) into Mrs. von Bulow’s bathroom, where the two

men found her lying unconscious on the cold floor. (Tr.

VI-1092) Von Buiow summoned emergency medical help,

and his wife was again taken to Newport Hospital. (Tr.

VI-1095) Unlike the previous year’s incident, however,

Martha von Bulow never recovered from her December

1980 coma. When Alexander von Auers™erg testified in

February, 1982, his mother remained hospitalized in an

unconscious state.’ (Tr. V1-994)

3 At trial, Doctor George Cahill, a professor of medicine

of Harvard Medical School and former Director of Boston’s

prestigious Joslin Research Laboratories, testified as an expert

for the prosecution. (Tr. XIX-2679 to 2730). Doctor Cahill told

the jury that based upon his expert knowledge of insulin and

blood sugar, his examination of Martha von Bulow’s medical

history and records led to the conclusion that both of her

comas were caused by infusions of exogenous insulin. (Tr.

XIX-2714 to 2724).

D. Von Bulow’s Motive to Kill His Wife. At trial, the

prosecution offered evidence that von Bulow had attempt-

ed to kill his wife so that he could capture her fortune

and marry his mistress. The evidence showed that if his

wife died, von Bulow would inherit a substantial portion

of his wife’s formidable estate. Included in his inheri-

tance would be Clarendon Court, the New York apartment,

$2.5 million in cash, and annua! interest from a $7.5 mil-

lion trust principal. (Tr. XIX-2844-54) Alexandra Isles

testified that she and von Bulow had fallen in love early

1979. (Tr. XVII-2170) In late spring of 1979, Mrs. Isles

delivered an ultimatum: if von Bulow was serious about

marrying her, he should “make the break” from his wife

within six months. (Tr. XVII-2172) This ultimatum ex-

pired some time before Mrs. von Bulow’s first coma. By

November of 1980, shortly before his wife’s second coma,

von Bulow again proposed marriage to Mrs. Isles. He as-

sured her of his intention to end his marriage to Mrs. von

Bulow. (Tr. XVII-2185) Within a month the second coma

occurred.

II. Facts Regarding Search Issue

A. The Private Search. Suspicious of von Bulow’s in-

volvement in his mother’s condition, Alexander went with

a private detective, Edwin F. Lambert, to Clarendon

Court on January 23, 1981, to retrieve the black bag and

its contents from von Bulow’s closet. Thcy found a set

of keys in von Bulow’s study, one of which opened the

closet. Alexander discovered a vial in the desk and an-

other in the pocket of a coat belonging to von Bulow. One

of these vials was empty, the other contained a powder.

(Tr. II-326, 418) Beneath a low shelf, on the floor of the

closet, Lambert discovered an unlocked, black metal box

containing the black bag. (Tr. II-324) Alexander exam-

ined the bag’s contents discovering the following items:

one hypodermic syringe (Tr. II-470); three needles, two

of which were sealed in plastic containers (Tr. II-425);

two orangeish containers with white tops (Tr. II-423),

one containing a blue-green liquid, the second containing

a number of different pills (Tr. II-470-471) ; and ampoules

in little plastic packages. (Tr. II-423) In addition, the

pair found inside the metal box a cardboard box marked

“Lidocaine”, (Tr. IT-423)

B. Private Chemical Tests. When Alexander returned

to New York, he examined the black bag and its contents

with Dr. Kuh. (Tr. VIT-40, 41) Later, Alexander gave the

items to his mother’s personal physician, Dr. Stock, for

analysis. (Tr. II-472) As a result of chemical tests con-

ducted by the family before the police became involved,

Mrs. von Bulow’s private doctor learned that the needle

found in the black bag had been encrusted with Insulin,

Amobarbital and Diazepam (Valium). (Tr. XVII-2227,

2251) The powder found in von Bulow’s pill vial was a

preparation of Amobarbital. The blue-green liquid was a

mixture of Amobarbital and Diazepam (Valium). (Tr.

XVII-2251 to 2252) Both the liquid and the powder had

been altered from the commercial state of pharmaceutical

preparation. (Tr. XVII-2337) On the basis of this infor-

mation, Dr. Stock felt compelled to contact police author-

ities. (Tr. XVIT-2336)

C. Tests by State Officials. On March 13, 1981, Alex-

ander met with Sgt. John F. Reise of the Rhode Island

State Police. (Tr. ITV-658) He gave the black bag to

Reise and, in Reise’s presence, removed the contents of

the bag, which the policeman catalogued in accordance

with department procedures. (Tr. IV-659) Reise knew

that the contents of the bag had been visually examined

by Alexander and others. (Tr. IV-667) He also knew that

certain items had been chemically tested by private meth-

ods. (Tr. IV-667) He was unsure, however, which items

had been tested. (Tr. IV-672) Thus, Sgt. Reise sent the

liquid and the powder, which had previously been tested

by Dr. Stock, to the state toxicologist for further testing.

