Appendix — Rhode Island v. Von Bulow

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' JUL 20 1984

No. | ALEXANDER L. STEVAS,

CLERK

“wr

In The

Supreme Court of the United States

October Term, 1984

STATE OF RHODE ISLAND AND

PROVIDENCE PLANTATIONS,

Petitioner,

vs.

CLAUS VON BULOW,

Respondent.

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

Dennis J. Roserts, [1

Attorney General of the

State of Rhode Island

Tuomas 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

GUIDE TO APPENDIX

Opinion of Rhode Island Supreme Court

Petition to Rhode Island Supreme Court for Re-

argument

Order of Rhode Island Supreme Court Denying

Reargument

Constitutional and Statutory Provisions Involved

Post-argument Correspondence to Rhode Island

Supreme Court regarding United States v. Jacob-

sen, 104 S.Ct. 1652 (1984) oo.

Summary of Test Results...

APPENDIX A

April 27, 1984

Supreme Court

No. 82-462-C.A.

No. 0311le

State of Rhode Island

and Providence Plantations

State

Claus von Bulow.

OPINION

MURRAY, J. This is an appeal by the defendant,

Claus von Bulow, from a Superior Court conviction on two

counts of attempting to murder his wife, Martha von

Bulow. The indictment was handed down by a Newport

County grand jury on July 6, 1981, charging the defend-

ant with two separate counts of assault with intent to

murder his wife. The trial commenced in Newport on

February 2, 1982, before a justice of the Superior Court

and a jury. On March 16, 1982, after six days of delibera-

tion, the jury found the defendant guilty on both counts.

The defendant moved for a judgment of acquittal and

a new trial. These motions were denied by the trial jus-

tice on March 17 and April 2, 1982, respectively. On May

7, 1982, defendant was sentenced to ten years at the Adult

Correctional Institution on the first count and twenty

years at the Adult Correctional Institution on the second

count, these sentences to be served consecutively. The

defendant now appeals from the judgment of conviction

entered below.

After a trial spanning six weeks, the record of which

includes more than 5200 pages of transcript embodied in

twenty-six volumes, Claus von Bulow was found guilty of

twice attempting to murder his wife by injecting her with

doses of insulin. There were no eyewitnesses to these al-

leged crimes. Rather, the jury found defendant guilty on

the basis of circumstantial evidence.

On December 21, 1981, Martha von Bulow was found

in a comatose state on her bathroom floor in the family’s

Newport home—Clarendon Court. She remains in that

condition at a New York hospital. Approximately one

year earlier, she suffered a similar episode of unconscious-

ness from which she quickly recovered. The occurrence of

the second coma triggered the events leading up to defend-

ant’s indictment, trial, and conviction. Suspecting that

defendant may have poisoned his wife, Martha von Bulow’s

son, Alex; her daughter Ala; and her mother, Mrs. Aitken,

hired former Manhattan District Attorney Richard Kuh

to investigate the cause of Mrs. von Bulow’s condition.

Chronologically, the events that gave rise to the fam-

ily’s suspicion and culminated in its investigation of de-

fendant’s possible criminal involvement are essentially as

follows.

On December 27, 1979, Martha von Bulow suffered

her first coma. On the previous evening, she became weak

and uncoordinated and had to be helped to her bedroom

by her son Alex. Maria Schrallhammer, Martha von Bu-

low’s personal maid, testified that shortly after nine thirty

on the morning of December 27, 1979, she heard Mrs. von

Bulow moaning in her bedroom. Upon entering the room,

she unsuccessfully attempted to arouse Mrs. von Bulow.

Alarmed, she asked defendant to call a doctor, which he

refused to do at that time. The defendant did eall a doc-

tor, however, at approximately two o’clock that afternoon.

The doctor was not in, and defendant left amessage. The

doctor returned the call about an hour later and defend-

ant relayed to him several of his wife’s symptoms.

In this regard, Maria testified that the description of

Mrs. von Bulow’s condition given by defendant to the doc-

tor was untrue. Specifically, Maria testified that defend-

ant’s statements that Mrs. von Bulow had an alcoholic

problem and that she had been drinking the night before

and had been out of bed that morning were untrue.

At approximately six o’clock that evening, Martha von

Bulow’s condition worsened. The defendant called the

doctor and conveyed to him the severity of her condition.

Upon the doctor’s arrival, Mrs. von Bulow vomited, began

gasping for breath, stopped breathing, and experienced

cardiac arrest. The doctor successfully resuscitated her

and later testified that she had become comatose a few

minutes prior to his arrival. Mrs. von Bulow was trans-

ported to Newport Hospital. Blood tests indicated that

her blood-sugar level was unusually low. Mrs. von Bulow

regained consciousness, recovered, and was discharged on

January 2, 1980, with a diagnosis of “broncho-pneumonia

* * * cardio-respiratory arrest due to massive aspiration

of gastric contents * * * hypoglycemia of undetermined

etiology.”

Maria Schrallhammer further testified that in Febru-

ary 1980 she found something in the von Bulows’ New York

apartment which disturbed her. While cleaning a walk-in

closet off defendant’s bedroom, she noticed a large black

traveling bag belonging to defendant. Upon looking in-

side this bag, she discovered a smaller black bag or pouch

(hereinafter referred to as the black bag). Maria re-

moved the black bag, opened it, and examined its contents.

Inside the black bag she found three vials—one contain-

ing pills, one containing powder, and one containing liquid.

She then replaced the black bag and its contents inside the

larger traveling bag. Some days or weeks later, Maria re-

turned to the traveling bag, removed the black bag, and

again examined its contents. On this occasion she wrote

down the information -ontained on the labels of each vial

on three separate pieces of paper.

In November 1980, around Thanksgiving, Maria once

again noticed the black bag—this time she found it inside

a white canvas bag located on a chair in defendant’s bed-

room. She again examined the contents of the bag. In

addition to the three vials that she had seen previously,

she stated that it now contained two or three needles, a

syringe, and a small bottle labeled “insulin.” Shortly

thereafter, she called Alex into the room and showed him

the contents of the black bag.

On December 19, 1980, Mr. and Mrs. von Bulow, along

with defendant’s daughter, Cosima, left New York and

traveled to their Newport home where they were met by

Alex. Maria testified that on that date she again saw the

black bag inside the white canvas bag. She again exam-

ined the contents of the bag and found it to be substan-

tially the same as it was in November. Once again she

replaced the bag where she had found it and carried the

white canvas bag to the elevator to be brought down to

the family ear for the trip to Rhode Island.

On the evening of December 20, 1980, defendant, Mrs

von Bulow, Alex, and Cosima were driven by the family

chauffeur to a local cinema. The family was driven back

to Clarendon Court after the movie. Upon their return,

Alex accompanied his mother to her bedroom, where they

spoke briefly. Martha von Bulow subsequently went into

the bathroom, and Alex adjourned to the library. A short

time later Mrs. von Bulow joined her son in the library

where they continued their conversation.

At some point during the conversation, defendant en-

tered the library and asked his wife if there was anything

that she needed. She asked him to bring her some soup,

which he did.

Alex testified that after about an hour of conversa-

tion he noticed that his mother was experiencing symp-

toms of weakness and lack of coordination similar to

those he had observed the previous December. When she

experienced difficulty standing, Alex carried her to her

bedroom. Alex then went to his stepfather’s study and

informed defendant that Mrs. von Bulow was feeling weak.

Immediately thereafter, Alex returned to his mother’s bed-

room. Approximately five minutes later, Mrs. von Bulow

emerged from her bathroom and walked to her bed. Alex

helped his mother into bed as she was apparently still

feeling very weak. A few minutes later, according to

Alex’s testimony, defendant came into the bedroom. Short-

ly thereafter, Alex left his mother and defendant alone

in the bedroom.

Alex testified further that on the following morning,

December 21, 1980, he awoke at approximately eleven

o’clock. While dressing and before going downstairs to

breakfast, he looked out his window and observed defend-

ant walking back to the house from the ocean. Alex then

went downstairs to the dining room. At some point de-

fendant came into the hallway, and Alex asked him wheth-

er his mother had gotten out of bed yet. The defendant

appeared surprised to hear that his wife might still be in

bed and walked toward her room. Alex testified that some

ten or fifteen minutes later, defendant returned to the

hallway near the dining room and motioned for him to

come. Alex followed defendant to his mother’s bedroom.

Upon entering the room, he walked into the bathroom and

discovered his mother lying unconscious on the floor. Alex

testified that defendant placed his finger under his wife’s

nose and determined that she was still breathing. The

defendant then left the room, apparently to call a doctor

or the rescue squad. A few minutes later, paramedics re-

sponded, and Martha von Bulow was taken to Newport

Hospital.

On December 22, 1980, Martha von Bulow was moved

to Peter Bent Brigham Hospital in Boston. She was later

transferred to Columbia Presbyterian Hospital in New

York. During the period of time in which she was at the

Boston Hospital (approximately three weeks), defendant

and Alex alternately traveled to Boston for several days

at a time to stay with Mrs. von Bulow. Alex testified that

shortly after his mother had been transferred to Boston,

he went into defendant’s closet at Clarendon Court to look

for the black bag. He did not find the bag on that occa-

sion. Several days later, on December 27 or 28, 1980, he

again attempted to enter defendant’s closest for the pur-

pose of locating the black bag. On this occasion, however,

the closet was locked and he made no further effort to

gain entry.

Alex later discussed his suspicions regarding defend-

ant with Maria; his sister, Ala; and his grandmother,

Mrs. Aitken. Alex, Ala, and Mrs. Aitken subsequently

discussed the possibility of hiring an attorney to look into

the causes behind Martha von Bulow’s condition. The

family’s financial advisor, Morris Gurley, was asked to

recommend such an attorney. Gurley suggested the name

of former Manhattan District Attorney Richard Kuh.

Sometime in early January 1981, Alex and Ala met

with Kuh for the first time. The meeting lasted approxi-

mately one to one and a half hours. Alex testified that

he and Ala discussed with Kuh their suspicions regard-

ing defendant’s conduct during those periods surrounding

their mother’s two comas. Alex testified further that

between the time of this first meeting and January 23,

1981, there were at least six more meetings with Kuh.

Several days prior to January 23, 1981, Alex told

Kuh about his previous attempts to locate the black bag

in defendant’s closet at Clarendon Court. It was ap-

parently then decided that Alex would go back to New-

port to look, once again, for the black bag.

On the afternoon of January 23, 1981, Alex drove

from New York City to Rhode Island with a Mr. Edwin

Lambert, a private investigator hired through Kuh. Alex

and Lambert first went to Providence to engage a lock-

smith and then traveled on to Newport.

Once at Clarendon Court, Alex, Lambert, and the

locksmith went to defendant’s study. Alex obtained a

set of keys from defendant’s desk. The locksmith ex-

amined the keys and identified which key would fit the

lock to defendant’s closet. The door was opened, and the

locksmith was dismissed.

Prior to searching the closet, Alex and Lambert

searched the bathroom in defendant’s study and the study

itself. Nothing unusual was found in the bathroom. In

the study — in defendani’s desk — Alex found a vial

with French wording upon which he believed the word

‘*Valium” was printed.

Once the search of the study was completed, Alex and

Lambert entered defendant’s closet. Alex initially went

through some of defendant’s clothes — patting the poe

kets — and discovered another vial similar to the one he

had discovered in the desk. Alex testified that one of

these two vials contained a powdered substance; how-

ever, he could not later be sure which one it was.

At some point during the search of defendant’s closet,

Lambert discovered a metal box. This metal box con-

tained a small black bag that Alex recognized as being sim-

ilar to the one he had seen before. Alex testified that the

bag contained a prescription vial with different types of

pills in it and another vial in which there was a light blue

liquid. The black bag also contained two packets of am-

pules in plastic packaging, a syringe, and three hypo-

dermie needles, one of which was unsealed. Inside the

metal box, next to the black bag, Alex and Lambert also

found a small cardboard box labeled ‘‘lidocaine’’ and

containing an ampule and a syringe.

Upon completing the search of defendant’s study and

closet, Alex looked through his mother’s room. He took

pills from various containers found in the room and a

vial of Inderal from the night table. When the entire

search was completed, Alex placed all the items found

(with the possible exception of the lidocaine) into the

black bag and transported it all back to New York. Alex

testified that the lidocaine may not have fit into the

black bag but was included with the items that he trans-

ported to New York.

Upon his return to New York, Alex initially went to

his sister’s apartment. He was then accompanied by Kuh

to the office of Kuh’s brother, a doctor, where the con-

tents of the black bag were removed and examined. After

the items had been examined, Alex returned them to his

sister’s apartment and placed them in a safe in her

closet.

At some point during the next few days Alex re-

moved the bag from the safe and prepared samples of

some of the items to give them to the family physician,

Dr. Richard Stock. Alex testified that the unsealed hypo-

dermic needle, a sample of the blue liquid, and a sample

of speckled white powder from one of the French vials

of Valium were sent to Dr. Stock for testing. Doctor

Stock seat these items to the Bio-Science Laboratory in

Great Neck, Long Island.

Doctor Ronald L. Gambardella, director of the Bio-

Science Laboratory in Great Neck, testified that he rinsed

the needle with a saline solution and split the resultant

washing into two separate specimens. He sent one of

these specimens to Dr. J. George Nitis, director of the

Bio-Science Laboratory branch in Columbia, Maryland,

for a test to determine the presence of insulin. The other

specimen was sent to Dr. V. J. Aggarwall, assistant di-

rector of the Boston Medical Laboratory, another branch

of Bio-Science, for chemical testing to determine the

presence and identity of other drugs. Doctor Gambar-

della also sent the white powder and the liquid to Dr. Ag-

garwall.

Doctor Nitis testified that the tests performed at his

laboratory revealed the presence of insulin in the needle

washing. Doctor Aggarwal! testified that the washing he

received contained amobarbital and diazepam (Valium).

Doctor Aggarwall further testified that the powder that

he received contained amobarbital and the liquid that he

received contained amobarbital and diazepam.

On March 13, 1981, Alex transported the black hag

and its contents to Rhode Island and handed them over

to Lieutenant John Reise of the Rhode Island State

Police. All of the items found in the January 23, 1981

search were turned over, with the exception of the sam

ples and hypodermic needle given to Dr. Stock and the

pills found in Martha von Bulow’s bedroom.

Lieutenant Reise testified that on March 13, 1981,

Alex came to Rhode Island State Police headquarters for

the purpose of handing over the black hag and its con-

tents. Attorney Kuh and a Detective Joseph Miranda

were also present. Alex removed the items from the

black bag, and Lieutenant Reise initialed and dated them.

Lieutenant Reise prepared a seizure report and placed

the items in the evidence roow. On March 20, 1981, Lieu-

tenant Reise removed certain of these items from the

evidence room and sent them to the state toxicologist for

testing. These items ineluded five pills; one clear-glass

ampule bearing the name “papaveretum”; one valium,

two milligram, vial containing a white powder; one pill

container with a white cap and amber base, believed to

contain Valium and possible unknown barbiturates; and

one clear-glass ampule with a yellow cap and a blue

interior stopper, bearing the name “lidocaine.” On

April 23, 1981, Detective Miranda, under the direction

of Lieutenant Reise, sent an additional pill to the state

toxicology laboratory for testing. This substance was

later identified by Detective Miranda as one blue pill of

Valium Roche-10.

The state continued the investigation, expanding upon

the work of Kuh and the others involved in the family’s

investigation. Ther efforts resulted in the indictment,

trial, and ultimate conviction of defendant.

The defendant raises several issues on appeal to

this court. We find two of them to be dispositive. These

are: (1) whether the trial justice erred in denying de-

fendant access to certain materials in Kuh’s possession

and (2) whether the trial justice erred by failing to ex-

clude the results of tests performed by state officials

upon the contents of the black bag without first obtain-

ing a search warrant.

