Petition for a Writ of Certiorari — Cupp v. Murphy

AUG 7 972

In the Supreme Court

of the United States

OCTOBER TERM, 1972

HOYT C. CUPP, Superintendent,

Oregon State Penitentiary,

Petitioner,

Vv.

DANIEL P. MURPHY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEE JOHNSON

Attorney General of Oregon

JOHN W. OSBURN

Solicitor General

THOMAS H. DENNEY

Assistant Attorney General

State Office Building

Salem, Oregon 97310

Phone (503) 378-4402

Counsel for Respondent

|

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eemmeell

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SUBJECT INDEX

Page

OIRO OO ics nes asp recnaseetitetescg tate slatece ee cone 1

FABIO 2a asics seins cassecsvesensnnsstsseicesnesevensesnsouconsonssende 2

Question Presented —.2.............0.0cecceeceecceeceecee cee eeeeeeeeees 2

Constitutional Provisions Involved ...............0.00000...... 2

Statement of the Case ........0......... ssaeeedhasviasceeneaeane ss 3

Reasons for Granting the Writ ......0..000.00000c. 6

TMI nc acs sca es en sin ens eens cass ye anc conesaorss 10

Appendix A: Opinion of United States Court

OE PI cae ssc sctiomrnatigcsivces een eeeeseceees 11

Appendix B: Order Denying Petition for Rehearing 14

Appendix C: Opinion of United States District

MI casa gta series ees, 15

Appendix D: Opinion of Oregon Court of Appeals 17

a

TABLE OF AUTHORITIES

Cases Cited

Adams v. Williams, — U.S. —, 40 U.S.L.W. me

4724 (No. 70-283, June 12, 1972) 0.0.0.0... 8

Brent v. White, 398 F.2d 503 (5th Cir. 1968),

cert. denied 393 U.S. 1123 (1969) 0.00... 8

Camara v. Municipal Court, 387 U.S. 523 (1967) ...... 9

Carroll v. United States, 267 U.S. 132 (1925) ......... 7

Chambers v. Maroney, 399 U.S. 42 (1970) 0.000000... 7,9

Hoffa v. United States, 385 U.S. 293 (1966) ............ 8

McCray v. Illinois, 386 U.S. 300 (1967) ........00000000.... )

Schmerber v. California, 384 U.S. 757 (1966) ............ 7

State v. Murphy, 2 Or. App. 251, 465 P.2d 900,

cert. denied 400 U.S. 944 (1970) 0.00.00... 1,3

Terry v. Ohio, 392 U.S. 1 (1968) 00... g

United States v. D’Amico, 408 F.2d 331

j (2d Cir. 1969) ....... eres ee tesa dee ee ee pee 8

United States v. Richardson, 388 F.2d 842

: (6th Cir. 1968) ...... peer cteenn iste 8

5 a

;

:

q

ii

SIERO BT Oe SIL ONL EGIL GEE LIT LEE TE aaa i ath

In the SUPREME COURT

of the UNITED STATES

OCTOBER TERM, 1972

HOYT C. CUPP, Superintendent,

Oregon State Penitentiary,

Petitioner,

V.

DANIEL P. MURPHY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner, Hoyt C. Cupp, respectfully prays that

a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Ninth Circuit entered in this proceeding on May 30,

1972.

OPINIONS BELOW

The opinion of the United States Court of Appeals,

not yet reported, is reprinted as Appendix A hereto.

The opinion of the United States District Court for the

District of Oregon, not reported, is reprinted as Ap-:

pendix C hereto. The opinion of the Court of Appeals of

the State of Oregon affirming respondent’s conviction

of second degree murder is reported at 2 Or. App. 251,

a,

2

465 P.2d 900, cert. denied 400 U.S. 944 (1970), and is

reprinted as Appendix D hereto.

JURISDICTION _

The judgment of the United States Court of Appeals

for the Ninth Circuit was entered on May 30, 1972. A

timely petition for rehearing en banc was denied on

July 6, 1972 (see Appendix B), and this petition for

certiorari was filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

Does the Fourth Amendment prohibit police officérs

from momentarily detaining a murder suspect who is

not in custody and scraping his fingernails for evidence,

without obtaining a search warrant or formally arresting

the suspect, when the police in fact have probable cause

to arrest or search the suspect, and when the delay re-

quired to obtain a warrant would frustrate the search

by allowing the suspect to clean his fingernails?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV ~

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

4 persons, houses, papers, and effects, against unrea-

, sonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons

or things-to be seized.”

