Brief for Respondent — Cady v. Dombrowski

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 72-586

ELMER O. CADY, WARDEN,

Petitioner,

Vv.

CHESTER J. DOMBROWSKI,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR RESPONDENT

WILLIAM J. MULLIGAN

108 West Wells Street

Milwaukee, Wisconsin 53203

DAVID E. LEICHTFUSS

324 East Wisconsin Avenue

Milwaukee, Wisconsin 53202

Attorneys for Respondent

“

(i)

TABLE OF CONTENTS

Page

OPINIONS BELOW ............ BR op a ee a 1

CONSTITUTIONAL PROVISIONS AND STATUTES

eS ca wehbe ce se Sas see eee 2

QUESTIONS PRESENTED ../........---+seseeees 6

EE So oc kee waved aoe e es ces 6

SUMMARY OF ARGUMENT ..........----e-eeee- 12

ARGUMENT:

I. The Second Warrantless Search by an Officer

of the Ford Thunderbird at the Kewa:

Garage, Two and One Quarter Hours After

Dombrowski’s Arrest for Drunk Driving, and

While Dombrowski Was Hospitalized Under

Police Guard in a Different City, Was Not

Reasonable Nor Justifiable Under the Exigen-

cies of the Situation and Violated the Fourth

Amendment to the United States Constitution ...... 15

A. The Court of Appeals Was Not Bound by

the District Court Findings ...............- 15

B. Fourth Amendment Principles Apply ......... 19

C. Officer Weiss’ Conduct Constituted a

Search of the Thunderbird .............+++- 20

D. Fourth Amendment Requires Adherence

to Judicial Processes ............00ee eee 21

E. Exceptions to Judicial Process ............-- 22

F. Recognized Exigent Circumstances Con-

trasted to Officer Weiss’ Conduct ...........- 22

1. Officer Weiss’ Conduct Cannot Be Jus-

tified as a Search Incident to Arrest .......- 23

(ii)

2. Officer Weiss’ Conduct Cannot Be Jus-

tified as a Search of a Vehicle in Police

3. Officer Weiss’ Warrantless Search of the

Thunderbird Cannot Be Justified as a

Reasonable Act to Secure Dom-

browski’s “Gun”

Il. The Discovery of a White Sock and Floormat

by a State Crime Laboratory Representative

in a Third Search of the Dodge Occurring

Subsequent to the Execution of the Search

Warrant for the Dodge Was Not Inadvertent

and Not Reasonable Within the Plain View

Doctrine

- This Court Should Not Modify Wisconsin’s

Exclusionary Rule Adopted Prior to the Mapp

Decision

A. Issue Should Not Be Considered

B. Wisconsin Exclusionary Rule

C. Exclusionary Rule Should Not Be Modi-

fied at This Time

eieeereaoys

TABLE OF AUTHORITIES

Cases:

Aguilar v. Texas, 378 U.S. 108 (1964)

Alderman v. United States, 394 U.S. 165 (1969)

Barrentine v. United States, 434 F.2d 636 (9th Cir.

1970)

Berenyi v. District Director, Immigration and Naturaliza-

‘tion Service, 385 U.S. 630 (1967)

Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971) 14, 15, 37, 40, 42, 43

(iii)

Boulden v. Hulman, 394 U.S. 478 (1969) .....-- ++ +++ ++ 16

Browne v. State, 24 Wis. 2d 491, 129 N.W.2d 175, 131

NW.2d 169 (1964) 2.2... eee reece eee reece 37

Cabbler v. Virginia, 212 Va. 520, 184 S.E.2d 781 91D cc. 2

carroll v. United States, 267 U.S. 132 (1925) ...... 13, 22, 24

Chambers v. Maroney, 399 U.S. 42 (1970) ....---- 21, 22, 25

Chimel v. California, 395 U.S. 752 (1969) ...----- 13, 21, 22

Coolidge v. New Hampshire, 403,U.S. 443 (1971) . 13, 14, 19, 36

Cooper v. California, 386 U.S. 58 (1967) ....... 13, 22, 27, 29

Davis v. Mississippi, 394 U.S. 721 (1969) ..--.----+-> 22, 26

District of Colubmia v. Little, 178 F.2d 13 (DC. Cir.

Re Seta rie ee ehh evs oes 16

Dombrowski v. Cady, 319 F. Supp. 530 (E.D. Wis.

RS er ie 1, 7, 18

Dombrowski v. Cady, 11 Cr. L. 2289 (7th Cir. 1972) ..---- 1

Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216

IS See ea, ae ae 22, 25

Elkins v. United States, 364 U.S. 206 (1960) ......----- 39

Harris v. Nelson, 394 U.S. 286 (1969) ...--+--++-2000" 16

Harris v. United States, 390 U.S. 2341968) . 13, 18, 22, 28, 29

Hoffa v. United States, 385 U.S. 293 (1966) ..----+-+--> 38

Holiday v. Johnson, 313 U.S. 342 (1941) ...--+-++++°°> 16

Hoyer v. State, 180 Wis. 407, 193 N.W. 89 (1923). - 13, 14, 19, 37

brvine v. California, 347 U.S. 128 (1954) ....--+--+--+° 41

Jokosh v. State, 181 Wis. 160, 193 N.W. 976 (1923) ------- 38

Katz v. United States, 389 U.S. 347(1967) ...---- 13, 21, 23

Ker v. California, 374 U.S. 23 (1963) ..-.------+> 14, 38, 39

Kluck v. State, 37 Wis. 2d 378, 155 N.W.2d 26 (1967) . . . . passim

‘Mapp v. Ohio, 367 U.S. 643 (1961). - +--+ +++ +000: passim

(iv)

Mayfield v. United States, 9 Cr. L. 2115 (D.C. Cir. 1971)... . 33

Mularkey v. State, 201 Wis. 429, 230 N.W. 76 (1930) ...... 32

Napue v. Illinois, 360 U.S. 264(1959) .............. 12, 16

Neil v. Biggers, _ U.S._, 93 S.Ct. 375 (1972) ...... 12, 16

Preston v. United States, 376 U.S. 364 (1964) 13, 15, 23, 24, 25

Stanford v. State of Texas, 379 U.S. 476 (1965) ....... 12, 20

Stanford v. State of Texas, 379 U.S. 376 (1965) ......... 34

State v. Dombrowski, 44 Wis. 2d 486, 171 N.W.2d 349

GM 2855 OS: Re eis Cr ie 1, 7, 18

State v. Kroening, 274 Wis. 266, 79 N.W.2d 810

I i ie oe 13, 14, 19, 38

Stoner v. California, 376 U.S. 483 (1946) ............. 24

Terry v. Ohio, 392 U.S. 1(1968) ............ 17, 20, 21, 26

Tyler v. Beto, 391 F.2d 993 (Sth Cir. 1968) ............ 16

United States v. Harvey, 397 F.2d 526 (7th Cir. 1968)... ... 26

United States v. Jeffers, 342 U.S. 48 (1951) ....... 21, 24,27

United States v. Joyner, 8 Cr. L. 2411 (E.D. Pa. 1971)...... 25

United States v. Mossbauer, 9 Cr. L. 2276 (U.S. Ct. Mil.

ee oe PS, coe 33

Waddy v. Heer, 383 F.2d 789 (Sth Cir. 1967) ........... 16

Warden v. Hayden, 387 U.S. 294 (1967) .............. 38

Weeks v. United States, 232 U.S. 383(1914) ........... 42

Wong Sun v. United States, 371 U.S. 471 (1963) ......... 34

United States Constitution:

copie, SEE ONL OEE PE SO a passim

ee eee ee passim

Statutes and Rules:

