# Brief for the Respondent in Opposition — Colson v. North Carolina

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondent in Opposition
- **Published:** January 1, 1969
- **Citation:** 393 U.S. 1087

## Text

- The
Supreme Court of the United States

OCTOBER TERM, 1968

NO. 915

WILLARD HORACE COLSON,
Petitioner -
. ee ete

STATE OF NORTH CAROLINA,
Respondent

RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR CERTIORARI

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TABLE OF CITATIONS
Amos v. U. S., 255 U.S. 313, 41 S. Ct. 266, 65 L. Ed. 654 ............ 10
Bumper v. North Carolina, #8 S. Ct. ............ , 20

Nee en sas vcvuvaisiaiaasinsss 10, 15
Burke v. U. S., 215 F. Supp. 508, 328 F. 2d. 399, cert.

den., 379 U.S. 849, 85 S. Ct. 91, 18 L. Ed. 2d 52 0.00... 12
Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884,

Ra RR ER INR REPORT oer cee ae 15
Gorman v. United States, 380 F. 2d 158 (CA 1, 1967) ................ 16
Johnson v. Zerbst, 304 U.S. 458, 82 L. Ed. 1461 ................ 10, 15
BE Hs. he Big Be We Is GD neces ssscisneressssseressescvoesssesesrsessvessseusnes 13
Mapp v. Ohio, 367 U.S. 648, 81 S. Ct. 1684,

a aa deals Nic due intvesancadensaniannrsdextecinns 5
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,

III 55. 2 sosrcusiilcsnaessebessdtviuedeienoatioesrieibieverneesvenseres 8,15
People v. White, 32 Cal. Rptr. 322, cert. den., 376 U.S.

O26, $4 3. Ct. GED, 11 Le. Bd. Bd GBL ...........cccccesrccovsccssrecceesooes 12
Shaffer v. State, 184 A. 2d 689, cert. den., 374 U.S. 834,

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PU We Rs Ole le BI, BD ores vcsecsveveescpsscvscsvecssaseseosnsseseezsesves 1
State v. Colson, 274 N.C. 295, 163 S.E. 2d 376 2.000000... 1
SR i RG MEP MM, ov aisesvacsnvsessnvesssvoepcssvsvascosocsvavsosonasonsovenve 9

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State v. McPeak, 243 N.C. 248, cert. den., 351 U.S. 919,
.- e, SE € 8 eee

United States v. Blalovk, 255 F. Supp. 268
(D.C. Pa., 1966)

RIE VCO ee Merete oe

Zap v. U. S., 328 U.S. 624, 66 S. Ct. 1277,
90 L. Ed. 1477

In The

Supreme Court of the United States

OCTOBER TERM, 1968

NO. 915

WILLARD HORACE COLSON,
Petitioner
v.

STATE OF NORTE CAROLINA,
Respondent

RESPONDENT’S BRIEF IN OPPOSITION TO
PETITION FOR CERTIORARI

OPINIONS BELOW

The opinion of the North Carolina Court of Appeals is
reported at 1 N.C. App. 339.

The cpinion of the North Carolina Supreme Court, which
is the Appendix to Petitioner’s Petition for Certiorari, is
reported at 274 NC 295, i163 S.E. 24 376.

JURISDICTION

The Petitioner seeks to invoke the jurisdiction of this Court
under Title 28, U.S.C., § 1257 (3), alieging that the Petitioner
has been deprived of his constitutional rights arising under the
Fouri. and Fourteenth Amendments to the Constitution of
the United States.

LOS PP TE eT

ali aac hii iis hla cat Ab Soci a a Diet hi ASR A ch ithe ie St Pains te oS ~ ha ees

QUESTION PRESENTED

WHETHER UNDER THE CIRCUMSTANCES, A SEARCH
WARRANT WAS NECESSARY FOR THE POLICE TO
SEE PETITIONER’S UNDERSHORTS, OR WHETHER
THE CONSENT OF PETITIONER OBVIATED THE
NECESSITY FOR SUCH A WARRANT?

STATEMENT

The Petitioner was indicted for the first degree murder
of his wife. At the trial the State announced that it would
seek a verdict of guilty of second degree murder or man-
slaughter, as the facts might warrant. The jury found Peti-
tioner to be guilty of manslaughter and the Trial Court
imposed a sentence of not less than twelve years nor more
than fifteen years in the State’s Prison.