At the outset, we recognize that initially the facts

underlying the rationale of issues relating to attorney-

client privilege and work-product privilege were raised

in a preliminary hearing in respect to a motion filed by

defendant to dismiss the indictment on the ground of

private prosecution. The rulings pertinent to these issues

were first made at that hearing. We are of the opinion

that defendant’s claim of private prosecution was utterly

without merit. We do not believe that this claim requires

either discussion or extended analysis. Consequently, we

also recognize that rulings of admission or exclusion of

evidence insofar as they relate solely to the claim of

private prosecution would be non-prejudicial in their ef-

fect. However, these rulings in relation to attorney-

client privilege and work-product privilege were repeated

and applied without further analysis at various points

during the trial on the merits of the case. It is in this

context that we address these issues. It will he necessary

to diseuss facts developed at the preliminary hearing in

order to consider the applicability of these privileges to

this case.

On September 8, 1981, defendant filed an omnibus mo-

tion in the Superior Court requesting various forms of

relief, including a request that the indictment be dis-

missed on the grounds that Kuh’s involvement unconsti-

tutionally interfered with the impartiality of the public

prosecutor and unconstitutionally influenced the prose-

cution. In support of this motion and in a general effort

to discover the extent of Kuh’s involvement in the in-

vestigation, defendant called Kuh as a pretrial witness,

serving upon him a subpoena duces tecum, which re-

quired Kuh to produce certain documents (hereinafter

the Kuh documents). In particular, the subpoena directed

Kuh to produce (1) telephone records, (2) time records,

(3) records relating to work done by investigative agen-

cies, and (4) records relating to interviews of witnesses.

Through oral motions and requests and by the questioning

of Kuh and Alex, defendant also sought disclosure of

other materials, including notes of witness interviews

and a summary of incriminating events turned over to

the State Police.

The trial justice denied the oral motions and requests

of defendant' and sustained objections to questions

1 Defense counsel renewed his request, at trial, for Kuh’s notes

of witness interviews. This request was denied by the trial

justice.

through which defendant was attempting to elicit informa-

tion relative to the scope of Kuh’s investigation. With

regard to the materials requested in the subpoena duces

tecum, the trial justice ruled that all the documents with-

held by Kuh were protected by the attorney-client privi-

lege’ or the work-product doctrine. The trial justice then

went on to deny defendant’s motion to dismiss on the

grounds of private prosecution.

The defendant claims that the trial justice erred in

denying him access to the Kuh documents. Proper reso-

lution of this issue requires both a careful analysis of

these privileges and the application of the principles

enunciated therein to the materials sought by defendant

below and excluded by the trial justice.

The factual setting in which this claim of error comes

before us is somewhat unique in that the materials sought

by defendant both before and during trial were generated,

not by the prosecution, but by an independent third

party” This is significant in that Kuh, a private party,

is not subject to the same restrictions or bound by the

same obligations as a public prosecutor.

A. Attorney-Client Privilege

We address ourselves initially to defendant’s claim

that the Kuh doenments were not shielded from disclo-

2 Alex testified at the pretrial hearing, on advice of counsel,

that he would not waive his attorney-client privilege in regard

to the content of his discussions with Kuh and that he would

not consent to the disclosure of materials in Kuh’s possession.

3 Although Kuh remained involved in the case subsequent to

the time the State of Rhode Island began its investigation, we

are satisfied that Kuh retained his status as a private party and

was not at any time an agent of the state.

sure by the attorney-client privilege. We have said that

‘(t]he attorney-client privilege protects from disclosure

only the confidential communications between a client

and his or her attorney.” DeFusco v. Giorgio, — R.I. —,

—, 440 A.2d 727, 731 (1982). “The general rule is that

communications made by a client to his attorney for

the purpose of seeking professional advice, as well as

the responses by the attorney to such inquiries, are

privileged communications not subject to disclosure.”

Haymes v. Smith, 73 F.R.D. 572, 576 (W.D. N.Y. 1976)

(citing Colton v. United States, 306 F.2d 633 (2d Cir.

1962). cert. denied, 371 U.S. 951, 83 S. Ct. 505, 9 L. Ed.2d

499 (1963)).

Professor Wigmore has set forth a statement of the

general principle of the privilege as follows:

‘‘(1) Where legal advice of any kind is sought

(2) from a professional legal adviser in his capacity

as such, (3) the communications relating to that

purpose, (4) made in confidence (5) by the client,

(6) are at his instance permanently protected (7)

from disclosure by himself or by the legal adviser,

(8) except the protection be waived.” 8 Wigmore,

Evidence, § 2292 at 554 (McNaughton rev. 1961).

The United States Court of Appeals for the Fifth

Circuit has also commented upon the elements that must

be established in order to invoke the attorney-client

privilege. In United States v. Kelly, 569 F.2d 928, 938

(5th Cir.), cert. denied, 439 US. 829, 99 S. Ct. 105, 58

L. Ed.2d 123 (1978), the court set forth the requisite

elements as

‘‘(1) the asserted holder of the privilege is or

sought to become a client; (2) the person to whom

the communication was made (a) is [the] member

of a bar of a court, or his subordinate and (b) in

connection with this communication is acting as a

lawyer; (3) the communication relates to a fact of

which the attorney was informed (a) by his client

(b) without the presence of strangers (c) for the

purpose of securing primarily either (i) an opinion

on law or (ii) legal services or (iii) assistance in

some legal proceeding, and not (d) for the purpose

of committing a crime or tort; and (4) the privilege

has heen (a) claimed and (b) not waived by the

client.’’ See also Status Time Corp. v. Sharp Elec-

tromcs Corp., 95 F.R.D. 27, 29 (S.D. N.Y. 1982).

It is well settled that the burden of establishing

these elements is on the party advancing the privilege.

In Re Horowitz, 482 F.2d 72, 81-82 (2d Cir.), cert. denied,

414 U.S. 867, 94 S. Ct. 64, 38 L. Ed.2d 86 (1973); see

also United States v. Kelly, 569 F.2d at 938. In the

present case, therefore, the burden was on the witness —

Alex — to establish the existence of the privilege between

himself and Kuh.‘ The trial justice in finding that the

privilege was applicable, apparently was satisfied that

Alex had sustained that burden. We disagree.

Applying the elements of the attorney-client privilege

to the facts contained in the record before us, we are

satisfied that an attorney-client relationship did exist

between Kuh and Alex. Alex, along with his sister and

grandmother, retained Kuh to look into the causes that

* Although Alex, Ala, and Mrs. Aitken initially contracted Kuh,

only Alex was questioned at the pretrial hearing regarding the

existence of the attorney-client privilege. The state submitted

a motion at trial to keep any reference of the attorney-client

privilege claimed by any of the clients away from the jury.

The trial justice granted the motion and prohibited defense

counsel from asking Alex questions that would have revealed

that he had invoked and was continuing to invoke the attor-

ney-client privilege.

yrought about Mrs. von Bulow’s condition. Although

defendant argues that Kuh was retained for investiga-

tive purposes only and was therefore not consulted for

the purpose of obtaining professional legal advice, we feel

that the family’s reasons for retaining Kuh went beyond

that narrow purpose. Implicit in their instructions for

Kuh to investigate the circumstances surrounding Martha

von Bulow’s comatose condition was their desire to ob-

tain a legal opinion from Kuh about whether defendant

had engaged in any criminal conduct. Given these facts,

we are satisfied that an attorney-client relationship

existed at the outset between Kuh and Alex.

Our inquiry, however, does not end here. The

attorney-client privilege is limited to communications be-

tween the attorney and the client which are expressly in-

tended to be confidential. Hearn v. Rhay, 68 F.R.D. 574

579 (E.D. Wash. 1975). ‘‘[T]he mere relation of at-

torney and client does not raise a presumption of confi-

dentiality.’’ Id. (citing 8 Wigmore, § 2311 at 182-83). In

the present case, however, the record discloses that the

communications between Kuh and his clients were initially

intended to be kept confidential.

The attorney-client privilege is only available when

all of the elements, as set forth above, are present. See |

International Telephone and Telegraph Corp. v. United )

Telephone Co. of Florida, 60 F.R.D. 177, 184 (M.D. Fla.

1973). An essential element that must be proved in estab- |

lishing the existence of the privilege is that it has not

been waived. Absent such a waiver, the communications

to which Kuh and Alex referred would be protected from

disclosure since the privilege normally protects a client

from having to disclose even the subject matter of confi-

Geet be we.

dential communications with his attorney. United States

v. Aronoff, 466 F.Supp. 855, 861 (S.D. N.Y. 1979). The

privilege may be waived, however, when there has been

disclosure of a confidential communication to a third

party. Id. at 862; see also Status Time Corp. v. Sharp

Electronics Corp., 95 F.R.D. at 34; Haymes v. Smith,

73 F.R.D. at 576; Edmund J. Flynn Co. v. LaVay, 431

A.2d 543, 551 (D.C. 1981); State v. Driscoll, 116 R.I.

749, 757, 360 A.2d 857, 861 (1976).

In considering whether there was a waiver of the

privilege in this case, we are mindful that the attorney-

client privilege operates as a narrow exception to the

general rule that every person must offer testimony on

all tacts relevant to a judicial proceeding. Edmund J.

Flynn Co. v. LaVay, 431 A.2d at 551 (citing 8 Wigmore,

§ 2285). Because the attorney-client privilege limits the

full disclosure of the truth, it must be narrowly con-

strued. We shall recognize the privilege, therefore, only

if it has not been waived. Haymes v. Smith, 73 F.R.D.

at 576.

Courts have found waiver of the attorney-client

privilege in a variety of situations, including those in

which the client has consented to the disclosure and those

in which he has not. See, e.g., Jn Re Grand Jury Investi-

gation of Ocean Transportation, 604 F.2d 672, 675 (D.C.

Cir.), cert. denied, 444 U.S. 915, 100 8S. Ct. 229, 62 L. Ed.2d

169 (1979). In Ocean Transportation the District of

Columbia Court of Appeals upheld the denial of a mo-

tion for the return of allegedly privileged documents

inadvertently disclosed to the Antitrust Division of the

United States Department of Justice. The court held that

original counsel acted as ‘‘agent [for the client] in de-

termining which documents would be produced pursuant

to the subpoena and which documents would be with-

held under the attorney-client privilege.” Jd. It was clear

to the court that ‘‘the mantle of confidentiality which

once protected the documents [had] been so irretrievely

breached [by the disclosure] that an effective waiver of

the privilege [had] been accomplished.’’ Jd.

In the present case, Alex and the other family mem-

bers instructed Kuh to contact the authorities. Kuh con-

tacted the Attorney General’s office by telephone and

first met with the Rhode Island State Police on February

25, 1981. At that first meeting, Kuh turned over a type-

written summary prepared by him detailing incidents

that had led him and the family to conclude that de-

fendant had attempted to kill his wife. He also turned

over photocopies of medical records and information

concerning defendant’s trip to the Bahamas ‘‘with some-

one other than his wife’’ and generally informed the

State Police of information he had obtained from his

clients and from Dr. Stock. Kuh also testified that the

summary contained a narration of what he had learned

from his interviews of potential witnesses. On March 13,

1981, Kuh accompanied Alex to State Police headquarters,

at which time all of the items found in the January 23,

1981 search were turned over, with the few exceptions

noted above.

These facts clearly indicate that the disclosure of in-

formation to the State Police by Kuh was made with the

consent of his clients. It is also not unlikely that Alex

himself made disclosures concerning the nature of the

investigation undertaken by him with the assistance of

Kuh and others during the course of his many contacts

with the Rhode Island authorities. Notwithstanding the

assertions of Kuh and Alex that the nature of Kuh’s

work was always intended to be kept confidential, the

above facts constitute an irrevocable breach of that con-

fidentiality. This breach of confidentiality in our opin-

ion rises to the level of waiver, thereby destroying an

essential element of the privilege. In Ocean Transporta-

tation the court noted that ‘‘[a]n intent to waive one’s

privilege is not necessary for such a waiver to occur.”

604 F.2d at 675. This proposition is equally applicable to

the case before us. Although confidentiality was initially

desired, the family subsequently chose to disclose their

suspicions and the information they had obtained to

the authorities. That choice is binding, in spite of their

initial intentions.

The state argues that in reporting to the authorities,

Kuh never disclosed any of the actual confidential com-

munications or documents reflecting these communica-

tions. It is the state’s position that Kuh simply revealed

specific results and facts that were the subject of the

communication. These disclosures, the state contends, are

distinguishable from the disclosures of actual privileged

documents. While we agree that the documents dis-

closed may not have contained verbatim confidenal com-

munications between attorney and client, we are never-

theless satisfied that the disclosure of these documents

and the oral disclosures made by Kuh constituted a

waiver of the privilege.

It is not necessary that actual privileged communi-

cations or documents reflecting such communications be

disclosed to effect a waiver of the privilege. “[A] dis-

closure of, or even merely an assertion about, the com-

munication may effect a waiver of privilege not only as

to that communication, but also as to other communica-

tions made during the same consultation and communi-

cations made at other times about the same subject.”

United States v. Aronoff, 466 F.Supp. at 862; see also

Status Time Corp. v. Sharp Electronics Corp., 95 F.R.D.

at 34. In the present case Kuh disclosed, at the very

least, the subject matter of communications between him-

self and his clients. At the very most, Kuh may have

disclosed actual communications made by his clients.

Kuh testified at the pretrial hearing that he generally

informed the State Police of information he had ob-

tained from his clients. In light of this statement, it is

difficult to imagine that confidential communications were

not disclosed during the course of the ongoing meetings

held between Kuh and Alex and between Kuh and the

Rhode Island authorities.

Assuming arguendo that actual confidential com-

inunieations were not disclosed, the extent to which dis-

closures relating to the subject matter of the attorney-

client relationship were made was sufficient to waive

the privilege. As the court stated in United States v.

Aronojf{, 466 F. Supp. at 862 this principle has been re-

ferred to as ‘‘waiver by implication’’ and it is based on

considerations of fairness.

‘‘fWlhen [the client’s] conduct touches a certain

point of disclosure, fairness requires that his priv-

ilege shall cease whether he intended that result or not.

He cannot be allowed, after disclosing as much as he

pleases, to withhold the remainder. He may elect to

withhold or to disclose, but after a certain point

his election must remain final. 8 Wigmore, supra

§ 2327, at 636. See also McCormick on Evidence § 93,

at 194 (2d ed. 1972).” Id.

Consistent with these principles of fairness, it has

been held that the attorney-client privilege properly

serves as a shield and not as an offensive tool of litiga-

tion. Edmund J. Flynn Co. v. LaVay, 431 A.2d at 551;

see also International Telephone & Telegraph Corp. v.

United Telephone Co. of Florida, 60 F.R.D. at 185. The

court in Aronoff recognized that ‘‘[w]here a privilege-

holder has made assertions about privileged communica-

tions, but has attempted to bar other evidence of those

communications, there is a serious danger that his asser-

tions are false or misleading.” United States v. Aronoff,

466 F.Supp. at 862. ‘‘A party may not, therefore, insist

upon protection of the privilege for damaging communi-

cations while disclosing those which it considers to be

favorable to its position.” Edmund J. Flynn Co. v.

LaVay, 431 A.2d at 551; see also International Telephone

& Telegraph Corp. v. United Telephone Co. of Florida,

60 F.R.D. at 185.

The facts of the present case are a classic example

of the impermissible selective use of privileged informa-

tion. While maintaining that communications were in-

tended to be confidential, Alex and his attorney, at Alex’s

direction, disclosed information sufficient to trigger an

investigation by the state and an indictment. These

same parties later refused to disclose other evidence

of the same communications. The inequity of allowing

the privilege holder in this case to disclose as much as

he pleased while withholding the remainder is heightened

by the fact that defendant was on trial for attempted

murder. The effect of excluding such evidence was tliere-

fore to deny defendant access to information that he

was entitled to examine in the preparation of his de-

fense.