28US.C. GRR SEINE aoe Bat sis CONEY Ge 3, 16

BUS.C. §2254(d)&() ---- +e e rece errr 3, 16

Rule 36(3), Supreme Court of the United States .....---- 10

Rule 52(a), Federal Rules of Civil Procedure ....----+-- 2, 16

Rule 81(a)(2), Federal Rules of Civil Procedure ....----- 3, 16

Wisconsin Statutes

Ns es vu keane esenen sont tee re tees 28

on disc km aeReha ences eee es re key 28

ED i eee e reson PIO OCP ee ee eee 28

NE iss s see Se 28

os Srv ea ace eter ence ratte eee ses 32

SER SE EE GS 2 Se acl tick, Secs taliahedeabe eds 32

RS cae i nw wan ssa seseaseeeee sess s* 28

se a in wins h sewer rages eee se 32

Other Authorities:

American Bar Association, Section on Criminal Law,

"Report to House of Delegates, 107c [concerning the

Exclusionary Rule and and Senate Bill No. 2657 (92d

Congress, 1st Session, as amended)] ...----- 15, 40, 41, 42

Majority Report ....-------++esrrrttt 15, 40, 41

Minority Report .....---.---ceeer rere settee 42

American Law Institute, Model Code of Pre-Arraignment

Procedure, Proposed Official Draft No. 1, April 10,

i pi dv anise nhs ceesss*> 41, 42

79C.JS. Searches & Seizures, §25 p.795..------++---> 20

79 C.J.S. Searches & Seizures, §83, p. 897 ...-------- 14, 36

Oaks, Studying the Exclusionary Rule in Search and

Seizure, 37 U.Ch.L.Rev. 665 (1970) ...-----+eees 14, 40

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 72-586

ELMER O. CADY, WARDEN,

Petitioner,

Vv.

CHESTER J. DOMBROWSKI,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR RESPONDENT

OPINIONS BELOW

The opinion of the Court of Appeals is reported as

Dombrowski v. Cady (7th Cir. 1972), 11 Cr. L. 2289, and

is printed in the appendix to the petition. The opinion of

the District Court is reported as Dombrowski v. Cady

{E.D. Wis. 1970), 319 F. Supp. 530 (A. 22). The opinion

of the Supreme Court of Wisconsin is reported as State v.

Do browski (1969), 44 Wis. 2d 486, 171 N.W.2d 349.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

United States Constitution, Amendment Four:

The right of the people to be secure in their

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 Fourteen:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction there-

of, are citizens of the United States and of the state

wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any state deprive any person of life, liberty, or

property, without due process of law; nor deny to

any person within its jurisdiction the equal protec-

tion of the laws.

Rule 52(a) of the Federal Rules of Civil Procedure:

In all actions tried upon the facts without a jury

or ;with an advisory jury, the court shall find the

facts specially and state separately its conclusions of

law thereon, and judgment shall be entered pursuant

to Rule 58; and in granting or refusing interlocutory

injunctions the court shall similarly set forth the

findings of fact and conclusions of law which

constitute the grounds of its action. Requests for

findings are not necessary for purpose of review.

Findings of fact shall not be set aside unless clearly

erroneous, and due regard ‘shall be given to the

opportunity of the trial court to judge of the

credibility of the witnesses. The findings of a

master, to the extent that the court adopts them,

shall be considered as the findings of the court. If an

be sufficient if the findings.of fact and conclusions

of law appear therein. Findings of fact and conclu-

sions of law are unnecessary on decisions of motions

under Rules 12 or 56 or any other motion except as

provided in Rule 41(b).

Rule 81(a)(2) of the Federal Rules of Civil Procedure:

Rule 81 — Applicability In General

(a) To What Proceedings Applicable.

* * * * *

(2) These rules are applicable to proceedings for

admission to citizenship, habeas corpus, and quo

warranto, to the extent that practice in such

gs is not set forth in Statutes of the United

States and has heretofore conformed to the practice

in civil actions.

* * * * *

(as amended Feb. 28, 1966, eff. July 1, 1966;

Dec. 4, 1967, eff. July 1, 1968) 28 U.S.C. App.

(1964), as amended, (Supp. V, 1965-1969).

28 U.S.C. §2243:

§ 2243 Issuance of writ; return; hearing; decision

* * * * *

The Court shall summarily hear and determine

the facts, and dispose of the matter as law and

June 25, 1948; c. 646, 62 Stat. 965.

2B U.S.C. §2254(d) & (e): |

e §2254 State custody; remedies in Federal courts

* * * * *

(d) In any proceeding instituted in a federal court

by an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a

state court, a determination after a hearing on the

merits of a factual issue, made by a state court of

competent jurisdiction in a proceeding to which the

applicant for the writ and the state or an officer or

correct, unless the applicant shall establish or it shall

otherwise appear, or the Respondent shall admit—

(1) that the merits of the factual dispute were not

resolved in the state court hearing;

>», (2) that the fact finding procedure employed by

~ th® state court was not adequate to afford a full and

oer hearing:

(3) that the material facts were not adequately

developed at the state court hearing;

(4) that, the state court Jacked jurisdiction of the

subject matter or over the(person of the applicant in

the state court proceeding;

(5) that the applicant was an indigent and the

state court, in deprivation of his constitutional right,

failed to appoint counsel to represent him in the

state court proceeding;

(6) that the applicant did not receive a full, fair,

and adequate hearing in the state court proceeding;

(7) that the applicant was otherwise denied due

process of law in the state court proceeding;

(8) or unless that part of the record of the state

court proceeding in which the determination of suth

factual issue was made, pertinent to a determination

of the sufficiency of the evidence to support such

factual determination, is produced as provided for

hereinafter, and the federal court on a consideration

of such part of the record as a whole concludes that

such factual determination is not fairly supported

- by the record:

And in an evidentiary hearing on the proceeding in

the federal court, when due proof of such factual

determination has been made, unless the existence

of one or more of the circumstances respectively set

forth in paragraphs numbered (1) to (7), inclusive, is

shown by the applicant, otherwise appears, or is

admitted by the respondent, or unless the court

concludes pursuant to the provisions of paragraph

numbered (8) that the record in the state court

proceeding, considered as a whole, does not fairly

support such factual determination, the burden shall

rest upon the applicant to establish by convincing

evidence that the factual determination by the state

court was erroneous.

(e) If the applicant challenges the sufficiency of

the evidence adduced in such state court proceeding

to support the state court’s determination of a

factual issue made therein, the applicant, if able,

shall produce that part of the record pertinent to a

determination of the sufficiency of the evidence to

support such determination. If the applicant, be-

cause of indigency or other reason is unable to

produce such part of the record, then the state shall

produce such part of the record and the federal

court shall direct the state to do so by order

directed to an appropriate state official. If the state

cannot provide such pertinent part of the record,

then the court shall determine under the existing

- facts and circumstances what weight shall be given

_ to the state court’s factual determination.

x: ee te Se ee

June 25, 1948, c. 646, 62 Stat. 967; Nov. 2, 1966,

Pub. L. 89-711, §2, 80 Stat. 1105.

QUESTIONS PRESENTED

1. Whether the second warrantless search by an officer

of the Ford Thunderbird at the Kewaskum garage, two

and one quarter hours after Dombrowski’s arrest for

drunk driving, and while Dombrowski was hospitalized

under police guard in a different city, was reasonable and

justifiable under the exigencies of the situation and

within the proscriptions of the Fourth and Fourteenth

Amendments of the United States Constitution.