United States Constitution, Amendment XIV, Section 1

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens’

a

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.”

3

STATEMENT OF THE CASE

A state-court jury convicted Daniel P. Murphy,

respondent herein, of the second degree murder of his

wife. His conviction W&s affirmed by the Oregon Court

of Appeals. State v. Murphy, 2 Or. App. 251, 465 P.2d

900 (1970) (Appendix D). This Court denied his peti-

tion for certiorari. 400 U.S. 944 (1970).

Murphy then commenced the present,federal habeas

corpus action in the United States District Court for the

District of Oregon. The district court, per Solomon, J.,

denied the petition (Appendix C). On appeal, the Ninth

Circuit, in a per curiam opinion by Jertberg, Ely, and

Hufstedler, JJ., reversed and remanded (Appendix A).

Murphy’s present custodian, the petitioner herein, seeks

review of the Ninth Circuit’s decision.

Only one issue has been raised and preserved

throughout these proceedings. In Murphy’s state court

trial, as part of its showing that Murphy strangled

his wife while she was in bed, the prosecution introduced

evidence that certain scrapings taken from under

Murphy’s fingernails consisted in part of skin cells, blood

cells, and white cotton fiber. Murphy contends, and

petitioner herein denies, that the fingernail scrapings

in question were unconstitutionally seized from him.

4

The facts concerning the seizure of the evidence in

question are generally undisputed. What follows is the

{ statement of those facts contained in the decision of the

Oregon Court of Appeals, which statement is the most

complete summary of the facts made by any of the

courts below.

“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 home shortly after 8 a.m. They could see

throat lacerations 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 entry, struggle, or robbery. 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 Sherman, Oregon,

and talking to a Mr. Jones, the detectives learned

that the defendant had left Camp Sherman on the

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

from the defendant’s son that the deceased and the

defendant did not-get along well and in the past “had ®

fights.” While talking to the son the detectives

noticed that he had “no fingernails.” Through Mr.

Jones Detective Prunk left a death message at Camp

Sherman for defendant.

“At 4 p.m. on the same day, August 25, defendant

called the Portland police station and talked to De-

tective Prunk. Without asking any questions about-

his wife defendant immediately began to tell Prunk

where he had been the night before. He also agreed

to come to Portland immediately. Defendant told

Prunk on the telephone that he had left Camp Sher-

man 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

‘

5

locked so he slept in the pickup parked in the drive-

way. Early in the morning he woke up and tried to

push the truck out of the driveway because 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 then took the washing machine to

be repaired.

“The defendant did return to Portland and went

to the Portland police station about 7:45 p.m. When

Detective Hutchins saw the defendant in the police

station he noticed a dark spot on defendant’s right

thumb. This prompted him to think about fingernail

scrapings although, 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 detectives were discussing the

case, two lawyers representing the defendant arrived.

The discussion continued after the lawyers arrived

and during this time a deputy district attorney who

was present and the two detectives discussed taking

fingernail scrapings. The defendant refused to give

the fingernail scrapings or to take polygraph test and

exhibited a disinterest in the case. Nevertheless, the

police detained the defendant long enough to take

the scrapings in question and then released him.”

After reviewing these facts, both the Oregon Court

of Appeals and the federal district court held, in essence,

that:

(1) At the time they obtained the fingernail

scrapings in question, the police had probable cause

to search Murphy’s person, or to arrest him, or both.

(2) Since the police had probable cause to arrest

him, Murphy could not complain of the fact that.

after the police had discussed the taking of finger-

nail scrapings with a deputy district attorney.

Murphy himself, and defense cousel, Murphy was

merely detained while the scrapings were taken and

then released; and

a

6

(3) The police were justified in immediately

taking the fingernail scrapings from Murphy, since

any effort to obtain a warrant for that purpose would

have required the police, not only to detain him

longer than they did, but also to restrainvhim, guard

him or otherwise place him in a position where he

could not destroy the evidence in question by clipping

his nails, putting his hands in his mouth, going to the

lavatory, or cleaning his hands in some other way.

The Ninth Circuit, however, disagreed, saying that

“* * * there were no such exigent circumstances

existing at the time of the search which would require

that it immediately be conducted without the pro-

curement of a warrant, assuming that such probable

cause existed as might have justified the issuance of

a warrant.”

