Petition for Writ of Certiorari — Honeycutt v. Aetna Insurance Company (No. 74-1306)

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7” UibkakyY 74-1306

PREME CourT u 9 APR 1% 1975

AK, J8.,0b

IN THE

Supreme Court of the GAnited States

OCTOBER TERM, 1974

No. 74

HARRY M. HONEYCUTT,

Petitioner

vs.

AETNA INSURANCE COMPANY,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PHILIP J. McGUIRE

77 West Washington Street

Chicago, Illinois 60602

(312) CEntral 6-8857

Attorney for Petitioner.

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Sy RES ENS

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TABLE OF CONTENTS

PAGE

Opinion Below ........cscccccsccccscccccces ere 1

= SURMGIIOR ccc ecccccaccrnnvessseecscsescasesoce 2

Question Presented for Review ........+eeeeeeeeeeees 2

Statement of the Case ...ccccccccsscccvccecccscces 3

_Reasons Sor Gromting The Wek cicsccesvccncccccnvces 6

CRORE 5 vac cse tn evessussacpacccuasesecceeuees 9

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CASES AND AUTHORITIES

E.kins v. UniTep StaTEs, 364 U.S. 206, 80 S.Ct. 1437, 4L.

Be SOD CESMO) ccccccccnvcceccocunsesscsses 7

Terpstra v. NiacaRA Fire Ins. Co., 26 N.Y.2d 70, 256 N.E.

BE TRG CIBFE) cance cccssnnvisacsdsacivesencse 8

UniTEpD StTaTEs v. CALANDRA, 414 U.S. 338, 94 S.Ct. 613, 38

L.Ed. 2d S61 (1974) ....ececcee-seces aceesee sen 6

Weeks v. UniTED States, 232 U.S. 383, 34 S.Ct. 341, 58

Des Ge CEPOS) cvs ce ce rcsvaderiereinesseadesace 7

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1974

No. 74

HARRY M. HONEYCUTT,

Petitioner

vs.

AETNA INSURANCE COMPANY,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OPINION IN THE COURT BELOW

The opinion filed by the United States Court of Appeals

for the Seventh Circuit is not yet reported. A copy of the

opinion is reproduced in the appendix, post.

ae

JURISDICTION

The judgment of the United States Court of Appeals for

the Seventh Circuit was entered on January 10, 1975. _ io

Sef

The jurisdiction of this court is invoked pursuant to 28

U.S.C. Sec. 1254(1).

QUESTION PRESENTED FOR REVIEW

The question presented for review is whether, in a civil

case, the District Court should have excluded evidence ob-

tained in violation of petitioner’s. Fourth Amendment rights

through an illegal search and seizure of his property 7 state

police and fire oflicials.

PU RURA SONNE BE NSE A

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CONSTITUTIONAL PROVISION INVOLVED .

The Fourth Amendment to the Constitution of the United

States provides:

“The right of the people to be secure in’ their persons,

houses, papers, and effects, against unreasonable 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.”

STATEMENT OF THE CASE

In August, 1970, Harry Honeycutt lived alone in his home

on a nine-acre tract in Barrington Hills, Illinois. He had a

fire insurance policy on the home with respondent, Aetna In-

surance Company.

At the time, Honeycutt was a technical consultant to Weber

Plastics Company of Stevens Point, Wisconsin, and on August

18, 1970, he left his home about 7 a.m. and drove to Stevens

Point for a meeting with Weber officers.

He returned to his home about 7 p.m. and found that a

fire had started under the kitchen sink, but had been put out

by water that escaped when the heat loosened a flexible con-

nection to the dishwasher. The water also soaked the carpets

and there was hezvy smoke damage to the house. Honeycutt

reported the fire that night to the Barrington Hills police and

fire departments, and the next morning to his insurance agent.

Honeycutt moved into a motel while arrangements were made

for cleaning and repairs.

On Sunday, August 23, 1970, Honeycutt returned to the

house and used a tractor to mow the front yard, which was

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about 600 feet deep and 300 feet wide, and rolling so that

the house could not be seen from the far end. When he re-

turned the tractor to the garage, he noticed what appeared to

be hee* waves coming from the house and stepped inside, but

felt intense heat and noticed an orange haze hanging 18 to

24 inches down from the ceiling. He drove to a neighbor’s

home and called the fire department, and the next day noti-

fied his insurance company once again. He then prepared proof-

of-loss forms, and has demanded payment, but the company

refused to pay.

Honeycutt then filed suit in the District Court for the

Northern District of Illinois, and Aetna defended on grounds

that Honeycutt had committed arson by setting the fires. No

criminal charges were ever brought against Honeycutt. The

issues were ordered separated for trial, and the question of

liability was tried first.

Honeycutt ‘was the only witness on his own behalf.

Deiendant’s witnesses included Ralph Hummell, Barrington

Hills police chief, who, on direct examination, testified that

he had been to the house both on August 23, 1970, the date

of the second fire, and on August 24, 1970.

After several other witnesses had testified, the defendant

called Harry P. Schaefer, who testified that he is a deputy

Illinois state fire marshal, and that he first went to Honeycutt’s

home on August 26, 1970. Under direct examination he testi-

fied:

_ Q. Mr. Schaefer, when you first went there on August

26th, who. was present?

A. On August 26th, I met with Chief Hummell of the

_ police department and he and I went to the scene,

because I was not familiar with that location, and he

took me to the scene. He and I were the only two

people present there.

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Q. Did you get into the house on that day?

A. Yes sir. We had to take the front portion of the ply-

wood off the door in order to get in the front door.

While in the house Schaefer removed two samples of rug

padding from the living room and sealed them in cans for

transmittal to the Northern Illinois Crime Lab for analysis.