The defendant also argues that the attorney-client

privilege was waived by the presence of third parties at

various consultations between Kuh and his clients. To

the extent that this claim is borne out by the record,

“the presence of third persons who are not essential to

the transmittal of information will belie the necessary

element of confidentiality and vitiate the privilege.’’

Hearn v. Rhay, 68 ¥F.R.D. at 579. Kuh testified pretrial

that a meeting took place on January 22, 1981, at which

the possibility of Alex’s returning to Newport to search

for the black bag was discussed. Kuh also testified that

Mr. Gurley (the family’s financial advisor) may have been

present for all or part of that meeting. If such was the

ease, Mr. Gurley’s presence at that meeting would have

destroyed the necessary element of confidentiality, there-

by effectuating a waiver of the privilege in respect to

those communications.

The defendant argues further that the privilege was

waived by the courtroom testimony of Alex and Kuh.

It has been held that although

‘‘the client does not waive the privilege by testifying

generally in the cause or testifying as to facts which

were the subject of consultation with his attorney, if

the client or his attorney at his instance takes the

stand and testifies to privileged communications in

part this is a waiver as to the remainder of the

privileged consultation or consultations about the

same subject.” International Telephone and Tele-

graph Corp. v. United Telephone Co. of Florida, 60

F.R.D. at 185-86. See also DeFusco v. Giorgio, —

R.1. at —, 440 A.2d at 731.

In the present case, both Alex and Kuh testified at the

pretrial hearing about the nature and purpose of Kuh’s

retention by the family. This is the very fact that was

initially intended to be maintained in confidence and

subsequently disclosed. This testimony may have been

sufficient, in and of itself, to waive the privilege with

respect to the remainder of the consultations about this

same subject.

A finding of waiver, however, does not depend upon

the presence of third parties at consultations between Kuh

and his clients or the courtroom testimony of Kuh and

Alex. These events do, however, highlight the great ex-

tent to which disclosures were made in this case. It is our

opinion that far too much was disclosed. As Professor

Wigmore has stated, the privilege holder “may elect to

withhold or to disclose, but after a certain point his elee-

tion must remain final.” 8 Wigmore, 6 2377 at 636. That

point was reached in the present case. The trial justice

was clearly wrong, therefore, in finding that the Kuh

documents were protected by the attorney-client privilege.

The state concedes that the attorney-client privilege

does not apply to communications between Kuh and Maria

Schrallhammer, Morris Gurley, Dr. Richard Stock, and

Charles Roberts. They also concede that Kuh’s time and

telephone records, the medical records from Newport

Hospital, the summary of incriminating evidence prepared

by Kuh, and the reports of private investigative agencies

“do not fall under the protective umbrella of the attorney-

client privilege.” We agree. However, to the extent that

any of these documents reflect confidential communica-

tions between attorney and client, they would have come

within the ambit of the attorney-client privilege had that

privilege not been waived. See Colton v. United States,

306 F.2d 633, 639 (2d Cir. 1962); see also In Re Sealed

Case, 676 F.2d 793, 807 (D.C. Cir. 1982).

B. Work-Product Privilege

It is the state’s position that any documents not pro-

tected by attorney-client privilege are protected by the

work-product doctrine. We disagree.

The work-product doctrine was first defined in Hick-

man v. Taylor, 329 U.S. 495, 67 8.Ct. 385, L.Ed. 451 (1947).

The privilege protects certain materials “obtained or pre-

pared by an adversary’s counsel with an eye toward liti-

gation * * *.” Id. at 511, 67 S.Ct. at 394, 91 L.Ed. at 462.

Hickman was recently addressed by the District of Col-

umbia Cireuit Court of Appeals in the context of a grand

jury investigation in In Re Sealed Case, 676 F.2d 793

(D.C. Cir. 1982). In that case the court observed that

“ijn Hickman the Supreme Court read into the Fed-

eral Rules of Civil Procedure then in effect a two-

tiered protection from discovery for attorney work

product * * *. To the extent that work product con-

tains relevant, nonprivileged facts, the Hickman doe-

trine merely shifts the standard presumption in favor

of discovery and requires the party seeking discov-

ery to show ‘adequate reasons’ why the work product

should be subject to discovery. However, to the ex-

tent that work product reveals the opinions, judg-

ments, and thought processes of counsel, it receives

some higher level of protection, and a party seeking

discovery must show extraordinary justification.” Jd.

at 809-10.

The work-product doctrine does not, however, pro-

vide an absolute privilege. As the court stated in In Re

Sealed Case, the Hickman Court “scrupulously avoided

recognizing a general privilege for work product.” Id.

at 810. See also United States v. Nobles, 422 U.S. 225,

937-38, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141, 153 (1975);

Fireman’s Fund Insurance Co. v. McAlpine, 120 R.I. 744,

754, 391 A.2d 84, 90 (1978).

In United States v. Nobles, 422 U.S. at 238, 95 S.Ct.

at 2170, 45 L.Ed.2d at 153, the Supreme Court recognized

& privilege for work product in criminal discovery. In Re

Sealed Case, 676 F.2d at 810; In Re Grand Jury Sub-

poena Dated July 13, 1979, 478 F. Supp. 368, 374 (E.D.

Wis. 1979). The Court found that the privilege was waived,

however, when the holder of the privilege elected to ad-

duce testimony from an investigator about the contents

of an allegedly privileged report. United States v. Nobles,

422 U.S. at 239-40, 95 S.Ct. at 2170-71, 45 L.Ed.2d at 154.

As noted above, the state relies upon both the attor-

ney-client and the work-product privileges to support the

ruling of the trial justice. Of the two, the work-product

privilege is broader. United States v. Nobles, 422 U.S. at

238 n. 11, 95 S.Ct. at 2170 n. 11, 45 L.Ed.2d at 153 n. 11;

In Re Sealed Case, 676 F.2d at 808. The attorney-client

privilege covers only confidential communications between

attorney and client. The work-product privilege, on the

other hand,

“protects both the attorney-client relationship and a

complex of individual interests particular to attorneys

that their clients may not share. And because it looks

to the vitality of the adversary system rather than

simply seeking to preserve confidentiality, the work

product privilege is not automatically waived by any

disclosure to a third party.” In Re Sealed Case, 676

F.2d at 809.

Although the purposes of the work-product privilege

are more complex than those of the attorney-client priv-

ilege and may not be inconsistent with selective disclosure,

at some point the privilege must yield to the needs of the

adversary system. See In Re Sealed Case, 676 F.2d at

818. This consideration is of paramount importance in

the criminal context. In the criminal justice system, the

work-product doctrine serves to protect “[t]he interests

of society and the accused in obtaining a fair and accurate

resolution of the question of guilt or innocence * * *.”

United States v. Nobles, 422 U.S. at 238, 95 S.Ct. at 2170,

45 L.Ed.2d at 153. As with the attorney-client privilege,

when a party seeks to use the work-produet privilege in a

manner inconsistent with this purpose, courts are justi-

fied in finding a waiver where selective disclosure would

prevent the system from fairly and accurately resolving

the question of guilt or innocence. See In Re Sealed Case,

676 F.2d at 818.

Applying these principles to the present case, we

must initially determine whether the work-product doc-

trine is applicable in the first instance. In light of Nobles,

there is no question that the privilege is applicable in the

criminal context. Our initial inquiry becomes, therefore,

whether or not the allegedly privileged material was ob-

tained or prepared in anticipation of litigation. The state

correctly asserts that the work-product privilege has been

held to protect materials prepared in anticipation of liti-

gation other than the specific litigation in which its dis-

closure is sought. See In re Murphy, 560 F.2d 326, 334

(Sth Cir. 1977); United States v. Capitol Service, Inc.,

89 F.R.D. 578, 585-86 (E.D. Wis. 1981).

In the present case, the state contends that the pros-

pect of litigation was evident during the time in which the

alleged work product was being created. Such prospec-

tive litigation, it is argued, included possible litigation

over Mrs. von Bulow’s estate, a conservatorship proceed-

ing for Mrs. von Bulow, a civil action for wrongful death,

and representation of Kuh’s clients before the grand jury

and at a subsequent criminal trial. In light of the fore-

going authority, we cannot say with certainty that the

material in question was not prepared in anticipation of

litigation. Even assuming that the civil litigation was not

anticipated, it is our opinion that the possibility of a crim-

inal trial was evident from the beginning. Also, the fact

that Kuh did not represent a party to the proceedings

should not, in and of itself, render his work product sub-

ject to disclosure. See Grumman Aerospace Corp. v. Ti-

tanium. Metals Corp. of America, 91 F.R.D. 84, 88-89 (E.D.

N.Y. 1981); Vilastor-Kent Theatre Corp. v. Brandt, 19

F.R.D. 522 (S.D.N.Y. 1956).

Assuming without deciding, therefore, that the Kuh

documents were obtained or prepared in anticipation of

litigation, we must now determine to what extent these

documents are “the sort of ‘memoranda, * * * mental im-

pressions,’ and ‘thought, heretofore inviolate’ for which

the Hickman doctrine was fashioned.” In Re Sealed Case,

676 F.2d at 811.

The subpoena issued to Kuh called for the production

of (1) telephone records, (2) time records, (3) records

relating to work done by investigative agencies, and (4)

records relating to interviews of witnesses. Defense coun-

sel also requested, inter alia, the production of the sum-

mary report turned over to the State Police.

We shall focus initially upon Kuh’s notes of witness

interviews. These notes clearly fall within the definition

of opinion work product. The Supreme Court has said,

in the context of the disclosure of witness statements un-

der the Jencks Act, that to the extent an attorney has

recorded his own thoughts in his interview notes, the notes

would seem to come within the work-product immunity.

Goldberg v. United States, 425 U.S. 94, 106, 96 S.Ct. 1338,

1346, 47 L.Ed.2d 603, 615 (1976). In In Re Grand Jury

Subpoena Dated July 13, 1979, 478 F. Supp. at 374, the

court found that interview memoranda prepared by coun-

sel in an internal investigation conducted in anticipation

of potential civil and criminal litigation were protected by

the work-product doctrine as defined in Hickman. The

court concluded both that government attorneys did not

make a sufficient showing to justify discovery of these

memoranda and that Hickman supports the conclusion

that “interview memoranda may be discovered only in a

‘rare situation.’” Jd. at 375. It is therefore incumbent

upon us to determine whether the case before us presents

such a “rare situation” in which interview memoranda

should be disclosed. We feel that it does.

Although there is no per se waiver rule in the work-

product area, see Grumman Aerospace Corp. v. Titanvum

Metals Corp. of America, 91 F.R.D. at 89, we feel justified

in finding an implied waiver of the privilege in this case.

Professor Wigmore has commented, in the context of the

attorney-client privilege, that “the privilege of secret con-

sultation is intended only as in incidental means of defense,

and not as an independent means of attack, and to use it in

the latter character is to abandon it in the former.” 8 Wig-

more, § 2327 at 638. We find that the selective disclosure

of alleged work product in the present case was precisely

the sort of independent attack that constituted an abandon-

ment of the privilege.

Pom

On the basis of the record before us, we have no way of

knowing to what extent information obtained by Kuh from

interviews with prospective witnesses was disclosed to the

Rhode Island authorities. We do know, however, that from

the outset Kuh and his clients, by choice selectively dis-

closed information sufficient to help the state build its

case against defendant while relying on one privilege or the

other to prevent the flow of potentially relevant evidence

to defendant. This selective use of allegedly privileged

material cannot be said to have promoted the interests of

society or defendant in reaching a fair or accurate resolu-

tion of the question of guilt or innocence.

An example of the unfair use of information allegedly

protected by the work-product doctrine oceurred near the

end of the trial when Kuh took the stand as a rebuttal wit-

ness. The state called Kuh to impeach the testimony of

Charles Roberts, the family chauffeur, which indicated that

Mrs. von Bulow was receiving frequent prescriptions for

various medications from several doctors. Kuh testified

that information that he had obtained from Roberts at a

prior meeting was inconsistent with his testimony in court.

There is also evidence that Kuh relied upon the very inter-

view notes that he had previously refused to disclose to

buttress this alleged inconsistency.‘

Selective use of the privilege can also be seen in the

use of the summary of incriminating events which was

turned over to the State Police by Kuh and subsequently

* Defense counsel requested a side-bar conference when Kuh

was Called. During that conference defense counsel asked the

prosecutor if Kuh had obtained a written statement from Rob-

erts. The prosecutor responded, “I don’t think there’s a writ-

ten statement, no, but | think he has notes on it.’”’

denied to defendant. Although the document is not before

us, Kuh testified that it contained a narration of what he

had learned from his investigation, including information

obtained from his interviews of potential witnesses. To

the extent that the summary contained Kuh’s own thoughts

or mental processes in synthesizing the information, it

would be entitled to work-product protection, see Goldberg

v. United States, 425 U.S. at 106, 96 S.Ct. at 1346, 47 L.Ed.

2d at 615, absent its waiver, However, when the disclosure

of this evidence is viewed in conjunction with all of the

other disclosures made by Kuh, including those discussed

in the context of the attorney-client privilege, we find that

pattern of controlled and aggressive use of allegedly priv-

ileged material which necessarily waives the privilege.

We note that reports of investigative agencies are also

work product, United States v. Nobles, 422 U.S. at 238-39,

95 S.Ct. at 2170, 45 L.Ed.2d at 154, and would be entitled to

protection in the absence of waiver. They are not, how-

ever, opinion work product since they do not reflect the

judgments and thought processes of counsel. They may be

discovered, if relevant, upon a showing of adequate rea-

sons. See In Re Sealed Case, 676 F.2d at 809. Telephone

and time records would fall into the same category. Al-

though it is unclear to what extent defendant was preju-

diced by the denial of access to these documents, they nev-

ertheless came within the protective umbrella of the trial

justice’s ruling.

We addressed the work-product privilege in the civil

context in Fireman’s Fund Insurance Co. v. McAlpine, 120

R.I. 744, 391 A.2d 84 (1978). In that case we stated that

the party seeking production has the burden of showing

that a denial of production or inspection will result in an

injustice or undue hardship. The ultimate determination

of that issue is vested in the sound discretion of the trial

justice. Id. at 754, 391 A.2d at 90.

The injustice and hardship to defendant in the present

case is clear. The effect of denying him access to the re-

quested material was to block the flow of potentially rele-

vant evidence that may have been vital to his defense. The

work-product doctrine was initially set forth as a limitation

on civil discovery. Altnough that doctrine also serves a

purpose in the criminal context, we shall not subject the

needs of a criminal defendant to the same hard and fast

application of the civil rule. We find, therefore, that the

trial justice abused his discretion in ruling that the re-

quested documents were protected by the work-product

privilege.

McAlpine also stands for the proposition that discov-

erable matter must be both relevant and not privileged. Jd.

at 747, 391 A.2d at 86. Ordinarily, therefore, we would

remand this case to the trial court with instructions to

examine the documents in question, in a manner consistent

with this opinion, to determine (1) which of the documents

are not privileged and (2) which unprivileged documents

are relevant. Our use of such a remand in this case is pre-

cluded, however, by our disposition of defendant’s search

and seizure claims.

A. Private vs. Public Searches

The activities of Alex and Lambert in entering Claren-

don Court on January 23, 1981, to locate the black bag in-

cluded their search of defendant’s closet, bathroom, desk,

and study. Despite defendant’s vigorous assertion that the

prior involvement of Attorney Kuh was so extensive as to

make this search governmental, we are not persuaded that

the strictures of the Fourth Amendment should apply to

their entry and search that day. Alex and Lambert’s con-

duet “did not implicate the Fouth Amendment * * * because

the constitutional prohibition of unreasonable searches and

seizures applies only to governmental conduct.” State v.

