Petition for a Writ of Certiorari — Murphy v. Oregon

"LIBRARY.

SURREME-COURT, U. s.

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San rte of the ti States

‘OCTOBER TERM, ie FG

wot O2

ee ‘DANIEL P. MURPHY, Petitioner coed

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| ae ae | STATE oF OREGON, Respondent

"PETITION FOR A WRIT OF. CERTIORARI TO THE

te ee _ SUPREME COURT OF OREGON

7 * Portland, Oregon 97204,

Counsel for Petitioner.

_ Oscar D. Howtetr,

. 4710 S.E. Long Street,

ee ~ Portland, Oregon 97206,

“of a for Petitioner. ;

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INDEX OF PEWITION — M

. , Page

Opinion Below ............ vances oP a SA a ee

TI oon hon ak eaters Paes yee i

Questions Presented ............. NAAR ENTS PMA AS 2 |

United States Constitutional Provisions. Involved Su areye 2

Statement of the Case... ... eT See errr rt. Irene e be 5 AS

Facts on Motion to Suppress |................-... Sor . 55;

_ Reasons for Granting the Writ .. rs orn s Doras arte 7:

Ame oss ae ek ee a ek epee i

Conclusion ...... sce eens eee en on ae eeee ieee a

Appendix sein aaa Kec ree ee eee Pr eee ee 11/

~, Opinion Oregon Court of Appeals Q., ara een a ae

Pretrial Motion to Suppress in Circuit Court........... 20

Order of-Circuit Court on Motier to eae Cheese . 21°

Preservation in Circuit Court on Trial ees rete |S

Appellant’ s Opening Brief—Questions ree

vesbie tntacéstirades. «comes OEE CE ee hee eee 23

Judgment of Affirmance ...................% Sare 2 24

_-Order Denying Rehearing. ..... Pore oy eee ee Ness. -: oe

Order. Denying Review Pi ew one ese en ae 26

_ INDEX OF AUTHORITIES

: Cases , ef i

oe / Page

Chambers v. Maroney, 399 us 2 (1970)... a ov oe Srey a

Davis v. Mississippi, 394 US 721 (1969) . ae ee .

Griffin v. California, 380 US 609 (1965) : we fl. De Ned 8

Maryland Penitentiary v. Hayden, 387 US 294 ( 1967) . eet Pe i

McDonald v. US, 335 US 451 (i968) .....2.... Grek SE as a i

Morales v. New York, 396 US 102 (1969) .......... RR ees oa

Peters v. New York, 392 US 40 (1967) ....... aa Ne Ay eee

——

_ INDEX OF AUTHORITIES -

_. Continued |

— ; a. : aP Sanne Conmennd :

: Page

: Shediesiebiae v. Calitomnia, _ 384 US 157 A a 7

Simmons ¥. US, 390 US 377 (1968) ."......... hen Rte oa

Vale v. Louisiana, 399 US-30 (1970) . 0... 20.0. case ak

, » US v. DiRe, 332 US 581 (1948) ..... 6. ae

Constitutional and Statutory Provisions

ies: ee ose Pages

Fourth Amendment;. United States Constitution ...... 2, 4, 8

Fifth Amendment, United States Constitution ........... 2,8

Sixth Amendment, United States Constitution ee ne 3,8

_ Fourteenth Amendment, Section 1, United States.

Constitution Pas ewe biaks ets wad ooo ~ “eee ag ©

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4 ae

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- Suge Court of the ite States .

OCTOBER TERM, 1970 ..

No. _: RENIN habe

rm F

DANIEL P. MURPHY, Petitioner

Vv.

STATE OF OREGON, Respondent.

' PETITION FOR A WRIT. OF CERTIORARI TO THE

SUPREME COURT OF OREGON

The petitioner, Daniel P. Murphy, respectfully prays

that a wyfit of certiorari issué to review the judgment

and opinion of the Court of Appeals of the State of

Oregon entered in this proceeding on March. 12, 1970.

OPINION. BELOW

The opinion of the Court of Appeals of the State

of Oregon i is reported. at Or App 90 Adv Sh 679, 465 P2d

900. (1970). No opinions were rendered ‘by the Circuit

Court of the State of Oregon, which was the trial court,

or: by the Supreme: Court of the State of Oregon ae:

denying cecrehonary review. | ,

. - JURISDICTION eee

The judgment of the Court of Appeals of the State _

of Oregon was entered on*March 12, 1970. A timely :

petition for rehearing was denied on April 22, 1970. A

timely petition for. review by the. Supreme Court of |

ae

> . ‘ e es

Oregon-was denied on Jaume 127), a = netTinon for

_ certiorari was fled within -@) fers .at tha: date” This’

Court's jurisdiction = t umme"-2 -* LISC § 1357 +) ee

rr aes 5 eatin Ghar

Questions Presented ee ty a

i Whether the’ sear: 22 Gi Jecitinne:'s ‘likened bd =

search of an aut omobile. b> Seed a thar t the sean 8!