Petitioner appealed to the North Carolina Court of Appeals,
asserting, among other things, that his undershorts were
improperly introduced into evidence by the State and that
such was a violation of his constitutional rights. The Court
of Appeals affirmed the judgment of the Trial Court and Peti-
tioner then appealed to the North Carolina Supreme Court.
The Supreme Court affirmed the Court of Appeals and in
so doing passed upon the precise constitutional question raised
by the Petitioner in this Petition.

The facts pertinent to this Petition for Certiorari are essen-
tially as follows:

On the night of August 3, 1967, the wife of the Petitioner
was stabbed to death in her home at Elizabeth City, North
Carolina. Police officers were called to the house of the
deceased by the son of the deceased, arriving at approximately
12:30 a.m. on the morning of August 4. They were admitted
to the house by the son. The Petitioner was not present. The
deceasea was found slumped over on a sofa, her head on the
armrest.

The deceased had died from a penetrating stab-wound

2

through the heart. There were multiple contusions and bruises
over her body and face.

When the «fficers arrived at the house they made a search
and found the murder weapon, a long butcher knife covered
with blood. In the bedroom the officers discovered blood on
the bedclothes. The blood type of the deceased was “AB.”
While the blood type of the Petitioner was determined to be
type —

While the officers were still at the house and were in the
process of putting the deceased’s body into a hearse, the
Petitioner came walking up to the frent of the house and
asked whether or not his wife had had a heart attack. The
police officer told the Petitioner that she had been stabbed.
Whereupon, the Petitioner asked, “What with, a butcher
knife?” (T p 46). The police officer then asked the Petitioner
and the son if they would mind coming with him to police
headquarters for further investigation and questioning and
the Petitioner voluntarily consented to do so (T pp 37-38).

After the Petitioner had been at the police station for some
time and after he had been warned that anything he might
say could be used against him, that he was entitled to counsel,
that he had a right to remain silent, and that if he could not
afford counsel the State would provide counsel for him
(see T p 47), the Petitioner told the officers he wanted to
show them a scar on his stomach. He opened his shirt and
at that time Officer Owens noticed blood on his undershirt.

After the officer had seen the blood on the Petitioner’s
undershirt, the officer asked him if he could see the rest of
his underclothes. The Petitioner complied and the officer then
discovered that the Petitioner’s undershorts contained blood
spots. The Petitioner was asked how the blood got c~ his
underclothes in the presence of his son, who likewise asked
him, but he did not answer (T pp 58, 60).

The blood on the Petitioner’s underclothes was type “AB,”
the same as that of the deceased.

3

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The Petitioner had been at the police station approximately
one hour when the officers saw the T-shirt and the undershorts
and removed them from the Petitioner (T p 37).

Prior to any questioning by the police, the Petitioner was
fully warned of his rights under the decisions of the United
States Supreme Court (T pp 50, 51).

There was plenary other evidence in the record which placed
the Petitioner at the scene of the crime at or about the time
of its commission.

The evidence in the transcript as it relates to the intoxica-
tion of the Petitioner was to the effect that about three or four
days before the slaying the Petitioner went on a drunk (T p
55) and on the night in question, after an argument with his
wife, the Petitioner purchased some vodka, rode around and
drank (T p 56).

After the officers had been at Petitioner’s house for some
time, the Petitioner came walking up. He had the odor of
alcohol on his breath and was staggering some (T p 68).

The Petitioner was able to answer questions of the officers
and, after he had been warned of his rights, gave them an
exculpatory statement, which is contained in the Transcript
between pages 51 and 58.

Otker than this testimony, there is nothing in the record
to determine the extent of the intoxication of the Petitioner.

The transcript of testimony will show that the Petitioner’s
counsel did not object to questions concerning the condition
of the Petitioner’s undershorts, nor the type blood found on
them, but objected only when the State sought to introduce
such undershorts into evidence (T p 40).

Formal arrest was made of the Petitioner after the blood
had been discovered on his underclothes. The statement by the
Petitioner in his Petition for Certiorari that Petitioner was not
arrested until 8:30 or 9:00 a.m. the next morning is incorrect.

4

Spe Rctewent id Lee

It is true that a warrant charging him with the crime was not
obtained until that time.

DECISION BELOW

The North Carolina Supreme Court in its decision, which
is reported at 274 NC 295, 163 S.E. 2d 376, in passing upon
the Petitioner’s contention that his constitutional rights had
been deprived, ruled that the Petitioner’s rights had not been
violated.