These were admitted as defendant’s exhibits Nos. 24-5 and

24-6. Before sealing them, he smelled the samples and noted

a strong odor resembling that of gasoline on them. Based in

part on his examination of the home on August 26, he had

an opinion that the fire was of incendiary origin.

A motion was made to strike Schaefer’s testimony on grounds

that his entry into the home had been made in violation of

Honeycutt’s Fourth Amendment rights and, outside the pres-

ence of the jury, the court questioned Schaefer, who testified

that he and Hummell had removed the plywood covering from

the door, that Honeycutt was not present, and that he had no

permission from Honeycutt to enter the home, but assumed

that Hummel] did.

Defendant then called Andrew Principe, executive director

of the Northern Illinois Crime Laboratory, who testified, over

objection, that he had conducted tests on the samples taken

by Schaefer during the break-in of August 26, 1970, and

that these tests indicated the presence of gasoline vapor.

Hummell was recalled and testified that he entered the home

on August 26, 1970, with Schaefer, but that Honeycutt was not

present.

Further argument was then had on the motion to exclude

Schaefer’s testimony and exhibits, and the motion was denied.

After the defendant rested, Honeycutt was called in rebuttal

and testified that he never gave Schaefer permission to take

down the plywood and enter the home, or to take samples from

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the rug. The first knowledge he had that the break-in had oc-

curred was when Schaefer testified about it.

After additional arguments on the question of exclusion

of the evidence obtained during the break-in, final arguments

were had and the jury instructed. The jury then returned a

verdict in favor of the defendant, which has been affirmed by

the Court of Appeals.

REASONS FOR GRANTING THE WRIT

This case raises a question never specifically considered by

the Supreme Court before — the admissibility in a civil action

tried in a United States District Court of evidence obtained hy

state officials in violation of the Fourth Amendment rights of

one of the parties.

The Court of Appeals clearly recognized that the evidence

sought to be excluded was obtained in an unconstitutional

manner, phrasing the issue before it:

“In brief, we can find no way to decide this case with-

out reaching Honeycutt’s ‘claim of a constitutional di-

mension.” This Court must decide whether the Fourth

and the Fourteenth Amendments require in civil cases

that the exclusionary rule be extended to situations where

private parties seek to introduce evidence obtained through

unauthorized searches made by state officials.” (A-8, post)

In holding that the evidence need not be excluded, the

Seventh Circuit relied almost exclusively on United States v.

Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974),

which, the Court stated, “so nearly decides the issue in this

case that we quote from it at length.”

In Calandra, this court held the exclusionary rule did not

preclude the use of unlawfully obtained evidence in ques-

tioning of a witness before a grand jury. Petitioner submits

2 RTA IRANI INTE! SUNOS MTN UT ha OA RTO SE ALO

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that Calandra is not controlling on the facts here. The Court in

Calandra specifically noted the difference between the investi-

gative function of the grand jury and the adjudicative function

of a trial (414 U.S. at 349):

“*. . - Because the grand jury does not finally adjudi-

cate guilt or innocence, it has traditionally been allowed

to pursue its investigative and accusatorial functions un-

impeded by the evidentiary- and procedural restrictions

applicable to a criminal trial.”

Unlike Calandra, the case here presents the question of use

of unconstitutionally obtained evidence in the trial function,

not at any preliminary investigative phase of litigation.

Petitioner submits that the use of such evidence in a Fed-

eral court, evén in a civil matter, should fall within the pro-

hibition as set out in Weeks v. United States, 232 U.S. 383, 34

S.Ct. 341, 58 L.Ed. 652 (1914):

“The effect of the Fourth Amendment is to put the

courts of the United States and Federal officials, in the

exercise of their power and authority, under limitations

and restraints as to the exercise of such power and

authority, and to forever secure the people, their per-

sons, houses, .papers and effects against all unreasonable

searches and seizures under the guise of law. This pro-

tection reaches all alike, whether accused of crime or not,

and the duty of giving to it force and effect is obligatory

upon all entrusted under our Federal system with the

enforcement of the laws.”

Weeks, however, did not require exclusion in Federal courts

of evidence unconstitutionally obtained by state, rather than

Federal, officers. The rule was extended to cover such situ-

ations in Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437,

4 L.Ed.2d 1669 (1960):

“. .. For surely no distinction can logically be drawn

between evidence obtained in violation of the Fourth

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Amendment and that obtained in violation of the Four-

teenth. The constitution is flouted equally in either case.

To the victim it matters not whether his constitutional

right has been invaded by a federal agent or by a state

officer. It would be a curiously ambivalent rule that would

require the courts of the United States to differentiate

between unconstitutionally seized evidence upon so ar-

bitrary a basis.”

Petitioner submits that the rule applied here is also “curious-

ly ambivalent,” in allowing use in Federal courts of evidence

admittedly obtained in violation of the Constitution merely

because a case is civil, rather than criminal, in nature. Es-

pecially is this so in the present case, where the defense raised

by the insurer was that of arson, a criminal offense, even

though no prosecution was ever brought by Illinois authorities

against petitioner on that or any other criminal charge stem-

ming from the fires in his home.

The extension of the exclusionary rule to civil cases has

already been made in some state courts. Thus, the New York

Court of Appeals held in Terpstra v. Niagara Fire Ins. Co.,

26 N.Y.2d 70, 256 N.E.2d 536 (1970):

“. . . The Fourth Amendment in pertinent part pro-

vides: “The right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures shall not be violated.’ Rights are

breached at the time the Government wrongfully invades

the citizen’s privacy in such manner. The victim of such

action in no way voluntarily or freely made evidence

available to the Government. The Fifth Amendment, on

the other hand, reads, so far as here material: ‘nor shall

be compelled in any criminal case to be a witness against

himself.’ (Emphasis supplied.) The Sixth Amendment

states, in pertinent part: ‘In all criminal prosecutions, the

accused shall enjoy the right * * * to have the Assistance

of Counsel for his defense.’ (Emphasis supplied.) Thus,

under the Fourth Amendment, the citizen has a right

to be secure in his belongings and this security ought

UG Mn SATIN A Se

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reasonably to extend to whatever use is to be made of this

illegally obtained evidence even if it falls into the hands

of private parties for private purposes.”