REASONS FOR GRANTING THE WRIT

A. The Court of Appeals has decided an important

question of Fourth Amendment law in a way in conflict

with the final decision of the courts of the State of Ore-

gon on precisely the same question.

See Appendices A and D, below.

B. The Court of Appeals has decided an important

question of Fourth Amendment law in a way in conflict

with the applicable decisions of this Court.

As noted above, both the Oregon Court of Appeals

and the federal district court held that the police had

probable cause either to get a warrant to search

Murphy’s person or to arrest him at the time they ob-

tained the evidence challenged in these proceedings.

The Ninth Circuit’s opinion in this case also assumes

that such probable cause existed, but nevertheless holds

po

—_ 7

that there were no exigent circumstances justifying the

warrantless search and seizure which took place. This

holding is clearly at variance with the decisions of this

_ Court which recognize that the Fourth Amendment does

not prohibit immediate action by the police, when the

delay involved in obtaining a warrant is likely to result

in the loss of evidence.

Thus, for example, probable cause will clearly sup-

port an immediate search of an automobile without a

warrant, and without a prior arrest of the occupants,

where the potential mobility of the automobile may

result in the loss of evidence if an immediate search is

not conducted. Chambers v. Maroney, 399 U.S. 42, 49

(1970); Carroll v. United States, 267 U.S. 132, 158-159

(1925). And immediate seizure of evidence from the

person may be justifiable where the evidence will dis-

sipate itself with the lapse of time. Schmerber v. Cali-

fornia, 384 U.S. 757, 770-771 (1966).

In this case, the police were clearly confronted with

the necessity for immediate action, because of the speed

and ease with which Murphy could have destroyed the

traces of incriminating evidence found under his finger-

nails, if left free to do so. Since the police had probable

cause to search for that evidence, and needed to act

immediately to avoid the risk of its destruction, their

scraping of Murphy’s fingernails to obtain that evidence

was not unreasonable and is not prohibited by the Fourth

Amendment.

The opinion of the Ninth Circuit correctly notes that

Murphy was not formally under arrest at the time the

+

challenged search was made, nor was he arrested for

some time thereafter. But, as this Court has noted in a

somewhat different context, there is no constitutional

right to be arrested. Hoffa v. United States, 385 US.

293, 310 (1966). And in this case, a formal arrest clearly

would not in itself have conferred upon Murphy any

constitutional protection from the search which was

conducted. See, e.g., United States v. D’Amico, 408 F.2d

331 (2d Cir. 1969) (seizure of hair samples from person

in custody); United States v. Richardson, 388 F.2d 842

(6th Cir. 1968) (examination of defendant’s hands under

ultraviolet light); Brent v. White, 398 F.2d 503 (Sth Cir.

1968), cert. denied 393 U.S. 1123 (1969) (genital scrap-

ings revealing rape victim’s blood).

8

Accordingly, there is no reason to hold, as the Ninth

Circuit suggests, that the Fourth Amendment requires

the police to commit a greater invasion of Murphy’s

privacy, by formally arresting and detaining him in-

definitely, when the lesser action of detaining him only

long enough to conduct the challenged search would

adequately serve the purpose of the criminal investiga-

tion. The search complained of here should not only

be tolerated under the Fourth Amendment, but encour-

aged as preferable to the more drastic alternative of a

full-scale arrest for murder.

Finally, this Court has indicated in various factual

contexts that Fourth Amendment standards of reason-

ableness are not inflexible, but permit governmental re-

sponses of varying magnitude in proportion to the

gravity of the factual situation involved. See, e.g. Adams

SRY TATE SE RT ALENT EEE RE TN TAS LOE ELON RYE SEN GE TINE BC

—

v. Williams, — U.S. —, 40 U.S.L.W. 4724 (No. 70-283,

June 12, 1972); Chambers v. Maroney, 399 U.S. 42

(1970); Terry v. Ohio, 392 U.S. 1 (1968); Camara v.