(Tr. IV-659 to 60) Among the other items found within

the black bag was a prescription vial in the name of C.

von Bulow and labeled “Dalmane”. (Tr. IV-660) Reise

noted that inside the vial were sixty-five pills of differ-

ent varities. Thirty-one orange-yellow capsules were im-

printed with the word “Dalmane”. (Tr. XVI-2010) By

referring to the Physician’s Desk Reference (PDR), Reise

confirmed the standard color and markings for Dalmane

capsules. (Tr. [V-660) An additional 31 light blue tablets

were imprinted with the words “Roche 10 Valium”. (Tr.

XVI-2011) Using the PDR, Reise confirmed the identity

of these blue tablets as Valium. (Tr. [V-664) In addition,

Reise found one blue capsule labeled “Lilly F33”, which

the PDR identified as Amytal, and one red capsule marked

“Lilly F40”, which the PDR identified as Seconal. (Tr.

IV-664) Reise sent one each of these pills to the state

toxicology lab, together with a clear glass ampoule la-

beled “Papaveretum” and the Lidocaine which had been

in a cardboard box outside the black bag. The State tox-

icology analysis confirmed the accuracy of the private

chemical tests and Sgt. Reise’s plain view identification in

all respects save one.* The red capsule labeled “Lilly F40”,

had been identified by the PDR as Seconal. Chemical an-

alysis revealed the presence of Secobarbital, Amobarbital

and Cyclizine.

Before Sgt. Reise ordered any state toxicological test,

each and every item related to the black bag had already

4 The results of the private chemical test, plain view iden-

tification, and state toxicology test are collected in tabular form

in section F of the Petitioner's Appendix. App. F, at 87.

been fully identified either by the strictly private chemi-

cal analysis (needle, powder, and blue-green liquid); by

the reading of labels as Alexander had done (Dalmane,

Lidocaine, and Papaveretum); or by plain view observa-

tion in connection with the PDR (Dalmane, Valium, Amy-

tal, Seconal). Moreover, Reise knew that in the form they

were possessed, some of the items sent for testing were

contraband. See R.1.Gen.L., Sec. 21-28-3.29 (controlled sub-

stances may not be possessed except in original container).

Before trial, von Bulow sought to suppress the black

bag, its contents and results of all chemical tests conduct-

ed by private parties and public officials. The trial jus-

tice conducted lengthy evidentiary hearings. (Tr. II-189

to IV-673) Claiming that private parties had seized the

evidence illegally, von Bulow argued that the Fourth

Amendment requived suppression. (Tr. IV-687) The trial

judge orally denied the motion, holding that the Fourth

Amendment had no application to the conduct of private

parties. (Tr. IV-704) Moreover, the court reasoned that

further testing by police was neither a search within the

meaning of the Fourth Amendment nor unreasonable.

(Tr. IV-729) On appeal, von Bulow raised the private

search and state chemical tests as violative of his Fourth

Amendment rights. See Appellant’s Brief at 53. The

Rhode Island Supreme Court agreed that the initial pri-

vate seizure and private chemical testing were beyond

constitutional scrutiny. With regard to police chemical

tests, however, the court reasoned that these tests con-

stituted an independent search that should not have been

conducted without a warrant. The court held that the

Fourth Amendment compelled reversal of von Bulow’s

conviction.’

s See App. A for remaining issues discussed by the court.

ARGUMENT

I. The Warrantless Chemical Tests Did Not Vio-

late the Fourth Amendment

This Court first discussed the applicability of the

Fourth Amendment to private searches and seizures in

Burdeau v. McDowell, 256 U.S. 465 (1921). This Court

reasoned that the seizure of evidence by private individ-

uals—even if wrongful—was outside the scope of the

Fourth Amendment Exclusionary Rule. /d. at 476. More

recently, this Court has considered the propriety of police

examination and testing of items initially seized or search-

ed by private parties.

In United States v. Jacobsen, 104 S.Ct. 1652 (1984),

this Court held that in measuring the reasonableness of

police conduct, a court must view the facts as they existed

at the time an official invasion occurred. Jd. at 1557.

To the extent that private search activity frustrates an

expectation of privacy, government conduct coextensive

with the private activity triggers no Fourth Amendment

scrutiny. Moreover, the reasonableness of further gov-

ernmental activity will be measured by the degree to

which it exceeded the scope of prior private conduct. Jd.

at 1657. Whatever a defendant’s subjective hope for sec-

recy, only those expectations of privacy that “society is

prepared to consider reasonable” merit Fourth Amend-

ment protection. Jd. The Court reasoned that a chemical

test for the presence of cocaine—the possession of which

can never be legitimate—compromises no legitimate ex-

pectation of privacy. Jd. at 1662. Thus, the Court con-

cluded that the chemical test conducted in Jacobsen in-

fringed no constitutionaliy protected privacy interest. /d.

at 1663.