Eiseman, — R.1. —, —, 461 A.2d 369, 374 (1983) (citing

Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576,

65 L.Ed. 1048, 1051 (1921)). No matter how egregious

their actions may appear in a society whose fundamental

values have historically included individual freedom and

privacy, the exclusionary rule cannot be invoked by defen-

dant to bar the introduction of evidence that was procured

by Alex and Lambert while acting as private citizens.

“The purpose of the exclusionary rule is not to redress

the injury to the privacy of the search victim * * *,” United

States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38

L.Ed.2d 561, 571 (1974) ; State v. Soratt, 120 R.I. 192, 193-

94, 386 A.2d 1094, 1095 (1978), but rather to deter unconsti-

tutional methods of law enforcement. United States v.

Janis, 428 U.S, 433, 446-47, 96 S.Ct. 3021, 3028-29, 49 L.Ed.

2d 1046, 1056-57 (1976) ; State v. Carillo, — R.I. —, —, 407

A.2d 491, 496 (1979); State v. Spratt, 120 R.T. at 194, 386

A.2d at 1095.

Similar principles do not, however, govern our review

of the evidence-gathering techniques employed by the state.

Our decision in State v. Eiseman, — R.I. —, 461 A.2d 369

(1983), requires our application of an analysis that clearly

separates the Fourth Amendment standards to be applied

to the private search of Clarendon Court on January 23,

1981, from those governing the subsequent chemical testing

of certain fruits of that search by the Rhode Island State

Police.’ In Eiseman we ueld that when the government sig-

nificantly expands a prior private search without ‘first

securing a search warrant and no recognized exception to

the warrant requirement exists to justify such expansion,

the independent governmental search is subject to the pro-

scriptions of the Fourth Amendment, State v. Eiseman, —

R.I. at —, 461 A.2d at 377.

B. Warrant Requirement

At the outset, two specific points should be made.

First, there is no dispute about the fact that the state

failed to obtain a warrant before chemically testing the

pills received from Alex. Indeed, under cross-examination

by defense counsel, Lieutenant Reise plainly admitted that

this subsequent chemical testing was performed without

the state’s first having obtained a search warrant. Second,

there is no evidence in the record to support a finding that

any recognized exception to the warrant requirement

existed to justify the chemical testing.’ Despite this con-

° As previously noted, all of the fruits of Alex and Lambert’s

search, except those samples given to Dr. Stock and the pills

found in Martha von Bulow’s edroom, were delivered to the

Rhode Island State Police by Alex on March 13, 1981. This

evidence was inventoried and stored in the State Police evi-

dence room until March 20, 1981, the date on which Lieutenant

Reise ordered that certain samples be remcved from it and

sent to the state toxicology lab for testing.

’ This chemical testing did not involve consent by defendant,

(State v. Locke, — R.I. —, —, 418 A.2d 843, 847 (1980)), nor can

it be viewed as a search incident to defendant’s lawful arrest

(Id.), an automobile search of his car (New York v. Belton, 453

U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)), an adminis-

trative inspection of his home (Camara v. Municipal Court of

(Continued on next page)

spicious absence, however, the state urges on appeal that

two specific exceptions to the warrant requirement should

be applied here. One of these two exceptions, the plain-

view doctrine, we can summarily dismiss. We have pre-

viously rejected this doctrine as totally nonviable in an

expansion case. “The plain-view doctrine validates the

warrantless seizure of evidence.” State v. Eiseman, —

R.I. at —, 461 A.2d at 380 (citing Coolidge v. New Hamp-

shire, 403 U.S. 443, 464-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed.

9d 564, 581-83 (1971)). It cannot be used “to justify con-

duct that may constitute a ‘significant expansion’ of the

private search.” State v. Eiseman, — R.I. at —, 461 A.2d

at 381.

The other warrant exception claimed by the state,

“harmless error,” is equally without merit. “A determina-

tion of whether error is harmless must turn upon whether

there is a reasonable possibility that the error complained

of contributed to the conviction. Before a federal consti-

tutional error can be held harmless, we must be able to

declare a belief that it was harmless beyond a reasonable

doubt.” State v. Robalewski, — R.I. —, —, 418 A.2d 817,

824 (1980) (citing Chapman v. California, 386 U.S. 18, 23-

24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11 (1967) ; State

v. Lachapelle, 112 R.1. 105, 113, 308 A.2d 467, 471 (1973)).

(Continued from previous page)

San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930

(1967)), or a border search (United States v. Cortez, 449 U.S.

411, 101 3.Ct. 690, 66 L.Ed.2d 621 (1981); United States v.

Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977)).

8 In its initial brief filed with this court, the state specifically

claimed that the admission of the chemical testing of one red

capsule was harmless beyond a reasonable doubt. In its reply

brief, the state tacitly embraced the plain-view exception in

its discussion of Illinois v. Andreas, — U.S. —, 103 S.Ct. 3319,

77 L.Ed.2d 1003 (1983), as further justification for the chemical

testing.

Even cursory review of the record precludes such a

declaration. Unlike the situation in State v. Robalewski,

— RI. —, 418 A.2d 817 (1980), in this case there is no

direct evidence to connect defendant with the two alleged

murder attempts upon his wife. In Robalewski, the most

recent case in which we applied a “harmless error” ex-

ception to the Fourth Amendment’s warrant requirement,

strong eyewitness testimony of an assaulted security guard

constituted sufficient direct evidence to convict the defend-

ant without the introduction of the tainted revolver at

trial. In fact, in that case, Officer Superczynski’s testi-

mony “was the core of the state’s case against defendant.”

Id. at 824. The precisely opposite situation prevails nere.

The state’s entire case is predicated upon circumstantial

evidence. These chemical tests of certain contents of the

black bag formed a significant part of the state’s case. Not

only did the circumstantial evidence suggest that defendant

had injected his wife with insulin by means of a hypoder-

mic needle, but it also implied that defendant may have

anesthetized her prior to such an injection. The impor-

tance of these chemical tests is demonstrated by the fact

that the state explicitly relied upon the results of these

tests to prove its theory of the case. A clear illustration of

this reliance can be found in an excerpt from the prosecu-

tor’s own remarks made during closing argument:

“* * * [O]ne of the capsules which was found in-

side the Dalmane bottle which is marked Secobarbital,

actually contains not only Secobarbital, but Amobar-

bital and Cyclizine. I just don’t know, for the life of

me, what the significance of that is, but I just can’t see

if that drug belonged to Martha von Bulow, why she

would take a capsule and mix in some other drugs with

it. It is only consistent with the surreptitious or the

——OeeoOoorermrerore

secreted administration of drugs on the part of an-

other person.

“Tt would have been very easy, ladies and gentle-

men, for Claus von Bulow to anesthetize his wife, to

drug his wife at any point in time, and especially prior

to—just prior to giving her the injection on each of

these occasions, December 27th of 1979 and December

21st—excuse me, December 26th of 1979 and December

0th of 1980. On both of those evenings, there’s testi-

mony that she came home from the movies on the sec-

ond occasion and went into the bathroom. He was in

‘he study. She had a headache. Very simple. ‘Can I

get you a glass of water, Dear?” It would have been so

easy for him to put some of that powder Amobarbital

found in his pocket or in the desk * ° * the powder

Amobarbital and the little French Valium, spike it a

little bit. Very easy for him to do that.”

Consequently, the presence of the tranquilizing and

anesthetic drugs in the black bag and their positive identi-

fication by the state toxicologist’ firmly tightened the web

® The state toxicologist in charge of the Law Enforcement Lab-

oratory, Mr. Robert A. Miller, testified that he chemically an-

alyzed the substances delivered to him by the State Police.

The results of that testing follow:

1. One red capsule marked Lilly F-40 found to contain

secobarbital, amobarbital and cyclizine.

2. One blue capsule marked Lilly F-33 found to contain

amobarbital.

3. One yellow capsule found to contain flurazepam, a

benzodiazepine-type drug which is similar to a sedative and

of the same class as Valium.

4. One light blue tablet found to contain diazepam, the

generic name for Valium.

5. One light orange tablet containing Inderal. (This is

a non-controlled substance. This tablet was not chemically

analyzed. Rather, it was identified on the basis of a physical

examination).

(Continued on next page)

of circumstantial evidence around which the state had

woven its case against defendant. At a minimum, the ad-

mission by the trial justice of the results of the tests per-

formed by the state toxicologist created a reasonable pos-

sibility that defendant would be convicted. Jd.

(Continued from previous page)

6. One clear-glass ampule bearing the name papavera-

tum, the liquid therein found to contain morphine and codeine.

7. One Valium, two milligram, vial containing white pow-

mad neg red speckles. This powder was found to contain amo-

ital.

8. One pill container with a white cap and amber base

believed to contain Valium and sible unknown barbituates

suspended in an unknown liquid. Tests showed the presence

of diazepam (Valium).

9. One clear-glass container with a yellow cap and a

blue interior st r, found to contain Lidocaine Hydronloride,

a non-controlled substance classified as a local anesthetic, and

having other uses.

needle that had been determined as a result of the private test

rformed by the Bio-Science Laboratory in Columbia, Mary-

and, was of greater probative value than the identity of the

other substances examined by the state toxicologist. Neverthe-

less, these pills, containing various controlled substances whose

identities were only determined by the state’s having expanded

upon the initial private search, cannot be said to have been

harmless beyond a reasonable doubt.

Nothing we have stated in this opinion should, however,

be construed to indicate that the private tests conducted at

the request of Dr. Stock at the Bio-Science Laboratories upon

the needle that had been removed by Alex from the black ba

were in any way tainted the conduct of the Rhode Islan

State Police in respect to the other contents of the bag. It is

clear that the state did not rely upon its own independent test

of the needle. Thus, we do not suggest that the results of the

tests performed at Bio-Science Laboratories were not properly

admitted under the doctrine of private search enunciated in

aan v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048

(. State Expansion of Private Search

Because no warrant was procured to authorize the

chemical testing and no exception to the warrant require-

ment exists to justify its absence, the admission of these

test results by the trial justice can only be permitted if it

is determined that the subsequent testing was not a sig-

nificant expansion of the prior private search. Although

we decided in Fiseman that a remand to the trial justice

was the proper procedure to follow in making such a deter-

mination, adopting the same course of action in this case

would be inappropriate. Our remand in Eiseman was

necessary because the trial justice’s ruling was “inade-

quately definitive for our review.” State v. Eiseman, —

R.L at —, 461 A.2d at 377. Specifically, we were unable

to ascertain in that case whether the trial justice made a

specific finding that the subsequent state testing was an

independent governmental search. Id. This case presents

no such difficulty. We are confronted here with a situa-

tion in which the trial justice made the requisite findings

concerning the “significant expansion doctrine” first enun-

ciated in Walter v. United States, 447 U.S. 649, 100 S.Ct.

9395, 65 L.Ed.2d 410 (1980)."" Therefore, his findings and

ruling upon defendant’s motion to suppress are sufficiently

specific to be final for purposes of our review.

The essential facts in Eiseman are virtually identical

to those present in United States v. Jacobsen, 52 U.S.L.W.

it In ruling upon defendant's motion to suppress, the trial

justice specifically found that (1) the activities of the State

Police, including the toxicological testing, did “not involve a

search within the meaning of the Fourth Amendment” and (2)

even if this toxicolo ca examination was a search, it was

not unreasonable under the totality of the circumstances.

4414 (U.S. April 2, 1984) (No. 82-1167) The Court’s ma-

jority opinion, authored by Justice Stevens, specifically

held that in cases in which (1) a field test “could disclose

only one fact previously unknown to the agent—whether or

not a suspicious white powder was cocaine,” Jd. at 4417, (2)

there was “no other arguably ‘private’ fact,” Id. at 4418,

and (3) it was virtually certain that the powder could have

been nothing but contraband, Jd. at 4417 n. 17, the Fourth

Amendment did not require the agent to obtain a warrant

before conducting the field test. Jd. at 4418.

Consequently, had Steven Eiseman come before this

court subsequent to the Supreme Court’s Jacobsen deci-

sion, our conclusion spon his Fourth Amendment claim

would have been quitedifferent. If one assumes the field

test at issue in State v. Eiseman, — R.1. —, 461 A.2d 369

(1983) could only reveal one fact—the presence or absence

of cocaine—his appea would not have been remanded to

the trial justice for specific findings concerning the degree

of governmental exparsion of the prior private search. If

Jacobsen had been the law of the land on June 10, 1983,

Steven Eiseman’s allegations of Fourth Amendment viola-

tions would have been dismissed. The mandate of Jacob-

sen is explicit—field tests for cocaine performed under fac-

tual circumstances simJlar to those that existed in Kiseman

2 Both cases involved 4 warrantless field test performed upon

a white powder that an employee of Federal Express, a private

freight carrier, discovered inside a wrapped package in transit.

In each case, the Drug Exforcement Agency was notified of the

discovery, and an agent was dispatched to investigate it. The

agent conducted a field test that revealed the substance dis-

covered as cocaine. The package was then rewrapped and the

carrier directed to deliver it to the respective defendant-ad-

dressee.

do not constitute a significant expansion of a private

search.

Notwithstanding the direct effect that the decision of

United States v. Jacobsen would have had upon the result

we reached in State v. Eiseman, — R.1. —, 461 A.2d 369

(1983), the principles we announced in Eiseman, including

our enunciation of the four factors to be considered in an-

alyzing an expansion case, remain completely viable in

non-field-test situations. Our decision in Etseman owes it

genesis to the Supreme Court’s opinion in Walter v. Unit-

ed States, 447 U.S. 649, 100 S.Ct. 2396, 65 L.Ied.2d 410

(1980). Indeed, the doctrines we enunciated in Liseman

reflect this court’s attempt to provide explicit guidance to

a trial justice who is confronted with an expansion case.

The Court’s recent decision in United States v. Jacobsen,

52 U.S.L.W. 4414 (U.S. April 2, 1984) (No. 82-1167), not

only is fully consistent with its earlier pronouncement in

Walter but it actually also incorporates verbatim the doc.

trines previously announced therein. Id. at 4416. In our

view, United States v. Jacobsen does not in uny way re-

flect the Court’s abandonment of the expansion analysis if

first defined in Walter, but rather represents a clear af-

firmance by the Court of the theoretical legitimacy of that

doctrine in analyzing an expansion case. As Justice Stev-

en’s opinion demonstrates, at least six justices of the

Court are ‘‘of the view that the legality of the govern-

mental search must be tested by the scope of the antece-

dent private search.” United States v. Jacobsen, 52

U.S.L.W. at 4416. United States v. Jacobsen thus reat-

firms the applicability of the Walter principles to those

situations in which the government expands upon a lawful

private search.

The mandate of United States v. Jacobsen is that

field tests conducted under factual cireumstances similar

to those present in that case do not constitute a significant

expansion of a lawful private search. This appeal does

not involve a field test at all. The chemical testing that

defendant here challenges occurred, not in the field imme-

diately following a lawful private search, but rather in the

state toxicology laboratory one week after its delivery to

the State Police. The pills tested by the state in this case

were not even in transit—they were toally at rest in

State Police hands, having been inventoried and locked in

the State Police evidence room for one week prior to their

warrantless testing.

Secondly, the actual chemical tests performed by the

state toxicology laboratory were substantially more ex-

tensive than that executed by the agent in Jacobsen. In

the present case, the tests performed upon certain con-

tents of the black bag clearly could reveal more than just

whether these substances were contraband. Indeed, these

tests positively identified the exact chemical composition

of a myriad of substances whose identities were previ-

ously unknown to the state.’ This is not a case in which

the tests involved could only reveal one fact and ‘‘no

other arguably ‘private’ fact.” United States v. Jacobsen,

52 U.S.L.W. at 4418.

The third major difference between the case at bar

and United States v. Jacobsen, 52 U.S.L.W. 4414, is that.

in Jacobsen, it was a virtual certainty that the substances

'8 As our later discussion demonstrates, the state police had

nothing more than vague, subjective suspicions concerning the

identity of certain substances that it received from Alex prior

to their chemical testing.

tested contained contraband and nothing else. Jd. «at 4417

n. 17. The evidence in this appeal demonstrates tthat of

all the substances tested by the State Police omly one

could not have been purchased with a doctor’s prrescrip-

tion in a pharmacy in the condition in which it was found.