* - a house, allowing g a searce ag¢ Secure or probabie cause, Peat

without, a warrant. w: ‘chour tus consen: and Mot} -inei-.

dent. to a lawful arrest” © Cee a eae ona SS Beek

2 Whether there ormwhs* ais far pat ice (off cers :

‘to, ae and search pemm pms oT naj - unde: > arrest and

without his consent, or 4 carmuny ant E seize material for /._

investigative dete emmin aca ai the rhievance ofthe ma-/ .v

terial seized. es Ss ae 4h: | :

3. Whether th prude omnes jor auch search may

; ye based at least np ‘part nt mecfhoner’s mvoking the | =:

privilege against self-inerrnmucsar- ant im refusifie. to : 2

'. consent to such searc# ami sezurs o> tos “nol veraph ees

examination upon ddvice of mune] es ene ees %

“

United States Gonsn-eneme: eourssenr: invaives : ae 7 : ‘

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i — —-. ——— _->~ . é or ; ®

ere AMEN wa ee * oe et eae,

Qo > ay a ~ _ = %

pre. Ps) 7 LTs7 - + ¥P> TT? he ———_ ~ >> a

“ eCurii + J @ é reser a ua rie = a nO _<-

tures. The right-of ste mene to. he Secure in thes: I i eet

persons, houses, ravers ant, fers. acainst unt

- sonable searches anc-serues Enal nox he aie. :

7 ° \ i. -

and: no_ Warr ts stinl’ ssue: hut upon prohdbie : : ;

cauee, SUDBOR SY Oy “act m affirmation. and par-

ticularly descending Ge jinx tw he searched. ane

the persons | or things o> ce ativen . : am

AMEX NONMENT |

WF her prosecuhorm 7 he Ps presentment or iR- “

dictment: dotible cengurr. -scK-in —rmimition: duc

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process: compensation jor property taken for pub-

/“use. No person shall be held-to answer for a cap-

‘ital, or otherwise infamous crime,-unless on-a pre-

-sentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of life

_ or limb; nor shall be compelled in any criminal case

_ to be a witness against himself, nor be deprived of

_ life; liberty, or property, without due process of law: . _

*

nor shall ‘private property be taken for public use,

i

without just compensation...

_» AMENDMENT VI

.. Rishts of accused. in eriminal prosecutions, In:. _

‘all criminal prosecutions,: the accused shall enjoy |

. the-right to a’speedy ‘and public trial, by an im-

partial jury of the’ State and district wherein the

~ ‘crime shall have been committed, which district }

‘shall have been previously ascertained by law, and \.

against him; to have compulsory process for obtain-

. ance of Counsel for his defence. ,

' . oaeas AMENDMENT: XIV.

—* Section 1. Citizenship; privileges and immuni:

~ tres: due process; equal. protection. All persons born

or natural:zed in the United States, and subject to

ing witnesses in his favor, and to have the Assist--

' to -be informed of the nature and cause of the ,

accusation; to be confronted with the witnesses |

the jurisdiction thereof, are citizens-of the United

States and of the State wherein they: reside. No

“State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

\

' .person of life, liberty, or property, without due -

“process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

; :

STATEMENT OF THE CASE

Petitioner was convicted of murdering his wife and

sentenoed to 15 years imprisonment. Cir. Ct. Record..

A significant’ piece of evidence.against him was material

obtained by police officers by scraping under his nails .

(Tr 311). which material was later identified as skin

cells, blood cells and white cotton fibre - 335) and

admitted in eyidence against him: (Tr 344). |

This scraping was done without a warrant while peti-

tioner was not under arrest but was being detained, and ~

was done over ‘his objection upon legal advice by his

attorney who was present. : :

A pre-trial motion to suspress this evidence for viola- ;

tion of the Fourth Amendment to:the United States

Constitution was filed’in the trial court ‘(Appendix p.

20) and evidence.taken thereon (Tr 28-74), at the con-

clusion of which the trial court denied the motion to

suppress (Appendix p. 21). At the time of offering the

material in evidence upon the trial, the pre-trial motion

was preserved (Appendix p. 22): . .

The lawfulness of this search and seizure under the

United States Constitution was presented to and de- -

termined on the merits by the Court of Appeals of the

State of Oregon adversely to petitioner (Appendix p.

11) and the Supreme Court of Oregon denied the. peti-

.tion requesting its discretionary review of the deter-—

mination of the Court of Appeals (Appellate Record,

-Appendix p. 26).