In this case, the initial “government invasion” oc-

curred when the black bag and its contents were deliv-

ered to Sgt. Reise. The presence of insulin, Amobarbital

and Diazepam (Valium) on the used needle had been ex-

posed by Dr. Stock’s private chemical tests. (Tr. XVII-

2227, 2251) The identity of the blue-green liquid and the

powder had been revealed as pharmaceutically altered

preparations of Amobarbital and Diazepam (Valium).

(Tr. XVIT-2251 to 52, 2337) Subsequent state toxicology

analysis of these items neither expanded upon the private

search nor impinged any remaining expectation of pri-

vacy. See Jacobsen, 104 S.Ct. at 1658 (once frustration

of original privacy interest occurs, Fourth Amendment

permits government tse of now non-private information).

The remaining items had never been privately chem-

ically tested. Nevertheless, von Bulow’s remaining ex-

pectation in their privacy had been substantially vitiated

by the items themselves and by private conduct with re-

spect to them. Cf. Jacobsen, 104 S.Ct. at 1660 (police had

already learned “a great deal” about package prior to

chemical test). First, the Lidocaine, Papaveretum, Dal-

mane and Valium bore markings declaring their identity,

fully visible to Alexander when he examined the contents

of the black bag. Items that are visually identifiable, like

the proverbial gun case, Arkansas v. Sanders, 442 U.S.

753, 764 n.13 (1979), can scarcely support any measurable

expectation of privacy. The item itself is fully admissible

and the jury would certainly be free to read its label. The

likelihood that subsequent chemical analysis of these items

“will actually compromise any legitimate interest in pri-

vacy seems much too remote to characterize the testing

as a search subject to the Fourth Amendment.” Jacobsen,

104 S.Ct. at 1662. The other items contained in the black

bag—one blue “Lilly F33” capsule, and one red “Lilly

F40” capsule—had also been visually examined by Alex-

ander and Dr. Kuh. (Tr. VII-40, 41) Von Bulow’s trial

counsel conceded that the Fourth Amendment did not

preclude Sgt. Reise from identifying these items via the

PDR’. No supportable expectation of privacy remained

as a bar to chemical analysis of these items. Thus, the

subsequent state toxicology test violated no expectation

of privacy that society is prepared to recognize as rea-

sonable.

The analysis advocated above contrasts sharply with

the voyage embarked upon by the Rhode Island Supreme

Court. Rather than examining von Bulow’s privacy inter-

est as it existed at the initial government intrusion, 104

S.Ct. at 1657, the Rhode Island Supreme Court eschewed

Jacobsen’s principles’ in favor of von Bulow’s original

expectation of privacy in his locked closet. App. A at 45.

The von Bulow court ignored the fact that several of the

items were clearly labeled and could therefore support no

colorable expectation of privacy. Moreover, in its zeal to

avoid the mandate of Jacobsen the Rhode Island court re-

fused to recognize defense counsel’s concession that Sgt.

6 “MR. FAHRINGER [defense counsel]: In the context of

this case, your Honor, | agree, because Walter really makes

this clear. Had the officers in this case merely taken the ma-

terial and looked at it and said ‘Hm, that’s Dalmane. That's Val-

ium,’ maybe even gone to the Physicians’ Desk Reference and

verified those things, that would have been fine. | have to

say in all candor, they would have not gone beyond the scope

of the private search.” (Tr. IV-723).

7 This Court decided United States v. Jacobsen on April 2,

1984, 104 S.Ct. 1652 (1984). State v. von Bulow had been ar-

gued in October of 1983. Accordingly, the Rhode Island Su-

preme Court's treatment of Jacobsen was without the benefit

of oral argument or extensive briefing. Although both parties

did provide cursory supplemental correspondence regarding

Jacobsen, see Section £. of Petitioner's Appendix, the import-

ant Jacobsen opinion never received the careful discussion that

normally occurs in appellate briefs and arguments. This mat-

ter was raised, to no avail, in the state’s petition to reargue

See App. B, at 64.

o—— t

Reise was free to identify items in the black bag by use of

the PDR.

Furthermore, the Rhode Island Supreme Court ig-

nored the objective reasonableness of the test at its incep-

tion. Instead, the court fastened upon the subjective test

results that showed that one red capsule’s chemical iden-

tity did not conform to Sgt. Reise’s plain view identifica-

tion. This approach contravenes the caveat in Jacobsen

that the reasonableness of chemical testing is never de-

pendent upon the results of a particular test. 104 S.Ct. at

1662. Moreover, the von Bulow court’s result-oriented ap-

proach is simply illogical. The Rhode Island Supreme

Court would invalidate a search which, although reason-

able at its inception, produced surprising results. A

labeled pill capsule openly declares the nature of its con-

tent; it cannot support any reasonable expectation of

privacy. This Court has noted that:

some containers (for example a kit of burglar tools

or a gun case) by their very nature cannot support

any reasonable expectation of privacy because their

contents can be inferred from their outward appear-

ance. Similarly, in some cases the contents of a pack-

age will be open to “plain view”, thereby obviating

the need for a warrant.” Arkansas v. Sanders, 442

U.S. 753, 764 n.13

Cf. Jacobsen, 104 S.Ct. at 1661 (distinguishing subjective

hope for secrecy from protected expectation of privacy;

Fourth Amendment protects only latter). Examination

of a labeled capsule’s contents is reasonable at its incep-

tion and violates no Fourth Amendment interest—even if

the results of that examination conflict with the examiner’s

expectation. See Jacobsen, 104 S.Ct. at 1662 (propriety

of chemical test is not contingent upon results of test).