The Supreme Court in passing upon this question, after
noting the exclusionary rule established by this Court in
WEEKS v. U. S., 232 US. 383, 58 L. Ed. 652, 34 S. Ct. $41,
and the extension of such rule to the states by the Court’s
decision in MAPP v. OHIO, 367 U.S. 643, 81 S. Ct. 1684, 6 L.
Ed. 2d 1081, said:

“So, in the case before us, if the circumstances under
which defendant’s clothing was taken required the issuance
of a search warrant, the seizure was unlawful and the
evidence inadmissible. Otherwise not.

“The Constitution does not prohibit all searches and
seizures but only those which are unreasonable. Carroll
wv. United States, 267 US. 182, 69 L. ed 543, 45 S. Ct. 280;
Elkins v. United States, 364 U. S. 206, 4 L. ed 2d 1669, 80
S. Ct. 1487. An unreasonable search has been defined as
‘an examination or inspection without authority of law of
one’s premises or person, with a view to the discovery
of . .. some evidence of guilt, to be-used in the prosecution
of a criminal action. 47 Am. Jur., Searches and Seizures
§ 52.

“An individual may waive any provision of the Consti-
tution intended for his benefit, including the immunity
from unreasonable searches and seizures; and where such
immunity bas been waived and consent given to a search
of his person, an individual cannot thereafter complain
that his constitutional rights have been violated. If one

+)

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voluntarily permits or expressly invites and agrees to the
search, being cognizant of his rights, such conduct amounts
to a waiver of his constitutional protection. 47 Am. Jur.,
Searches and Seizures § 71 and cases cit2d: State v. Mc-
Peak, 243 N.C. 243, 90 S.E. 2d 501; State v. Moore, 240
N.C. 749, 83 S.E. 2d 912.

“Furthermore, under circumstances requiring no search,
the constitutional immunity never arises. This principle
is aptly stated in 47 Am. Jur., Searches and Seizures § 20,
as follows: ‘Where no search is required, the constitutional
guaranty is not. applicable. The guaranty applies only in
those instances where the seizure is assisted by a necessary
search. It does not prohibit a seizure without warrant
where there is no need of a searcu, and where the contra-
band subject matter is fully disclosed and open to the eye
and hand. See State v. Giles, 254 N.C. 499, 119 S.E.
2d 394; State v. Coffey, 255 N.C. 293, 121 S.E. 2d 736;
and State v. Kinley, 270 N.C. 296, 154 S.E. 2d 95.

“Applying these principles to the evidence regarding
defendant’s clothing, we are of the opinion that the cir-
cumstances prevailing at the police station when defend-
ant’s clothing was taken required no search warrant. There
was no need to search...”

In summary, the Supreme Court of North Carolina, under
the factual situation presented, held that no search warrant
was required for the officers to see the underclothing of the
Petitioner. The Petitioner, by his conduct in voluntarily show-
ing his T-shirt and then by showing his undershorts at the
request of the officers, waived his rights. This is the gist of the
ruling of The Supreme Court of the State of North Carolina
after its careful review of the decision of the North Carolina
Court of Appeals.

ARGUMENT
NO SEARCH WARRANT WAS REQUIRED OF THE
OFFICERS TO SEE PETITIONER’S UNDERSHORTS

6

UNDER THE CIRCUMSTANCES IN THIS CASE, AND
THE ABSENCE OF SUCH WARRANT IN NO WAY
VIOLATED THE PETITIONER’S RIGHTS UNDER THE
FOURTH AND FOURTEENTH AMENDMENTS NOR
WAS THE EVIDENCE AGAINST THE PETITIONER
RENDERED INADMISSIBLE.

As the State understands the Petitioner’s argument, it boils
down to this: The Petitioner contends that he was so intoxi-
cated at the time the officers asked to see his undershorts
that he could not intelligently consent to the showing of his
undershorts and thus could not intelligently waive his rights
under the Fourth Amendment. Thus, he argues that a search
warrant was required.

The factual situation as shown by the record does not back
up the Petitioner in this regard. It is true that the words
“highly intoxicated” do appear in the record in response to
a question asked of the police officer by the Petitioner’s
counsel. Likewise, the North Carolina Supreme Court in its
opinion stated that, at the time Petitioner came to the scene
of the crime, he was intoxicated. The only reference in the
record to Petitioner’s condition, with respect to intoxication,
and the degree thereof, ensues in the cross-examination of
State’s witness by Petitioner’s counsel (T p 63). It refers to
Petitioner’s supposed condition at the time the officers first
saw him at the house, and not to his condition when he was
at the police station some hour or so later being questioned.