~~ -

9]

FACTS ON MOTION TO SUPPRESS .

On August. 25th, 1967, city of' Portland d hecthies

| Prescott Hutchens and William Prunk were ‘a signed

to investigate the murder of Doris Murphy. They ar-

rived at the Murphy home shortly after 8:00 A.M. (Tr

98). Visually they could see throat lacerations and

abrasions and it appeared that she was strangled (Tr

29, 35 and 54). Deceased was lying on her back in bed

and the bed was perfectly made up. There were no signs

of robbery (Tr 35). The detectives talked to the son of

the deceased and defendant and learned that defendant

- had been expected home the night’ before on the 24th

of August (Tr 45, 47): Also by calling Camp Sherman

and talking there to a Mark Jones they learned that

defendant had left there the night before to go to Port-

land (Tr 46).

-. Inaddi didn they hoticed that Pat Murphy, dhe son, —

. bit his fingernails and it was impossible to scrape ‘them

. 41).” <— ; ie.

. ‘Detective Prunk left a death message at Camp Sher-

man by talking to Mark Jones. At 4:00 P.M. on the 25th

defendant called the Portland police station and talked

to Prunk (Tr 30). Without asking any questions about |

his wife (Tr 49) the defendant immediately began to

tell Prank where he had been the night before. He also

agreed to come to Portland immediatély (Tr 38).

Defendant told Prunk on the telephone that he had |

left Camp Sherman about 8:00 P.M. the night of the

24th in his old pickup to bring a washing machine .to

Portland to be repaired and on the way stopped at the

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Keg and Platter in Salem for @ couple of drinks. When

he got home the door was locked so he slept in the pick-

up parked in the driveway (Tr 37). Early in the morn-

ing he woke up and tried to push his truck out of the

driveway because it made a lot of noise but it got caught

‘ in the step or curb. He drove up to the Sombrero where

- \he again slept until daylight. He took the washing ma-

e

_ chine to be repaired. |

Defendant’ returned :to Portland ahd went to the

police station (‘Tr 39).-When Hutchens saw defendant |

in the police station: he noticed a dark spot on defend-

ant’s right thumb. This prompted him ‘to think of

finger nail scrapings although he would have anyway

(Tr 40,53, 62). Hutchens thought there was a possibil-

ity of this being blood (Tr 54). Defendant had arrived

at the police station two hours later, After. discussing his

case with his attorneys they were going to leave. During

this time deputy district attorney Brad: Shiley and the

two. détectives discussed taking finger nail scrapings

(Tr 40). Thereafter defendant refused to discuss ‘this

‘matter; refused to give fingernail scrapings or to take’

a polygraph test (Tr 66) and exhibited a disinterest

in the case (Tr 54). Hutchens concluded that probably

‘defendant knew more than he was telling (Tr 54). They

thought this and his fefusal to d'scuss the case without

his attorney was not ‘the action of an innocent man (Tr

— ; eg

From Pat Murphy, the son, the detectives learned

that the deceased and defendant had quarreled pre-

viously and defendant about a year before had left

bruises. (Tr 34), and did not get along well (Tr 35)..

= |

Detective Hutchens took the finger nail scrapings

(Tr 33) about 10: 00 P.M. (Tr 39) or 9:00 P.M. (Tr 53).

He would have taken scrapings from any suspect (Tr

63). a Si, (

The court denied the motion (Tr 74).

| REASONS FOR GRANTING THE WRIT

The Oregon Court of Appeals has here determined a

federal question of substance not theretofore deter-—

| mined by this Court and has decided it in a way not in

accord with applicable decisions of __ Court.

ARGUMENT

1. Except in exigent dincaiinabiies this Court’ s de-

cisions have required warrants for searches’ and seizures

absent consent or the limited search allowed incident to

an artest. A house may not be searched without a war- .

rant. Vale v. Louisiana, 399 US 30, 33 (1970) or hot pur- -

suit, Maryland Penitentiary v. Hayden, 387 US 294

(1967). The mobility of an. automobile has afforded a

basis for a search upon probable cause without a war-

rant, Chambers v. Maroney, 399 US 42 (1970). Does the °

mobility of a person likewise allow a warrantless search? 3

No case in this Court stands for so broad a proposition,

cf. US v. Di Re, 332 US 581 (1948), Schmerber v. Cali-

jornia, 384 US 757, 770 (1966).. Where the evidence

upon the person. has actually been-in the process of de-

struction, such search has been permitted, Schmerber v.

California, 384 US 757, 770-771 (1966). But in every case _

is a person liable to search without warrant, because in

every case there is a possibility that the evidence may

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| be destroyed? CE McDonald Uz US, 335 US 451, 454-5

(1943).