In rejecting Jacobsen, the von Bulow court misper-

ceived the facts as they existed when Alexander delivered

the black bag to Sgt. Reise. See United States v. Jacobsen,

104 S.Ct. at 1657 (police conduct must be viewed in light

of facts at time police acted) :

1. von Bulow had secreted in a locked closet a sus-

picious black bag known to contain a syringe,

needles and a variety of drugs;

2. private chemical tests revealed that a used needle

within the black bag contained traces of Insulin,

Amobarbital and Diazepam;

3. private analysis also revealed the presence of

pharmaceutically altered preparations of Amo-

barbital and Diazepam;

From this evidence, the inferences of von Bulow’s

criminal conduct were overwhelming, unlike Jacobsen

where police conduct regarding the seized items was

essential to the determination that any crime had been

committed. Moreover, in focusing upon the subjective im-

portance of the state toxicology report rather than the de-

gree to which it exceeded the scope of prior conduct, the

court misapplied this Court’s definition of “significant ex-

pansion”.* Public conduct significantly expands upon prior

8 The Rhode Island Supreme Court candidly exposed its

own carelessness with regard to the relationship between the

state toxicology report and von Bulow’s expectation of privacy.

In response to the state’s petition to reargue, see App. B, the

court admitted that the court’s original opinion had misstated

the facts regarding one particular pill analyzed by the state

toxicologist:

“Concededly, this particular pill was obtained by the State

Police on April 21, 1981, while searching with defendant's

consent, the family’s Newport home.” State v. von Bulow,

No. 82-462-C.A. (May 24, 1984 order), App. C., at 68.

That such a factual error could have appeared in the court's

opinion reinforces the Petitioner’s argument that the court

failed to consider von Bulow’s actual expectation of privacy

in measuring the conduct of the police. See United States v.

Jacobsen, 104 S.Ct. at 1657, 1660 (fact that defendant’s privacy

has been substantially compromised prior to police action is

highly relevant to reasonableness of police conduct).

private conduct only when it impinges upon a remaining

expectation of privacy that society is prepared to recog-

nize as reasonable. Jacobsen, 104 S.Ct. at 1661. Von Bu-

low’s remaining expectation of privacy in the contents of

pill capsules that were plainly identifiable by label can

only be described as marginal. See Jacobsen, 104 S.Ct. at

1662. Under such circumstances “the safeguards of a war-

rant would only minimally advance Fourth Amendment

interests.” Jacobsen, 104 S.Ct. at 1663. Petitioner submits

that the warrantless chemical test was therefore reason-

able, id., and the trial judge correctly refused to suppress

the state toxicology results. Accordingly, the judgment of

the Rhode Island Supreme Court must be reversed.

II. The Exclusionary Rule Should Not Apply In

This Case

This Court announced the Fourth Amendment Ex-

clusionary Rule in Weeks v. United States, 232 U.S. 383

(1914), and Mapp v. Ohio, 367 U.S. 643 (1961). The Court

has recently recognized that the philosophical underpin-

nings of the exclusionary rule sometimes will not support

its application to exclude reliable, probative evidence ob-

tained in technical violation of the Fourth Amendment.

Massachusetts v. Sheppard, No. 82-963 (U.S. July 5, 1984) ;

Umted States v. Leon, No. 82-1771 (July 5, 1984). The

principles endorsed in Sheppard and Leon suggest that

the application of the exclusionary rule in this case is in

appropriate.

In Leon, this Court recognized that adherence to the

truth-finding role of judges and jurors sometimes requires

that the propriety of the exclusionary sanction be mea-

sured in light of the magnitude of the alleged police mis-

conduct :

“Particularly when law enforecement officers have

acted in objective good faith or their transgressions

iii

have been minor, the magnitude of the benefit con-

ferred on such guilty defendants offends basic con-

cepts of the criminal justice system.” Jd. slip op. at 8.

(emphasis added)

Any transgressions that occurred in this case were min-

or. Moreover, Sgt. Reise acted in objective good faith

in sending the contents of the black bag to the state toxi-

cologist. Accordingly, Petitioner suggests that the exclu-

sionary rule should not be applied in this case.

This Court recognized in Leon that the purpose of the

Fourth Amendment exclusionary rule is to deter official

misconduct. See id., slip op. at 7. The Court reasoned that

as with all remedial devices, the rule ought to be tailored

appropriately to attain its objectives. In cases, therefore,

involving substantial and deliberate Fourth Amendment

violations, the application of the rule remains unchecked.