2. Whether the discovery of a sock and floormat by a

state crime laboratory representative in a third search of

the Dodge, occurring subsequent to the execution of a

search warrant authorizing a search of such vehicle, was

inadvertent and therefore reasonable within the plain

view doctrine. _-

3. Whether this Court should in effect modify Wiscon-

sin’s Exclusionary Rule “adopted prior to the Mapp

decision. '

' STATEMENT OF THE CASE

Chester J. Dombrowski petitioned the District Court in

forma pauperis for writ of habeas corpus alleging that he

was being illegally detained by the Warden of the

Wisconsin State Prison by virtue of a conviction and

1 Respondent has merely restated Petitioner’s Question No. 4.

Since this issue was not briefed to nor considered by the Court of

Appeals, nor raised by Petitioner in the District Court, Supreme

Court of Wisconsin, or County Court of Fond du Lac County,

Wisconsin, Respondent does not agree to the appropriateness of

this issue for resolution by this Court. See infra pp. 36-37.

sentence obtained contrary to his federal constitutional

rights. (A. 5,7). Dombrowski was convicted of first

degree murder on July 18, 1968, after a trial by jury in

County Court Branch II, Fond du Lac, Wisconsin.

(A. 7,8). He was sentenced to life imprisonment, which

‘sentence he is presently serving. (A.7). A divided

Wisconsin Supreme Court affirmed the conviction in

State v. Dombrowski, 44 Wis.2d 486, 171 N.W.2d 349

(1969). The District Court, the Honorable Myron L.

Gordon, presiding, entered a decision and order denying

the petition. (A. 6). It is reported as Dombrowski v.

Cady, 319 F.Supp. 530. (E.D. Wis. 1970). Dombrowski

filed a Notice of Appeal from such order and the District

Court issued a certificate of probable cause. (A. 6). On

June 2, 1972, the United States Court of Appeals for the

Seventh Circuit reversed and remanded with direction to

gant the relief prayed for in the petition unless the

Wisconsin authorities grant Dombrowski a new trial

within a reasonable period to be set by the District Court.

A petition for rehearing and suggestion for hearing en

banc were denied on July 24, 1972. On August 14.1972,

the District Court entered an order providing that the

state was to notify the Court within 20 days of its

decision on whether to retry Dombrowski and providing

that any such retrial was to be held within 90 days. On

September 1, 1972, a counsel for Petitioner in response

to said order advised the Court that the Fond du Lac

County District Attorney intends to retry Dombrowski if

this Court does not reverse the Court of Appeals decision

and order. (R. Letter, 9/1/72 to Hon. Myron L. Gordon

from Mary V. Bowman, an attorney for Cady). Further

proceedings have been stayed pending action by this

By stipulation and order the record before the District

Court consisted of the entire state court record, including

pleadings, transcripts and briefs filed in the Wisconsin

Supreme Court and the records relating to a pretrial

request to the Wisconsin Supreme Court for a writ of

prohibition. (A. 5). These documents were designated as

Exhibits A through E. (A. 5).

On September 11, 1967, Chester J. Dombrowski was

involved in a one car automobile accident north of

Kewaskum, Wisconsin, while driving a Thunderbird at

about 10:30 p.m. (A. 106-107, 109). The vehicle was

damaged and rendered inoperative. Dombrowski, a police

officer, summoned the sheriff's office to the scene.

(A. 108-109). Dombrowski met with Officers Boudry

and Weiss at the Glacier Inn in Kewaskum. (A. 107-108).

Dombrowski told the officers his occupation and advised

them that there were no others involved in the accident

and that he was alone. (A. 109). At the accident scene,

Dombrowski gave the officers three different accounts of

how the accident had occurred. (A. 109). He furnished

his license and identification. (A. 81).

The officers investigated the accident and called a

wrecker for Dombrowski’s damaged vehicle. (A. 81, 89,

107). Just prior to the vehicle’s removal from the scene,

Officer Boudry searched through the inside of the car,

including under the seat, in the glove compartment and

the back seat. (A. 110). The officer was searching because

Dombrowski said he was a police officer but he had no

gun on him. (A. 110). No weapon was found during the

search nor was any item seized. The officer locked the car

doors. (A. 110). The car was removed to a private garage,

(Honeck’s) in Kewaskum. (A. 90). eo

The officers and Dombrowski left the accident scene at

11:33 p.m. (A. 104). Dombrowski was taken to the

“sheriff's office at West Bend, Wisconsin. (A. 81). At the

sheriff's office, Dombrowski conferred with Assistant

District Attorney Aldwin Seefeldt. (A. 81-82). Dom-

‘prowski was arrested for drunk driving at approximately

11:58 p.m. on September 11, 1967. (A. 82, 89). After his

arrest, Dombrowski was taken by the officers to the West

Bend Police Department where Dombrowski refused to

take a breathalyzer or “chem” test. (A. 82-83). Dom-

browski was then taken to a hospital in West Bend for

treatment of some injuries He received in the accident and

remained in the hospital under guard. (A. 83-86).

- While Dombrowski was at the West Bend police station

Officer Weiss observed him to be incoherent at times.

(A. 83). At the hospital at 2:00 a.m. Dombrowski was

uncommunicative. (A. 105). Thereafter, the officers

called Dombrowski’s wifé to find out about his health.

(A. 85, 106).

Some two and one quarter hours after Dombrowski’s

arrest for drunk driving and while Dombrowski remained

in the hospital under guard, Officer Weiss traveled from

the hospital at West Bend to Honeck’s Garage in Kewas-

kum and searched the entire Dombrowski car again.

(A. 86, 89, 93-95, 104). The search was conducted

without a search warrant and without Dombrowski’s

consent. (A. 89).

_ During this search, the officer seized numerous items

from the locked trunk of the vehicle and removed them

‘to the sheriff’s office in West Bend. (A. 94-96, 97-102).

The items were seized as they appeared to have blood on

them. (A. 96). These items were subsequently introduced

into evidence against Dombrowski at his trial.

(A. 97-102).

Because of his arrest for drunk driving and his being

retained in custody without bail, Dombrowski retained

the services of an attorney, Clyde Schloemer, of West

Bend. By virtue of such retention and in his professional

capacity, Mr. Schloemer had visited and conferred with

Dombrowski on the afternoon of September 12, 1967.

(R. Ex. E, Br. in Support of Writ of Prohibition, p. 3).

Schloemer then communicated with Robert Kauffman,

District Attorney for Washington County, who was

waiting in the hospital corridor and related to him

information obtained in his conversation with Dom-

browski. (R. Ex. C. p. 122-124).

Following this conversation, law enforcement officials

conducted an extensive search of Dombrowski’s brother’s

farm, Dombrowski’s 1960 Dodge and the home located

on the farm. (A. 167-177).? During this search, the body

of Mr. McKinney was found. (A. 175-176).

That evening application was made for a search war-

rant to search Dombrowski’s 1960 Dodge and the Thun-

derbird.? (A. 40-45). That evening right after obtaining the

2This testimony was printed in the appendix with a notation

that it was considered by petitioner to be unnecessary under Rule

36(3) but printed at the request of the respondent although the

portions of testimony were considered by petitioner not to be a

part of the record on file with the District Court and not a part of

the record filed with this Court. (A. 167). Although not initially

filed with this Court, transcripts of this testimony were subse-

quently located and certified by the Clerk of the District Court as

part of the record in this matter.

3 third search of the Thunderbird was conducted on Septem-

ber 12, 1967, in West Bend pursuant to the search warrant issued

by the County Court of Fond du Lac County, Wisconsin on

September 12, 1967. (A. 35, 173). A rental agreement wag found

in the Thunderbird as a result of this search, but the evidence

obtained from this search was suppressed by the County Court of

Fond du Lac County because it was issued beyond the territorial

jurisdiction of the Court. (A. 36, 62-63). :

ree :

yer

search warrant Undersheriff Howard searched the Dodge

and had it removed from the farm by a wrecker.

(A. 172-173). On the next day, September 13, 1967,

Undersheriff Howard prepared his return to the search

warrant listing the items that he found in the search of

the 1960 Dodge. (A. 172-173). The return listed not only

items discovered in the search of the Dodge, but other

items that were found outside of the car on the premises.

(A. 33, 173). Subsequently, on September 13, 1967, the

day after execution of the search warrant for the 1960

Dodge, a representative of the State Crime Laboratory

conducted a third search of the 1960 Dodge, while it was

jocated at the Fond du Lac County Sheriff's Garage.