Surely, if some state courts are beginning to effectuate the

guarantees of the Fourth and Fourteenth Amendments in civil

matters, the Federal courts should do no less for their citizens.

CONCLUSION

It is respectfully submitted that for the reasons stated the

petition for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh Circuit should

be granted.

Respectfully submitted,

PHILIP J. McGUIRE

77 West Washington Street

Chicago, Illinois 60602

(312) CEntral 6-8857

Attorney for Petitioner.

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BEDE PE EY SE AI ATA TEI RENE ONE IA OLE AL a FATT SOE

APPENDIX

Iu the

Gnited States Court of Appeals

For the Seventh Circuit

No. 73-1897

Harry M. Honeycutt, :

Plaintiff Appellant, é

AETNA INSURANCE CoMPANY, t

Defendant-A ppellee.

Appeal from the United States District Court for the Northern é

District of Illinois. Eastern Division — No. 71 C 1014 H

. Frank J. McGarr, Judge.

ARGUED SEPTEMBER 24, 1974 — Decipep January 10, 1975

Before Swycert, Chief — Cummincs and RIvEs,* ;

Circuit Judges. ‘ :

Rives, Circuit Judge. Honeycutt brought this diversity ac-

tion against Aetna on a policy insuring Honeycutt against

loss or damage to his home by fire. On August 18, 1970,

and again on August 23, 1970, while the policy was in ef-

fect, Honeycutt’s home was damaged by fire. Honeycutt gave

Aetna timely notice and submitted proof of loss alleging

damage of $4,283.92 by the fire of August 18 and damage

of $65,835.39 by the fire of August 23.

Aetna refused to make any payment. In its answer to

Honeycutt’s complaint, Aetna alleged “that the Plaintiff failed

to use all reasonable means to save and preserve the prop-

erty at and after the loss.” (App. 21) Aetna’s answer also

* Circuit Judge Richard T. Rives of the Fifth Circuit is sitting by

designation.

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alleged that Honeycutt fraudulently misrepresented the amount

of the loss in the fire of August 23, 1970.

Pursuant to order of court the case was tried solely on

the question of liability. On trial, Aetna based its defense

on a contention that Honeycutt set or procured the setting of

the fires. Aetna’s defense was treated by the parties and de-

nominated by the court as a charge that Honeycutt com-

mitted arson.’

The jury returned its verdict in favor of Aetna: “We

the Jury, find for the defendant Aetna Insurance Company,

and find said company not liable on the insurance policy in

question.” ¢App. 6) Pursuant to that verdict, final judgment

was entered for Aetna. The court denied Honeycutt’s post-

trial motions for judgment n.o.v. or, in the alternative, for

a new trial. This appeal followed.

The issues presented for review are framed by Honeycutt’s

contentions that the district court committed reversible error

in the following ways: (1) In allowing the introduction of

evidence improperly obtained by the authorities, and/or by

(2) Aetna’s representatives, (3) in its instructions to the

jury, and (4) in denying Honeycutt’s motion for new trial

1 At the outset of the closing argument of plaintiff's counsel, the

court instructed the jury as follows:

“This case is being submitted to you on the issue of liability

only. By that I mean that we are not concerning ourselves in

this trial at this time with any question of damages.

“Mr. Honeycutt claims that his premises were covered by an

insurance policy, that there was a fire and that he is entitled to

be paid by the insurance company in a yet unascertained amount.

“The insurance company says that while there was in fact a

policy, they are not liable on the policy because they believe that

Mr. Honeycutt either caused the fire or brought about the fire

in some way violative of the terms of the policy.

“That is all we are deciding here, should the insurance com-

pany be liable on this policy or had they made out a valid

defense of arson, which indicates that they are not liable on

the policy; we are not concerning ourselves at all in this trial

with the question of damages.” (App. 278-279.)

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based on newly discovered evidence. Decision of these issues,

of course, necessitates careful consideration of the evidence.

The Facts

At the time of each fire, Honeycutt lived alone. His wife

had died on October 6, 1969, and his four sons were away

from home—three in the Navy and one in college. In the

Summer of 1968, Honeycutt first listed for sale with a

realtor the house and the nine acres of land on which it

was located. After ‘receiving no offer, he listed the property

with another realtor and a sale on undisclosed terms was

consumated in the Spring of 1971, more than six months

after the fires.

In August, 1970,.when the fires took place, it appears

that Honeycutt’s home place was his only substantial asset.

The property was encumbered with a first mortgage totaling

$17,965.17 to Cook County Savings & Loan Association of

which $7,000 had been borrowed on April 7, 1970, and a

second mortgage of about $20,000 to the First National Bank

& Trust Company of Barrington, Illinois. Honeycutt also had

an unsecured debt of 3300 to the Lake Shore National Bank.

His checking account balance was $142 and he had no per-

sonal savings account, although he was trustee of a savings

account for his sons. He owned no securities or any other

real estate. Income tax. returns reveal little income. Honey- :

cutt reported on his tax\returns a loss of $3,428.64 in 1968

(Dep. 35) and a loss of $3,716.62 in 1967 (Dep. 23), and &:

in 1969 he reported total income of $3,897.53 for himself f

and his wife. At the time.of the fire, Honeycutt was working Pg

for Weber Plastic Company, selling their products as well

as products which were designed by him and manufactured ;

on an individual basis by Weber Plastics. p

The first fire took place on Tuesday, August 18, 1970, }

and started under the kitchen sink. Intense heat from the

fire melted the solder holding the water pipe joints together.