2: Is a search and seizure permissible without war-

rant and without%an arrest because .there is probable

cause to arrest? Again, no case in this Court sanctions :

this. Cer tainly this:is not a search incident to an arrest

for the arrest was'long subsequent: Peters v. New York,

392 US 40, 67 (1967). There appears to be. insufficient

evidence here to justify any arrest of petitioner. for

murder, but does not this case instead stand for the —

proposition that all suspects may be detained for search

and seizure, and is this not invalid? Davis v. Mississippi,

394 US 721 (1969) ; Morales. v. New York, 396 US.102 -

- (1969). Is not the search and seizure in this case neces-

sarily exploratory for not only did no one have any as-

surance whether it would turn_up-the-desired evidence,

they had “no assurance that what they seized was the

desired evidence until it was analyzed thereafter.

3. Flere the officers’ basis for their concluding they

should search petitioner and seize possible evidence was

that petitioner exercised his privileges under the Fourth,

Fifth ‘and Sixth Amendments. Surely this cannot be

‘ised to deprive him of other rights under the Fourth

Amendment. Simmons v. US, 390 US 377 (1968) , is |

. fin v. California, 380 US 609 (1965). |

9

- CONCLUSION

Kor these reasons, a writ of certiorari should issue to:

review the judgment and opinion of the Court of Ap-

peals of the State of Oregon and the order of the Su-

preme Court of Oregon.

Respectfully submitted,

- Howarp R.-LONERGAN,

_ 812 Executive Building,

_ Portland, Oregon 97204,

(503) 223-9206, | |

Counsel for Petitioner.

: 11° ea mae

APPENDIX

OPINION COURT OF APPEALS OF THE _

STATE OF OREGON |;

Filed March 12,1970-

| Dept. 2 —

State of Oregon, ; oo

_ Respondent,

ee: : : I

Daniel Paul Murphy, | arn” eee

ee es nes Appellant. — .

- Appeal from Circuit Court, Multnomah County.

RicHarb J. Burke, Judge. me ce : |

Argued and submitted January 21, 1970.. Pee en

" Oscar D. Howlett, Portland, argued the cause and filed

the briefs for appellant. a

Jacob B. Tanzer, Solicitor General, Salem, ar ed the

_ cause for respondent. With him on the Brief was

. George Van Hoomissen, District Attorney, nd

Before Schwab, Chief Judge, and Langtry and Foley,

Judges. ~ ees |

SCHWAB, C. J.

Affirmed. — *

_ SCHWAB, C. J.

The defendant was tried to.a jury on the charge of

. murder of his wife. He was convicted of murder in the

second degree. On appeal he contends that fingernail:

scrapings taken from him against his will were wrong- —

fully received im evidence. The state produced testimony

that analysis of the scrapings revealed skin, blood cells,

12

and white cotton fiber. This evidence was obviously in- _

. troduced .as tending to prové that the defendant had

_ acquired these substances under his fingernails by stran-

gling his wife while she was in bed.

‘At; the time the poli

’ they had not formally arrested the defendant. He was

not charged with murder or any other crime yptil about

a month later. The defendant’s position is that the police

did not haye a right to search him by taking scrapings

from his fingernails without his consent and ‘without a ~

warrant, except as incident toa lawful arrest,

_ We borrow in large part from the statement of facts |

in, defendant’s brief. | ee ae

-On August 25, 1967, City of Portland detectives,

Hutchins and Prunk, were assigned to investigate the’

murder of Doris Murphy. They arrived at the Murphy a

_ home shortly after 8 a.m. They. could see throat, lacera-

tions and abrasions and it appeared to the detectives

that Mrs. Murphy had been strangled. The deceased was —

lying on her back in bed and the-bed was perfectly made

up. There were no signs of forced eniry, struggle, or rob-

_ bery. The detectives talked to the son of the deceased

~ @ and defendant..The son told them that the defendant

‘had been away and had been*expected home the night.

*

of August 24. By making a telephone call to Camp Sher- °

man,: Oregon, and talking to a Mr. J ones, the detectives _

learned that the defendant had left Camp Sherman on

the night of the 24th to go to Portland. They also °

Yearned from the defendant’s son that the deceased and

the defendant did not get alohg well and in the past “had

fights.” While talking to the son the detectives noticed -

that he had “no fingernails.” Through Mr. Jones Detec-

tive Prunk left a death message. at Camp Sherman for

defendant.. ; Oc Sees

wag

At 4d p.ra. on the same day, August 25, defendant |

- called the Portland police station and talked to Detec-

tive Prunk. Without asking any questions about his wife —

defendant immediately began to tell Prunk where he

Portland immediately. Defendant: told Prunk on the

telephone that he had left Camp Sherman about 8 p.m.