(A. 153-154, 158). The State Crime Laboratory repre-

sentative did not make any recoveries from the car while

it was located in the farm area. (A. 155). No further

warrant for the search of the car had been obtained, but

the State Crime Laboratory representative stated that he

was acting in the capacity of the Sheriff's Department of

Fond du Lac County. (A. 155-156). The items that were

recovered by the State Crime Laboratory representative

were not listed and attached to the search warrant as a

return. (A. 156). The items seized in this third search of

the 1960 Dodge were also introduced in evidence at

‘Mr. Dombrowski was charged with first degree murder

7). Following denial of pretrial

motions to supress evidence, Mr. Dombrowski was tried

before a jury which returned a guilty verdict. (A. 7,55).

Throughout the Petitioner's brief in this matter, it is

‘ctitically asserted, directly or by inference, that the

urt of Appeals for the Seventh Circuit

Court without having the benefit of

rd, Ex. A.B,C,D, and E. (Petitioner’s

On July 21, 1971, the Clerk of the District Court sent to

the Clerk of the Court of Appeals by certified mail the

state court record, which had been forwarded on Feb-

ruary 1, 1971. (R. Letter dated 7/21/71 to Carrick from

LaFave with certified mail receipt 573365 attached). The

records of the Clerk of the Court of Appeals indicates

that these documents were received and filed. An

examination of the state court record itself, Ex. A, B,C,

D, and E, which are on file with this Court indicate that

they bear the filing stamp of the Clerk of the Court of

Appeals dated July 28, 1971. See, for example, page | of

the trial transcript. (R. Ex. C. p. 1).

SUMMARY OF ARGUMENT

The Court of Appeals was not bound by the District

Court findings and could make an independent examina-

tion of the record when constitutional issues require the

resolution of factual matters. Napue vy. Illinois, 360 U.S.

264, 271-272 (1959). This is particularly true when the

dispute between the parties is not so much over elemental

facts as over the constitutional significance to be attached

to them especially in habeas corpus action in which the

state court record is equally available to both courts. Neil

v. Biggers, __—siU’S. , 93 S. Ct. 375, 379n. 3

(1972).

Officer Weiss’ conduct constituted a search of the

Thunderbird. It was conceded by Petitioner in the Court

of Appeals to be a search and not an inspection. In any

event the constitutionality of the action is not dependent

upon the labels that the state applies to the act. Sibron v.

State of New York, 392 U.S. 40, 61 ( 1968). ‘ge

Whether a search and seizure are valid is a question of

federal constitutional law. Kluck v. State, 37 Wis.2d 378,

386, 155 N.W.2d 26, 29 (1967). Evidence obtained by

an illegal search and seizure is inadmissible in Wisconsin

criminal trials. Hoyer v. State, 180 Wis. 407, 417, 193

N.W. 89, 93 (1923); State v. Kroening, 274 Wis. 266,

472-216, 79 N.W.2d 810, 814-816 (1954); Mapp v. Ohio,

367 U.S. 643 (1961).

Fourth Amendment principles apply to automobile

searches. Coolidge v. New Hampshire, 403 U.S. 443,

461-462 (1971). The Fourth Amendment requires ad-

herence to judicial processes. Chimel v. California, 395

U.S. 752, 763 (1969). The burden is on those seeking an

exemption from the search warrant requirement to show

the need for it. Ibid at p. 762. Searches conducted

outside the judicial process are, per sé, unreasonable

under the Fourth Amendment, subject only to a few

specifically established and well delineated exceptions.

Katz v. United States, 389 U.S. 347, 357 (1967).

Officer Weiss’ conduct at 2:13 a.m. (2-1/4 hours after

Dombrowski’s arrest) in traveling from a hospital in West

Bend (where Dombrowski, a Chicago police officer, was

under arrest, guarded and being treated) and making a

second warrantless search of Dombrowski’s Thunderbird

(which had been rendered inoperative in an accident,

previously searched, locked and towed to a private garage

in Kewaskum) without Dombrowski’s consent and with-

out even asking Dombrowski whether he had his service

_ sevolver with him (the alleged object of the search) was

unreasonable and violative of Dombrowski’s right of

_ privacy. Carroll v. United States, 267 U.S. 132, 153, 156

(1925); Preston v.. United States, 376 U.S. 364 (1964).

The Thunderbird had not been seized by police for

: peste under state law and was not in police custody. —

__ Cf. Cooper v. California, 386 U.S. 58 (1967); Cf. Harris v.

a United States, 390 U.S. 234 (1968).

The discovery of a white sock and floormat by a State

Crime Laboratory representative in a third search of

Dombrowski’s Dodge occurring a day subsequent to the

execution of a search warrant for the Dodge, after the

Dodge was towed away and the return of the warrant

prepared (which did not include these items) was not

inadvertent and not reasonable within the plain view

doctrine. Coolidge v. New Hampshire, 403 U.S. 443,

467-468 (1971). Once the search warrant for the Dodge

had been executed and the return prepared it was functus

officio. 79 C.J.S. Searches and Seizures, §83, p. 897.

A modification of the exclusionary rule was not

considered by the courts below. It should not be

considered by this Court, Bivens v, Six Unknown Named

Agents, 403 U.S. 388, 397-398 (1971). In asking this

Court to modify the exclusionary rule enunciated in

Mapp yv. Ohio, 367 U.S. 643 (1961), Petitioner is in

reality asking the Court to modify Wisconsin’s own

exclusionary rule which was adopted by the Wisconsin

Supreme Court prior to the Mapp decision. Hoyer y.

State, 180 Wis. 407, 417, 193 N.W. 89, 93 (1923); State

v. Kroening, 274 Wis. 266, 272-276, 79 N.W.2d 810,

814-816 (1954). In our dual state-federal system the

states are permitted to adopt workable rules to meet the

demands of effective criminal justice in the state provided

they meet the requirements of due process. Ker v.

California, 374 U.S. 23, 34 (1963). The purpose of

Wisconsin’s exclusionary rule is the protection of privacy.

Kluck y. State, 37 Wis.2d 378, 386, 155 N.W.2d 26, 29

(1967). :

The exclusionary rule should not be modified at this

time. Empirical data concerning the effectiveness of, the

rule is not conclusive. Oaks, Studying the Exclustonary

Rule on Search and Seizure, 37 U. Ch. L. Rev. 665

(1970); Majority Report to House of Delegates, American

Bar Association, Section on Criminal Law, Concerning

the Exclusionary Rule and Senate Bill No. 2567 (92d

Congress, Ist Session, as amended), adopted by House of

Delegates on February 12, 1973, p.9. Assuming ar-

guendo, that the rule should be modified, modification

should be done prospectively by legislative action and

e a meaningful alternative. Law enforcement offi-

cials should not be given the impression that all constitu-

tional restraints on police have been removed. Bivens v.

Six Unknown Named Agents, 403 U.S. 388, 420-422

(1971) [Chief Justice Burger dissenting] .

ARGUMENT

“WFHE SECOND WARRANTLESS SEARCH BY AN

OFFICER OF THE FORD THUNDERBIRD AT THE

KEWASKUM GARAGE, TWO AND ONE QUARTER

HOURS AFTER DOMBROWSKI’S ARREST FOR

DRUNK DRIVING, AND WHILE DOMBROWSKI

WAS HOSPITALIZED UNDER POLICE GUARD IN A

DIFFERENT CITY, WAS NOT REASONABLE NOR

JUSTIFIABLE UNDER THE EXIGENCIES OF THE

SITUATION AND VIOLATED THE FOURTH AND

FOURTEENTH AMENDMENTS OF THE UNITED

STATES CONSTITUTION.