Municipal Court, 387 U.S. 523 (1967); McCray v. Illinois,

386 U.S. 300 (1967). In contrast, the opinion of the

Ninth Circuit in this case holds that an immediate search

of the person cannot be conducted to obviate the clearly

present risk herein that highly perishable evidence will

be destroyed, and suggests that a formal arrest is always

a prerequisite for even the limited search of the person

which took place here, on the basis of probable cause

therefor and with compelling reasons for immediate

action. Such rulings not only represent a mechanical

and inflexible reading of the Fourth Amendment at |

9

variance with the decisions of this Court, but also have

obvious implications beyond the immediate factual con-

text of this case. Accordingly, whether or not this case

should stand as a precedent, in the Ninth Circuit and

elsewhere, is a question eminently deserving the full

consideration of this Court.

10

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit.

Respectfully submitted,

LEE JOHNSON

Attorney General of Oregon

JOHN W. OSBURN

Solicitor General

THOMAS H. DENNEY

Assistant Attorney General

Counsel for Petitioner

August, 1972

SQLS LTO

ae EE eS ee

a

OPINION OF THE UNITED STATES

COURT OF APPEALS

11

APPENDIX A

DANIEL P. MURPHY, )

Petitioner-Appellant, )

VS. )

) No. 71-2203

HOYT C. CUPP, )

Respondent-Appellee. )

[May 30, 1972|

Appeal from the United States District Court for the

District of Oregon

Before: JERTBERG, ELY, and HUFSTEDLER, Circuit

Judges.

PER CURIAM:

Murphy is an Oregon state prisoner, convicted of

second degree murder. After having exhausted his state

remedies, he filed a petition for habeas corpus relief in

the District Court, alleging therein that he had been the

victim of a search proscribed by the federal constitution.

The District Court denied the petition, and this appeal

followed.

The victim of the homicide was Murphy’s wife, and

sometime after her body was discovered, Murphy and

his attorney were present in the station of the investi-

gating police officers. The police expressed a desire to

12 .

take scrapings from Murphy’s fingernails. Acting upon

the advice of his attorney, made in the presence of the

police, Murphy protested, claiming that such a search

would be illegal. The police insisted, and Murphy, de-

clining to provoke violence, submitted to the search

while, at the same time, expressly reserving his right

to continue, in the future, to urge that the search was

constitutionally impermissible. Thereafter, in the state

court trial that culminated in Murphy’s conviction, the

prosecution introduced the scrapings into evidence over

Murphy’s objection.

The appellee has conceded that Murphy was not

under arrest at the time the challenged search was made,

and our review of the record convinces us that there

were no such exigent circumstances existing at the time

of the search which would require that it immediately

be conducted without the procurement of a warrant,’

assuming that such probable cause existed as might have

justified the issuance of a warrant. See Vale v. Louisiana,

399 U.S. 30, 34-35, 26 L. Ed. 2d 409, 413-14, 90 S. Ct.

1969, 1971-72 (1970); Schmerber v. California, 384 U.S.

757, 770-71, 16 L. Ed. 2d 908, 919-20, 86 S. Ct. 1826, 1835-

36 (1966). Thus, the search was illegal. See Coolidge v.

New Hampshire, 403 U.S. 443, 454-55, 22 22 L. Ed. 2d

676, 681, 91 S. Ct. 2022, 2031-32 (1971). Cf. Davis v.

Mississippi, 394 U.S. 721, 727-28, 29 L. Ed. 2d 564, 575-

76, 89 S. Ct. 1394, 1397-98 (1969).

Upon remand, the District Court will hold Murphy’s

petition in obeyance for a reasonable time, not exceeding

SRR REIT TIRE IE ELIT YP EMT IE TS

—

13

sixty days, in order to afford the Oregon authorities the

opportunity to retry Murphy, should they choose to do

so, without the introduction of the impermissible evi-

dence.

Reversed and remanded.

.

‘ APPENDIX B

ORDER DENYING PETITION FOR REHEARING

[July 6, 1972]

Before: JERTBERG, ELY, and HUFSTEDLER, Circuit

Judges.

The panel as constituted in the above case has voted

to deny the petition for rehearing and to reject the sug-

gestion for a rehearing en banc.

The full court has been advised of the suggestion for

an en banc hearing, and no judge of the court has re-

quested a vote on the suggestion for rehearing en banc.

Fed. R. App. P. 35(b).