Additionally, most, if not all, of the substances testeed here

were found in standard medicine bottles and vials;. They

were clearly not discovered in such a condition — for

example, inside four zip-lock glassine bags placed! inside

a ten inch tube of silver tape in a cardboard box w'rapped

in brown paper — as would make it a virtual cesrtainty

‘‘that [they] contained nothing but contrabend.’’’ Id.

A fourth distinction between Jacobsen and tthe case

at bar lies in the fact that in Jacobsen the fiela testt repre-

sented a genuine law-enforcement technique emplcoyed to

restrict the possession of a Congressionally concdemned

substance — cocaine. Jd. at 4415, 4418. As Justice

Stevens’s opinion directly acknowledged, the Jiicobsen

decision ‘‘is confined to [those cases involving] posses-

sion of contraband.’’ Jd. at 4418 n. 23. Unlike Jaicobsen,

the present case presents no exigent circumstamces to

legitimize the employment by the State Police of a war-

rantless law-enforcement technique. Nor does it clearly

involve the possession of illegal substances. Therre is no

evidence in the record to indicate that the State: Police

knew that these substances were unlawfully in the posses-

sion of defendant prior to the time that they werre dely-

ered to the State Police.

in light of the substantial differences betwreen the

facts in Jacobsen and those in the case at bar :and be-

cause of our conclusion that the principles annouinced in

Eiseman retain complete vitality in non-field-testt expan-

—_———— ~

sion cases even subsequent to the Jacobsen decision, de-

fendant’s Fourth Amendment claims must be analyzed in

a manner consistent with the Eiseman test.

In Eiseman we enunciated four specific factors to

consider in determining whether a governmental ex-

pansion of a private search is so significant as to invoke

the protection of the Fourth Amendment. Applied to this

case, these include the following:

1. The police officer’s experience and expertise.

2. The question of whether in light of his expertise,

the officer had formed an opinion with a reasonable

degree of certainty concerning the identity of the sub-

stance previously searched by private parties before

expanding the search.

3. The extent of the intrusion required to perforin

the expansion.

4. The question of whether such intrusion impinged

upon any further expectation of privacy that remained

after the exposure of the contents by private persons. See

State v. Eiseman, — R.1. at —, 461 A.2d at 377.

Having reviewed the evidence in light of these factors,

we are convinced that all four militate against the trial

justice’s cone!usion and in favor of our finding that the

state’s subsequent toxicological examination was a signifi-

cant-expansion of the private search subject to the pro-

tection of the Fourth Amendment.

Lieutenant Reise and his subordinate, Detective Mir-

anda, both had extensive experience with the State Police.

Reise was a twenty-one year veteran of the State Police

and a ten-year member of its detective division. Miranda

had been employed by the State Police since 1969 and had

been working in its detective division since 1974. Addi-

tionally, Reise was thoroughly familiar with the proper

procedure to follow to obtain a search warrant to advance

an investigation.

Despite his expertise, Lieutenant Reise was unable to

identify with a reasonable degree of certainty those sub-

stances that he had received from Alex without further

testing. His testimony is replete with admissions that he

sent samples to the state lab because he simply did not

know what they were. In spontaneous response to two

questions posed by the prosecutor upon direct examina-

tion, Lieutenant Reise gave virtually identical answers to

explain why he ordered the testing: “I had no idea what

it was” (papaveretum); I sent it “[flor the same reason

I just didn’t know what it was” (lidocaine). And on sub-

seqnent cross-examination, Lieutenant Reise reaffirmed

the fact that he ordered the chemical analysis of certain

substances precisely because he lacked knowledge of their

identity. He stated that the reason he had had the state

lab perform the testing was because there were “some un-

knowns in there that I couldn’t identify just through a

Physicians Desk Reference.” Although he did testify that

he felt certain substances delivered by Alex were “a con-

traband substance or something of that nature,” a full

reading of his testimony convinces us that these state-

ments were nothing more than an expression of his own

vague, subjective suspicions about their identity. These

statements clearly do not support a finding that Lieuten-

ant reise was able to identify the substances delivered by

Alex with any reasonable degree of certainty without the

aid of the state toxicological tests.

ADP OM Pe. Bee AE Ie

The final two Eiseman factors we shall consider in

tandem. The extent of the intrusion and whether it im-

pinged upon a further expectation of privacy retained by

defendant are two integrally related factors. If defend-

ant retains a constitutionally protected expectation of

privacy in the items delivered to the state by private par-

ties, and the state intrudes upon that expectation of priv-

acy, it does so subject to the proscription of the Fourth

Amendment.

In this case defendant originally possessed a reason-

able expectation of privacy in the pills and other contents

of the black bag. These items were originally found in

an opaque black bag inside a metal box in a locked closet

in defendant’s home. The fact that they were unexpect-

edly seized, inspected, and delivered to the State Police

by a private party does not alter defendant’s legitimate

original expectation of privacy. Walter v. United States,

447 U.S. at 658-59, 100 S. Ct. at 2402-03, 65 L.Ed.2d at

418-19.

“(T]he Government may not exceed the scope of the

private search unless it has the right to make an independ-

ent search.” Id. at 657, 100 S. Ct. at 2402, 65 L.Ed.2d at

418. Consequently, unless the private inspection and test-

ing of the black bag and its contents was so complete as

to be virtually coextensive with the State Police search, it

only partially frustrated defendant’s original expectation

of privacy. “It did not * * * strip the remaining unfrus-

trated portion of that expectation of all Fourth Amend-

ment protection.” Walter v. United States, 447 U.S. at

659, 100 S. Ct. at 2403, 65 L.Ed.2d at 419.

The facts of this case readily demonstrate that the

state’s toxicological examination of the contents of the

black bag did exceed the scope of the private tests per-

formed by Bio-Science Laboratories at the request of Dr.

Stock. In addition to the chemical analysis of both the

blue liquid and the white powder performed by Dr. Stock,

the state toxicologist chemically analyzed five samples of

pills, including three capsules and two tablets, and two

samples of ampules that were never tested by Dr. Stock.

The state concedes that one of these capsules, a red cap-

sule marked “Lilly F-40,” could not have been identified

by a simple sight examination."

The state therefore did intrude upon a further expec-

tation of defendant’s privacy. The extent of the state’s

intrusion is significant because, without it, the initial view

of the objects tested produced only an inference of crim-

inal conduct by defendant. See Id. at 657, 100 S.Ct. at

2402, 65 L.Ed.2d at 418; see also United States v. Jacob-

sen, 52 U.S.L.W. 4414 (U.S. April 2, 1984) (No. 82-1167).

In this case, as in Walter, the state exceeded the scope

of the private search by employing chemical or mechanical

means to reveal the hidden nature of these objects. This

governmental activity represents a significant expansion

of the private search because it positively identified the

unknown composition of the pills delivered to the state

police. See State v. Morgan, 32 Wash. App. 764, 768, 650

P.2d 228, 231 (1982). This additional investigation,

being “necessary in order to obtain the evidence which was

to be used at trial,” Walter v. United States, 447 U.S. at

14 Although labeled “Lilly F-40’” (a capsule which would nor-

mally contain seconal), this capsule as we have noted, was

found to contain secobarbital, amobarbital, and cyclizine. This

same capsule could not have been bought at a drug store in

the condition in which it was found.

ee ee

654, 100 8S. Ct. at 2400, 65 L.Ed.2d at 416, was an inde-

pendent search subject to the Fourth Amendment.

Since we hold that the state’s subsequent chemical

analysis of certain contents of the black bag was a signifi-

cant expansion of the private search and that there were

no exceptions to the warrant requirement, defendant’s

conviction must be reversed. In a case in which “the au-

thorities have not relied on what is in effect a private

search, * * *

[they] presumptively violate the Fourth

Amendment if they act without a warrant.” United States

v. Jacobsen, 52 U.S.L.W. at 4416. The state may not sig-

nificantly expand the scope of a private search unless it

obtains a warrant. State v. Eiseman, — R.1L. at —, 461

A.2d at 381.

ILI.

Even were we to hold that defendant’s Fourth Amend-

ment rights had not been violated by the State Police's

chemical testing, our own constitutional prohibition against

unreasonable searches and seizures mandates that the

evidence obtained through the state’s toxicological exami-

nation of the contents of the black bag be suppressed.

Article I, see. 6, of the Rhode Island Constitution is an

alternative, independent foundation upon which we rest

our holding that the toxicological testing was an illegal

search. That section constitutes “bona fide separate, ade-

quate, and independent grounds,” Michigan v. Long, —

U.S. —, 103 8.Ct. 3469, 3476, -- L.Ed.2d — (1983), upon

which we base our decision to suppress the admission of

evidence procured by the state’s toxicological analysis.

This court has previously recognized that the citizens

of Rhode Island possess “a double barrelled source of

protection which safeguards their privacy from unauthor-

ized and unwarranted intrusions: the [F']ourth [A]mend-

ment of the Federal Constitution and the Declaration of

Rights which is specified in the Rhode Island Constitu-

tion.” State v. Sitko, — R.I. —, —, 460 A.2d 1, 2 (1983)

(quoting State v. Luther, 116 R.I. 28, 29, 351 A.2d 594-95

(1976)). This dual safeguard flows directly from the

United States Supreme Court’s explicit acknowledgement

of the “right of state courts, as final interpreters of state

law, ‘to impose higher standards on searches and seizures

than [those] required by the Federal Constitution,’ even

if the state constitutional provision is similar to the Fourth

Amendment.” State v. Benoit, — R.I. —, —, 417 A.2d 895,

899 (1980) (quoting Cooper v. California, 386 U.S. 58, 62,

87 8.Ct. 788, 791, 17 L.Ed.2d 730, 734 (1967) ).

Article I, sec. 6, of our constitution states that

“(t]he right of the people to be secure in their per-

sons, papers and possessions, against unreasonable

searches and seizures, shall not be violated; and no

warrant shall issue, but on complaint in writing upon

probable cause, supported by oath or affirmation, and

describing as nearly as may be, the place to be

searched, and the persons or things to be seized.”

In interpreting this section, we have previously recog-

nized our right to “establish a higher standard of protec-

tion [for a criminal defendant] and [that which he] might

otherwise be afforded under the [F ]ourth [A ]mendment.”

State v. Ahmadjian, — R.I. —, —, 488 A.2d 1070, 1082

(1981) (quoting State v. Luther, 116 R.1. 28, 29, 351, A.2d

094, 595 (1976)); State v. Maloof, 114 R.I. 380, 389, 333

A.2d 676, 681 (1975). We have exercised this right to

require stricter compliance with the provisions of our elec-

tranic eavesdropping statute than the Fourth Amendment

requires of a nearly identical federal statute, see State

v. Maloof, 114 R.I. at 389-91, 333 A.2d at 681-82, and to

afford greater protections than those provided under the

Fourth Amendment to a criminal defendant whose auto-

mobile has been subjected to a warrantless search and

seizure. State v. Benoit, — R.I. at —, 417 A.2d at 900-01.

Our decisions to afford additional protections against

unreasonable searches and seizures to a criminal! defend-

ant under art. I, sec. 6, beyond those provided to him under

the Fourth Amendment comports fully with our state’s

early legislative enactment of the exclusionary rule. On

May 5, 1955, the exclusionary rule became the law of the

State of Rhode Island with the enactment of P.L. 1955,

ch. 3590, § 1.5 This law was enacted six years before the

exclusionary rule was made mandatory upon the states

through the Fourth and Fourteenth Amendments, Mapp

v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961),

and reflects our legislature’s clear intention to provide in-

dependent vitality to art. I, sec. 6, in guarding the privacy

interests of the citizens of this state.

Publie Laws 1955, ch. 3590, § 1 was our legislature’s

immediate response to a prior holding of this court. In

State v. Olynik, 83 R.L. 31, 118 A.2d 123 (1955), it was held

that art. I, sec. 6 of our constitution did not require the

supression of evidence that was obtained in an illegal

search. The enactment of G.L. 1956 (1969 Reenactment)

§ 8-19-25 within only six weeks of the Olynik decision ef-

15 Public Laws 1955, ch. 3590, §1 provides in pertinent part

that ‘“‘no evidence shall be admissible where the same shall

have been procured, by, through or in consequence of any

illegal search and seizure as prohibited in section 6 of article

| of the constitution of the state of Rhode Island.”

fectively reversed this result once and for all in Rhode

Island.

In Benoit we invalidated the warrantless search of an

automobile which took place four hours after it had be-

come immobile. In that case, we held that art. I, sec. 6,

reflects the intent of the framers of our constitution to

declare all warrantless searches and seizures unreasonable.

State v. Benoit, — R.L. at —, 417 A.2d at 901. “Only if

circumstances render procurement of a warrant impracti-

cable and if the needs of society demand swift action, does

art. I, sec. 6 permit the temporary limited infringement

of an individual’s right of privacy.” Jd. We stated fur-

ther in Benoit that once the vehicle had lost its mobility,

defendant’s privacy interest had regained its paramount

importance and should not have been infringed upon with-

out the authorization of a neutral magistrate. Id.

In the ease at bar, an even greater period of immo-

bility than that present in Benoit had elapsed between the

state’s initial warrantless “seizure” of evidence and its

subsequent search. The black bag and its contents were

delivered to the State Police on March 13, 1981. At that

time, this evidence was completely and exclusively under

the control of the State Police. It remained under that

agency’s total dominion in a locked evidence room until

its subsequent chemical analysis. The toxicological exami-

nations did not occur until March 20, 1981. By March 20,

1981, the black bag and its contents had been fully im-

mobile for one week.

Under these circumstances, it is hard to conceive of

a more practicable situation in which to obtain a warrant.

The evidence was fully at rest in the state’s hands. “[{T]he

needs of society [did not] demand swift action * * * and

the [defendant’s] privacy interest had regained its para-

mount importance.” Jd. The state’s failure to procure a

search warrant here consequently cannot withstand consti-

tutional scrutiny. The admission of such evidence by the

trial justice was therefore error.

One final comment is in order in response to the Chief

Justice’s concurrence in which he concludes that the trial

justice erroneously denied defendant’s motion for judg-

ment of acquittal on count 1 of the indictment. My breth-

ren—Justices Kelleher, Weisberger, and Shea—and I see

no such error in the denial of this motion.

In considering a motion for a judgment of acquittal,

the trial justice and this court on review, are bound to con-

sider only that evidence that the prosecution claims is

capable of generating proof beyond a reasonable doubt.

As such evidence is to be viewed in the light most favor-

able to the prosecution, the trial justice and the review-

ing court must draw from such evidence all reasonable

inferences that are consistent with the accused’s guilt. At

this juncture, neither the weight of tke evidence nor the

witnesses’ credibility are to be considered. State v. Ro-

mano, — R.I. —, —, 456 A.2d 746, 756-57 (1983). When

considering such a motion, the appellate court, as well as

the trial court, is bound to look at all such evidence with-

out regard to whether it was properly admitted into evi-

dence. State v. Maloney, 111 R.1. 133, 139, 300 A.2d 259,

262-63 (1973).

Applying these principles to the evidence, we would

first point to the testimony of Dr. George F. Cahill, a mem-

ber of the faculty at Harvard University School of Medi-

cine. He told the jury that the sole cause of both the 1979

and the 1980 Christmastime comas was the external in-

jection of insulin into the body of defendant’s wife.