After the Petitioner came back to the house where his
wife’s body was being placed in the hearse, he was asked to
come to the police station. He did so voluntarily, along with
his son (T pp 65, 66).

When the Petitioner came up to the house, where the offi-
cers first saw him, he had the presence of mind to ask the
officers what was wrong. He then asked if his wife had had
a heart attack (T p 46). When the Petitioner was told that

7

his wife had been stabbed, he then asked, “What with, a
butcher knife?” (T p 46).

A voir dire examination was held at the request of Peti-
tioner’s counsel to determine the voluntariness of certain
statements made by the Petitioner prior to his being arrested
or taken into custody (T p 44). Nowhere in the voir dire
examination did the Petitioner’s counsel attempt to factually
develop the state of intoxication of the Petitioner, if any, when
he first came to the house. The Court ruled after the voir dire
examination (T p 48), that the statements made by the Peti-
tioner were a result of his own volition and that they were
voluntary and willingly made without questioning or prompt-
ing.

Following the voir dire examination, the jury was called
back in and the State was allowed to offer into evidence a
statement made by the Petitioner after he arrived at the police
station (T pp 50-58) .

The statement made by the Petitioner, which is exculpatory
in nature, which followed the warning required by this Court’s
decision in MIRANDA v. ARIZONA, 384 USS. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694, shows that the Petitioner was in full
charge of his mental faculties. His answers to the questioning
police officers were clear and lucid. This statement of the
Petitioner was taken before he was asked by the police officers
to show his undershorts and shows that the Petitioner was
mentally capable of intelligently waiving his rights and that
his attitude was one of cooperation with the officers.

The State emphasizes to the Court that this entire state-
ment came into evidence without an objection on the part of
Petitioner’s counsel and without any contention whatsoever
on his part that, at the time, the Petitioner was unable by
reason of his intoxication to understand and know the nature
and quality of his acts.

As to the undershorts themselves, the police officers saw
them under the following circumstances (T p 59) : During the

8

conversation with police officers Petitioner offered to show
them a scar on his stomach, at which time blood was discovered
on his undershirt. It was at this time that the officers asked
him to pull down his trousers so that they could see his under-
shorts. Apparently, the Petitioner’s son was present at the

time aiid asked his father how the blood got on his «mder-
shorts.

It is well established in the decisions of North Carolina, as
well as in the Federal Courts, and indeed by numerous decisions
of this Court, that a constitutional right, including the consti-
tutional right guaranteed by the Fourth Amendment, may be
waived, under certain well-defined conditions.

in STATE v. McPEAK, 243 NC 248, cert. den., 351 U.S.
919, 76 S. Ct. 712, 1 L. Ed. 2d 1451, the Supreme Court of
North Carolina set forth the principle of waiver and the con-

dition of such waiver as it is applicable in this jurisdiction.
The Court said:

“It is well settled law that a person may waive his right
to be free from unreasonable searches and seizures. A
consent to search will constitute such a waiver, only if it
clearly appears that the person voluntarily consented, or
permitted, or expressly invited and agreed to the search.
Where the person voluntarily consents to the search, he
cannot be heard to complain that his constitutional and
statutory rights were violated. S. v. Moore, 240 N.C. 749,
83 S.E. 2d 912 (where many cases are cited) ; Zap v. US.,
328 US. 624, 90 L. Ed. 1477; People v. Preston, 341, Ill.
407, 173 N.E. 383; 77 A.L.R. 631; 47 Am. Jur., Searches

and Seizures, Sec. 71; 79 C.J.S., Searches and Seizures,
Sec. 62.”

A more recent decision of our Court, STATE v. LITTLE,
270 NC 234, cited by Petitioner, makes it clear that “consent”
to a search must, in fact, be voluntarily, freely and intelligent-
ly given. The decision likewise makes it clear that the burden

is on the State to establish that the consent reiied upon was

9

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voluntarily given. Addressing itseif to this particular point,
the Court said:

“The burden of proof is upon the State to establish by
clear and positive testimony that consent was so given.
Judd v. US., supra; State v. King, supra; 79 CJS.,
Searches and Seizures, Sec. 62 (a), page $19.” ‘

These decisions agree with the decisions of the Supreme
Court of the United States as set forth in JOHNSON v.
ZERBST, 304 US. 458, 82 L. Ed. 1461; ZAP v. US., 328 US.
624, 66 S. Ct. 1277, 90 L. Ed. 1477; AMOS v. U.S., 255 U.S.
$13, 41 S. Ct. 266, 65 L. Ed. 654; BUMPER v. NORTH
CAROLINA, 88 S. Ct... .., 20 L. Ed. 2d 797.