Water rushed from the pipe and extinguished the fire, but

also soaked the carpets in the house. In addition, there was :

extensive smoke damage to the house. Honeycutt claimed :

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that he had left the house about 7:00 A.M. to make a busi-

ness trip to Stevens Point, Wisconsin.’ He reported the fire

to the Barrington Hills police about 7:00 P.M.; and they, in

turn, reported the fire to the fire department.

Honeycutt did not spend the night of August 18 in his

home, but checked into a local motel where he continued to

live until some time after the second fire. On August 19, the

day on which Honeycutt reported the August 18 fire to Aetna,

the Company sent two adjusters to examine the fire damage.

Later the same day one of them returned to make another

inspection. On both the 19th and 20th, Honeycutt and various

commercial concerns worked to clean up the damage. On the

weekend of August 22-23, he alone continued the clean-up

efforts.

The second fire took place on Sunday, August 23, 1970.

Honeycutt had spent the day working at his house. A tele-

phone repairman came to repair the telephone around 1:00

or 2:00 P.M. After the repairman left, Honeycutt hung some

laundry on an outside line and removed from the house some

wet corrugated boarding. He then mowed his 9-acre yard.

Honeycutt testified that, after finishing the mowing, he went

to the house, where he discovered the fire. He drove to a

neighbor’s house to ask the neighbor to call the police and

the fire department. The official time of the alarm at the fire

department was 7:35 P.M.

The fire department extinguished the fire but not before

it caused serious damage. Subsequent investigation revealed

that there had been separate fires in the living room, bed-

room, the TV room, the kitchen, the dining room, and the

furnace room. The local police chief made an iaspection of

the premises on the evening of the fire. The next day, Monday,

August 24, he and Fire Chief Mertens, Lt. Arens of the

2 Honeycutt claimed to have had lunch in Stevens Point, Wisconsin,

with Weber Plastic’s president, who first disputed Honeycutt’s story

and then later admitted that he might have had lunch with him on

the day in question. A stipulation to the effect that he was in error

in testifying that he could not have had lunch with Honeycutt was

entered by the parties at trial,

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local fire department and Deputy State Fire Marshal Valley

made inspections of the Honeycutt house. On the evening

of the same day, Honeycutt met with Police Chief Hummel

and Fire Marshal Valley in Hummel’s office. There, Honey-

cutt stated that he wanted to learn the origin of the fire and

would cooperate 100 per cent with the investigation.

On Wednesday, August 26, around 10:00 A.M., Police

Chief Hummel and Deputy State Fire Marshal Schaefer in-

spected the Honeycutt house and took samples of the burned

materials. They e:tered the house by removing a sheet of

plywood which was barring the door. Honeycutt did not

learn of this search until the trial. This is the first of the

searches claimed improper by Honeycutt.

RE ae

On Thursday, August 27, there was another inspection of

the house which was made by Lt. Mertens of the local fire

department. Deputy State Fire Marshals Schaefer and Valley,

a private investigator Sutherland, local Police Chief Hummel,

Aetna’s consulting engineer Alva Todd, Aetna’s counsel Leahy,

and a photographer for Aetna, and possibly other persons. At

the request of Hummel, Honeycutt let them all enter to inspect

the house. Honeycutt makes no claim in regard to the propriety

of that search. There was another search on Friday, August 28

or on Saturday, August 29 (the witness, Deputy State Fire Mar-

shal Schaefer, was unsure of the date), at which time Honey-

cutt, Leahy, Todd and Aetna Adjuster Putnam were present.

Honeycutt raises no claim as to the propriety of that search.

HF ONIN SURE PK LEER BIEL TE IRAE AN I?

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Honeycutt does claim that another search made on August

29 was improper. On that date, while Honeycutt was mow-

ing the yard, Leahy and an Aetna photographer made an

inspection of the house. Again the plywood sheet was re-

moved to gain entrance to the house. When Honeycutt re-

turned to the house, Leahy, who was standing in the front

entrance, told him that the photographer was inside. When

the photographer finished, he came out; and the two men

drove away.

There was much stronger evidence that the fires were in-

tentionally set than that Honeycutt was the guilty party. He

had no criminal record and was not charged with arson by

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the authorities. The evidence tending to connect Honeycutt

with the setting of the fires is circumstantial. The most dam-

aging evidence against him is the showing of possible mo-

tive on his part to set the fires and the absence of evidence

of motive on the part of any other person.

We turn now to the issues presented for review.

I.

Admission of Evidence Obtained

by State or City Authorities.

Honeycutt claims that the district court should have ex-

cluded the evidence obtained by the authorities in their

August 26 search of Honeycutt’s house and that the admis-

sion of that evidence was error of a constitutional dimension.

We should reach and decide such a claim only if necessary,

and we therefore examine first whether we may avoid reach-

ing the asserted claim.

The failure to exclude evidence obtained by this search

cannot be termed harmless. That evidence materially sup-

plemented evidence obtained when Honeycutt was present

and went strongly to prove that the fires were intentionally

set by some person. We do not believe that admission of the

evidence obtained by the search was harmless beyond a

reasonable doubt.’