Maria, the maid, told the jury that defendant was

thoroughly familiar with syringes and hypodermic needles,

which he used to inject himself with vitamins, and had at

one time given his wife an injection of vitamins. The maid

also testified that when defendant described his wife’s

activities on the afternoon of December 27, 1979 to a doe-

tor, he lied.

Ample testimony was presented indicating that dur-

ing the 1979 Christmas visitation to Clarendon Court de-

fendant had the opportunity to be alone with his wife in

her bedroom.

One of the witnesses for the prosecution was the

“other woman” in defendant’s life, Alexandra Isles. In

1979 she was living in New York City, was divorced, and

was by her own admission well off financially. She had

met defendant in April 1978, and by March 1979 their

relationship, in her words, had become “intimate.” Dur-

ing the spring of 1979, the couple began speaking in terms

of marriage, and defendant was given six months in which

he was both to obtain a divorce and be married to Alex-

andra. The absolute beginning of the six-month period

is somewhat indefinite, but the time limit could have been

up at the start of December.

With all due deference to the Chief Justice, we believe

that when one views the evidence to wiiich we have just

alluded in light of the principles enumerated carlier, the

reasonable inferences drawn from such evidence support

a reasonable conclusion that in late December 1979 the

defendant, mindful of the ultimatum of his intended bride,

decided to take matters into his own hands, one of which

held a syringe containing a copious quantity of insulin,

and so injected ‘he contents of the syringe into his wife

with the intent that she should expire so that he would

be free to marry Alexandra.

For the reasons stated, the defendant’s appeal is sus-

tained, the judgment of conviction appealed from is va-

cated, and the case is remanded to the Superior Court for

a new trial on both counts.

Chief Justice Bevilacqua, concurring in part and dis-

senting in part. I coneur with my colleagues with respect

to the issues considered. However, I am of the opinion

that the trial justice erred in not granting defendant’s

motion for a judgment of acquittal on the first count of

the indictment.

In considering a motion for a judgment of acquittal,'®

the trial justice must review the evidence in a light most

favorable to the state, drawing all reasonable inferences

therefrom consistent with the defendant’s guilt. The trial

16 The state argues that because defendant did not object to

the omission of an instruction on inference stacking, the rule

of the law of the case bars our review of this issue. This argu-

ment is without foundation. When a court properly instructs

a jury on the standards of reasonable doubt, no further in-

struction on inference stacking is necessary. See State v. Roddy,

— R.Il. —, —, 401 A.2d 23, 35 (1979). A challenge to the suf-

ficiency of the evidence is properly made by a motion for a

judgment of acquittal. On appeal we are bound by the same

standards as the trial justice. State v. Collazo, — R.l. —, —,

446 A.2d 1006, 1011 (1982).

justice may consider neither the weight of the evidence

nor the credibility of the witnesses. E.g., State v. Austin,

— R.I. —, —, 462 A.2d 359, 364 (1983) ; State v. Armstrong,

—R.I. —, —, 446 A.2d 1043, 1044 (1982). If the evidence

fails to establish the defendant’s guilt beyond a reasonable

doubt, the trial justice must grant the motion. State v.

Gazerro, — R.I. —, —, 420 A.2d 816, 827 (1980). On ap-

pellate review, this court is bound by the same standards

as the trial justice. State v. Collazzo, — R.I. —, —, 446

A.2d 1006, 1011 (1982).

An assault is an “unlawful attempt or offer, with force

or violence, to do a corporal hurt to another, whether from

malice or wantonness.” State v. Baker, 20 R.I. 275, 277,

38 A. 653, 654 (1897); see also State v. Pope, — R.I. —,

—, 414 A.2d 781, 788 (1980). In order to establish the

offense of assault with intent to murder, the state also

had to prove that defendant had the specific intent to kill

his wife. State v. Fournier, — R.I. —, —, 448 A.2d 1230,

1233 (1982). The state need not prove an express intent

to kill; a defendant’s conduct may establish the requisite

legal malice for a jury to infer an intent to kill. State v.

Charette, — R.I. —, 434 A.2d 280, 283 (1981); see State

v. McGranahan, — R.1. —, —, 415 A.2d 1298, 1302 (1980).!’

However, in order to meet its burden, the state had to

prove every element of the offense of assault with intent

to murder beyond a reasonable doubt. State v. Roddy,

— RIL. —, —, 401 A.2d 23, 35 (1979).

7 Malice is “an unjustified disregard for the possibility of

death or great bodily harm and an extreme indifference to the

sanctity of human life.” State v. McGranahan, — R.I. —, —

415 A.2d 1298, 1302 (1980).

Moreover, we have said that no valid distinction exists

between the probative force of direct and of circvrastan-

tial evidence. Any fact established by circumstantial evi-

dence must be established as sufficiently and as com-

pletely as by positive, direct evidence. State v. Roddy, —

R.1. at —, 401 A.2d at 35; State v. Rose, 112 R.1. 402, 407,

311 A.2d at 281, 284 (1973). In any case, the state meets

its burden when all evidence, direct or circumstantial, and

all legitimate and reasonable inferences drawn therefrom,

establish a defendant’s guilt beyond a reasonable doubt.

State v. Gazerro, — R.1. at — 402 A.2d at 828.

In addressing this issue, there is no need to repeat all

the evidence recited in the majority opinion.

Reviewing the evidence in a light most favorable to

the state, I believe that the state failed to sustain its bur-

den of proof in regard to count 1. An examination of the

record reveals that the state relied upon two basic infer-

ences to establish defendant’s guilt: the two comas sul-

fered by Martha von Bulow and the existence of a black

bag that at various times was found to covtain insulin and

syringes.'® The evidence revealed that on the evening of

December 26, 1979, Martha von Bulow became weak and

uncoordinated and had to be escorted to her bedroom,

where she remained alone with defendant. The next

morning, after noticing that Mrs. von Bulaw had not

awakened at her usual hour, Miss Schrallhammer at

'8 On appeal, defendant challenged the sufficiency of the

evidence by asking us to review all of the evidence presented

at trial. The defendant, however, misconceives the nature of a

motion for a judgment of acquittal. The “sole target’ of review

is the sufficiency of the evidence upon which the state relies

to establish a defendant's guilt. State v. Crescenzo, 114 R.L.

242, 257, 332 A.2d 421, 430 (1975).

tempted to check on her but was advised by defendant

that Mrs. von Bulow had a sore throat and should not be

disturbed. Nonetheless, Miss Schrallhammer checked on

Mrs. von Bulow and was unable to arouse her. The defend-

ant, nevertheless, failed to call a doctor until several

hours later, at which time he failed to describe her condi-

tion adequately. Miss Schrallhammer felt that the state-

ments made by defendant to the doctor that his wife was

an alcoholic had been drinking the night before, and had

been out of bed earlier that day were ‘‘not true.” Four

hours subsequent to the first call, defendant again tele-

phoned the doctor and requested that he come to the

house. Doctor Gailitis found Mrs. von Bulow in a coma-

tose state. Shortly after his arrival, Mrs. von Bulow ex-

perienced cardiac arrest and had to be resuscitated by the

doctor. Some medical testimony revealed that the canse

of the coma was exogenous insulin.'®

Because there is no direct evidence of defendant’s

guilt, the state had to prove its case by the use of cireum-

stantial evidence. The state also had to rely upon a pyra-

miding of inferences to establish defendant’s guilt. From

the facts presented, the prosecution asked the jury to

draw two primary inferences: that both comas were caused

by exogenous insulin and that the black bag and its con-

tents belonged to defendant. From these primary infer-

ences, the jury was asked to draw the secondary inference

that defendant was guilty of assault with intent to murder.

19 Medical opinions concerning the cause of Martha von Bu-

low’s comas were elicited through the use of hypothetical

questions posed to medical expert witnesses. The state con-

cedes that the hypothetical question posed to its primary ex-

pert, Dr. Cahill, was factually erroneous regarding the time

of one of the glucose pushes. In the context of my analysis

of this issue, however, | shall assume that this erroneous in-

formation did not influence Dr. Cahill’s conclusion.

It is well settled that if an inference is the only rea-

sonable one to be drawn from the established facts, then a

secondary inference may be drawn from the primary in-

ference. However, when the facts from which it is drawn

are susceptible of another reasonable inference, it must be

rejected as lacking probative force. In re Derek, — R.I.

—, —, 448 A.2d 765, 768 (1982); Waldman v. Shipyard

Marwna, Inc., 102 R.1. 366, 373-74, 230 A.2d 841, 845 (1967).

“In this way the ultimate inference rests upon a founda-

tion that logically has the probative force of established

fact; were it otherwise, the ultimate conclusion * * * would

rest on no more than conjecture and surmise.” Carnevale

v. Smith, — R.I. —, —, 404 A.2d 836, 841 (1979). To

simplify this principle, the underlying, proven facts ex-

clusively support the primary inferences, which support

the secondary inferences in the same manner that each

level of a pyramid supports the level immediately above

it.

In regard to the second coma, the facts viewed in a

light most favorable to the state support the primary in-

ference that the coma was caused by exogenous insulin

and that the black bag and its contents belonged to defend-

ant. From these inferences, the secondary inference that

defendant injected his wife with insulin may be drawn.

It is my opinion that the state failed to sustain its

burden of proof on count 1. Unlike the facts surrounding

the second coma, no “black bag” was involved in the first

coma. Maria Schrallhammer testified that she first dis-

covered the bag in February 1980. Indeed, insulin and

needles were not seen until November 1980—almost eleven

months after the first coma. The state cannot use facts

supporting count 2 to establish the element of assault in

count 1.

The state itself referred to the bag and its contents

as the “key” to this case. Nevertheless, because the exist-

ence of the black bag and its contents cannot be established

until November of 1980, this fact cannot serve to establish

the inference that the defendant owned these items at the

time of the first coma. Without this inference as its foun-

dation, the secondary inference of guilt must fall. Ac-

cordingly, the defendant’s guilt is not an exclusive infer-

ence to be drawn from the facts. The facts surrounding

count 1 at most support a conclusion that the defendant

acted in an unhusbandlike, rather than in a criminal, man-

ner. 1 can only conclude that his conviction rests, not upon

proof beyond a reasonable doubt, but upon speculation and

conjecture. See State v. Alexander, — R.I. —, —, 471

A.2d 216, 219 (1984).

I would therefore sustain the defendant’s appeal in

regard to count 1 of the indictment, vacate the judgment of

conviction, and remand to the Superior Court with direc-

tion to enter a judgment of acquittal on count 1.

APPENDIX B

STATE OF RHODE ISLAND AND

PROVIDENCE PLANTATIONS

NEWPORT, SC. SUPREME COURT

C.A. 82-462

STATE OF RHODE ISLAND

_VS-

CLAUS VON BULOW

PETITION TO REARGUE

Now comes the State of Rhode Island, pursuant to

Rule 25, Rhode Island Supreme Court Rules of Appellate

Procedure, and moves to reargue the above-captioned case.

Mindful that reargument will be granted only if the Court

has overlooked or misapprehended matters raised in the

original briefs or argument, Brimbeau v. Ausdale, 120 R.1.

670, 389 A2d 1254 (1979), the State respectfully submits:

1. The Court has overlooked or misapprehended cer-

tain facts in the testimony of Lt. John Reise which

show that he was virtually certain of the contents

of the pill capsules, ampules and tablet before

they were verified by the toxicology lab. The blue

tablet was impregnated with the words “Roche 10

Valium.” The orange and yellow capsule had

DALMANE written on it, both other capsules

were marked with pharmaceutical numbers which

Lieutenant Reise looked up in the Physictans Desk

Reference and identified as amytal and seconal.

The unopened ampoules bore the manufacturer’s

labels, “Lidocaine” and “Papavertum.” Thus, the

State respectfully submits that Lieutenant Reise’s

initial identification was much more than vague,

subjective suspicion. The toxicology merely con-

firmed his previous identification, which but for

one capsule, was entirely correct.

2. The Court misapprehended Lieutenant Reise’s re-

sponses regarding the identity of the six items

that had not already been tested by the family.

Regarding the pills, Lieutenant Reise indicated

that he had made a preliminary determination of

each before sending it to the state toxicologist.

The testimony was:

Q. “Could you tell us what various kinds of pills

were found, or deseribe the various kinds of pills

you found in that vial.

A. There was one blue capsule which had the

word ‘Lilly F 33’ on it, which, through the Physi-

cian’s Desk Reference, indicated that it was Amy-

tal.

Q. What other pills?

A. Well, there was 31 orange and yellow cap-

sules identified as Dalmane.

Q. Identified as Dalmane because you looked in

the PDR and it looked like the picture in the PDR

for Dalmane?

A. (The witness then nodded his head in the

affirmative. )

Q. Were there any other pills in tha: container?

A. One red capsule marked Lilly F 40, which was

subsequently identified as Seconal.

MR. SHEEHAN: Objection.

THE COURT: As what?

THE WITNESS: Seconal. |

Q. And when you say “subsequently identified,”

do you mean you identified it as Seconal?

A. Yes.

Q. Again, by using the Physicians’ Desk Refer-

ence?

A. (The witness then nodded his head in the

affirmative. )

Q. Anything else in that vial?

A. 31 light blue tables identified as Valium.”

(Also see Tr. Vol. LV, p. 665.)

The State submits that the testimony highlighted

by the Court in State v. von Bulow, slip op. at 46,

referred to his lack of knowledge of the chemical

properties of the Papavertum and Lidocaine and

did not mean that he was unable to identify them.

3. In reviewing Lieutenant Reise’s testimony, the

Court overlooked the numerous times he stated

his belief that the items sent for testing were con-

traband. (4 Tr. 660, 664, 667). Even von Bulow’s

trial counsel conceded “I think the testimony is

clear here that at least with respect to all of the

drugs but that one pill, the DALMANE, or those

31 Dalmane pills, that we are dealing with sus-

pected contraband.” (4 Tr. 712). In challenging

Lieutenant Reise’s conclusion, the Court observed

that, “most if not all the substances tested here

| were found in standard medicine bottles and vials”

| State v. von Bulow, slip op. at 44. The Court

overlooks the fact that all of the pills sent for

testing on March 20, were found in one pill vial.

The prescription on the bottle was made out to

C. von Bulow and was for Dalmane. However,

this pill vial contained 64 pills, of 4 different va-

rieties. The State submits that under these cir-

cumstances, Lieutenant Reise’s belief that they

were unlawfully possessed was reasonable. See:

R.1.G.1. 1956 (1982 reenactment) $21-28-3.29.

4. In commenting on the lawfulness of the toxicolog-

ical examination of the one Valium pill sent for

testing on April 23, 1981, and in criticizing the

State Police because they had control over it for

6 weeks yet failed to get a search warrant before

testing it, the Court overlooks the fact that the

pill was seized by Sgt. Miranda only 2 days earlier

on April 21, 1981 and during the course of a search

consented to by the defendant.

. In finding the chemical testing of 4 capsules and

2 ampules unlawful under the R. I. Constitution,

the Court emphasized that they were held by the

State Police, most for one week, before being

sent for chemical analysis. The Court, however,

overlooked the fact that this time lag, much less

any potential significance it might have, was

neither presented in the testimony nor argued

in the Motion to Suppress. It is difficult to see

how this Court can find the ruling of the Trial

Justice clearly erroneous based on a fact that

was never presented to him.

. In determining whether the admission of the toxi-

cology reports on 4 pills and 2 ampules, was harm-

less, the Court stressed the facts that: (1) these

drugs had tranquilizing or anesthetizing proper-

ties and (2) this was a significant element in the

State’s case. State v. von Bulow, slip op. at 37.

