Motion — Cupp v. Murphy

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IN THE

Supreme Court of the Aniter States |

Ocroser Term, 1972. ruyEnD

VW.

wit 2

FEB 20 1973

ye - No. 72-212

at

eo ICHAEL R

aS HOYT C. CUPP, ——— GDAK, JR., CLERK

OREGON STATE PENITENTIARY,

Petitioner

vs. :

DANIEL P. MURPHY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT.

MOTION FOR LEAVE TO FILE A BRIEF AS AMICI

CURIAE IN SUPPORT OF THE PETITIONER AND

BRIEF AS AMICI CURIAE OF AMERICANS FOR

EFFECTIVE LAW ENFORCEMENT, INC. AND THE

OREGON CHAPTER OF AMERICANS FOR EFFECTIVE

LAW ENFORCEMENT, INC.

Avan S. Ganz, Esgq.,

Secretary-Treasurer,

FRANK CaRRINGTON, Esgq.,

Executive Director,

Americans for Effective Law

Enforcement, Inc.,

Suite 960,

State National Bank Plaza,

Of Counsel. Evanston, Illinois 60201.

Ronatp E. SHErK, Esq.,

Executive Director,

Oregon Chapter

Americans for Effective

Law Enforcement, Inc.,

708 Main Street,

Oregon City, Oregon 97045,

Frep E. Inspau, Esq.,

Professor of Law,

Northwestern University

School of Law,

Chicago Avenue and

Lake Shore Drive,

Chicago, Illinois 60611.

——

TABLE OF CONTENTS.

— PAGE

Walls ol DI vn. bv vk coc es Ka ce ees i

Tahoe OE BG Ce ois 5 ciao 6654553 on ness 2

I. Reviewing Courts Should Apply Realistic, Com-

monsense Standards When Judging the Reason-

ableness of Police Search and Seizure Practices .. 7

II. The Possibility of the Destruction or Disposal of

Evidence Creates an Exigency Which Permits a

Warrantless Search, and Analogy to Other Deci-

sions of this Court Indicates that the Search in this

ee er er 14

Ce Se ds bib ck kok ee 17

TABLE oF AUTHORITIES.

Cases.

Adams v. Williams, 407 U. S. 143 (1972) ............ 12

Brinegar v. United States, 338 U. S. 160 (.....) 11, 12,17

Carroll v. United States, 267 U. S. 1382 (1925) ........ 16

Chambers v. Maroney, 399 U. S. 42 (1970) .......... 16

Davis v. Mississippi, 394 U. S. 721 (1969) .......... 15

Early v. People, 496 P. 2d 1021 (Colo. 1972) ........ 16

Murphy v. Cupp, 461 F. 2d 1006 (9th Cir. 1972) ....4,8,9

Murphy v. Cupp, U. S. D. C. Oregon, Civil No. 70-883,

Fels © TURE ois ica tis eke 4,11

Schmerber v. California, 384 U. S. 757 (1966) ....10,14

State v. Findlay, 145 N. W. 2d 650 (Iowa 1966) ...... 14

State v. Murphy, 465 P. 2d 900 (Or. App. 1970) ....4,8, 11

United States v. Harris, 403 U. S. 573 (1971) ...... 12

ea

Articles and Reports.

President’s Commission on Law Enforcement and Ad-

ministration of Justice (1967) .......+-+eeeeeeeees 9

Uniform Crime Reports, Federal Bureau of Investiga-

tion (1967) ....-.cccccsnccccvecserccessceserens 13

Uniform Crime Reports, Federal Bureau of Investiga-.

Cha’ CIBTE) on oc hee ec recs enebeserercenasans 13

RENDER

Serer See ae

=

| IN THE J

Supreme Court of the Gnited States

Octoser Term, 1972.

No. 72-212.

HOYT C. CUPP, SuperinTENDENT,

Orecon StaTE PENITENTIARY,

: Petitioner,

vs.

DANIEL P. MURPHY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT.

MOTION FOR LEAVE TO FILE A BRIEF AS AMICI

CURIAE IN SUPPORT OF THE PETITIONER.

.

Americans for Effective Law Enforcement, Inc. and the

Oregon Chapter of Americans for Effective Law Enforce-

ment, respectfully move this Court for leave to file a brief,

amici curiae, in support of the petitioner in the instant case.