Nor can we imply consent from Honeycutt’s cooperation

in showing the house on the day before the August 26

search, or his stated desire to cooperate 100 per cent with

the arson investigation. Those facts show no more than that

Honeycutt would probably have consented to the search if

he had been asked. The district court found that “There is

some evidence of consent to enter the home, but it is not too

compelling.” (App. 252.) We find all of the evidence to be

consistent with Honeycutt’s testimony that “I asked for their

help in determining what caused the fire, and I offered my

cooperation 100 per cent. Any time they wanted me to open

3 Chapman v. California, 386 U.S. 18, 24 (1967); Bumper v. North

Carolina, 391 U.S. 543, 550 (1968).

A-7

the house, take them in there, take them through or assist

them, I would do so.” (App. 271.) We cannot imply con-

sent to a search of which Honeycutt had no notice.

. No argument can be made that there were exigent circum-

stances, that the officers were in hot pursuit of a criminal,

or that it was necessary immediately to search the premises

‘to avoid the destruction, of evidence. A warrantless search

of Honeycutt’s home to find evidence of commission of arson

cannot ‘be justified as an administrative search under Frank

v. Maryland, 359 U.S, 360, 365, 367 (1959). More cer-

tainly such a search cannot be justified under Camara v.

Municipal Court, 387 U.S. 523, 534, et. seg. (1967).*

The learned district judge seems to have thought that the

evidencé was admissible under the “equities” or peculiar

circumstances of this case.'In a thoughtful ruling, he said:

“*** We have pending a motion to strike, testimony

and to exclude exihibits, which flowed from the entry

' of persons into the Honeycutt home without his consent.

“And I have considered this matter since it arose

this morning and had the, opportunity to look into it

somewhat over the noon hour.

“The problem is unusual in the context of this case

in several aspects. There is some evidence of consent

to enter the home, but it is not too compeling.

“The basic problem is whether the right, under the

Fourth Amendment, asserted here is limited to criminal

cases, and the use of evidence obtained by the invasion

of the home in criminal cases.

“That question is unique, in that there seems to be

a dirth [sic] of authority on this subject, I was unable

to find much. There isn’t much help in the reported

decisions.

“In the context of this case, however, I think the

equities are such—and the atmosphere of the insur-

4 See also, See v. City of Seattle, 387 U.S. 541 (1967), and Air

Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. ‘861,

864 (1974).

AS

ance investigation, the conditions of the policy and the

attitude of Mr. Honeycutt—all point to the fact that in

this case, at least, I should: not strike the testimony and

the exhibits.

“So that that motion will be dled ” (App. 252-253. )

' We assume that “the conditions of the policy” to which

the judge’s ruling referred included the following provisions:

“*#* The insured, as often as may be reasonably

required, shall exhibit to any person designated by this

company all the remains of any property herein des-

cribed, and submit to examination under oath by any per-

son named by this company, and subscribe the same ***.”

That provision clearly does not authorize a warrantless

search of the insuzed’s home. Nor can we find such a search

justified by any of the equities or peculiar circumstances

of this case. So to hold would be contrary to the “one

governing principle” referred to in Camara, supra, 387 U.S.

at 528, 529:

“Nevertheless, one governing principle, justified by his-

tory and by current experience, has consistently been

followed: except in certain carefully defined classes of

cases, a search of private ‘property without proper con-

sent is ‘unreasonable’ unless it has been authorized by

a valid search warrant.”

In brief, we can find no way to decide this ‘case without

reaching Honeycutt’s “claim of a constjtutional dimension.”

This Court must decide whether the Fourth and the Four-

teenth Amendments require in civil cases that the exclusion-

vary rule be extended to situations where private parties seek

to introduce evidence obtained through unauthorized searches

made by state officials.

At the outset we recognize the distinction between’ consti-

tutional rights and the implementation of those rights. The

simple language: of the Fourth Amendment itself would prob-

ably seem clear enough to a person ‘not familiar with some

of the literally thousands of pages of complicated judicial

commentary _— that language has spawned:

i

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A-9

“The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

poi'ed byy Qh wm dhewnatian, wa yrvticdany tosh

ing the place to be searched, and the persons or things

to be seized.”

Fortunately for this Court, it is now settled that the ex-

clusionary rule, at least insofar as it relates to searches and

seizures,’ is not itself a constitutional right, but, perhaps of

equal importance, it is the sole judicial technique for im-

plementing the vital Fourth Amendment guaranty against

unreasonable searches and seizures. The very recent case

of United States v. Calandra, 414 U.S. 338 (1974), so nearly

decides the issue in this case that we quote from it at length.

Mr. Justice Powell, speaking for the Court, said:

“In the instant case, the Court of Appeals held that

the exclusionary rule of the Fourth Amendment limits

the grand jury’s power to compel a witness to answer

questions based on evidence obtained from a prior un-

lawful search and seizure. The exclusionary rule was

adopted to effectuate the Fourth Amendment right of

all citizens ‘to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures

. . . Under this rule, evidence obtained in violation

of the Fourth Amendment cannot be used in a criminal

proceeding against the victim of the illegal search and

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

5 Our discussion of the exclusionary rule is limited to its nexus

with the Fourth Amendment and does not extend to its application

in cases which involve only the Fifth or Sixth Amendment. Professor

Oaks has aptly commented that: “The United States Supreme Court

currently enforces an exclusionary rule in state and federal criminal

proceedings as to four major types of violations: searches and seizures

that violate the fourth amendment, confessions obtained in violation

of the fifth and sixth amendments, identification testimony obtained

in violation of these amendments, and evidence obtained by methods

so shocking that its use would violate the due process clause.” Studying

the Exclusionary Rule in Search and Seizure, Dallin H. Oaks, 37 Univ.

of Chicago L. Rev. 665 (Summer 1970).