The Court apparently overlooks the cumulative

and collateral nature of this evidence. The drugs

and potions, previously tested by the family and

lawfully admitted into evidence also had tran-

quilizing and anesthetizing effects. The presence

of tranguilizing drugs in the black bag and in

Mr. von Bulow’s effects, was already established

by evidence of the family’s testing. This was ad-

mitted earlier and quite apart from the toxicology

results acquired by the State. In fact, one of the

two passages the Court quotes from the prosecu-

tor’s closing argument, refers only to the powder

previously tested by the family and not to the

pills or ampules at all. State v. von Bulow, slip

op. at 37, 38.

Moreover, the State submits that the Court mis-

apprehends the contribution of the toxicological]

examination of the 4 pills and 2 ampules to the

State’s case. Lieutenant Reise had already testi-

fied as to his preliminary identification of them.

The toxicologist merely confirmed these identifi-

cations with the exception of one red capsule. Al-

though the capsule contained a mixture of drugs,

the murder of Martha von Bulow was twice at-

tempted by injection of exogenous insulin, not by

a mixture of drugs. Although the presence of

the mixture of drugs in the red capsule may be

consistent with a surreptitious administration of

drugs, the same may be said regarding the pres-

ence of liquid valium and powder amobarbital.

Thus, the State contends that after the lawful ad-

1aission of evidence that the family had discov-

ered; (an insulin encrusted needle and tranquiliz-

ing drugs in von Bulow’s black bag and personal

effects) after Lieutenant Reise had identified the

pills, as valium, amytai, seconal, and Dalmane;

and the ampules as Lidocaine, and Papavertum,

after the compelling medical testimony attribut-

ing her condition to the administration of exog-

enous insulin and after convincing testimony re-

garding opportunity and motive, the admission of

toxicology reports on 4 pills and 2 ampoules was

indeed harmless beyond a reasonable doubt. Chap-

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

7. Finally, the Court has overlooked the fact that at

trial, the defendant never based this claim to sup-

pression upon the R. I. Constitution. Nor did his

appellate counsel advance such and argument.'

1 Although appellate counsel relied heavily on Art. 1, § 6 R.I.

Constitution in challenging the private search and Lt. Reise’s

actions when Alex first brought him the black bag, he did not

raise it in challenging the admission of the toxicology reports.

His only reference here was to say that ‘even a co-extensive

prior search should not be deemed to eliminate the warrant

requirement under the Fourth Amendment—and especially

under Article 1, § 6 of the Rhode Island Constitution.” Appel-

lant’s Brief at 74, 75.

If he had, the State would have quickly pointed

out that it was not preserved for appellate review.

Thus, this Court has found the decision of Judge

Needhain clearly erroneous under principles

never presented to him at the argument nor ad-

vanced on appeal.

Quite apart from the matters the State suggests the

Court has overlooked or misapprehended, several com-

pelling reasons justify reargument.

1. The impact of the U.S. Supreme Court’s recent

decision, U.S. v. Jacobsen, 52 U.S.L.W. 4414

(April 2, 1984) is so significant that the State

should have the opportunity to fully brief and

argue its application to the esse at bar. Al-

though, this Court places substantial reliance on

some of its principles in deciding the case at bar,

certain other reasoning was entirely overlooked.

For example, all nine members of the Jacobsen

Court recognized that the private search doctrine

and the plain view doctrine are closely related.

However, this Court summarily rejected the

State’s plain-view argument. State v. von

Bulow, slip op. at 36. Moreover, all nine Justices

agreed that the field test conducted in Jacobsen

did not violate the Fourth Amendment, Id at

4417. Additionally, although this Court stressed

the lack of exigent circumstances as a reason to

require a search warrant, State v. von Bitow, slip

op. at 53, exigency played no part in the decision

of the United States Supreme Court in Jacob-

sen.

2. The Court’s decision applying the exclusionary

rule to cherhical testing on evidence given to po-

lice by private parties is confusing to apply.

Must police officials now seek a search warrant

to test for blood on articles brought to them by

private parties? Must the police seek a warrant

to test a gun they believe was the instrumentality

of a crime if that gun is surrendered to them by

a private individual? If a private individual

seizes, without reading, documents he believes

will incriminate another person in a crime, must

the police get a search warrant before they can

read them? Although these questions may extend

the holding of von Bulow to its other limits,

they are fairly raised and require an answer.

One of the main criticisms of the exclusionary

rule is the difficulty it presents to an ordinary

police officer in attempting to gain evidence of a

crime without invading legitimate privacy inter-

ests. The permuatations and intricacies of the

exclusionary rule provoke conflicting interpreta-

tions by the most learned commentators. Thus,

the State submits that the courts have a duty to

articulate their pronouncements on the subject in

a way that can be easily anticipated, understood

and applied. The State suggests that nothing in

Lt. Reise’s 21 years of experience with the State

Police would have warned him that he should

have sought a search warrant for a toxicological

anlysis of readily identifiable pill capsules and

ampules, given to him by a private party, and

which he suspected to be contraband. See: /Ili-

nois v. Andreas, 51 U.S.L.W. 5157, 5159 (1983)

Thus, the State submits that this Court’s decision

could not have been anticipated by an ordinary

police officer. Indeed, the principles are difficult

to apply and, ultimately, it raises more questions

than it answers.

. This Court has chosen to adopt a very strict ap-

plication of the Exclusionary Rule under the

Rhode Island Constitution. This is particularly

perplexing in view of the fact that the United

States Supreme Court, the genesis of the rule

and ultimate arbiter of federal constitutional

law, appears to be reexamining the Rule’s contri-

bution to justice and the integrity of the Ameri-

can judicial system. Massachusetts v. Shepp-

hard, C.A. 82-963, argued January 17, 1984.

The State respectfully requests the opportunity

to argue that this strict interpretation of Rhode

Island Constitution, Article I, 46 is neither ap-

propriate nor advisable. It excludes relevant

evidence gained by police officers in good faith.

It permits a man to go free even though his guilt

is proven and accepted. It undermines public

confidence in the Criminal Justice system as a

means of punishing wrongdoers and, finally, it

violates the trust of the victim, who by submitting

her demand for justice to the Court’s of this State,

exposed herself to the most villifying innuendo,

only to have the entire proceeding nullified by a

technicality.

. Lastly, the State would point out that in its man-

date, the Court vacated the defendant’s convictions

on both Count I and Count I. The toxicological

results, however, were relevant only to the pills

and ampules found in the black bag after the

1980 murder attempt. (Count II) Although

Maria saw the black bag in the defendant’s travel

bag two months after the 1979 murder attempt,

her observations included 3 vials which she lab-

eled ‘‘pills’’, ‘‘ powder” and ‘‘paste”. The nature

of these items were identified no further by fam-

ily or state testing. Clearly, if any of these pills

in the vial had tranquilizing effects that was not

evident and could have no effect on the jury’s ver-

dict on Count I.

Therefore, the State submits that the positive

identification of 4 pills and 2 ampules discovered

in von Bulow’s black bag only after the 1980 mur-

der attempt could not have contributed to his con-

viction on a murder attempted in 1979. Thus, its

impact, if any, on the integrity of his conviction

on Count I was harmless beyond a reasonable

doubt and the judgment of conviction as to

Count I should be reinstated subject to a remand

on the records held by Attorney Kuh.

For all the above reasons, the State respectfully re-

quests that the petition to reargue be granted.

Respectfully submitted,

STATE OF RHODE ISLAND

DENNIS J. ROBERTS II

ATTORNEY GENERAL

/s/ Susan E. McGuirl

DEPUTY ATTORNEY GENERAL

/s/ Sharon O’Keefe

SPECIAL ASSISTANT

ATTORNEY GENERAL

CHIEF, APPELLATE DIVISION

CERTIFICATION

I hereby certify that a true copy of the foregoing

Petition to Reargue was forwarded to Alan M. Dersho-

witz, Esq., 20 Elmwood Avenue, Cambridge, Massachu-

setts 02138 and John A. MacFayden, III, Esq., The Rem-

ington Building, 91 Friendship Street, Providence, Rhode

Island 02902, on the 2nd day of May, 1984.

/s/ Barbara A. Russo

APPENDIX C

STATE OF RHODE ISLAND AND

PROVIDENCE PLANTATIONS

Supreme Court No. 82-462-C.A.

STATE

CLAUS VON BULOW

ORDER

May 24, 1984

After our opinion in the above case was published,

the state filed a petition to reargue. We have carefully

considered the reasons upon which the petition is based,

and we are of the opinion that only one reason d*serves

any comment, and none of the reasons warrant a reargu-

ment.

The court in its opinion faulted the State Police for

their failure to obtain a search warrant before the police

forwarded a collection of “tranquilizing and anesthetic

drugs” found in the defendant’s black bag to the state toxi-

cologist for examination and analysis. Through inadver-

tence, the court included within its description of the col-

lection the following: ‘£10. One blue pill marked Valium

Roche-10 found to contain diazepam (Valium).” Con-

cededly, this particular pill was obtained by the State Po-

lice on April 21, 1981, while searching, with the defen-

dant’s consent, the family’s Newport home. However,

this oversight in no way justifies the failure to obtain a

warrant before the other nine items were sent to the toxi-

cologist.

For purposes of achieving clarity, the opinion which

precedes this order has been revised in conformity with

this response before the print goes to press.

The petition for reargument is denied.

APPENDIX D

United States Constitution, art. III, see. 2 reads in

pertinent part:

‘‘The judicial power shall extend to all cases in

law and equity, arising under this Constitution

”?

United States Constitution, amend. IV, reads:

‘The right of the people to be secure in their

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

reasonable searches and seizures, shall not be

violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.”

United States Constitution, amend. XIV, sec. 1, reads

in pertinent part:

‘‘No state shall make or enforce any law which

shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any state de-

prive any person of life, liberty, or property,

without due process of law; nor deny to any per-

son within its jurisdiction the equal protection of

the laws.’’

28 U.S.C. sec. 1257, reads in pertinent part:

“Final judgments or decrees rendered by the

highest court of a state in which a decision could

be had, may be reviewed by the Supreme Court as

follows:

(1) * * @

(2) * * @

(3) By writ of certiorari . . . where any

title, right, privilege or immunity is specially

set up or claimed under the constitution,

treaties or statutes of, or commission held or

authority exercised under, the United States.”

5). Rhode Island Constitution, art. I, sec. 6, reads:

‘‘The right of the people to be secure in their per-

sons, papers and possessions, against unreason-

able searches and seizures, shall not be violated;

and no warrant shall issue, but on complaint in

writing, upon probable cause, supported by oath

or affirmation, and describing as nearly as may

be, the place to be searched, and the persons or

things to be seized.’’

APPENDIX E

TORO LAW ASSOCIATES

Incorporated

Attorneys and Counselors At Law

1808 Industrial Bank Building

Providence, Rhode Island 02903-2375

Eugene F. Toro Telephones

Peter A. DiBiase Area Code 401

Richard A. Gonnella 351-7752

Mortimer C. Newton 831-5020

421-1511

April 5, 1984

Walter J. Kane, Clerk

Supreme Court of Rhode Island

250 Benefit Street

Providence, Rhode Island 02903

Re: State v. Claus von Bulow

No: 82-462 C.A.

Dear Mr. Kane:

Pursuant to our obligation to apprise the Court of new

relevant authorizaties, we call to the Court’s attention the

Supreme Court decision of April 2, 1984 in United States

v. Jacobsen (No: 82-1167),! where the Court upheld a

warrantless field test confirming the virtually certain

presence of contraband. Jacobsen was a case where a

Federal Express package, examined by company officials

after it had been accidently opened in shipping, was found

to contain white powder packaged in such a manner as

to make it “virtually certain” that the powder was contra-

band and where the subsequently conducted field test was

1 The paginations in this memorandum refer to the lexis slip

opinion.

designed to determine on’y whether or not the powder was,

in fact, contraband. In the context of these facts, the

Court held that “[u]nder these circumstances, the safe-

guards of a warrant [before conducting a further test]

would only minimally advance Fourth Amendment inter-

ests.” Slip Op., p. 14.

The Court emphasized, however, that “where more sub-

stantial invasions of constitutionally protected interests

are involved, a warrantless search or seizure is unreason-

able in the absence of exigent circumstances.” Slip Op.

p. 14, n.28.

Indeed, it went on to say —in language uniquely appli-

cable to the facts of the von Bulow case — that

We do not suggest, however, that any seizure of a

small amount of materials is necessarily reasonable.

An agent’s arbitrary decision to take the ‘white pow-

der’ he finds in a neighbor’s sugar bowl, or his

medicine cabinet, and subject it to a field test for

cocaine, might well work an unreasonable seizure.”

Id. (emphasis added).

None of the relevant factors which justify the Jacobsen

field tests are present in von Bulow; on the contrary, the

factors present in von Bulow all vitiate the justifications

suggested in Jacobsen.

1. In Jacobsen, the private search resulted from a

lawful opening of a package for the purpose of complying

with a “written company policy regarding insurance

claims”, Slip. Op. p. 3; accordingly, the Court found that

the Federal Express employees were “lawfully in posses-

sion of the package”. Slip Op., p. 10, n.17. In von

Bulow, the “private” searches resulted from unlawful

trespasses conducted “for the specific purpose of obtain-

ing information which could be used in a criminal prose-

cution”, Trial Judge’s findings, at 4 T.701;? hence the

private parties were unlawfully in possession of the black

bag when it was turned over to the State Police.

2. In Jacobsen, the defendarits “econeede[d] that the

agents had probable cause to believe the package con-

tained contraband”, Slip. Op., p. 11, n. 20, and the Court

explicity stated that “[its] discussion ... [was] con-

fined to possession of contraband.” Slip. Op., p. 12, n. 23.

In von Bulow, the defendant makes no such concession,

the Trial Judge made no such finding, and there was —

in fact and in law — no probable cause to believe that the

black bag, or any of its contents, contained contraband of

any sort. See Appellant’s Reply Brief at p. 29, n. 67.

3. In Jacobsen, there was a legitimate law enforce-

ment need to conduct an “on the spot” field test so as to

be able to catch the persons to whom the package or con-

traband was addressed, see Slip. Op., p. 3; in von Bulow,

there was not even an arguable claim of exigency since

the black bag rested in the Evidence Room for a full week

before Lt. Reise selected the items to be sent for arbitrary

testing. See, 16 T. 2004-5, 4 T. 659.

4. In Jacobsen, the private search destroyed no evi-

dence and the field test destroyed “only a trace amount of

2 Jacobsen does not purport to change federal constitutional

law insofar as it relates to purely private searches. See, Slip.Op.,

p.4 regarding reasons for granting certiorari. In Jacobsen “the

lower Courts found no governmental involvement in the pri-

vate search, a finding not challenged here.” Slip.Op, p.6,n.10.

In von Bulow the trial court found that the purpose of the “pri-

vate’ search was to secure evidence for a public prosecution.

See gen’ly, Appellant’s Brief, pp.57-69.

the material” so that no loss was even noticeable, see,

Slip. Op., p. 14; in von Bulow, the extensive laboratory

testing was the culmination of a process by which critical

evidence of a highly relevant and potentially exculpatory

nature was destroyed.

5. In Jacobsen, the test “could reveal nothing about

non-contraband items,” nor anything “of special interest”

and could in fact determine only whether or not the pow-

der — which was “virtually certain to be contraband” —

was indeed cocaine, Slip. Op., p. 12-14; in von Bulow, the

extensive laboratory testing procedures were designed to

determine the exact nature of the items searched and could,

and did, according to the prosecution, reveal something

“of special interest about the materials’ — something

about the red capsule, in particular, which, the State has

conceded, was not reasonable self-evident in advance,

State’s Brief at 80, and which provided the prosecution

with a dramatic crescendo to its closing argument. See,

25 T. 3707.

6. Finally, in Jacobsen, the white powder was pack-

aged in such a manner as to make it “virtually certain

that it contained nothing but contraband.” Slip. Op. p.