In the matter at hand the Respondent respectfully submits
that all of the circumstances show that the Petitioner volun-
tarily and intelligently consented to exhibiting his undershorts
to the officers. As a matter of fact, the quality of the Petition-
er’s act in revealing his underclothes was, in the first instance,
spontaneous. In the course of conversation with Officer Owens,
Petitioner told the officer that he wanted to show him a scar
on his body. He then revealed his undershirt (T pp 36, 37).

Upon seeing that the undershirt was bloody, Officer Owens
then asked to see Petitioner’s undershorts and the record shows
that the Petitioner complied. This came at a time when the
Petitioner was in custody of the officers, though not under
arrest, by reason of his voluntary compliance with their
request that he come to the police station.

Other circumstances tending to how the voluntary nature
of Petitioner’s act in revealing his undershorts are as follows:

Petitioner, as the record shows, had been fully informed
of his rights against self-incrimination and of his right to
counsel prior to any questioning by the police officers and
before he revealed his undershorts (T pp 50, 51). During the
time when Petitioner was at the police station he was in the
presence of his son, who at the request of officers, likewise
came to the police station (T p 60).

10

After being informed of his rights by police officers, the
Petitioner gave a statement which was reduced to writing
and shows that the Petitioner at the time was in substantial
control of his mental faculties and knew what he was doing
(T pp 51-59). A reading of the statement made by the Peti-
tioner, which was introduced into evidence without objection
on the part of the Petitioner’s counsel, shows that his attitude
towards the officers was one of cooperation. Whc:. asked by
officers if he wished to answer questions which they wanted
to ask him, Petitioner replied, “I certainly do” (T p 51). His
explanation of what happened, as contai:ed in his statement,
is certainly detailed enough to show that the Petitioner had a
good awareness of the predicament he was in and the possible
consequence of his answers.

There is nothing in the record, on the other hand, to show
any duress or coercion on the part of the police officers, either
direct or indirect. The atmosphere surrounding the request of
the officers to see his undershorts is one which imports consent
freely and intelligently given. This is especially true when taken
in the light of the fact (uncontradicted by the Petitioner) that
Petitioner spontaneously revealed some of his underclothes.
Undoubtedly, the undershirt which the Petitioner wore was
evidence as equally condemning as his undershorts.

Our research does not reveal any case which is factually on
all fours with the case at hand; however, SHAFFER v.
STATE, 184 A. 2d 689, cert. den., 374 U.S. 834, 83 S. Ct. 1882,
10 L. Ed. 2d 1056, is somewhat analogous. In that case, the
defendant, a burglary suspect, was picked up by police as he
was walking along a road some two miles from the scene of
the burglary. He was taken to police headquarters for ques-
tioning and was asked to empty his pockets. He did so and
produced a twenty dollar bill which had serial numbers on it
in sequence with other twenty dollar bills held by the victim
of the burglary in his wallet. The defendant contended that
the twenty dollar bill was illegally seized. The Delaware
Supreme Court held that under the circumstances the defend-
ant had consented to the search. The uncontradicted testimony

1]

of the officer was to the eigebt that the Jefendant was coopera-
tive. The United States. “Siyneine Court denied certiorari.
It will be noted, that, inythhoc@ase at hand, counsel for Peti-
tioner on Cross-cxanunaliyy asked police officer Owens if the
Petitioner nad been, coapsrative with him after he was taken
to police headquarters. Phgsfficers stated that the Petitioner
voluntarily came along, (iid Hbt-eive the officers any trouble
or difficulty, and was .oikkeK Ye cooperative with the police
(T p 74).