the night of the 24th in his old pickup to bring a washing

machine to Portland to be repaired and on the way had

_ stopped in Salem for a couple of _drinks. When he got: |

home the door was locked so he slept in the pickup

parked in the driveway. Karly in the morning he woke -

-up.and tried to push the truck out of the driveway be-

- cause it made a lot of noise, but it got caught in the step

' or curb. He then drove off to another place where he

~ slept until daylight and ther took the washing machine

tobe repaired. — : . :

' The defendant did return to Portland and went to

\ the Portland police station about 7:45 p.m. When De- |

. \tective Hutchins saw the defendant in the police station

he noticed a dark spot on defendant’s ri ght thumb. This

rrompted him to think about fingernail ‘scrapings al-

though, as he put it, he probably would have anyway in

view of the fact that he had observed lacerations on the

throat of the deceased. While the defendant and the de-

' tectives were discussing the case, two lawyer's Tepresent-

ing the-defendant arrived. The discussion continued —

after the lawyers arrived and during-this time a deputy ——— a

d'strict attorney who was present and the two detec- i?

t:ves discussed taking fingernail scrapings. The defen-

dant refused to give the fingernail scrapings or to take a

polygraph test and exhibited a disinterest ‘in the case.

ee Nevertheless, the police detained the ‘defendant long:

enough to take the scrapings in question and then re-

leased him. >

.

~ By holding efemi imme enongh to teko Rneor

“nail ses anlge on cmt. ite Hetactivas did nor arrest ‘the

_ defendant i in the strict SESE the word. An arrest in its

strict sense is s the taste 2 2 2 WeTSon mto custadv for the:

commission of an oferse as the mrsiude to proseculing

7 See

him for it. Terry v. Otte. ARD-US 1.88.5 Cr 1868 OL

Ed 24-889 (1968). Ic Saluws ‘The? the state cannot rr

on the rile that “The TUE Te ‘pyaen nan te the demand |

for a search warrant & mf cnutse. the seatth made as

an incident of a lawanl ams” State «+ Chinn. 231 OE.

’ 259, 373 P2d 392-1. 9&2). I ES cule. however. & not. de

terminative-of the case i> mahs tor. whije’th¢d incident-

_to-arrest exception is “mente!” it does not follow that:

it is exclusive.

wx * &

M terms cf <he cuantiuim of evidence re

_ quired, this [protecie SHI far 2 seareh’] is Substan-

tially the equivaiens of “he prohabis cause needed for

an afrest warrant ami of the reasonabie grounds

needed for an ares- withau: warramt.” LaFave.

Search and Serture- The Caurse o7 — Lau eas

Has Not.* * * Ruz Seen 253 ID L Forum 259-60.

1968. | 7

In-the-usual siteaner. gs in ths cease ‘the same ev-

dence that constitutes Seampht cause to arrest .consti-

‘tutes probable cause => se-st rns person arrested fo

evidence of the crume fir vtuch he & seize . Perhaps

this is the reason that it mut: sass courts have upheld

warrantless searches woe gums moar tc arrest by chat-

acterizing the seaghes, as neue: tr arrest.” |

“Search before arresc-s mov umeommon in ctirten:

practice. In some smscames: the-search pregede: the

formal -announ emer ‘T, S°TESt Necause it is. neces-

sary for the officer totem guciziv for his own protec-

tion. In many. instucess, however. no formal. an-

s ean

7 - ; “¥

eer en Gee : i eee ek!

ee >:

nguncement is made because the officer knows that.

the person will not actually be taken to the station -

unless the search proves to be fruitful. That is, in

~_ those Gases where the defendant might be arrested

because of reasonable grounds to-believe-he_pres~ ~~ i

sently possesses contraband, the common sense se- | _

quence—as far as the police are concerned—is search

followed by arrest. only if contraband is found; as

opposed to arrest, search, and then release if nothing

is found. ~ '

“Tn these and wae cases, the better view is that:

the search is not unlawful merely because it. pre-

. cedes the arrest. Such is the California eae,

- which has been explained as follows:

_ “*Thus, if the officer is entitled to make an ar-

rest on the basis of information availahle to him be- |

‘fore he searches, and as an incident to that arrest is

entitled to make a reasonable search of the’ person

_ arrested and the place where he is arrested, there is:

, nothing unreasonable in his conduct if he makes the

search before instéad of after the arrest. In fact, if.

the pearson searched is innocent and the search con-

vinees the officer that his reasonable belief to the.

contrary is erroneous, it is to the advantage of the

_pearson searched ‘not to be arrested. On the other |

hand, if he is not innocent or the search doés not

establish his innocence, the security of. his person,

house, papers, or effects suffers no more from a search .

preceding: his arrest ‘than it would from’ the same

. search following it.’ 4°

ck * Ok * % ' »

"284 People N, Simon, 45 Cal. 2d 645, 648, .290

P.2d 531, 533 ( 1955) .” LaFave, Search and. Seizure

®- °° £

» Supra, at 303.