In Leon the Court concluded that police had relied in good

faith on an apparently valid warrant. Jd. at 14. The war-

rant was later determined to be improper. The Court rea-

soned that when evidence has been seized in the reasonable

good faith belief that the seizure was permissible, a proper

balance suggests that the exclusionary rule should be re-

laxed. Id. at 9.

An examination of the facts as they existed when

Set. Reise first ordered a toxicology analysis, Jacobsen,

104 S.Ct. at 1657, reveals that his belief that no warrant

was necessary was bona fide and reasonable. First, Sgt.

Reise knew that the black bag had been seized by private

parties. (Tr. IV-670 to 672) Such a seizure could not vio-

late the Fourth Amendment. F.g., Burdeau v. McDowell,

supra. Sgt. Reise was also aware that Alexander von

Auersperg had examined the contents of the bag and that

private chemical tests had been conducted on several items.

(Tr. IV-670 to 672) Remaining items in the bag were iden-

tifiable by plain view examination in connection with the

PDR. In the form possessed, some of the items were con-

traband. R.I. Gen. L. See. 21-28-3.29, Based on this state

of affairs, Sgt. Reise reasonably concluded that no warrant

was necessary to conduct chemical analysis of the contents

of the black bag. The trial judge agreed with Set. Reise

holding that the policeman’s conduct was neither unreason-

able nor violative of the Fourth Amendment. (Tr. IV-729)

Sgt. Reise’s conduct unquestionably passes the Leon test

for objective good faith. Leon at 8-9,

In addition to satisfying Leon’s good faith require-

ment, Sgt. Reise’s conduct qualifies for the Leon excep-

tion because any transgression of the Fourth Amendment

by Sgt. Reise’s bona fide conduct can only be described

as minor. Id. The black bag and its contents were fully

exposed to Sgt. Reise by virtue of private activity. Pri-

vate chemical tests had revealed the insulin encrusted

needle (the most incriminatory evidence against von Bu-

low) and the identity of other items connected to von

Bulow and the black bag. Remaining items within the

black bag were fully identifiable simply by reading their

labels or by plain view in connection with the PDR” The

likelihood that testing of these items by the state toxicol-

ogist would compromise any remaining legitimate expecta-

tion of privacy “seems much too remote to characterize the

testing as a search subject to the Fourth Amendment.”

Jacobsen, 104 8.Ct. at 1662.

This Court must weigh Sgt. Reise’s objective good

faith and the minor nature of any potential Fourth Amend-

ment transgression against the substantial societal costs

exacted in reversing von Bulow’s conviction. See Leon,

° Von Bulow’s trial counsel conceded that such conduct

was permissible under the Fourth Amendment. Note 6 supra.

slip op. at 8-9; Stone v. Powell, 428 U.S. 493, 494-95 (1976).

The trial of this case consumed six weeks of precious judi-

cial time. The impact of any Fourth Amendment violation

on the original trial can only be described as marginal.'® An

examination of the evidence remaining after suppression

reveals the essentially cumulative nature of the state tox-

icology report and a concomitant absurdity in the appli-

cation of the exclusionary rule to require a new trial in

this case. The physical items of evidence—the black

bag and its contents—remain fully admissible. The Rhode

Island Supreme Court correctly concluded that the seiz-

ure of these items by private parties implicates no Fourth

Amendment rights. The highly probative evidence re-

garding an insulin encrusted needle will therefore reach

the jury at a second trial. The jury will be free to read

the labels on those items that declare their contents. In

addition, the liquid and the powder were fully identified

by private analysis, and these results must also reach the

jury without Fourth Amendment objections. Von Bulow

has conceded that the remaining items—the blue amytal

capsule and the red seconal capsule—may be identified by

reference to the PDR. Because the state toxicology analy-

sis revealed for the first time that the red capsule had been

altered, conceivably this fact may be kept from the jury at

a second trial. The fact that other drugs within the black

bag had been mixed or altered from their state of pharma-

ceutical preparation, however, will be admissible as a re-

sult of the private chemical analysis. bus, virtually,

10 Petitioner is, of course, confident of the evidence of

von Bulow’s guilt. Reviewing the record, The Rhode Island

Supreme Court found ample admissible evidence to support

the jury’s verdict. Viewed in this light it seems highly likely

that von Bulow would be convicted again on retrial. In meas-

uring the societal cost of the exclusionary rule this Court

should not be unmindful of the effect of such a retrial on all

actors—even the defendant. As Chief Justice Burger has sug-

(Continued on Next Page)

every piece of information that came before the jury as a

result of the state toxicology test will be fully admissible

by collateral means on retrial. A new trial would do noth-

ing whatever to promote the integrity of the judicial pro-

cess, but would inflict a wholly unacceptable burden on the

administration of criminal justice. Nix v. Williams slip

op. at 14.

Another potential occurrence at retrial is the pos-

sibility that von Bulow will testify for the first time in his

own defense. If he does so he will presumably claim—in

accordance with his position at trial and on appeal—that

the black bag and its contents never belonged to him. Of

course, if von Bulow eschews a possessory interest in the

black bag his standing to assert Fourth Amendment rights

evaporates. Under this scenario the application of the ex-

clusionary rule to vacate his present convictions would be

especially perverse.