This motion is made under Rule 42 of the Supreme Court

Rules. The petitioner has consented to our filing; the re-

spondent has refused to consent to our filing, consequently

we are moving the Court directly for leave to file. Letters

from counsel for the petitioner and respondent have been

lodged with the Clerk of this Court. The interest of the

amici curiae and our reasons for desiring to file are set

forth below.

INTEREST OF THE AMICI CURIAE AND OUR REASONS

FOR DESIRING TO FILE IN THE INSTANT CASE.

I. Interest of the Amici Curiae.

Americans for Effective Law Enforcement, Inc. (AELE),

is a national, not-for-profit, non-partisan, non-political or-

ganization incorporated under the laws of the State of

Illinois. AELE has received a tax exempt ruling from the

Internal Revenue Service as an educational corporation, ~

As stated in its by-laws, the purposes of AELE are:

1. To explore and consider the needs and requirements

for the effective enforcement of the criminal law.

2. To inform the public of these needs and require

ménts, to the end that the courts will administer

justice based upon a due concern for the general

welfare and security of law abiding citizens.

3. To assist the police, the prosecution, and the courts

in promoting a more effective and fairer adminis-

tration of the criminal laws.

AELE believes that one of the most effective means

of accomplishing these purposes is through the filing of

briefs, amicus curiae, in cases of crucial significance with

regard to the enforcement of the criminal law. In its

amcius advocacy AELE seeks to represent the concern of

the average citizen with the problems of crime and law-

lessness in this country and to represent the desire of the

vast majority of our citizens for effective law enforcement,

commensurate with the protection of the rights of indi-

viduals. We further seek to articulate to the courts the very

ee

3

real practical problems which confront law enforcement

officers in order that the courts may weigh such problems

in deciding cases which will have a vital impact on the

effectiveness of the law enforcement process as a whole.

As the 1967 Report of the President’s Commission on

Law Enforcement and Administration of Justice has

pointed out:

... Many ... decisions are made without the needs of

law enforcement, and the police policies that are de-

‘ signed to meet those needs, being effectively presented

\~% to the court. If judges are to balance accurately law

enforcement needs an? human rights, the former must

be articulated. They seldom are. Few legislatures and

police administrators have defined in detail how and

under what conditions certain police practices are to

be used. As a result, the courts often must rely on

intuition and common sense in judging what kinds of

police action are reasonable or necessary, even though

their decisions about the actions of one police officer

can restrict police activity in the entire Nation. (Page

94.)

The articulation called for by the President’s Commis-

sion is what AELE seeks to accomplish.

The Oregon Chapter of AELE is that state’s affiliate

with the national organization. The Oregon Chapter is not

a separate legal entity but rather an organization of con-

cerned citizens in Oregon, chartered by the national AELE,

representing the concern of the citizens of that state. As

the instant case arose in Oregon, the Oregon Chapter of

AELE has a particular interest in its outcome.

2. Reasons for Desiring to File a Brief Amici Curiae in the

Instant Case.

This case involves a search and seizure in the form of

the warrantless taking of respondent’s fingernail scrapings

Pe epee DAs Re te neaty 2

, Be

by Portland police officers who were investigating the

murder of respondent’s wife. The state of Oregon must,

of course, defend before this Court the legality of that

particular search and seizure. We believe that the issues

in the case transcend the question of the particular search

and seizure and that they involve matters which are of

major concern to the effectiveness of law enforcement in

the United States.

The instant case involves police action taken to prevent

the destruction or disposal of evidence which might be of

vital significance in a murder case. Three courts have

written opinions in this case. The Court of Appeals of

Oregon’ and the United States District Court for the Dis-

trict of Oregon* applied realistic common sense standards

of judgment to the police conduct herein and upheld the

search and seizure; the United States Court of Appeals

for the Ninth Circuit* applied legalistic and hypertechnical

standards of judgment to the police conduct and held the

search to be illegal. The issue of what standards are to

be applied by reviewing courts when they are judging police

search and seizure conduct is inherent in this case and it is

this issue to which we wish to address ourselves, for we

believe the issue to be of major importance to law enforce-

ment officers nationwide who are called upon to make search

and seizure decisions on a daily basis.

1. State v. Murphy, 465 P. 2d 900 (Or. App. 1970). Addition-

ally in the instant case certiorari was denied by the Supreme Court

of the United States, 400 U. 8. 944 (1971).

2. Memorandum Opinion denying respondent’s petition for

a writ of habeas corpus. Murphy v. Cupp, U. S. D. C. Oregon, Civil

No. 70-883, June 2, 1971.