Se Oey a Se eee) ois eee ie

A-10

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

applies as well to the fruits of the illegally seized evi-

dence. Wong Sun v. United States, 371 U.S. 471 (1963) ;

a Lumber Co. v. United States, 251 U.S. 385

1920).

ee

[T]he ruptured privacy of the victims’ homes and

effects cannot be restored. Reparation comes too fate.’

Linkletter v. Walker, 381 U.S. 618, 637 (1965).

Instead, the rule’s prime purpose is to deter future

unlawful police conduct and thereby effectuate the guar-

antee of the Fourth Amendment against unreasonable

search and seizures:

“*The rule is calculated to prevent, not to repair.

Its purpose is to deter—to compel respect for the

constitutional guaranty in the only effectively avail-

able way—by removing the incentive to disregard it.’

Elkins v. United States, 364 U.S. 206, 217 (1960).

Accord, Mapp v. Ohio, supra, at 656; Tehan v. Shott,

382 U.S. 406, 416 (1966); Terry v. Ohio, 392 U.S. 1,

29 (1968). In sum, the rule is a judicially created

remedy designed to safeguard Fourth Amendment rights

generally through its deterrent effect, rather than a per-

sonal constitutional right of the party aggrieved.

“Despite its broad deterrent purpose, the exclusion-

ary rule has never been interpreted to proscribe the

use of illegally seized evidence in all proceedings or

against all persons. As with any remedial device, the

application of the rule has been restricted to those

areas where its remedial objectives are thought most

efficaciously served. The balancing process implicit in

this approach is expressed in the contours of the stand-

ing requirement. Thus, standing to invoke the exclu-

sionary rule has been confined to situations where the

Government seeks to use such evidence to incriminate

the victim of the unlawful search. Brown v. United

States, 411 U.S. 223 (1973); Alderman v. United States,

394 U.S. 165 (1969); Wong Sun v. United States, supra;

Jones v. United States, 362 U.S. 257 (1960). This stand-

A-11

ing rule is premised on a recognition that the need for

deterrence and hence the rationale for excluding the

evidence are strongest where the Government’s unlawful

conduct would result in imposition of a criminal sanc-

tion on the victim of the search.” (Footnotes omitted.)

414 U.S. 347-348.

Mr. Justice Brennan dissenting on behalf of himself, Mr.

Justice Douglas and Mr. Justice Marshall argued eloquently

that uppermost in the minds of the framers of the rule was

not its deterrent effect but

‘*** the twin goals of enabling the judiciary to avoid

the taint of partnership in official lawlessness and of

assuring the people—all potential victims of unlawful

government conduct—that the government would not prof-

it from its lawless behavior, thus minimizing the risk

of seriously undermining popular trust in government.”

414 U.S. 357.

The dissenting opinion quotes not only from Weeks v. United

States, 232 U.S. 383 (1914), the decision which fashioned

the exclusionary rule, but also from the notable dissent of

Mr. Justice Brandeis and Mr. Justice Holmes in Olmstead v.

United States, 277 U.S. 438 (1928), from Mr. Chief Justice

Warren’s opinion for the Court in Terry v. Ohio, 392 U.S. 1

(1968) (including “The rule also serves another vital func-

tion—the imperative of judicial integrity”), and from Mr.

Justice Holmes’ opinion for the Court in Silverthorne Lumber

Co. v. United States, 251 U.S. 385, 392 (including “The es-

sence of a provision forbidding the acquisition of evidence

in a certain way is that not merely evidence so acquired shall

not be used before the Court but that it shall not be used

at all”) (see 414/U.S. at 358-362).

The majority opinion responds in its footnote 8, 414 U.S.

352, repeating’the quotation from Mr. Justice Holmes’ opin-

ion in Silverthorne, supra. The majority footnote then dis-

tinguishes Silverthorne from Calandra and concludes: “In

these circumstances, Silverthorne is certainly not controlling.

To the extent that the Court’s broad dictum might be con-

strued to suggest a different result in the present case, we

/

/

A-12

note that it has been substantially undermined by later cases.

See Part III and IV of this opinion.” 414 U.S. 353.

Thus the majority opinion in Calandra bears out Professor

Oaks’ fuJl discussion of the trend of the Supreme Court’s

decisions beginning: “When the Supreme Court has had to

make decisions on the scope of the exclusionary rule, its

opinion has usually stressed and its reasoning seems to have

been dictated by the factual considerations of deterrence

rather than the normative arguments of judicial integrity.”

37 Univ. of Chicago L. Rev. 669, 670.

The majority opinion in Calandra seems to bear out the

sober views of Mr. Chief Justice Taft in Olmstead, supra,

277 U.S. 438, 468:

“A standard which would forbid the reception of

evidence if obtained by other than nice ethical conduct

by government officials would make society suffer and

give criminals greater immunity than has been known

heretofore. In the absence of controlling legislation by

Congress, those who realize the difficulties in bringing

offenders to justice may well deem it wise that the ex-

clusion of evidence should be confined to cases where

rights under the Constitution would be violated by ad-

mitting it.”

The majority opinion in Calandra is also supported by

Mr. Justice Black’s constitutional philosophy as expressed

in his concurring opinion in Plymouth Sedan v. Pennsylvania,

380 U.S. 693, 703 (1965):

“For these reasons, I cannot agree that because we our-

selves might believe the practice of obtaining evidence

in that manner ‘shocks the conscience’ or is ‘shabby’

or ‘arbitrary’, we are commanded or even authorized by

the Constitution to prevent its use as evidence. That

seems to me to be amending the Constitution, which is

the business of the people, not interpreting it, which is

the business of the courts.”