10;3 in von Bulow, the items subjected to laboratory test-

ing were found in ordinary medicine bottles and vials,

taken from an area of von Bulow’s home — his closet,

and indeed “his medicine cabinet”, cf. Slip. Op. p. 14, n. 28

—jin which, as the Trial Judge explicitly found, Mr. von

Bulow “had a reasonable expectation of privacy.” 4 T.

698. 699.

3 Even the dissent acknowledged that it was “essentially in-

conceivable that a legal substance would be packaged in this

manner for transport by a common carrier.” Slip.Op., p.26.

For all these reasons, not only is Jacobsen distin-

guishable from the von Bulow ease; its reasoning, its

limiting principle and its holding, all require the conclu-

sion that as a matter of federal constitutional law, the

governmental search in von Bulow was unlawful.4

Federal constitutional considerations aside, the ac-

tivity here clearly violated R. I. Const. Art. I section 6.

In State v. Benoit, 417 A.2d 895 (R. I. 1980), this Court

construed the Rhode Island Constitution to require

stringent adherence to its warrant requirement in

searches of automobiles, notwithstanding federal decisions

finding such warrantless searches to be “reasonable”.

Benoit rejected the argument that the invasion of privacy

inherent in the lawful seizure of an automobile would

somehow justify the “lesser” intrusion of a warrantless

search of the immobilized vehicle’s interior. Compare,

Texas v, White, 423 U.S. 67 (1975); Chambers v, Maroney,

399 U.S. 42 (1970). Instead this Court emphasized that

“lojnly if cireumstances render procurement of a war-

rant impracticable, and if the need of society demand

swift action, does Art. I, sec. 6 permit the temporary,

limited infringement of an individual’s right of privacy.”

State v. Benoit, supra. at 901.

* The State’s argument that “a pill capsule is not among those

respositories of personal effects traditionally accorded Fourth

Amendment protection” (State’s Brief at 81) has clearly been

rejected by the United States Supreme Court’s explicit recog-

nition that medicine cabinets may well contain material de-

serving of constitutional protection of privacy, since medicine

may reveal a great deal about one’s health, habits and life style.

This holding is fully applicable here. Indeed the Court

used precisely this analysis in State v. Hisemen, 461 A.2d

369 (R.I. 1983) which held on facts similar to Jacobsen

that if a field test for narcotics was a significant expan-

sion of a private search, the further search must fall

within one of the recognized exceptions to the warrant

requirement. Id. 377. Eiseman was decided under the

Federal Constitution but its limiting principles are not

merely appropriate for an analysis under Art. I section 6,

but specifically required. State v. Benoit, supra at 901.

In von Bulow, the State did not and could not have made

any claim of a need for “swift action” rendering the

“nrocurement of a warrant impracticable”. Jd. at 901.

The black bag was held more securely and for a great

deal longer than Mr. Benoit’s automobile. And the de-

gree of invasion of privacy inherent in the testing of its

contents far outweighed the seizure of some clothes and

other items from the backseat of the Benoit vehicle. The

Fourth Amendment aside, Art. I, section 6 condemns what

happened here.

Respectfully submitted,

/s/ Alan M. Dershowitz

/s/ John A. MacFadyen

ec: Attorney General

STATE OF RHODE ISLAND

AND PROVIDENCE PLANTATIONS

Department of Attorney General

72 Pine Street

Providence, Rhode Island 02903

Dennis J. Roberts II, Attorney General

April 12, 1984

Walter J. Kane, Clerk

Supreme Court of Rhode Island

250 Benefit Street

Providence, Rhode Island 02903

RE: State v. Claus von Bulow

No. 82-462 C.A.

Dear Mr. Kane:

I am in receipt of a copy of a letter to you from Mr.

von Bulow’s Counsel dated April 5, 1984. Although this

letter does apprise the Court of new authority (United

States v. Jacobsen, 52 U.S.L.W. 4414), it clearly goes

beyond mere advisement and in fact, could more properly

be considered a supplementary brief. Since the Appel-

lant has taken the liberty to discuss Jacobsen in light of

the facts of the von Bulow case, the State feels compelled

to respond in kind.

United States v. Jacobsen, decided April 2, 1984,

presented the question of whether a federal agent must

obtain a warrant before conducting a field test on a

suspicious substance discovered as a result of a previous

private search. In Jacobsen, employees of Federal Ex-

press examined a package that had been damaged in

transit. The container was an ordinary cardboard box.

Wrapped in newspapers, inside the box, laid a tube made

of silver duct tape. The Federal Express employees

cut open the tube and found a large plastic bag con-

taining three smaller plastic bags. Inside the small zip

lock bags was about 64% 9z. of white powder. They then

notified the DEA and before an agent arrived, the plastic

bags were put back in the tube and the tube was back in

the box along with the newspapers.

Upon his arrival, the DEA agent removed the tube,

the plastic bags ard a sample of the contents of each. A

field test, conducted immediately, revealed that the sub-

stance was cocaine.

The Defendants challenged the warrantless field test-

ing and the Eighth Circuit found that the testing con-

stituted a significant expansion of the previous private

search. The United States Supreme Court thought other-

wise, holding that the additional intrusion occasioned by

the field test did not implicate any legitimate interest in

privacy. Id. at 4418.

This case has several! significant applications to the

von Bulow case:

1. Applying the principles enunciated in the majority

opinion, it is clear that neither the actions of Mrs. von

Bulow’s family nor the actions of Sgt. Reise violated the

defendant’s Fourth Amendment rights. The Jacobsen

court held that searches conducted by private parties are

wholly beyond the reach of the Fourth Amendment.

Moreover, they interpreted their prior holding in Walter

v. United States, 447 U.S. 649 (1980) to encompass cir-

cumstances where police agents, in the course of their

subsequent investigation, essentially duplicate the search

already undertaken by private parties. These principles

are fully apposite to the von Bulow case, where family

members originally discovered Mr. von Bulow’s black bag,

sent some of its contents to luboratories for testing and

later turned over their findings to the Rhode Island State

Police.

2. in Jacobsen, the motivation for the initial private

search was questionable. There was some testimony in-

dicating that it was conducted in accordance with written

company policy regarding damaged goods. Id. at 4414.

However, a post-trial affidavit indicated that the Federal

Express agent opened the package because he was sus-

picious about its contents. Id. at 4415 n. 10. The Court

swiftly pre-empted any attack on the validity of the search

based on some insidious motive. They remarked

“Whether those invasions were accidental or deliberate

and whether they were reasonable or unreasonable, they

did not violate the Fourth Amendment because of their

private character.” Id. at 4415. Elsewhere in the

Court’s opinion, Justice Stevens reaffirmed the principle

that private searches are beyond the scope of the Fourth

Amendment.

“This Court has also consistently construed this

protection as prescribing only governmental action;

it is wholly inapplicable to a search or seizure, even

an unreasonable one, effected by a private individual

not acting as an agent of the Government or with

the participation or knowledge of any governmental

official.” Id. at 4415 citing Walter v. U.S., 447 U.S.

649, 662 (1980) (Blackman, J. dissenting)

This basic tenet is particularly relevant to the von Bulow

case. In von Bulow, a private search was undertaken

wholly by family members and their agents. The Trial

Justice found that this search was conducted without the

knowledge or assistance of any governmental agent (Tr.

TV 698-699). Thus, the continuing vitality of Burdeau

was reaffirmed by the Jacobsen court and a challenge to

any aspect of the family’s search based on federal con-

stitutional law is precluded.'

1 Although there wa» a concurring and dissenting opinion in

Jacobsen, all nine justices agr that private searches are

beyond the scope of the Fourth Amendment. id. at 4419

(White, concurring), Id. at 4421 (Brennan, dissenting).

3. In Jacobsen, all nine justices recognized that the

private search doctrine and the plain view doctrine are

closely related. Id. at 52 U.S.L.W. 4417; 52 U.S.L.W.

4420 (White, coneurring); 52 U.S.L.W. 4423 (Brennan,

dissenting). They agreed that where a private party

presents the contents of a container to a police officer in

such a manner that they are plainly visible, his visual

examination of those eontents, is not a “search” within

the Fourth Amendment. Id. at 4417, 4419-20 (White,

concurring), 4421 (Brennan, dissenting). This is pre-

cisely what occurred when Alexander brought Mr. von

Bulow’s black bag to State Police Headquarters on March

13, 1980. The actions of the private parties put the fruits

of their search within the plain view of Sgt. Reise. Once

these items were placed before him he was able to iden-

tify them with “virtual certainty”. See: Jacobsen, at 52

L.W. 4423. Whatever privacy interest Mr. von Bulow

had in its contents had already been compromised by the

family’s inspection and testing of its contents. (See:

State’s Brief at 78, 75 n. 84). Alexander brought the

black bag to Sgt. Reise for the express purpose of view-

ing its contents. (See: State’s Brief at 77) As in

Jacobsen, “the agent’s viewing of what a private party

had freely made available for his inspection did not vio-

late the Fourth Amendment.” Id. at 4417. Thus, the

Sargeant’s act of inspecting and inventorying the contents

of the black bag on March 13th, was not a “search” within

the meaning of the Fourth Amendment.

4. Interestingly, all nine Justices agreed that the

field test conducted in Jacobsen did not violate the Fourth

Amendment. The actions of Sgt. Reise would even meet

the test suggested by Justice Brennan in his dissent.

See: Jacobsen, at 52 U.S.L.W. 4421, 4423 (Brennan,

dissenting). Sgt. Reise came upon the contents of the

black bags as innocently as the DEA agents did in

Jacobsen. Under the circumstances of his contact with

the contents, he was able to identify their chemical iden-

tities with virtual certainty before the test was conducted.

See: State’s bricf at 80. Lastly, the tests ordered by

Set. Reise destroyed only one of each of the various kinds

of pills in the vial. (Tr. IV 665)? Such intrusion is

deminimus and constitutionally reasonable.

5. As in Jacobsen, where the Defendants conceded

that probable cause existed to believe the package con-

tained contraband, Id. at 4417, n. 20, Sgt. Reise testified

that he believed that the pill capsules, powder and blue-

green liquid were contraband. (Tr. IV 659, 660, 664,

667). Since the prescription bottle containing the various

pills was only for Dalmane, it was entirely reasonable for

Sgt. Reise to suspect the others were contraband. As the

Jacobsen court remarked: “. .. It is well-settled that it

is constitutionally reasonable for law enforcement offi-

cials to seize “effects” that cannot support a justifiable

expectation of privacy without a warrant, based on prob-

able cause to believe they contain contraband.” Id. at

2 The other items sent for testing, the powder and the blue

green liquid, had already been tested by the family, so the

testing replicated by the State Police did not expand the scope

of the private search. Jacobsen, 52 U.S.L.W. 4417. Moreover,

the test results acquired by the family were available for at-

tack by the defense. Finally, any destruction of evidence was

not precipitated by the Government's actions but rather oc-

curred in the laboratory routine. See: State’s brief at 76, n.86.

4417. Also see: Illinois v. Andreas, 51 U.S.L.W. 5517,

5159 (1983).

6. Contrary to Appellant’s suggestion, the need to

conduct an “one the spot” field test played no part in the

Jacobsen court’s ultimate conclusion that the field testing

did not violate the Fourth Amendment. Rather, the law

enforcement interest recognized by the Court was the sus-

picious nature of the material which made it virtually

certain that the powder was contraband. Id. at 52 U.S.

L.W. 4418. This interest outweighed the infringement on

Jacobsen’s possessory interest in the cocaine. Similarly,

in von Bulow, the legitimate law enforcement interest in

verifying the suspicious mixture of pills, powder and

liquid outweighed the deminimus intrusion on Mr. von

Bulow’s possessory interest.

7. In Jacobsen, the Court observed that the field test

could reveal nothing but the presence of cocaine, which

the DEA agent was already “virtually certain” of. In

von Bulow, the toxicology results only verified the chem-

ical identities of the drug. As Sgt. Reise was already vir-

tually certain of these identities because their plain mark-

ings or the previous tests ordered by the family no fur-

ther invasion of Mr. von Bulow’s privacy was committed.

See: State’s brief at 77-79. Although Sgt. Reise was

ultimately mistaken about the contents of one red pill

capsule, he had suspected that it was contraband and

had already identified it as seconal before he sent it to

the Jaboratory. (Tr. TV 663) The ultimate result of the

test does not alter the standard for reasonableness, that

is, the validity of his original knowledge and motivation.

The outcome does not change the analysis. Thus, the

Jacobsen holding applies to the red capsule with the

same force as it applies to all other drugs in Mr. von

Bulow’s bag.

8. Contrary to Appellant’s assertions, nome of the

drugs tested were found in Mr. von Bulow’s medicine

cabinet. This suspicious potpourri of needles, powder,

pills, liquid, ampoules and syringes was found in his

black bag which was secreted in a metal box which had

been tucked underneath a shelf in Mr. von Bulow’s closet.

(Tr. III 324,419) This most certainly is not the case con-

templated by Justice Stevens when he remarked that an

agent’s arbitrary invasion of a neighbor’s sugar bowl

or medicine chest would not be tolerated. Jacobsen, at 52

U.S.L.W. 4418, n. 28. By the time Sgt. Reise sent these

drugs to be tested, there was significant evidence that

Mr. von Bulow had engaged in some wrongdoing in which

drugs had played an integral role.

Finally, the holding of the United States Supreme

Court is perfectly consistent with this Court’s holding in

State v. Eiseman, — R.I. —, 461 A.2d 369 (1983). Ten

months before Jacobsen was decided, this Court identified

the appropriate analysis as one that focused on the scope

of the previously conducted private search. Eiseman su-

pra at 461 A.2d 376. Application of both Jacobsen and

Eiseman to the case at bar makes inescapable the conclu-

sion that the searches therein involved did not violate the

Fourth Amendment. As private searches are clearly be-

yond the reach of the Fourth Amendment, Jacobsen, 52

U.S.L.W. 4415, Fiseman, 461 A.2d 374 (1983), the actions

of the family in taking Mr. von Bulow’s black bag, exam-

ining its contents and sending some items for testing are

not subject to challenge under the Fourth Amendment.

Similarly, as government actions which do not constitute

a significant expansion of the previous private search can-

not be considered a separate or illegal search, Eiseman,

supra at 376, Jacobsen supra at 4416, 4417; Sgt. Reise’s ex-

amination, inspection and testing of items previously

treated in that manner by the victim’s family did not

violate the Fourth Amendment. This narrows the Court’s

inquiry to the field testing of three pill capsules, 1 tablet

and two glass ampoules. Siate’s brief at 78, n. 92 (Tr.

XVI 2038). As previously noted, the contents of each of

these items was plainly visible or reasonably self-evident

to both the family and Sgt. Reise. State’s brief at 80.

Moreover, Sgt. Reise thought they were contraband (Tr.

659, 660, 667). Therefore, under Jacobsen, the field test-

ing of any of these items, even the red capsule, neither

constituted a significant expansion of the private search

nor violated the privacy interests protected by the Fourth

Amendment. See No. 7, supra. Jacobsen supra at 4416,

n. 58, 4418.

Since this Court indicated that it would be guided by

the principles announced in Jacobsen, the State urges that

the question left open in Eiseman be answered consistent-

ly with the Jacobsen decision and the field testing in this

ease be found constitutionally reasonable.

I would appreciate it if you would distribute this

letter to the members of the Court along with Mr. Mac-

Fayden’s letter concerning the Jacobsen case.

Respectfully submitted,

/s/ Sharon O’Keefe

Special Assistant Attorney General

Chief—Appellate Division

DENNIS J. ROBERTS, UU

ATTORNEY GENERAL

Susan E. McGuirl

Deputy Attorney General

Stephen R. Famiglietti

Special Assistant Attorney General

ec: Alan M. Dershowitz, Esq.

John A. MacFayden, III, Esq.

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