A. The Court of Appeals was not bound by the

District Court’s findings

The Court of Appeals was not bound by the District

-Court’s findings ‘‘that the examination of the car at the

_ garage was not a search in the Preston sense, but rather it

was an inspection designed to locate an article of value,

‘to be protected by those responsible for its custody”’.

‘

(A. 26). An appellate court will not hesitate to undertake

independent examination of factual issues when constitu-

tional claims may depend on their resolution. Napue y.

Minois, 360 U.S. 264, 271-272 (1959); Berenyi v.

District Director, Immigration and Naturalization Service,

385 U.S. 630, 636 (1967). This is particularly true where

the dispute between the parties is not so much over the

elemental facts as over the constitutional significance to

be attached to them. Moreover, this is a habeas corpus

case in which the facts are contained primarily in the

state court record, equally available to the District Court

and the Court of Appeals, Neil v. Biggers, US.

__, 93 S. Ct. 375, 379n. 3 (1972), Cf. Boulden y,

Hulman, 394 U.S. 478 (1969).*

An independent review by the Court of Appeals of the

state court record was particularly appropriate in this

case since the Petitioner (then Respondent) conceded

that Officer Weiss’ conduct was a search.

“The Petitioner on this appeal cites authorities

suggesting that it is semantic petifoggery to say that

an invasion of an individual’s personal security; for

purposes of a ‘quest’ of any kind is not a ‘search’.

See District of Columbia v. Little (D.C. Cir. 1950)

cited at p. 14, Brief of Appellant. This writer finds

44s to the applicability of Rule 52(a) F.R. Civ. P. see Rule

81(a)(2), F.R. Civ. P. 28 U.S.C. App. (1964), as amended, (Supp.

V, 1965-1969); 28 U.S.C. §2243; 28 U.S.C. §2254(d) & (e); Cf.

Holiday v. Johnson, 313 U.S. 342, 350-353 (1941); Cf. Harris v.

Nelson 394 U.S. 286, 292-298 (1969). Some cases have concluded

that Rule 52(a), F.R. Civ. P. is applicable to habeas corpus

proceedings. See, for example, Waddy v. Heer, 383 F.2d 789, 793

(Sth Cir. 1967); Tyler v, Beto, 391 F.2d 993, 995-996 (sth Cir.

1968). [Both involved factual hearings in the District Courts.]

this particular semantic distinction equally unpalata-

ble, and submits that the proper analysis is epitom-

jzed in Terry v. Ohio, 392 U.S. 1, supra. In that

case, the United States Supreme Court demolished

as ‘nothing less than sheer torture of the English

language’ the myth that a ‘frisk’ was not a ‘search’.

392 U.S. at 16.***” (Footnote omitted. Respond-

ent’s Br.—U.S.C. of A. p. 10)

“Officer Weiss was not required by any regulation

or statute to inspect or inventory the contents of

*“petitioner’s car. The record shows that the object of

his search was the service revolver which he believed

the petitioner carried with him at all times. (Ex. C,

pp. 315, 365). Was this search reasonable under all

the facts?” (Emphasis added. Respondent’s Br.

US.C.ofA.p.11) “\

The position taken by Petitioner (then respondent) in the —

US. Court of Appeals was in marked contrast to that,

taken by the state in the Wisconsin Supreme Court:

“Officer Weiss did not ‘search’ the Thunderbird

because he did not act with a ‘view to’ or intent to

discover evidence of any crime. He was acting solely

to protect the property of the defendant. . .

“The trial court admitted the evidence, which was

seized from the Thunderbird, on the basis that it

was seized as a result of a reasonable ‘custody’

search (R. 91, 207-211). If there was a ‘search’ at

all, it was clearly a reasonable custody search. It is

submitted, however, that there actually was no

‘search’, in the constitutional sense, because the

action of Officer Weiss was not undertaken ‘with a

view to discovery of contraband or evidence of guilt

to be used in prosecution of a criminal action’.”

(Footnote omitted. Emphasis added. R. Ex. B.

_ State’s Br. in Wis. Sup. Ct. pp. 22-23)

This position is an abandonment of the basis of the

holding of the majority in the Wisconsin Supreme Court:

“The majority of the court is convinced that the

inspection was done within a reasonable time of the

car’s transfer to the Kewaskum garage, and was

accomplished while the police were responsible for

its protection and were in the process of protecting

Dombrowski’s property and were not, at that time,

engaged in a. search of the car looking for incriminat-

ing evidence.” (Emphasis added. State v. Dom-

browski, 44 Wis.2d 486, 496 (1969).)

It represents a complete change from the position

taken by Petitioner (then respondent) in the District

Court:

“*** In this case, as in Harris, the evidence was

not discovered pursuant to a ‘search’, and was

therefore not within the Fourth Amendment pro-

hibition.” (Respondent’s Br., U.S. Dist. Ct. p. 7)

“In the case of Dombrowski’s Thunderbird, there

was no ‘search’.”” (Respondent’s Br., U.S. Dist. Ct:

p. 9)

It is also totally inconsistent with the decision and

order of the District Court in this action:

“*** Although the line is a narrow one, I

conclude that the examination of the car at the

garage was not a search in the Preston sense, but

rather it was an inspection designed to locate an

article of value, to be protected by those responsible

for its custody. This was not a search for incriminat-

ing evidence and is constitutionally permissible

under Harris.” (Emphasis added. 319 F. Supp. at

p. 532)

Petitioner should not be permitted to pick and choose

its arguments before different courts and to “search”’ out

) 19

new basis for sustaining a search and conviction, espe-

cially when manera with its position in the court

below. To attempt to Yeverse the grant of habeas corpus’

by the Court of Appeals on an entirely different basis

than argued in that court should not be permitted. The

Respondent is placed in a horrendous position if Peti-

tioner is permitted to flip-flop between legal positions in

different courts. This is particularly true when, as here,

the original conviction was. sustained by a divided state

supreme court and the District Court on habeas corpus

found the line to be a “narrow one.”

B. Fourth Amendment Principles Apply

In Coolidge’v. New Hampshire , 403 U.S. 443, 461-462

(1971) Justice Stewart noted:

“The word ‘automobile’ is not a talisman in

whose presence the Fourth Amendment fades away

and disappears.”

Whether searches and seizures are valid is a question of

federal constitutional law.5 If evidence is secured as a

result of a search and seizure that violates constitutional

tights of the individual charged with a crime, it is

inadmissible.®

If such evidence obtained by an illegal search is

admitted into evidence and has a prejudicial effect on the

defendant’s case, then the Fourteenth Amendment due

process clause requires that a subsequent conviction be

SKluck v. State, 37 Wis. 2d 378, 386, 155 N.W.2d 26, 29

(1967).

SHoyer v. State, 180 Wis. 407, 417, 193 N.W. 89, 93 (1923);

_ State v. Kroening, 274 Wis. 266, 272-276, 79 N.W.2d 810, 814-816

__ (1954); Mapp v. Ohio, 367 U.S. 643 (1961).

reversed. Mapp v. Ohio, 367 U.S. 643, 655 (1961). Kluck

vy, State, 37 Wis.2d 378, 386, 155 N.W.2d 26, 29 (1967).

C. Officer Weiss’ Conduct Constituted a

Search of the Thunderbird

Officer Weiss’ conduct at 2:13 a.m. on September 12,

1967, going to the Honeck’s garage in Kewaskum,

unlocking the car, and looking in the interior and then

the locked trunk of the automobile constituted a search.

(A. 90). This action was described by the prosecution

during the course of the trial as a search. (A. 91, 92, 94).

Officer Weiss testified that his reason for searching the

car was that he was looking for the defendant's service

revolver. (A. 91). It should also be noted that the County

Court referred to Officer Weiss’ conduct as a search in its

decision on the pretrial motion to suppress (A. 57-58)

and in its memorandum decision on motions after

verdict. (A. 71-74).