3. Murphy v. Cupp, 461 F. 2d 1006 (9th Cir. 1972).

9)

We therefore, respectfully move the Court for leave to

file as amici curiae.

Respectfully submitted,

Avan S. Ganz, Esq.,

Secretary-Treasurer,

FRANK CARRINGTON, EsqQ.,

Executive Director,

Americans for Effective Law

Enforcement, Inc.,

Suite 960,

State National Bank Plaza,

Evanston, Illinois 60201.

Of Counsel.

Ronaup E. SHERK, Esg.,

Executive Director,

Oregon Chapter

Americans for Effective

Law Enforcement, Inc.,

708 Main Street,

Oregon City, Oregon 97045,

Frep E. Insavu, Esq.,

Professor of Law,

Northwestern University

School of Law,

Chicago Avenue and

Lake Shore Drive,

Chicago, Illinois 60611.

~]

IN THE

Supreme Court of the Gnited States

Ocroser TERM, 1972.

No. 72-212.

“HOYT C. CUPP, Superintendent,

Orecon State PENITENTIARY,

Petitioner,

vs.

DANIEL P. MURPHY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT. '

BRIEF AMICI CURIAE IN SUPPORT OF PETITIONER

OF AMERICANS FOR EFFECTIVE LAW ENFORCE-

MENT, INC. AND THE OREGON CHAPTER OF AMERI-

CANS FOR EFFECTIVE LAW ENFORCEMENT, INC.

INTEREST OF THE AMICI CURIAE.

Our interest has been set forth above at page 2 in our

motion to file this brief as amict curiae.

ARGUMENT.

I. Reviewing Courts Should Apply Realistic, Common-

sense Standards When Judging the Reasonableness of

Police Search and Seizure Practices.

* We will not reiterate at any length herein the arguments

made by the State of Oregon, although we support them

fully and associate ourselves with them. Our argument,

VES EE, RIN PATY Se ty omg eae

eee tt

8

rather, is concerned with the extremely important policy

question presented in this case: what standards should ap-

pellate courts use when they are called upon to judge

whether or not a given search and seizure by law enforce.

ment officers violated the Fourth Amendment’s proscrip.

tion against unreasonable searches and seizures.

The instant pase presents the issue in sharp focus. On

the one hand are the opinions of the Court of Appeals of

Oregon and of the United States District Court for the Dis.

trict of Oregon which upheld as reasonable the warrantless

taking of fingernail scraping from respondent, and which

applied realistic non-technical, and commonsense standards

in so finding. On the other hand is the opinion of the United

States Court of Appeals for the Ninth Circuit which held

the same search to be unreasonable and which, in a one

page, per curtam opinion applied technical and legalistic

standards of judgment to the same search.

An analysis of the factual situation facing the police in

this case and of the three opinions judging the police con-

duct in the context of that fact situation presents the issue

squarely. Detectives of the Portland Police Department

had probable cause to believe that respondent Murphy had

murdered his wife.‘ the victim had been strangled and de-

tectives investigating the killing had noticed throat lacera-

tions and abrasions on her throat. According to the opinion

of the Oregon Court of Appeals at least one of the detectives

who was experienced in homicide cases: ‘‘knew that throat

. lacerations were frequently produced by fingernajls and

that evidence in the form of blood skin and fibers could

sometimes be found under the fingernails of assailants in

such cases.’’ 465 P. 2d at 904.

4. The Oregon Court of Appeals held: ‘‘ At the time the police

took fingernail scrapings they had probable cause to believe that

the defendant was guilty of strangling his wife.’’ 465 P. 2d at 904.

This finding was not disturbed by the Ninth Cirenit. Murphy v.

Cupp, 461 F. 2d 1006 (9th Cir. 1972).

<a

Murphy, the suspect in the killing, arrived voluntarily

at the Portland Police station where he was joined by two

attorneys. One of the detectives noticed a dark spot' on

Murphy’s hand which prompted him to think of taking

fingernail scrapings from Murphy. Murphy at first refused

to permit the taking of the scrapings but the police took

the scrapings over the objection of Murphy and his coun-

sel. From the record no force or violence was used. Mur-

phy had not been formally arrested at the time the finger-

nail scrapings were taken and no warrant was secured prior

to their taking. The fingernail scrapings were introduced

into evidence against Murphy at his trial for the murder of

his wife and he was convicted of second degree murder.