In PEOPLE v. WHIPRE 'so' Cal. Rptr. 322, cert. den., 376
US. 926, 84S. Ct. 6889 141114, Rd.-2d 621, the United States
Supreme Court denied )cepyqéari in circumstances where the
petitioner was in the. cuaWeay of the »olice when they stopped
him in the hall of a. hwi¢hy "They asked for his permission to
search his person and |hgeryeptied, “Yes, you ean. Go ahead.”
The officers searched) n¢)!¢stnd implicating evidence under
petitioner's armpit. It\is#ted that in this particular case the
petitioner took the stay¢.jt¢, deny that he had given consent
for the search of his.peEsn.

In the case at hans, cesips>] for Petitioner did not request
to be heard on the qugstinf voluntariness of consent to the

search, and Petitioner, 04/ este, did not take the stand on
voir dire examination,

The defendant in, BARNES vy. US., 215 F. Supp. 508, 328 F.
2d 399, cert. den., 3799455 5849>85°S. Ct. 91, 13 L. Ed. 2d 52,
was arrested, taken, te, hk psliee station, booked and searched.
Subsequently, a Federah |ppastal inspector came to the station
and asked defendané :if hy eaekd- see what he had in his pockets.
The defendant complied jcytid emptied his wallet. Two marked
twenty dollar bills. weete ‘fond. The defendant agreed to
exchange these twenty, (@dilar bills for two other bills. The
two bills taken froma, thko(@efendant were subsequently intro-
duced into evidence, Tho \aefendant’s arrest was held to be
illegal. The Court, held, hyayaver, that the defendant had con-
sented to the seareh),og;t¢o! the exchange of the twenty dollar
bills and that such eviggegecwas not rendered inadmissible.

$2

In KATZ vy. U. S., 238 F. Supp. 689, Katz was detained on
the sidewalk as he was carrying two packages and was invited
to step inside a government car by custom agents. He agreed
to do so. The government agent asked to see the packages
which he had. Katz handed the packages to the agent but the
agent told him that he would prefer that Katz open the pack-
ages. Katz complied and revealed a number of Swiss watch
movements upon which no custom had been paid. Katz acqui-
esced in going to police headquarters and in having his car
searched. The Court held that under the circumstances Katz
had voluntarily consented to the search, noting the defend-
ant’s cooperation with the officers and the help which he
rendered them.

In the case at hand, counsel for Petitioner did not ask to
he heard on the question of whether Petitioner had voluntarily
given his consent to the exhibition of his undershorts. The
transcript merely shows in this respect that defense counsel
objected when the State offered the undershorts into evidence
as State’s Exhibit 19 (see T p 40).

It was the contention of the State before the Supreme Court
of North Carolina and it is the contention of the State at
this time that the Petitioner waived any obiection he might
have had to the introduction of the Petitioner’s shorts into
evidence by failing to make timely objection. The record in
this respect is clear. It reads as follows:

“Q. I show you another exhibit, cloth identified as SX-
19, and ask you if you recognize that?

“A. Yes, sir. One pair of men’s undershorts, which were
worn by the defendant, Willard Colson, at the time.

“Q. I ask you whether or not it is in the same general
condition as they were at the time you removed them
from the defendant?

“A. The blood spots, as you will notice, onto the right
side, the right leg, in this area, here, and here (indicating)

13

are the same. The cut out places here, and up there, and
the cut out place on the left leg was not there.

“Q. And were the numbers on there?

“A. The numbers were not on there, or the cut out holes
on the right leg, and left leg. Blood spots still remaining
were there, in addition to other blood that has been cut
out.

“Q. Except for those spots that you have indicated,
they are in the same condition?

“A. They are.
By the Solicitor:

Offer Sx-19 in evidence.”

The Solicitor was allowed to ask the witness, without any
objection whatsoever, questions about the Petitioner’s under-
shorts and to establish that they were worn by the defendant
when he was in the custody of the police, that they had blood
spots on them, etc.

Also, with respect to said exhibit, the Solicitor was allowed
to ask the expert serologist, without objection, whether he had
examined the shorts and the type of human blood on them.
Without objection, it was established that the human blood
on the undershorts of the defendant was group “AB” type.
This was the same as the deceased’s blood type (T p 92).

In view of this fact in the record, it is hard to see how the
Petitioner was prejudiced at all by the actual admission of
the article into evidence. The Solicitor had already established
the evidence damning to the Petitioner without an objection
on the part of counsel.

Furthermore, evidence of like character and nature, i.e., the
blood-stained undershirt of the Petitioner, had been introduced
into evidence under ccnditions where the Petitioner had
plainly displayed it to the officers on his own volition.