Finally, in weighing the social cost of applying the

exclusionary rule to this case, the victim must not be ig-

nored. The societal benefit of vindicating Claus von Bu-

low’s marginal privacy interest pales in comparison to

the societal cost if Martha von Bulow’s attacker escapes

justice :

“The rhetoric of some civil libertarians to the con-

trary, it is worse to be murdered or raped than to

have one’s house searched without a warrant, no mat-

ter how aggravated the latter violation.” Cameron &

Lustiger, The Eaclusionary Rule: A Cost-Benefit

Analysis, 101 F.R.D. 109, 145 (1984),

(Continued from last page)

gested, guilty defendants sometimes suffer an additional meas-

ure of cruelty when their inevitable punishment is delayed

by continuous litigation based on hopeless legal technicalities.

Sullivan v. Wainwright, 104 S.Ct. 450, 452 (1983) (concurring

opinion by Burger, C.J.).

If Martha von Bulow were conscious, no doubt she would

speak volumes about the events of December 21, 1980.

Despite her present medical condition, Mrs. von Bulow,

like all citizens, is entitled to equal protection of the laws.

U.S. Const., Amend. 14. Reversal of her attacker’s con-

viction on the basis of a marginal invasion of his barely

visible privacy interest raises serious questions about our

judicial system’s ability to fulfill that promise. A balance

of the benefits and costs of the exclusionary rule reveals

marginal benefit while creating a substantial risk of gen-

eral disrespect for the law and the administration of jus-

tice. Leon, supra siip op. at 8.

Petitioner submits that the exclusionary rule should

not be applied in this case.

III. The Denial of the Motion To Suppress Was

Harmless Error

This Court has recognized that when small errors or

defects have little effect on the result of a trial, they

should properly be regarded as harmless:

“[T he interest of society in deterring unlawful police

conduct and the public interest in having juries re-

ceive all probative evidence of a crime are properly

balanced by putting the police in the same, not a

worse, position than they would have been in if no po-

lice error or misconduct had occurred.” Niz v. Wil-

liams, No. 82-1651 (U.S. June 11, 1984), slip op. at

10 n.4. (emphasis in original)

The Court has also held that when an error of consti-

tutional magniture occurs, the error will be considered

harmless upon a showing that it was harmless beyond a

reasonable doubt. Chapman v. California, 386 U.S. 18

(1967). Of course, objectionable evidence that has a

source independent of any police misconduct must be

exempted from harmless error computation, because the

information reached the jury free of constitutional taint.

See Nix slip op. at 10. Thus, in measuring the harm re-

sulting from the alleged error, the Rhode Island Supreme

Court should have considered those pieces of information

that were learned only as a result of the warrantless chem-

ical test. See App. F at 87 (summarizing test results in

tabular form).

Independent of the state test the jury heard over-

whelming evidence on von Bulow’s guilt. Information re-

garding his desire to terminate his marriage, his ques-

tionable conduct surrounding both comas, his suspicious

possession of insulin and other drugs, and the insulin en-

crusted needle all came before the jury independent of the

state toxicology test. The only new fact that the jury

learned from the state toxicologist was that one red cap-

sule had been tampered with. Clearly, from this evidence

the jury could have inferred that von Bulow had tampered

with the drugs in his black bag. This information was es-

sentially cumulative of the fact, revealed by the permis-

sible private tests, that other items in the black bag had

also been pharmaceutically altered. Had the red capsule’s

contents been kept from the jury there would be little like-

lihood of a different result at trial. Sev Nix slip op. at 10

n.4,

It can scarcely be contended that the jury would have

found the prosecution’s case “significantly less persua-

sive” without the test of the red capsule. See Schneble v.

Florida, 405 U.S. 427, 432 (1972). The Rhode Island Su-

preme Court, however, rejected the prosecution’s harmless

error analysis without considering the collateral admissi-

bility of most of the evidence contained in the state toxi-

cology report. The court focused instead upon the general

importance of chemical tests to prove that von Bulow had

possessed various drugs and may have usd them on his

wife. Ample evidence independent of the State toxicology

test was introduced to prove this fact. In sum, virtually

every piece of information contained in the state toxicol-

ogy report is admissible by independent means. Any error

that occurred in the trial court’s refusal to suppress these

results must be deemed harmless beyond a reasonable

doubt. Because the Rhode Island Supreme Court erred in

finding harmful error, the court’s judgment must be re-

versed.