Against this factual background we consider the diametri-

cally opposed approaches which the Oregon Court of Ap-

peals and the Ninth Circuit took in judging whether the

warrantless taking of the fingernail scrapings was rea-

sonable. The Ninth Circuit, in finding the search unreason-

able, summarily dismissed the contention that exigent cir-

cumstances existed which would excuse the failure of the

police to procure a search warrant. 461 F. 2d 1006. It is

this summary treatment of that issue which, we submit,

evidences a legalistic and hypertechnical standard by which

the Court measured the police conduct involved, a stand-

ard which completely disregards the realities of the situa-

tion confronting the police officers.

What were the realities of the situation? Once the de-

tectives had asked Murphy for permission to take finger-

nail scrapings they were committed, and Murphy was

alerted that potentially damaging evidence against him

was currently on his person. If, as the jury found, he was,

in fact* guilty of strangling his wife; he might well have

recalled the fact that he had scratched her, and he was then

in a position to fear that traces of her skin or blood were

embedded under his fingernails. We use, in common par-

a

lance, the idiom ‘‘at his fingertips’’ to indicate that some-

thing is readily accessible; evidence that could be vital in

a murder case was literally ‘‘at Murphy’s fingertips’—

readily accessible to be disposed of.

Now, Murphy undoubtedly knew this, and the detectives,

knew that he knew it. Their position, once they had asked

Murphy’s permission to take fingernail scrapings and

alerted him to the existence of this evidence, was such that

they either had to take the scrapings at once or risk the loss

of this evidence, for Murphy who was not under arrest at

the time, could have:

(1) bitten all of his nails off and swallowed them,

(2) cut his nail,

(3) seraped his nails with the nails of his other fingers,

(4) scraped his nails with some object, or

(5) washed his hands and scrubbed his nails, while a

search warrant was being secured.

In other words, the loss of the evidence was in fact

imminent, and when the situation confronting the police is

viewed realistically this threatened loss of possibly vital

evidence clearly created an exigency.°

The Ninth Circuit simply refused to consider the realities

of the situation and imposed, rather, a rigid, technical

standard of measurement by which to judge the actions of

the police. This attitude is in sharp contradistinction to

that of the Oregon Court of Appeals and that of the United

States District Court for the District of Oregon. The

Oregon Appeals Court summed up the situation facing the

officers succinctly and, we emphasize, realistically :

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 nails of another, put his fingers in his

5. See: Schmerber v. California, 384 U. S. 757 (1966).

PA

aan See. 2s

es = eo a myc pe EE ot ee

PEST TERRE EL IES EN OE ADIEU CALLA PLETE AAO 3

—

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 war-

rant, 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 con-

stitutional rights to freedom from unreasonable search

and seizure.* (emphasis added).

11

The U. 8. District Court for the District of Oregon in

denying respondents petition for a writ of habeas corpus,

applied the same commonsense standard:

I agree with the reasoning of the unanimous opinion

in the Oregon Court of Appeals. The investigating

officers had probable cause either to get a search war-

rant or arrest Murphy. Instead, they merely obtained

fingernail scrapings, which Murphy could have de-

stroyed easily if given the opportunity.’ (emphasis

added )

This Court, in granting certiorari in the instant case

has agreed to review the legality of the particular search

and seizure involved; however, we submit, that this Court

will, in addition, be reviewing the issue of what standards --

appellate courts should use in judging search and seizure

questions: commonsense and realistic or narrow and hyper-

technical. We urge the Court, by reversing the judgment

of the U. S. Court of Appeals for the Ninth Circuit, to

resolve the conflict inherent in the lower courts’ opinions

in favor of the non-technical, realistic standard.

This Court has long held that in deciding the issue of

probable cause to make an arrest or search commonsense

standards are to be applied. Thus in Brinegar v. United

States, the Court stated:

6. 465 P. 2d at 905.

7. Memorandum Opinion: Murphy v. Cupp, U. S. D. C. Ore.,

Civil No. 70-883, June 2, 197).

.

x

12 7

<<

‘In dealing with probable cause, however, as the very

name implies, we deal with probabilities. These are

not technical; they are the factual and practical cop.

siderations of everyday life on which reasonable and

175 (1948).®

In the instant case the issue is not so much one of prob.

able cause, as such, but rather one of the reasonableness of }

the conduct of police officers, with probable cause, in mak.

ing a warrantless search—the taking of fingernail scrapings

when the destruction or disposal of evidence by the de.

fendant was in all likelihood imminent. We submit, that

‘*. .. the factual and practical considerations of everyday

life on which reasonable and prudent men, not legal tech-

nicians act .. .’’ standard announced in Brinegar (supra)

for dealing with the question of probable cause should be

the standard set by this Court for lower courts to follow

when any aspect of police conduct is under consideration.