We have discussed Calandra at such length because, in

the absence of an authoritative precedent expressly decid-

Be RE a ALLE AIOE ICA dee BS

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A-13

ing whether or not the exclusionary rule applies to civil

actions, Calandra seems to us clearly to point the way. Hold-

ing that the exclusionary rule is inapplicable to grand jury

proceedings where, of course, government is a party seems to

establish a fortiori its inapplicability to civil actions be-

tween private parties, and especially so when, after the most

thorough consideration, every reason asserted for the applic-

ability of the rule to civil actions is held to be insufficient.

In Plymouth Sedan, supra, the Pennsylvania Supreme Court

had held that the exclusionary rule applies only to criminal

prosecutions and not to forfeitures, which it held to be civil

in nature. The Supreme Court reversed the judgment of the

State Court, but on the reasoning that, though the form of

the proceeding was civil, the forfeiture was clearly a penalty

for a criminal offense. Writing for the Court, Mr. Justice

Goldberg quoted from and relied on the opinion in Boyd v.

United States, 116 U.S. 616 (1886): “As this Court has

acknowledged, ‘[t]he leading case on the subject of search

and seizure is Boyd v. United States, 116 U.S. 616.’ Carroll

v. United States, 267 U.S. 132, 147. See Mapp v. Ohio, supra

[367 U.S. 643] at-646-647.” 380 U.S. 696. The rationale

of Boyd itself seems to foreclose the applicability of the ex-

clusionary rule to civil actions between private parties.

Other Supreme Court cases have tended strongly to indi-

cate that the exclusionary rule does not apply to ordinary

civil actions.© Decisions of federal courts of appeals have

tended in the same direction.‘

We hold that the Fourth and Fourteenth Amendments do not

require in civil cases that the exclusionary rule be extended

to situations where private parties seek to introduce evidence

obtained through unauthorized searches made by state officials.

® See, e.g., Alderman v. United States, 394 U.S. 165, 174, 175 (1909):

United States v. Blue, 384 U.S. 251. 255 (1966); Walder v. United

States, 347 U.S. 62, 65 (1954).

' oce, e.g, LKB v. South Dade Daily Press, 415 F.2d 360, 364 (9

Cir. 1969); United States v. Schipani, 435 F.2d 26, 28 (2 Cir. 1970);

United States v. McSurely, 473 F.2d 1178, 1197-1201 (D.C. Cir. 1972).

For other cases, both federal and state, we refer to a comprehensive

annotation on “Admissibility in Civil Case of Evidence Obtained by

Unlawful Search and Seizure,” 5 A.L.R. 3d 670, et seq.

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II.

Admission of Evidence Obtained

by Aetna’s Representatives.

It has long been settled that the Fourth Amendment pro-

tection against unlawful searches and seizures applies only

to governmental action.* We have found no other rule, con-

stitutional, statutory or judicial, which would compel the

rejection of logically relevant evidence obtained by a private

person through an unauthorized search and seizure. We hold

that the district court did not abuse its discretion in refusing

to discipline or punish Daniel Leahy and his client, Aetna.

A number of considerations may well have led Leahy to the

honest but incorrect belief that his intrusion was authorized—

e.g., Honeycutt’s duty under the policy of insurance, his pro-

fessed wish to cooperate fully with the investigation, and his

attitude and conduct throughout the investigation of the fires.

Indeed, following discovery of the intrusion, Honeycutt reg-

istered no indignation or objection. When Honeycutt dis-

covered that Leahy and the photographer had entered his

house without his permission, Leahy was outside and the

photographer was still inside taking pictures. Honeycutt did

not ask that the photographer come out but left him to his

own volition. Clearly, there was no abuse of discretion on

the part of the district court in admitting the evidence ob-

tained by Aetna’s representatives.

III.

Court’s Instructions to Jury

Honeycutt complains that the court erred in refusing to

give any of three proposed jury instructions (Charges 141,

8 Burdeau v. McDowell, 256 U.S. 465, 475 (1921); accord, United

States v. Calandra, 414 U.S. 338 (1974), Mr. Justice Brennan dis-

senting at 356: “The commands of the Fourth Amendment are, of

course, directed solely to public officials.” See also, Sackler v. Sackler,

15 NY2d 40, 255 NYS2d 83, 203 N.E.2d 481, 5 A.L.R. 3d 664.

A-15

142 and 143) on presumption of innocence.’

Charges 141 and 143 are defective because they place on

a defendant, who is trying to establish the arson defense, a

burden of proof that is heavier than the predominant weight

of the evidence test established in Illinois by Sundquist v.

Hartford Mutual Fire Ins. Co., 371 Ml. 360, 21 N.E. 2d 297

(1939). The judge did not err in failing to give the re-

quested Charge 142. That instruction was probably suggested

by Appleman on Insurance § 13881, citing First National

Bank v. Commercial Union Assur. Co., 33 Or. 43, 52 P.

1050 (1898). In that case the Oregon Supreme Court held

that it was not error to give the charge. The Oregon Supreme

Court in subsequent cases also held that it was not error to

give a similar charge.’® So far as our research reveals, no

Oregon court has been presented with the issue of whether

such a requested charge must be given, and no Illinois court

has ruled on the propriety of such a charge or any similar

charge.”

* Charge 141:

“The defense of arson is affirmative in character upon which the

insurer has the burden of proof. Any inference must be strong and

almost inevitable. The presumption of innocence continues until the

xntrary is established.”

Charge 143:

“The presumption very properly is that all men are honest. Where

arson is charged, it must affirmatively be proven by clear and con-

vincing testimony. It cannot be established upon mere suspicion.”

Charge 142:

“There is a natural presumption of innocence where the act of

arson is charged, and you have a right to consider the imprehability

that one will commit an act of criminal nature.” (App. 41.)

10 Wychoff v. Mutual of New York, 173 Or. 592. 147 P.2d 227

(1944): Ward v. Queen City Fire Ins. Co.. 69 Or. 347, 138 P.