14

The cases cited by Petitioner are factually distinguishable
from the case at hand. The BUMPER decision, supra, is con-
cerned with « search conducted under circumstances where the
officers told the landlady where defendant lived that they had
a search warrant to search her house. She admitted them and
a search was conducted. The State, however, relied not upon
the search warrant, but upon consent of the landlady. This
Court held that a search conducted in reliance upon a seare’:
warrant cannot later be justified on the basis of consent, if
the warrant turns out to be invalid. There was no “consent”
under such circumstances said the Court.

MIRANDA v. ARIZONA, supra, cited by Petitioner, deals
with rights arising under the Fifth and Sixth Amendments.
The principles of that case appear to have been meticulously
applied and followed in this case.

JOHNSON v. ZERBST, supra, was a habeas corpus pro-
ceeding concerning the conviction of two defendants of serious
charges without the assistance of defense counsel. This Court
in reversing and remanding the matter discussed the waiver
of right to counsel. CARNLEY v. COCHRAN, 369 USS. 506,
82 S. Ct. 884, 8 L. Ed. 2d 70, also concerning the right to
counsel, established that due process of law is violated by the
failure of an illiterate defendant to have counsel in a felony
case. The Court went on to say that the mere acquiescence of
the illiterate defendant does not constitute a waiver of the
constitutional right to counsel. The transcript in the instant
case clearly distinguishes this case from CARNLEY. The
Petitioner’s action here in voluntarily exposing his undershorts
was more than mere acquiescence. Further, the question of
Petitioner’s literacy is not at issue here.

The case of UNITED STATES v. BLALOCK, 255 F. Supp.
268 (D.C. Pa., 1966) takes a new, if not novel, position with
respect to a waiver of the rights protected by the Fourth
Amendment. The position of the District Court in that case
is to the effect that in order to have an effective waiver of the
rights guaranteed by the Fourth Amendment, the individual

15

must be informed that he has the right to insist on a search
warrant.

We would be less than candid if we did not conclude that
adoption of that premise to the case at hand, would require a
reversal. The Supreme Corirt, as far as we are aware, has not
adopted such requirement as being requisite to voluntary and
intelligent waiver of a search warrant.

In our research, we find that the United States Court of
Appeals in GORMAN v. UNITED STATES, 380 F. 2d 158
(CA 1, 1967) specifically rejected the rule suggested by BLA-
LOCK, supra, and in so doing said (p 164):

“We cannot accept the recently suggested rule that a
specific warning of fourth amendment rights is necessary
to validate a warrantless search after the suspect has been
arrested. (Citing cases) ”

After mentioning the application of the MIRANDA rule, the
Court went on to say (p 164):

‘ . . . While the police interrogators must faithfully
carry out MIRANDA’s mandate at the threshold, they
may then proceed to elicit responses, however incriminat-
ing, without further specific warning. To single out for
further warning a request to search premises of an
accused is to assume that a different order of risks has
not been covered at the threshold. But that things which
might be found in a search could be used against an
accused seems implicit in the warning of the right to
remain silent which, as the Court observed, is calculated
to make him ‘more acutely aware * * * that he is not in
the presence of persons acting solely in his interest.’ ... ”

While we do not know what ultimate resolution of the differ-
ences of opinion as between the courts might be, we do suggest
that the case at hand does not present a factual situation call-
ing for the adoption of the BLALOCK rule. In the case at
hand, the Petitioner was cooperative with the officers, as estab-

16

lished by his counsel and, while in charge of his faculties, he
voluntarily showed his undershorts to them.

CONCLUSION

The Petitioner’s case has been tried and reviewed by two
reviewing courts. The question raised by Petitioner has been
carefully considered and answered adversely to him. The total
circumstances surrounding the exposure of Petitioner’s under-
clothes impert : voluntary act on the part of Petitioner.
Further, we make the observation that the piece of evidence
in question, the undershorts, was not a critical piece of evi-
dence. Indeed, the Petitioner’s undershirt was likewise admitted
into evidence against him. The admission into evidence of his
undershorts following extensive questioning by the Solicitor
as to them (without objection being taken) , was nothing more
than cumulative evidence.

In this case the Petitioner made an intelligent and voluntary
waiver of his right to insist on a search warrant by his actions
and words, clearly and cogently shown of record.

Respectfuly submitted,

ROBERT MORGAN
Attorney General _

Bernard A. Harrell
Assistant Atttorney General

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0425%3A2. Public record. Not legal advice.