This argument in no way suggests that the police be given

carte blanche in their activities. Police conduct must com-

port with the limitations set upon it by the law and judicial

review of police conduct is an integral part of the law of

this country. Our argument addresses itself solely to the

manner in which such judicial review is to be brought to

bear upon police conduct. Policemen, especially in the area

of search and seizure, make the myriad decisions upon

which to base their actions and such decisions are made

in real life, not in ivory towers. We urge herein only

that real life standards be used to measure the reason-

abless of such decisions.

We believe that the most compelling policy reasons dic-

tate this. That crime is now one of the most pressing

domestic problems is, we believe, so obvious as not to

require extensive citations of authority. One set of statis-

ties, however, may well make our point. The murder in-

8. See also United States v. Harris, 403 U. S. 573 (1971);

Adams v. Williams, 407 U. S. 143 (1972). ‘

——

volved in this case took place in 1967; in that year there

were 12,090 homicides in the United States.® In the year

1971 there were 17,630 homicides in the United States, an

increase of 5,540 killings in five years.’ We do not argue

that any crise rise, no matter how precipitate, would justify

the suspension of our constitutional guarantees of civil

liberties. We do argue, however, that, in the face of the

increase in crime and violence in this country, when the

actions of our thinly-stretched peace forces come under

judicial scrutiny, that scrutiny be brought to bear in a

realistic and commonsense manner.

13

In summary, then, we urge this Court to hold in the

context of the instant case, that a realistic standard of

judgment be applied to police activities. This case is a

glassic example of such a need: the police were investigat-

ing a brutal murder and they had ample probable cause

to believe that Murphy was involved. Murphy had his rights

protected in every way and in fact had counsel present

when the search was made. The police were in no way

abusive and their action in taking the fingernail scrapings,

from everything that the record shows, was prompted by

a very commonsense belief that, had they not taken the

scrapings when they did, any evidence under Murphy’s

nails would soon disappear.

The facts of this case are typical of thousands of similar

situations which daily confront the police of this nation.

Reason and public policy urge that when such situations

come before reviewing courts a non-technical, commonsense

and realistic standard of judgment be applied. This Court

sets the tenor of lower court jurisprudence. In this case we

urge that a mandate issue to lower Courts to turn to real-

istic rather than legalistic methods of judgment of police

conduct.

9. FBI Uniform Crime Reports 1967.

10. FBI Uniform Crime Reports 1971.

14 a. |

II. The Possibility of the Destruction or Disposal of Evi.

dence Creates an Exigency Which Permits a Warrant.

less Search, and Analogy to Other Decisions of This

Court Indicates That the Search in This Case Should

Be Upheld.

There is ample legal authority that the possibility of the

destruction or disposal of evidence creates an exigency

which permits a warrantless search. Mr. Justice Brennan

writing for the majority in Schmerber v. California, 384

U. S. 757, 770 (1966), which upheld the legality of the

taking of a blood sample from a drunk driving suspect,

stated: ;

The officer in the present case, might reasonably have

believed that he was confronted with an emergency, in

which the delay necessary to obtain a warrant, under

the circumstances, threatened ‘the destruction of evi-

dence.’ Preston v. United States, 376 U. 8. 364, 367.

We submit that the above language is the key to the

instant case and that the taking of fingernail scrapings in

an attempt to determine whether a suspect had committed

murder is no less an emergency than the“ taking of blood

allowed in Schmerber to test for the percentage of alcohol

in the blood.

This Court, in Schmerber, concluded that an officer was

not required to obtain a search warrant before a test for

blood alcohol content was made and reasoned ‘‘that the

percentage of alcohol in the blood begins to diminish shortly

after drinking stops, as the body functions to eliminate

it from the system.’’ 384 U. S. at 771." The facts in the

case at bar present a situation wherein a suspect could,

voluntarily and in a matter of seconds, have destroyed the

probable evidence beneath his fingernails if given the op-

portunity; and, whereas it takes hours for alcohol to be

11. See also State v. Findlay, 145 N. W. 2d 650 (Iowa 1966).

f 15

eliminated from the blood, a process over which the indi-

vidual has no control, fingernail debris can be eliminated

not only speedily, but at will.