1067 (1914).

‘1 If a requested instruction directs attention to a point upon which

the court should instruct the jury, technical defects in the request

will not excuse the court’s failure to properly instruct the jury on that

point. Celanese Corporation of America v. Vandalia Warehouse Cor-

poration, 424 F.2d 1176, 1181 (7 Cir. 1970); Wright & Miller, Federal

Practice & Procedure, Civil § 2552, notes 25 and 26.

A-16

The three cited Oregon decisions are unusual in holding

that rebuttable presumptions may be weighed against con-

trary evidence. Most jurisdictions have adopted the view de-

veloped in Thayer, Preliminary Observations on Evidence,

Boston (1898) Ch. VIII and Ch. IX, and Wigmore on Evidence

3d ed. § 2491, that presumptions take the place of facts and,

as a result, disappear when contrary evidence is presented.

However, this area of the law is so confused that presump-

tions are sometimes treated as evidence, even in states that

have adopted the Thayer-Wigmore rule. Illinois is typical.’

The district court gave to the jury a number of other

instructions requested by the plaintiff-appellant.”*

12° See Flynn v. Vancil, 41 Ill.2d 236, 242 N.E.2d 237 (1968);

Miller v. Pettengill, 392 Ill 117, 63 N.E.2d 735 (1945); Nelson v.

Stutz Chicago Factory Branch, 341 Ill. 387, 173 N.E. 394 (1930);

Lohr v. Barkman Cartage Co., 335 Ill. 335, 167 N.E. 35 (1929);

Osborne v. Osborne, 325 Ill. 229, 156 N.E. 306 (1927); Johnson v.

Johnson, 187 Ill. 86, 58 N.E. 237 (1900); Graves v. Colwell, 90 IIl.

612, ... N.E. ... (1878); Lamkin v. Frizol, 7 Ill. App. 3d 129, 287

N.E. 2d 1182 (1972); Botich v. Lorillard Company, 127 Ill. App. 2d

232, 262 N.E. 2d 38 (1970); McElroy v. Force, 75 Ill. App. 2d 441,

220 N.E. 2d 761 (1966); Hendrick v. Uptown Safe Deposit Co., 21

Ill. App. 2d 515, 159 N.E.2d 58 (19 ); Sheldon v. Brandstetter, 325

Ill. App. 595, 60 N.E.2d 576 (1945). The most complete discussion of

the problem of the evidentiary weight of rebuttable presumptions is

contained in an annotation at 5 A.L.R. 3d 1985. See also, McCormick

on Evidence 2d ed., Ch. 36 §$§ 342, et seq.

13 Including the following:

“In considering the evidence in this case you are not required to

set aside your own observation and experience in the affairs of life.

but you have a right to consider all the evidence in the light of your

own observation and experience.

**# @# # @# @& &

“I instruct you that the defendant is required to prove its case,

its contention of arson by the greater weight or preponderance of the

evidence. And if you believe from the evidence that it has not so

proven its case or the evidence is evenly balanced so that you are

unable to say on which side the greater weight of the evidence is, or

if the greater weight of the evidence is in favor of the plaintiff, Mr.

Honeycutt, then the verdict of the jury should be for the plaintiff.

“When I say that a party has the burden of proof on any proposi-

tion or that a party must prove his contention by a preponderance of

the evidence, or when I use the expression ‘if you find’ or ‘if you

~

A-17

In our opinion, those instructions properly and adequately

charged the jury on the point to which Honeycutt’s requested

instructions directed attention. In any event, when the evi-

dence and the given instructions are considered, it is clear,

under Rule 61, Fed.R.Civ.P., and 28 U.S.C. §2111, that the

refusal to give any of the three requested instructions or any

further instruction on the point does not warrant reversal of

the judgment.

IV.

Newly Discovered Evidence

Finally, Honeycutt asserts that the newly discovered restau-

rant check compels reversal or a new trial since it proves

that Honeycutt could not have set the first fire. There are

several answers to this contention. The check does not prove

that he could not have set the first fire, since it is so unclear

from the record when the first fire was set that it is possible

that Honeycutt could have set the fire before leaving for

Stevens Point, Wisconsin. The evidence is merely cumula-

tive. Honeycutt testified that he ate lunch in Stevens Point

and spent the day there. The only evidence that he was not

at Stevens Point was the tesimony of Mr. Watruba, President

13 Continued

decide,’ I mean that you must be persuaded considering all the evi-

dence in the case that the proposition on which either party has the

burden of proof is more probably true than not true.

**# &£ e# & & &

“You are being told, and have been told, that the. proof is upon

the defendant insurance company to establish its contention of arson

by the preponderance or greater weight of the evidence, that said

fire was set with Harry Honeycutt’s prior knowledge or consent or

that he procured the setting thereof. This alleged purposeful setting

of the fire and burning must be proven either by direct evidence or by

circumstantial evidence. The proof need not be by the direct evidence

of persons who saw the occurrence sought to be proved.

“The evidence offered and relied upon by the defendant to estab-

lish the claim that Harry Honeycutt procured the setting of the fire or

that it was set with his prior knowledge or consent is ofa kind and

character known in the law, and called in the law, circumstantial

evidence.” (App. 303, 304, 305.)

A-18

of Weber Plastics. The stipulation entered into by counsel

that Mr. Watruba had been mistaken in his testimony that

he could not have had lunch with Honeycutt on the day in

question practically destroyed the effect of Watruba’s con-

trary testimony. The newly discovered evidence, in all prob-

ability, would not have resulted in a different verdict. In

short, the district court did not abuse its discretion when it

denied Honeycutt’s motion for new trial.

The judgment is AFFIRMED.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

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