Upon appeal to the Wisconsin Supreme Court and in

the United States District Court, the state and Petitioner,

Cady, sought to characterize the officer’s action as an

“inspection” rather than a search. With respect to the

constitutional guarantees of the Fourth Amendment

against unlawful search and seizure, there is no distinc-

tion in meaning between “search” and “‘inspect”’; unlawful

inspection is no less a violation than an unlawful search.

79 C.J.S., Searches and Seizures, §25, p. 795. States may

not authorize police conduct which trenches upon

Fourth Amendment rights, regardless of the label which

it attaches to the conduct. Sibron v. State of New York,

392 U.S. 40, 61 (1968). In Terry v. Ohio, 392 U.S. 1,16

(1968) the Court demolished as “nothing less thanesheer

torture of the English language’”’ the myth that a “‘frisk”’

“was not a “search”. The focus of the Fourth Amendment

js on privacy, not on whether the conduct is described as

an inspection or a search.

D. Fourth Amendment Requires Adherence to

Judicial Processes

In Chimel v. California, 395 U.S. 752, 762 (1969), this

Court said:

“Only last Term in Terry v. Ohio, 392 U.S. 1, we

emphasized that ‘[t] he police must, whenever prac-

ticable, obtain advance judicial approval of searches

and seizures through the warrant procedure,’ ***

and that ‘the scope of [a] search must be “strictly

tied to and justified by” the circumstances which

rendered its initiation permissible.’ ”

The burden is on those seeking an exemption from the

search warrant requirement to show the need for it.

Chimel v. California, 395 USS. at p. 762 (1969); United

States v. Jeffers, 342 US. 48, 51 (1951). Searches

conducted outside the judicial process are, per se,

unreasonable under the Fourth Amendment, subject only

to a few specifically established and well delineated

exceptions. Katz v. United States, 389 U.S. 347, 357

(1967), (cited with approval in Chimel v. California, 395

US. at p. 763.) Asa general rule, the Fourth Amendment

requires as the requisite to the issuance of a search

warrant the judgment of a neutral and detached magis-

trate on the probable cause issue. Only in exigent

circumstances will the judgment of the police as to

probable cause serve as a sufficient authorization for a

search. Chambers v. Maroney, 399 U.S. 42, 51 (1970).

Officers conducting warrantless searches of an automo-

‘must have “reasonable or probable cause” to believe

‘they will find the instrumentality of a crime or

evidence pertaining to a crime before they begin their

warrantless search. Dyke v. Taylor Implement Mfg. Co.,

391 U.S. 216, 221 (1968).

E. Exceptions to Judicial Process

Recognized exceptions include the following:

(1) Search of an automobile when probable cause

exists and it is not practical to secure a warrant because

the vehicle can be quickly moved. Carroll v United

States, 267 U.S. 132, 153, 156 (1925). Although the

Court made it clear that “[i]n cases where the securing of

a warrant is reasonably practicable, it must be used, .

Id., p. 156.

(2) Search of an automobile seized by police for

forfeiture under state law. reed v. California, 386 U.S.

58, 62 (1967).

(3) Discovery of evidence in plain view, not the result

of a search, but of a measure taken to protect an

automobile while it was in police custody. Harris v.

United States, 390 U.S. 234, 236 (1968).

(4) Search incident to arrest of the area within

arrestee’s immediate control. Chimel v. California, 395

U.S. 752, 763 (1969).

and others not material to this case wa? these facts.

Failure to comply with the search warrant requirement

can only be excused by exigent circumstances. Chambers

v. Maroney, 399 U.S. 42, 51 (1970); Terry v. Ohio, 392

U.S. 1, 20 (1968)..

F. Recognized Exigent Circumstances Contrasted

To Officer Weiss’ Conduct

No exception is supported by this record. This is -

clearly a wholesale intrusion on the personal privacy and

security of Dombrowski without probable cause author-

ized by a neutral and detached magistrate. See, Davis v.

Mississippi, 394 U.S. 721, 726 (1969); Katz v. United

States, 389 U.S. 347, 356 (1967).

1. Officer Weiss’ Conduct Cannot Be Justified As

A Search Incident to Arrest

This case closely parallels Preston v. United States, 376

U.S. 364 (1964). In Preston the defendants were arrested

by state officers on a vagrancy charge while sitting in a

parked automobile and were convicted of conspiracy to

rob a bank largely on evidence obtained by the state

officers’ search of the’car after the defendants had been

arrested, searched and taken to police headquarters, and

the car had been removed to a garage.

Justice Black, speaking for the unanimous Court

in Preston, stated that this Court’s cases “make it clear

that searches of motor cars must meet the test of

reasonableness under the Fourth Amendment before

evidence obtained as a result of such searches is admis-

sible.” 376 U.S. at p. 366. Justice Black noted that it

was argued that the search was incident to an arrest and

that such searches are justified by the need to seize

weapons and other things which might be used to assault

an officer, to effect an escape, as well as the ‘need to

prevent the destruction of evidence of the crime.

Justice Black stated, however :

“But these justifications are absent where a

search is remote in time or place from the arrest.

Once an accused is under arrest and in custody, then

a search made at another place, without a warrant, is

simply not incident to the arrest.” 376 U.S. at p.

367.

The Court assumed that either because the arrests were

valid or because the police had probable cause to think

the car stolen, the police had the right to search this car

when they first came on the scene. The Court continued:

"se this does not decide the question of the

reasonableness of a search at a later time and at

another place. See Stoner v/ California, post, p. 483.

The search of the car was not undertaken until

petitioner and his companions had been arrested and

taken in custody to the police station and the car

had been towed to the garage. At this point there

was no danger that any of the men arrested could

have used any weapons in the car or could have

destroyed any evidence of a crime—assuming that

there are articles which can be the “fruits” or

“implements” of the crime of vagrancy. Cf. United

States v. Jeffers, 342 U.S. 48, 51-52 (1951). Nor,

since the men were under arrest at the police station

and the car was in police custody at a garage, was

there any danger that the car would be moved out

of the locality or jurisdiction. See Carroll v. United

States, supra, 267 U.S. at 153. We think that the

search was too remote in time or place to have been

made as incidental to the arrest and conclude,

therefore, that the search of the car without a

warrant failed to meet the test of reasonableness

under the Fourth Amendment, rendering the evi-.

dence obtained as a result of the search inadmis-

sible.” 376 U.S. at p. 368.

In a recent case, factually similar to the instant case,

the United States Court of Appeals for the Ninth Circuit,

in Barrentine v. United States, 434 F.2d 636 (9th Cir.

1970), held that officers, who had arrested defendant on

a drunk driving chage, had no probable cause to believe

that evidence pertaining to such offense had been

concealed in defendant’s automobile or that the vehicle

contained contraband, and thus, warrantless search of the

car’s trunk, which revealed sawed-off shotgun, was not

reasonably incident to defendant’s arrest and was illegal.

° .

The Court stated:

“The officers had no probable cause to believe

that evidence of the offense for which appellant was

arrested had been concealed in the automobile.

There was no probable cause to believe that the

yehicle contained contraband. The search of the

trunk was not reasonably incident to appellant’s

arrest. The search was not of a vehicle subject to

forfeiture proceedings. There were no exigent cir-

cumstances conceivable justifying the trunk search.

Accordingly, the search was illegal. (Chambers v.

Maroney (1970) 399 U.S. 42, 90 S.Ct. 1975, 26

L.Ed. 2d 419; Dyke v. Taylor Implement Mfg. Co.

(1968) 391 U.S. 216, 88 S.Ct. 1472, 20 L.E. 2d

538; Preston v. United States, (1964) 376 U.S. 364,

84 S.Ct. 881, 11 L.Ed. 2d 177.)” 434 F.2d p. 637.

See also United States v. Joyner, 8 Cr. L. 2411, 2412

(E.D. Pa. 1971) holding unreasonable a second search of

a car trunk without a warrant by an officer after the

defendant had been arrested, taken into custody and the

trunk of the vehicle initially searched with the consent of

the driver.