Furtber support for upholding the taking of fingernail

scrapings under the circumstances heretofore recited is

found by analogy to cases involving fingerprints and palm

prints. This Court’s decision in Davis v. Mississipm, 394

U. S. 721 (1968) examined issues similar to those at bar,

however the facts are distinguishable.

In Davis the police investigating a rape discovered finger-

prints on the victim’s window sills. Faced with no other

lead, the police rounded up some 24 Negro youths, without

warrants, and took them to police headquarters for finger-

printing after which they were released. Davis was among

those rounded up and his fingerprints matched those at the

rape scene. This Court overturned Davis’ rape conviction

since probable cause was lacking and ‘‘ Detentions for the

sole purpose of obtaining fingerprints are no less subject

to the constraints of the Fourth Amendment.’’ Davis, supra,

at 727. Davis v. Mississippi, is clearly distinguishable from

the instant case: (1) the instant case did not involve a

“dragnet’’ type of operation (2) the police had probable

_ eause to believe that Murphy had incriminating evidence

under his fingernails, and (3) the evidence in the instant

ease could easily be destroyed.’?

The majority opinion in Davis set forth factors which

differentiate fingerprint detentions from the usual arrest

and search situation:

Detention for fingerprinting may constitute a much

less serious intrusion upon personal security than other

types of police searches and detentions. Fingerprint-

ing involves none of the probing into an individual’s

12. In Davis, Mr. Justice Brennan observed that because finger-

prints cannot be destroyed, the detention need not come at an in-

convenient time and therefore the need for a warrant before deten-

tion seemed to lack an exception. 394 U.S. at 727.

bet

“view

eg ay”

4.

Tact aa a a ESCM MENSA TES

16 y

private life and thoughts that marks an interrogation or

search. Nor can fingerprint detention be employed

repeatedly to harass any individual, since the police

need only one set of each person’s prints. Further.

more, fingerprinting is an inherently more reliable and

effective crime-solving tool than eyewitness identifica-

tions or confessions and is not subject to such abuses

as the improper lineup and the ‘third degree.’ 394 U.8, }

at 727.

We submit that the same factors can be used to uphold

the legality of taking fingernail scrapings in cases such as

this one.

A recent opinion of the Colorado Supreme Court relied

upon this Court’s decision in Davis to allow the warrantless

palm printing of a murder suspect. See, Early v. People,

496 P. 2d 1021 (Colo. 1972).

The warrantless search based on probable cause of a

movable vehicle stopped on a highway has been approved

by this Court.’* The rationale for sustaining such searches

is that it is not practicable to secure a warrant since the

vehicle car be quickly moved out of the locality in which the

warrant must be sought. A similar rationale applies to the

taking of fingernail scrapings, as the evidence can be quickly

removed from under the fingernails. Indeed we believe

fingernail scraping under such circumstances presents a

‘stronger case for dispensing with a warrant, because the

destruction of evidence in fingernail cases can be so speedily

accomplished.

13. Chambers v. Maroney, 399 U. S. 42 (1970) and Carroll v.

United States, 267 U. S. 132 (1925).

| 17

CONCLUSION.

This is a case involving police conduct which was clearly

reasonable under the circumstances when measured by

‘the factual and practical considerations of everyday

which reasonable and prudent men, not legal tech-

niciang act. Brinegar v. United States, supra. We submit

that this should be the standard by which police search and

seizure\ conduct, particularly when exigent circumstances

exist, should be judged.

We therefore urge this Court to reverse the judgment of

the United States Court of Appeals for the Ninth Circuit.

Respectfully submitted :

Avan S. Ganz, Esq.,

Secretary-Treasurer,

FRANK CarRINGTON, Esq.,

Executive Director,

Americans for Effective Law

Enforcement, Inc.,

Suite 960,

State National Bank Plaza,

Evanston, Illinois 60201.

Of Counsel.

Ronatp E. Suerk, Esq.,

Executive Director,

Oregon Chapter

Americans for Effective

Law Enforcement, Inc.,

708 Main Street,

Oregon City, Oregon 97045,

Frep E. InsBav, Esq.,

Professor of Law,

Northwestern University

School of Law,

Chicago Avenue and

Lake Shore Drive,

Chicago, Illinois 60611.

ese MGR INI PEN KY TY ML ps