The petition for rehearing is denied, and the sug-

gestion for a rehearing en banc is rejected.

res

er ee

bis sink adMcnda aA Weide init oalt ir

bthy nls tael fous

15

APPENDIX C

OPINION OF THE UNITED STATES

DISTRICT COURT

DANIEL P. MURPHY,

)

Petitioner, ) Civil No. 70-883

VS. ) OPINION

HOYT C. CUPP, Superintendent, ) June 2, 1971

Respondent. _)

* * *

SOLOMON, Judge:

Daniel P. Murphy was found guilty in the state court

of second degree murder. The Oregon Court of Appeals

affirmed and the Oregon Supreme Court denied review.

He seeks habeas corpus relief here. 28 U.S.C. $8 2241

et seq.

On the day that Murphy’s wife was strangled, the

police asked Murphy to report to them for questioning.

He came, but objected when the investigating officers

requested scrapings from his fingernails. Scrapings were

taken and used against him at trial.

He contends that the admission of this evidence

violated his federally protected constitutional rights be-

cause the scrapings were taken without a warrant and

not incident to arrest.

The opinion in the Oregon Court of Appeals reports

the circumstances of Mrs. Murphy’s death and Murphy’s

arrest in detail. The Court approved the trial court’s

finding that the fingernail scrapings were admissible.

_

State of Oregon v. Murphy, 90 Or. Adv. Sh. 679, 465

P.2d 900 (Or. App. 1970).

The facts of this case are not disputed. Murphy

submitted his petition solely on the state court record.

I have reviewed the record. I find that he had a full and

fair hearing not only on his motion to suppress but also

in the other proceedings in the trial and appellate courts.

28 U.S.C. §§ 2254(d); Townsend v. Sain, 372 U.S. 293,

312-313 (1963).

I agree with the reasoning of the unanimous opinion

in the Oregon Court of Appeals. The investigating of-

ficers had probable cause either to get a search warrant

or arrest Murphy. Instead, they merely obtained finger-

nail scrapings, which Murphy could have destroyed

easily if given the opportunity.

The petition is denied.

16

-_

17

APPENDIX D

OPINION OF OREGON COURT OF APPEALS

{March 12, 1970|

Before Schwab, Chief Judge, and Langtry and Foley,

Judges.

Affirmed.

SCHWAB, C. J.

The defendant was tried to a jury on the charge of

murder of his wife. He was ¢onvicted of murder in the

second degree. On appeal he contends that fingernail

scrapings taken from him against his will were wrong-

fully received in evidence. The state produced testimony

that analysis of the scrapings revealed skin, blood cells,

and white cotton fiber. This evidence was obviously

introduced as tending to prove that the defendant had

acquired these substances under his fingernails by

strangling his wife while she was in bed.

At the time the police took the fingernail scraping®

they had not formally arrested the defendant. He was

not charged with murder or any other crime until about

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

did not have a right to search him by taking scrapings

from his fingernails without his consent and without a

warrant.except as incident to a lawful arrest.

We borrow in large part from the statement of facts

in defendant’s brief.

On August 25, 1967, City of Portland detectives,

Hutchins and Prunk, were assigned to investigate the

18

murder of Doris Murphy. They arrived at the Murphy

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 entry, struggle,

or robbery. 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 Sherman, Oregon, and talking to a Mr. Jones, the

detectives learned that the defendant had left Camp

Sherman on the night of the 24th to go to Portland. They

also learned from the defendant’s son that the deceased

and the defendant did not get along well and in the past

“had fights.” While talking to the son the detectives

noticed that he had “no fingernails.”” Through Mr. Jones

Detective Prunk left a death message at Camp Sherman

for defendant. .

At 4 p.m. on the same day, August 25, defendant

called the Portland police station and talked to Detective

Prunk. Without asking any questions about his wife

defendant immediately began to tell Prunk where he

had been the night before. He also agreed to come to

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

PLEA BELO TLE IE TC

bl eee vee: nes tia -

—

parked in the driveway. Early in the morning he woke

up and tried to push the truck out of the driveway

because 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 then took the washing

machine to be 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 right thumb. This

prompted 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

detectives were discussing the case, two lawyers repre-

senting the defendant arrived. The discussion continued

after the lawyers arrived and during this time a deputy

district attorney who was present and the two detectives

discussed taking fingernail scrapings. The defendant re-

fused to give the fingernail scrapings or to take a poly-

graph test and exhibited a disinterest in the case. Never-

theless, the police detained the defendant long enough

to take the scrapings in question and then released him.

By holding the defendant long enough to take

fingernail scrapings from him, the detectives did not

arrest the defendant in the strict sense of the word.