IV. The Judgment of The Rhode Island Supreme

Court is Not Supported by An Adequate and

Independent State-Law Basis

In his appeal to the Rhode Island Supreme Court, von

Bulow argued that the private search violated the Fourth

Amendment and Article I, section 6 of the Rhode Island

Constitution. The court concluded that the trial justice

had erred in failing to suppress the toxicology report. The

court analyzed further to determine whether this consti-

tutional error was “harmless beyond a reasonable doubt,”

applying the standard announced by this Court in Chapman

v. California, 386 U.S. 18, 23-24 (1967). The court con-

eluded that adherence to Fourth Amendment principles

required reversal of von Bulow’s conviction. App. A at

34. The court noted in addition that Art. I, Section 6 of

the Rhode Island Constitution presented an adequate and

independent basis for the decision to suppress the evi-

dence contained in the state chemical report. App. A at

47. The Petitioner recognizes that the Rhode Island Su-

preme Court’s citation of the state constitution gives rise

to an inference that the court’s judgment is supported by

state law. Nevertheless, Petitioner claims that this por-

tion of the Court’s opinion is dependent upon the court’s

federal law analysis and that the state law theory cannot

stand alone to support the court’s judgment. Accordingly,

the Petitioner claims that this court has jurisdiction to

review the federal constitutional errors complained of.

This Court’s application of the “adequate and inde-

pendent” theory has not been without difficulty. Survey-

ing the law in 1983, Justice O’Connor observed:

“Although we have announced a number of principles

in order to help us determine whether various forms

of references to state law constitute adequate and in-

dependent state grounds, we openly admit that we

have thus far not developed a satisfying and consis-

tent approach for resolving this vexing issue.” Mich-

igan v. Long, 103 S.Ct. 3469, 3474 (1983).

In Long the Supreme Court of Michigan had invalidated a

protective search of the passenger compartment of a ve-

hicle, purporting to rest its decision on the Fourth Amend-

ment and Article 1, see. 11 of the Michigan Constitution.

This Court recognized that the state court’s citation

to its own constitution presented a question whether the

state court’s decision was supported by adequate and in-

dependent state law theories. Jd. at 3474.11 The Court

noted initially that the question whether a state court’s

judgment rests upon adequate and independent grounds is

us In cases involving federal constitutional issues a state

court may not insulate itself from review by mere citation to

state laws that are not legally sufficient to support its judg-

ment. Williams v. Georgia, 349 U.S. 375, 399 (1955) (Clark,

J., dissenting); Chicago, B. & Q.R.R. Co. v. Illinois, 200 U.S.

561 (1906).

This Court will examine the lower court’s opinion to de-

termine whether the alleged state law basis in fact supports

the state court’s judgment:

“(T]he federal ground being present, it is incumbent

upon this Court, when it is urged that the decision of the

state court rests upon a non-federa! ground, to ascertain

for itself, in order that constitutional guaranties may ap-

propriately be enforced, whether the asserted non-fed-

eral ground independently and adequately supports the

eal Abie State Bank v. Bryon, 282 U.S. 765, 774

an issue of federal law that this Court must resolve for it-

self. Id. The Court candidly admitted that the manner

in which this inquiry had historically been conducted was

less than satisfactory. The Court announced a rule to ap-

ply to cases involving state and federal issues:

“(When ...a state court decision fairly appears to

rest primarily on federal law, or to be interwoven

with the federal law, and when the adequacy and in-

dependence of any possible state law ground is not

clear from the face of the opinion, we will accept as

the most reasonable explanation that the State court

decided the case the way it did because it believed

that federal law required it to do so.” Id. at 3476.

In applying this test to the Long case, the Court con-

cluded that the state court’s judgment rested primarily

upon federal law. Id. at 3477. Citation to the state’s own

constitution was insufficient support for the Michigan

Court’s judgment. Accordingly, this Court proceeded to

consider the merits of the federal issues presented in the

case.

The Petitioner does not dispute that the opinion of the

Rhode Island Supreme Court offered an alternative basis

for the suppression of evidence in this case. This Court,

however, is empowered to review judgments, not opinions.

Herb v. Pitcairn, 324 U.S. at 126. Accordingly, the Peti-

tioner focuses upon the judgment entered by the von Bu-

low Court. The Rhode Island Supreme Court vacated the

judgment of conviction and remanded the case for a new

trial. It is the province of this Court to examine and to

correct state court judgments “to the extent that they in-

correctly adjudge federal rights.” Herb v. Pitcairn, 324

U.S. 117, 126 (1945). The fundamental question is

“whether the asserted non-federal ground supports the

judgment.” Abie State Bank v. Bryan, 282 U.S. 765, 773

(1931) (emphasis added). By comparing the von Bulow

court’s discussion of federal issues with its state law anal-

ysis, it becomes clear that the Rhode Island Supreme

Court failed to undertake the analyses necessary to sup-

ports its judgment with state constitutional theory.

The von Bulow court, in its federal law section, con-

cluded that the conduct of private parties is outside the

reach of the Fourth Amendment. The court next con-

sidered the conduct of police authorities in testing certain

items recovered by the private search. Defects in the

court’s Fourth Amendment analysis are discussed else-

where in this petition. Suffice it to say, the logic and

reasoning of the court’s constitutional discussion led the

court to conclude that von Bulow was entitled to a new

trial free of the illegally obtained evidence. In essence,

the court undertook a two-pronged analysis. One part of

the analysis involved the conclusion that the warrantless

toxicology test violated the Fourth Amendment and that

the trial judge committed error in refusing to suppress.