16

The majority of the Oregon Supreme Court appar-

ently is of the same mind as the California court in

People v. Simon, 45 Cal 2d 645, 290 P2d 531 (1955). In

State v. Elk, 249 Or 614, 439 P2d 1011 (1968)., those who

concurred in the prevailing opinion characterized as in- |

cident to arrest a car search which occurred 20 to 25 °

minutes prior to arrest and 200 to 250 yards away. The

search was upheld on the basis of a more realistic, work-

able and theoretically sound rationale in‘two concurring

opinions which represented the views of four concurring .

justices. While the two concurring opinions were not in

complete agreement on all of the issues of that case they

shated ‘the same view on the issue we are here consider-

ing. The view upon which the four concurring ‘justices

agreed is set forth in that portion of Mr. Justice O’Con-

nell’s opinion which states: ‘ : | ;

“The majority opinion upholds the search in the

present case on the ground that it was incident to

the arrest. This is erroneous. A search and seizure

cannot be an ‘incident’ of an arrest which took place

at a later time. It is not made any the more so by

assertions that ‘the. arrest and search were part of

one uninterrupted transaction’ or that the search

is ‘not remote in time or place from the site of the

arrest.’ | . ae

_ “However, the search and seizure in-the present

case can be upheld upon another ground. The infor-

mation Officér Rothermel had _ received, : together

with his observations before lifting the trunk lid, was .

sufficient to give him probable cause to believe that

the stolen gun was in the trunk. Upon the basis. of

this information, there would have been no difficulty

in obtaining a search warrant. But to obtain a war-

rant it would have been necessary for Rothermel to

leave the car and if he left it he could not know when

17

_ the person who drove the car there would return and

drive it away together with the evidence in it. Roth-

* ermel had been informed that those who had driven -

up in the car were in the immediate vicinity. Because

of the risk of losing the evidence if a warrant were

' sought, it was impracticable to obtain a warrant. Un-

der these circumstances a search of the trunk was

reasonable.” State v. Elk, supra, at 624-25.

“If the police had probable cause to search the defen-

dant and probable cause to believe that it was necessary

that they search him without taking the time to first ob-

tain a search warrant, their right to search him immedi-

ately was hot deféated by the'r failure to exercise their

right to arrest him. “There is no constitutional right to

be arrested,” Hoffa v. United States, 385 US 293, 87 S Ct.

408, 17 L Ed 2d 374, reh den 386 US 940 (1966). To hold

otherwise would be to require the police to arrest so as

to search incident to that arrest. The court should not ,

_ require greater invasion of privacy where lesser invasion

would satisfy the public purpose. Situations: exist where

arrest would be unwise despite the circumstances of

_ probable cause. Cf. Hoffa v. United States, supra. While

the existence of probable cause authorizes state seizure

by way of (1)- arrest, and (2) search to prevent destruc-

tion of evidence (see State v. Chinn, supra, at 267),

there appears no reason to require the police to do both

or neither. If the public safety is satisfied by the Jesserin- ~

vasion of defendant’s privacy, by search alone, the law

should not encourage, or indeed require, the police to

arrest prematurely. in order to justify a search already

Justified by prior probable. cause. 3

We hold that the right of the police’to search without

a warrant 1s a right not solely dependent upon a prior

or contemporaneous arrest. The relevant issue is not

18

whether the defend pint was arrested, but whether the

warrantless search.was based on probable cause. The

questions basic to this determination are:

(1) Did the police have probable cause to believe

that a search of the defendant’s person would result

in the finding of evidence of homicide?

(2) Did‘the police have probable cause to believe

that if the search were not made immediately with-

out taking the time to seek and obtain a warrant the

evidence might well be lost?

“&

Sta State v. Keith, Or App, — Or Adv Sh —, — Or —, —

—, handed down by this court March 5, 1970.

The facts in the case at hand justified the warrantless

search. At the time the police took the fingernail scrap-

ings they had probable cause to believe that the uefen-

dant was guilty of strangling his wife. They did not have

evidence beyond a reasonable doubt, but: they did have

what they needed, i.e., reasonable ground for suspicion

supported by circumstances sufficiently strong in them-

selves to warrant a cautious man in the belief. State v.

‘Keith, supra.

One of the detectives who had had previous experience _

‘in this type of homicide knew that throat lacerations

" were frequently produced by fingernails and that evi-

dence in the form of blood, skin and fibers could some-

times be found under the fingernails of assailants in such

cases. At the time tie detectives took the acragangs they

knew:

The bedroom in which the wife was found dead

* showed no signs of disturbance, which fact tended to

_ indicate a killer known to the victim but rather than

to a burglar or other stranger.