In the instant case, like Preston, Barrentine, and

Joyner, Dombrowski was arrested on a different charge,

drunk driving, his automobile was serached at the

accident scene, the car was locked and towed away to a

private garage. Dombrowski was taken to the sheriff's

office, police headquarters and then to a hospital under

guard. While he was in the hospital, Officer Weiss traveled

to a private garage in another city, to which the car had

been towed, to conduct a second warrantless search of

the Dombrowski car. This case is even stronger as

Dombrowski was not only in custody but.in the hospital

under guard as a result of injuries he had sustained and

the car, which had been locked and towed away, was

_ damaged and inoperative.

The second search of the Dombrowski car was without

warrant, consent or probable cause. The alleged justifica-

tion for this warrantless search, “looking for Dom-

browski’s service revolver,” establishes that the officer

did not have “reasonable or probable cause” to believe

that he would find the instrumentality of a crime or

evidence pertaining to a crime. Accordingly, it is properly

identified as overreaching governmental conduct, for

which the exclusionary rule of Mapp v. Ohio, 367 U.S.

643, 655 (1961) was fashioned as a sanction to redress

and deter because prohibited by the Fourth Amendment.

Davis v. Mississippi, 394 U.S. 721, 726 (1969), [citing

Terry v. Ohio, 392 U.S. 1, 19 (1968)]

There is no question that Dombrowski was under

arrest and in custody when his vehicle was searched at

Honeck’s Garage. Therefore, the search was not necessary

to protect the officers or to prevent the destruction of

evidence since neither Dombrowski nor anyone associ-

ated with him ta any control over the vehicle or its

contents.” The car was in a damaged condition and

unable to be driven. In addition, the state failed to

sustain its burden of proof, under the fact circumstances

of Dombrowski being in custody in a hospital in one city

and the damaged and inoperative vehicle having been

locked and towed away to another city, why speed was

essential and why it was not reasonably practicable to

apply to a magistrate for a search warrant if probable

cause existed. United States v. Jeffers, 342 U.S. 48, 51

(1951).

es «

7See United States v. Harvey, 397 F.2d 526, 529 (7th Cir.

1968).

Pte oF

Be:

"he 27

2 Officer Weiss’ Conduct Cannot Be Justified As a

Search of a Vehicle in Police Custody

Nor can the second search of the Dombrowski vehicle

be justified either as the search of an automobile seized

by police for forfeiture under state law or as the

“discovery of evidence, in plain view, not the result of a

‘search, but of a measure taken to protect an automobile

while it was in police custody.

- The case is unlike Cooper v. California, 386 U.S. 58

(1967) which involved the search of an automobile seized

pursuant to Section 11611 of the California Health &

Safety Code which provides that any officer making an

arrest for a narcotics violation shall seize and deliver to a

designated state agency any vehicle used to store,

conceal, transport, sell or facilitate the possession of

narcotics and hold as evidence the vehicle until a

forfeiture has been declared or a release ordered. In this

case it must be conceded that no state law of Wisconsin

authorizes the taking into custody by police an automo-

bile belonging to a person involved in an automobile

accident. This is likewise true of a car driven by a person

arrested for drunken driving. The vehicle in this case was

not impounded as evidence. Petitioner concealed in the

United States Court of Appeals that Officer Weiss was

not required by any regulation or statute to inspect er

inventory the contents of Dombrowski’s car. (Respon-

dent’s Br. in U.S.C. of A. p. 11).

The Wisconsin Legislature recently (but subsequent to

the trial of the instant matter), saw fit to pass several new

laws permitting the seizure of vehicles and retention by

police when the vehicles have been used or employed in

the unlawful sale of transportation of narcotics, danger-

ous drugs or gambling devices.* Previously (and specifi-

cally at time of the instant search) a vehicle was subject

to seizure only in connection with certain cigarette tax

matters.°

In the instant case there was no police regulation

similar to Harris. In fact, the record clearly establishes

that this vehicle was never considered by the Washington

County Sheriff's office to be in their care, custody or

control. It was,not taken to the Sheriff’s office in West

Bend, but was towed by a wrecker to a private garage

(Honeck’s) in Kewaskum, another city. (A. 90) It was left

outside of the garage. (A. 71) No one from the Sheriff's

Department remained with the car. (A. 91) In addition,

the car had been searched at the scene of the accident

and then dutifully locked by Officer Boudry. (A. 110)

Nothing Weiss did was done to protect the automobile or

its contents and the record supports no other conclusion.

It strains the imagination to believe that any alleged

police “responsibility” for the car and its contents could

require more than Officer Boudry’s actions at the scene

prior to the removal of the vehicle.

The police custody situation related in Harris v. United

States, 390 U.S. 234 (1968) was approved on the thesis

that the evidence was discovered not as a result of a

search of the car, but on the basis of a measure taken to

protect the car while in police custody. In Harris the

petitioner’s automobile had been seen leaving the site of a

8 §151.18 Wis. Stats., effective December 7, 1969, Laws of Wis.

1969, Ch. 252; $161.29 Wis. Stats., effective December 7, 1969,

Ch. 252 §6; §945.03(3), Wis. Stats., effective December 7, 1969,

Laws of Wis. 1969, Ch. 252 §30; §161.45 Wis. Stats., effective

February 20, 1970, Laws of Wis. 1969, Ca. 384 §22. ‘

9 $139.40, Wis. Stats. (1967).

oft

‘robbery. It was traced to Harris and he was arrested as he

entered it. After a cursory search of the car, the arresting

officer took Harris to a police station. They decided to

impound the car as evidence, and a crane was called to

tow it to the precinct. The windows of the car were open

and the door unlocked. A Metropolitan Police Regulation

fequired an officer impounding a vehicle to search it,

‘remove all v@luables and to attach to the vehicle a

property tag listing certain information. In Harris the

arresting officer pursuant to the regulation proceeded to

the precinct station lot where the car had been towed, to

search the vehicle, place a property tag on it, roll up the

‘windows and lock the doors. While securing one of the .

windows and doors,he observed a registration card on the

door ledge which was later used in evidence. 390 U.S. at

p. 235. Under what this Court characterized to be “these

harrow circumstances’ it held that the Fourth Amend-

ment did not require the police to obtain a warrant. 390

U.S. at p. 236. In essence, the evidence fell in “plain

view” of an officer who had a right to be in that position.

In the instant case the officers made no decision to

impound the car as evidence. Nor was the officer

authorized by any state law to do so. Cf. Cooper y.

California, 386 U.S. 58 (1967). In Dombrowski’s case the

car was searched and secured at the accident scene and

towed to a private garage. Some 2% hours later Officer

Weiss traveled from West Bend to Kewaskum to search

for the defendant’s service revolver in the locked car, not

to take any measure to protect the automobile while it

was in police custody—it in fact was not in police custody

but at a private garage. In the Dombrowski case the

officer was not tagging or securing the car. In fact he had

to unlock it to search it. In the Dombrowski case the

items seized were not in “plain view” while the car was

being secured but in the locked trunk of the car.

3. Officer W Warrantless Search of the

ee Cannot Be Justified as a Rea-

sonable Act To Secure Dombrowski’s “Gun”

The second search of the Thunderbird was unreason-

able and not compelled by exigent circumstances. At the

accident scene, Officers Boudry and Weiss knew that

Dombrowski was a Chicago Police Officer. (A. 109)

Although inquiring about other matters, they did not ask

Dombrowski whether police regulations required him to

have his gun with him when he was off duty and not in

his jurisdiction, whether he had his gun with him and, if

so, where it was located. Dombrowski was not incoherent

at this time. (A. 103). Instead, Officer Boudry chose to

search through the inside of the car, including under the

seat, in the glove compartment and in the back seat.