The other prong of the anlysis resulted in the conclusion

that this error was sufficiently harmful to von Bulow to

require reversal of his conviction. In applying a harmless

error analysis to the facts of the case, the court referred

to Chapman v. California, 386 U.S. 18, 23-24 (1967).

Reasoning that the evidence in this case failed the Chap-

man test, the court rejected the state’s harmless error

argument. Having found a Fourth Amendment violation

that could not be considered harmless error, the court con-

cluded that “defendant’s conviction must be reversed.”

App. A at 47.

An examination of the Rhode Island Supreme Court’s

state constitutional analysis reveals that the court never

concluded that the state constitution required reversal of

von Bulow’s conviction. The court noted first that Article

1, section 6, of the Rhode Island Constitution provides

special protection to the privacy of citizens of Rhode

Isiand. The court went on to conclude that the trial justice

had erred, under state constitutional principles, im refusing

to suppress the evidence. App. A at 51. Of course, this

conclusion alone is insufficient to support the court’s

judgment of reversal. The Rhode Island Supreme Court

has previously held that errors of state constitutional di-

mension will require reversal only when harmful to the

defendant. State v. Denoit, 417 A.2d 895 (R.I. 1980).

Moreover, in analyzing state constitutional issues, the

Rhode Island court eschews the Chapman “beyond reason-

able doubt” standard in favor of a more relaxed standard.

Id. at 901. In analyzing the state constitutional error,

however, the court in von Bulow never applied any harm-

less error standard.

The Petitioner submits that without any analysis to

determine the effect of the alleged state constitutional er-

ror on the jury, principles of state law cannot support the

reversal of von Bulow’s conviction. A judgment of rever-

sal requires two findings. First, the court must find that

an error occurred. Second, the court must determine that

the evror was harmful. Both of these steps are necessary

to assure that convictions are set aside only for errors

that have a measurable effect on the trial. See Nix v. Wil-

liams, supra, slip op. at 10 n.4. The von Bulow court

identified an error of state constitutional law, but never

took the second necessary to require reversal. The court

neither analyzed nor concluded that the state constitutional

error was harmful. Absent a harm analysis, the state law

issue is inadequate to support the judgment of reversal.

Von Bulow will undoubtedly argue that the harmless error

analysis undertaken by the state court in its discussion of

federal law adequately resolved this issue. Such an argu-

ment, however, renders the state constitutional analysis

dependent upon the court’s determination of federal con-

stitutional issues. Where a state court’s disposition of

state law issues is interwoven with matters of federal law

or compelled by the state court’s interpretation of federal

law, this Court has consistently held that there is no bar

to a full review of the federal constitutional issues raised.

See, e.g., Michigan v. Long, 103 S.Ct. 3469, 3476 (1983)

(where state issue interwoven with federal issue, Supreme

Court may determine federal questions); Delaware v.

Prouse, 440 U.S. 648, 653 (1979) (when state court’s reso-

lution of state law depends upon federal issues, Supreme

Court has jurisdiction to review case); Red Cross Line v.

Atlantic Fruit Co., 264 U.S. 109 (1924) (state law issue is

not insulated from federal review if state court felt com-

pelled by interpretation of federal law); Murdock v. City

of Memphis, 87 U.S. 590 (1873) (Supreme Court will re-

view state court decisions when state law is not sufficient

to support judgment).

The Petitioner submits that the state law issue in this

case is inadequate to support the judgment of the Rhode

Island Supreme Court. Accordingly, this Court has juris-

diction to correct the important errors of federal law

made by the Rhode Island Supreme Court.

CONCLUSION

The Rhode Island Supreme Court found substantial

evidence that Claus von Bulow had twice attempted to

murder his wife by injecting her with potentially lethal

doses of insulin. Despite its confidence in von Bulow’s

guilt, the Court invoked the Fourth Amendment exclusion-

ary rule to reverse von Bulow’s conviction. In doing so,

the von Bulow court misconstrued this Court’s applicable

case law. Moreover, the court gave an unduly broad ap-

plication to the exclusionary rule, despite this Court’s

concern that the exclusionary remedy be carefully tailored

to suit the goal of deterring police misconduct. This over-

reaching application of the exclusionary rule constitutes a

disservice to the victim and the parties in this case while

creating a substantial risk of public disrespect for law and

the administration of justice. For these reasons, the

judgment of the Rhode Island Supreme Court must be re-

versed. The Petitioner prays that writ of certiorari issue

to the Supreme Court of Rhode Island to review that

Court’s erroneous decision of federal constitutional issues.

STATE OF RHODE ISLAND

By its Attorney

Dennis J. Roserts, [1

Attorney General

Tuomas M. Dickinson

Special Assistant

Attorney General

72 Pine Street

Providence, RI 02903

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.