19

The decedent’s son, the only other person in the.

house that night, did not have fingernails which

could have made the lacerations observed oni the vic-

tim’s throat. ve

The defendant and his deceased wife hadh.had a

stormy marriage and did not get along well:

_ The defendant had, in fact, been at his home on

the night of the murder. He left and drove back to

- central Oregon claiming that he did-not enter the

house or see his wife. He volunteered a great deal of

information without being asked, yet expressed no’

concern or curiosity about his wife’s fate. - ;

Unless the defendant were bound, manacled, guarded

or by some other means placed in a position where he

could not clip his fingernails, scrape the nails of one

hand with the nails of another, put his fingers in his ©

mouth or go to the lavatory from the time the police

.asked him for permission.to take fingernail scrapings

until the time that they sought and obtained a warrant, ©

it was entirely likely that the evidence would have been

destroyed in the. interim. Proper application of the

Fourth Amendment does not require such extremes. The

search ci the defendant did not violate his constitutional

rights t8 freedom from unreasonable search and seizure.

_ Affirmed. -

. 20

PRETRIAL MOTION TO SUPPRESS IN CIRCUIT COURT

IN THE CIRCUIT COURT OF THE STATE OF

OREGON FOR THE COUNTY OF MULTNOMAH ~

| THESTATEOF OREGON, ) No.C-49322

| Ey, Plaintiff,) Morion to -

| We _ ) Suppress

DANIEL P. MURPHY, - ) AND ©

_» Defendant,) - EXcLupe

Comes now the defendant, DANIEL P. MURPHY,

by and through his attorney of record, Gordon M.

MacLaren, and moves the Court for an.Order suppress-.-

ing and excluding the evidence obtained as a result of

' the illegal search and seizure of defendant’s person for

the following reasons, one or more than one concurring,

to-wit: Jarl > ;, | i

1) That the officer effecting the search of the defen-

dant’s person failed to secure a search warrant author-

izing the search of the defendant’s person. .

2) At the time of the search of defendant’s person,

he was not under arrest for any crime, nor did he. give

his consent for any search.

3) That in fact the defendant, by and through his —

attorney, made a plain and unequivocal objection to the

said’search, but that the seaich was conducted over

these objections, by members of the Portland Police

Bureau. ai ; ite ete

4), That the search. of the defendant was conducted

through the mode and means of inserting a knife blade

underneath defendant’s fingernails and obtaining there-

from certain items of fingernail scrapings which said

items of fingernail scrapings were later turned over to. -

the Portland Police Bureau Crime Laboratory for

analysis. ec |

21

WHEREFORE, defendant prays that the said ev.-

dence be suppressed and held by the Court tobe inad-.

missible in.this cause-against this defendant.

_ MacLaren & McEacuern

By Gorpon’ MacLarEN

Of Attorneys for Defendant

- In argument for. the instant motion, attorney for de-.-

fendant will rely, in part, upon the following points of

authority. :

U. S. Constitution, Amendment IV:

. Oregon Constitution, Article ee

State v. Krogness, 238 Or 135.

ORDER OF CIRCUIT COURT ON MOTION TO SUPPRESS

- THE COURT: Before we proceed further with this

trial, as I indicated to you yesterday, I would take this

motion, defendant’s motion, under submission. And I 4

have studied it and tonsidered the argument and testi-

, mony presented by respective counsel on your motion,

Mr. MacLaren, to suppress, and feel that the motion

‘should not be allowed. — 3

- Now, I will agree with you that the scraping of the ©

defendant’s fingernails, as far as this Court is concerned,

for evidence, was a search within the meaning of. the

search and seizure law. Of course, that leaves the cru-.

cial question of whether or not the search was a-reason-

able and valid one. . aa le

You will recall that yesterday I indicated that I felt

quite strongly that probable cause existed, in this case,

for the search. And, add to that, since you finished argu- _

ing yesterday; I further feel that, and I think I indi-

cated, the exigencies of-the situation, or the circum-

a.

stances, including the purpose of the search, the manner

‘in which ‘it was made, the character of the evidence

seized, and the nature and importance ‘of the crime com-

. mitted, all add to the reasonableness of the search. |

And I further feel that State versus Ramon, cited to

the Court by the District Attorney ‘yesterday, 85. Ad-

vance Sheets 375, support my finding. And you will re-

call in that case the Court said that: . cae

“It is not answer to say that the police could have

obtained a search warrant for the relevant test is not

whether it is reasonable to procure a search warrant,

but whether the search was réasonable.”

| And, for these reasons, the Court is hereby denying

the motion. So we'll proceed with the trial. All right

(Tr pp 73, 74). ° - | :

.-— PRESERVATION IN CIRCUIT COURT ON TRIAL

(Whereupon STATE'S EXHIBIT NO. 26 was re-

ceived into evidence) (Tr 333).