An arrest in its strict sense is the taking of a person

into custody for the commission of an offense as the

prelude to prosecuting him for it. Terry v. Ohio, 392

US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968). It follows

19

i a a i a

/

that the state cannot rely on the rule that “The notable

exception to the demand for a search warrant is, of

course, the search made as an incident of a lawful arrest.”

State v. Chinn, 231 Or 259, 373 P2d 392 (1962). This

rule, however, is not determinative of the case at hand

for, while the incident-to-arrest exception is “notable”

it does not follow that it is exclusive.

“* * * In terms of the quantum of evidence re-

quired, this [probable cause for a search] is sub-

stantially the equivalent of the probable cause needed

for an arrest warrant and of the reasonable grounds

needed for an arrest without warrant.” LaFave,

Search and Seizure: The Course of True Law * * *

Has not * * * Run Smooth. 255 Ill L Form 259-60

(1966).

In the usual situation, as in this case, the same

evidence that constitutes probable cause to arrest consti-

tutes probable cause to search the person arrested for

evidence of the crime for which he.is seized. Perhaps

this is the reason that in many cases courts have upheld

warrantless searches which came prior to arrest by

characterizing the searches as “incident to arrest.”

“Search before arrest is not uncommon in current

practice. In some instances, the search precedes the

formal announcement of arrest because it is necessary

for the officer to act quickly for his own protection.

In many instances, however, no formal announce-

ment 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

cases where the defendant might be arrested because

of reasonable grounds to believe he presently pos-

sesses contraband, the common sense sequence—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.

20

wn

21

“In these and similar cases, the better view is

that the search is not unlawful merely because it

precedes the arrest. Such is the California position,

which has been explained as follows:

“ “Thus, if the officer is entitled to make an arrest

on the basis of information available to him before

he searches, and as an incident to that arrest is en-

titled 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 instead of after the arrest. In fact, if

the person searched is innocent and the search con-

vinces the officer that his reasonable belief to the

contrary is erroneous, it is to the advantage of the

person searched not to be arrested. On the other

hand, if he is not innocent or the search does 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.’”

bh * * * *

“24 People v. Simon, 45 Cal. 2d 645, 648, 290 P.2d

531, 533 (1955).” LaFave, Search and Seizure * * -,

supra, at 303.

The majority of the Oregon Supreme Court appar-

ently is of the same mind as the California court in

People v. Simon, 45 Cal2d 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 incident 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,

workable and theoretically sound rationale in two con-

curring opinions which represented the views of four

concurring justices. While the two concurring opinions

22

were not in complete agreement on all of the issues of

that case they shared the same view on the issue we are

here considering. The view upon which the four con-

curring justices agreed is set forth in that portion of

Mr. Justice O’Connell’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.’

“However, the search and seizure in the present

case can be upheld upon another ground. The in-

formation Officer 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 the person who drove the car there would

return and drive it away together with the evidence

in it. Rothermel 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. Under 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 de-

fendant and probable cause to believe that it was neces-

sary that they search him without taking the time to

BESET EE RPL IS RE PRGA, LS

GEERT YT

wan

23

first obtain a search warrant, their right to search him

immediately was not defeated by their 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 destruction 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 lesser invasion 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.

We hold that the right of the police to search

without a warrant is a right not solely dependent upon

a prior or contemporaneous arrest. The relevant issue

is not whether the defendant 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?

24

(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?

State v. Keith, 2 Or App 133, 465 P2d 724, Sup Ct.

The facts in the case at hand justified the warrant-

less search. At the time, the police took the fingernail

scrapings they had probable cause to believe that the

defendant 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 themselves to warrant a cautious man in the belief.

State v. Keith, supra.

One of the detectives who had had previous ex-

perience in this type of homicide knew that throat lace-

rations were frequently produced by fingernails and

that evidence in the form of blood, skin and fibers could

sometimes be found under the fingernails of assailants in

such cases. At the time the detectives took these scrap-

ings 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 rather than

to a burglar or other stranger.

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

house that night, did not have fingernails which

could have made the lacerations observed on the

victim’s throat.

The defendant and his deceased wife had 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

LEER LOLOL DLE ELE

SLT IRF VS EI ;

25

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 of the defendant did not violate his constitu-

tional rights to freedom from unreasonable search and

seizure.

Affirmed.