* % a * *

“MR. MacLAREN: For the purposes of the—pro-

tecting the defendant’s record here, it is agreed between

counsel for the State, Mr. O’Dell, and myself, as counsel

for the defendant, in the presence of the Court, by. de-

- fendant’s failure to object to the introduction of State’s

Exhibit, 23, which — and 25 —

MR. O’DELL: 6; excuse me, excuse me. Twenty-’

. SIX. ;

MR. MacLAREN: Correction: 26 — which exhibits

contained the fingernail ‘scrapings obtained from de-

fendant, by not objecting, the defendant did not waive

his prior objection, which was in the form of the motion

23°

to suppress, which the Court has ruled on, and over-

ruled. Be Me ae |

__. THE COURT: That’s right; that’s right. By failing.

to object, you didn’t waive any of your rights. And let

the record "** Cie ae. 7 Deen

APPELLANTS OPENING BRIEF

_ QUESTIONS PRESENTED IN COURT OF APPEALS ©

| (1) Is a search of one’s person by law enforcement |

authorities made without consent, without search war-

_ rant and not incident to lawful arrest a violation of the

Fourteenth Amendment to the Constitution of the

United States and of Article I, $9, Oregon Constitution.

(2) . May law enforcement authorities effect a search.

of a suspect to murder for evidence connecting him to

_ the crime solely on a basis of “probable cause” without

arrest or search warrant or by his consent. -

(3) Under the circumstances present in the instant

case was the search of defendant for the purpose of ob-

taining finger nail scrapings a violation of his rights un-

der the Fourth Amendment to the Constitution of the

United States and of Section 9, Article I, Oregon Consti-

tution.

@

JUDGMENT OF AFFIRMANCE

_ BE IT REMEMBERED that in the: COURT OF

‘APPEALS of the State of Oregon, in the city of Salem,

on this THURSDAY, the 12th day of MARCH, 1970, |

_ the following proceedings were had: i oe

. STATEOFOREGON, __i=+»+

: Respandent ) Appeal from

V. | fa ) MULTNOMAH

ee oa te? ~ ) . County

DANIEL PAUL-MURPHY, ) No. C-49322_

A ppellant )

This cause on January 21, 1970, having been duly

argued and submitted upon and concerning all ques-

tions arising upon the record and then reserved for .

_ further consideration, and the court having fully con-.

. _ Sidered all said questions as well as- suggestions of coun-

sel in their argument and briefs finds.there is not error

as alleged. | Reet a,

> SF THEREFORE IS.CON SIDERED, ORDERED

and ADJUDGED that the judgment of the coirt below

rendered and entered in this cause be and the same here-

by is in all things affirmed. = 28 3 ° | -.

IT FURTHER IS ORDERED that respondent

have and recover of and from appellant its costs and dis-

- bursements in this court taxed at'$15.00.

_IT,FURTHER IS ORDERED that this cause: be |

remanded to the court below from which the appeal was

taken with directions to enter judgment in accordance

herewith, e - |

95

a_st

tl

ORDER DENYING REHEARING

BE IT REMEMBERED that in the COURT OF

APPEALS of the State of Oregon, in the city of Salem,

on this WEDNESDAY, the 22nd day of APRIL, 1970,

the following procéedings were had: a

-STATEOFOREGON, ___)

i. 5 ) ?

. Respondent ) - Appeal from

v. eo ) MULTNOMAH

) -Count

DANIEL PAULMURPHY, )

oe. | Abueltans °)

The court having duly considered appellant’s peti-

tion for rehearing in the above entitled case, and the

court being fully advised therein, |

IT HEREBY IS ORDERED that said petition be

and the same is hereby denied. - aria

4

BE IT REMEMBERED chet at 2 re ilar term oi

the. SU PREME COURT of the State ai Oregon begin :

and. held at. the COUITIWE on Ine city of Salem on- the - ,

- first Monday: the 2nd dss “of MARCH. 1970, WHERE.

UPON on this TL ‘ESDAY. the 2ath dav of JVNE.

1970, the same being the £2ni tudicial dav o% said term.

when the tollowing Deen were had: .

STATE OF OREGON”

Appeal! froni

CULT. NOMAH

County

af

DANIEL PAUL MURPHY *

The court. having duiv wumsageec anneliant's Pe.

tion for Review. ard the ano hens tully advised

therein: |

_ IT HEREBY IS ORDERED tha: said ‘petition be

and the s same hereby is demand .-

?

r F

- &

oS

a

am

‘-