(A. 110). No weapon was found. Boudry then locked the

car. (A. 110). The car was then towed to a private garage

in Kewaskum. (A. 90). No gun was ever found in the

vehicle. Assuming, however, that there initially had been

reason to believe that a gun was in the car, certainly the

locked doors and locked trunk were reasonable pro-

tection against the possibility that unknown persons in

the middle of the night in a rural area of Wisconsin would

gain access to the locked vehicle and locate the gun which

Officer Boudry’s search failed to locate. At no time

following the search did the officers make any inquiry of

Dombrowski about the “gun” although they testified

that Dombrowski continuously advised them that he was

a police officer. (A. 83). Nor does the record show that

the officers made any inquiry concerning whether Dom-

browski had a gun with him when they talked to

Dombrowski’s wife by telephone. (A. 85, 106).

. 31

Petitioner now seeks to imply that Dombrowski may

have had a gun and was incapable of communicating to

the officers whether he had a gun with him, where it was

located and that the officers should keep it in a safe

place. (Petitioner’s Br. p. 27). The record clearly fails to

where it was located. The accident occurred at about

- 10:30 p.m. Dombrowski called the Washington County

(A. 107-109). Dombrowski told the officers his occupa-

tion. (A. 109). In answer to Officer Boudry’s question,

Dombrowski advised him that there were no others

involved in the accident and that he was alone. (A. 109).

He furnished his license and identification. (A. 81).

Although at the accident scene Dombrowski gave the

_ officers three different accounts of how the accident had

occurred, (A. 109) those inconsistent statements did not

demonstrate that he was incapable of advising him, if

asked, whether he was required to have a gun with him, if

he had such a gun, and if so where it was located. Officer

Weiss specifically testified that Dombrowski was not in-

coherent at this time. (A. 103). Dombrowski was able to

answer the inquiries of Assistant District Attorney

Aldwin Seefeldt at the Sheriff's office in West Bend prior

to his arrest. (A. 81-82). Subsequently, at the West Bend

Police Department, Dombrowski was capable enough to

refuse to take a “chem” test. (A. 82-83). It was while

Dombrowski was at the West Bend Police Station that the

officer first observed him to be incoherent at times.

(A. 83). It was at the hospital at 2:00 a.m., about 2%

hours after the officers and Dombrowski had left the

> ie

accident scene, that Dombrowski was uncommunicative.

(A. 105).

It is significant to note that the officers were looking

only for Dombrowski’s service revolver and made: no

pretext of concern for safeguarding other valuables or

personal property of Dombrowski.'®

Cabbler v. Virginia, 212 Va. 520, 184 S.E.2d 781 (Va.,

1971) relied upon by petitioner (Petitioner’s Br. p. 25) is

facutally inapposite to what occurred in this case. In

Cabbler, the officer advised the defendant that his car

would be removed to the city garage for safekeeping until

his release from custody. The car, before being stored in

the city garage, was taken to the police property room

where the contents of the car were to be removed,

inventoried and stored for safekeeping. It was then that

the police discovered the stolen goods that result in

Cabbler’s later convictions. In the instant matter, no

effort was made to safeguard or take Dombrowski’s car

into police custody for purposes of safekeeping. It was

removed from the accident scene to a private garage in

Kewaskum, Wisconsin where it remained parked on a lot

outside oS Ca No effort was made to guard or

safekeep the nor did the officers intend to take

1°It is not without doubt that the search for Dombrowski’s

service revolver was one of innocent purpose rather than a search

for incriminatory evidence. For example, it is a criminal offense in

the state of Wisconsin to go armed with a concealed and dangerous

weapon although an exception is made for peace officers. §941.23

Wis. Stats. (1967). See definition of “peace officer”.

§ §939.22(22), 964.245 Wis. Stats. (1967). The driver of an

automobile goes armed within the meaning of the law when he has

a dangerous weapon within reach. Mularkey v. State, 201 Wis. 429,

432, 230 N.W. 76 (1930).

any further steps to safeguard Dombrowski’s personal

property. Other than searching for the service revolver,

there is nothing to indicate in this record that the police

officers intended to remove Dombrowski’s personal

property, inventory it and store it until his release.

It is important to bear in mind that Dombrowski’s

Thunderbird automobile was not in police custody in any

respect. What took place here was a general exploratory

search of an automobile in which Dombrowski had a

reasonable expectation of privacy and personal se-

curity.'!

THE DISCOVERY OF A WHITE SOCK AND FLOOR-

MAT BY A STATE CRIME LABORATORY REPRE-

SENTATIVE IN A THIRD SEARCH OF THE DODGE

OCCURRING SUBSEQUENT TO THE EXECUTION

OF THE SEARCH WARRANT FOR THE DODGE

WAS NOT INADVERTENT AND NOR REASON-

ABLE WITHIN THE PLAIN VIEW DOCTRINE

On September 12, 1967, law enforcement authorities

conducted an extensive search of Dombrowski’s brother’s

farm, including Dombrowski’s 1960 Dodge which was

located thereon. (A. 167-177). Undersheriff Howard

went up to the Dodge automobile and “looked into” or

visually searched it.'? (A. 167-168). At 8:02 that evening

'\Several recent cases have condemned general exploratory

searches allegedly done to inventory or inspect property. See

Mayfield v. United States, 9 Cr. L. 2115 (D.C. Cir. 1971); United

States v. Mossbauer, 9 Cr. L. 2276-2277 (U.S. Ct. Mil. App. 1971).

the farm and the plain view doctrine justified the seizure of the

items that were observed by Howard in the Dodge. (Pet. App.

~ 109-110).

Raymond Howard, Undersheriff, applied for a search

warrant for the 1960 Dodge. (A. 40). The search warrant

was issued by the County Court of Fond du Lac County,

Wisconsin, at 8:15 p.m. on September 12, 1967,

(A. 31).35

The search warrant for the 1960 Dodge was executed

by Undersheriff Howard that evening right after he left

the courtroom. (A. 172). The same night that he made

the search, he removed the 1960 Dodge from the farm

premises. (A. 172). On the next day, September 13,

1967, Undersheriff Howard prepared his return to the

search warrant listing the items that he found in the

search of the 1960 Dodge. (A. 172-173). The thorough-

ness of the search appears from the return. The return

listed not only the items discovered in the search of the

Dodge, but other items that were found outside of the

car on the premises. (A. 33, 173). Neither the white sock

nor floormat were listed in the return, The return itself

does not indicate that it was a “partial” return as

13The Court of Appeals expressly refrained from deciding

whether the search warrant for the 1960 Dodge was valid (Pet.

App. 110). Dombrowski had challenged by pretrial motion the

admissibility of the items seized pursuant to search warrant for the

1960 Dodge. Basically, Dombrowski asserted (1) that the search

warrant was void on its face since it failed to particularly describe

the place to be searched and the person and things to be seized in

violation of the Fourth and Fourteenth Amendments, United

States Constitution. [See Stanford v. State of Texas, 379 US. 476,

485 (1965)}, (2) that probable cause had not been established [See

Aguilar v. Texas, 378 U.S. 108, 114 (1964)] and (3) that the

attorney’s statement to the police and the testimony of Officer

Howard in obtaining the search warrant were the fruit of the

unlawful search of the Ford Thunderbird. [See Wong Sun v, @nited

States, 371 U.S. 471 (1963); Alderman v. United States, 394 US.

165, 177 (1969)}.

indicated in Petitioner’s brief. (A. 33, See Petitioner’s Br.

p. 6).

Undersheriff Howard described his observations made

while conducting the visual search of the car and later

when searching pursuant to the search warrant. In the

visual search, he said he observed a pillow case covering

what appeared to be blood. He could see blood where it

ran off of the cushion and was beyond the coverage range

of the pillow case. He could see blood on a brief case on

the floor and blood splattered on the back of the front

seat and on the side of the back seat of the car. (A. 143).

In executing the search warrant, the items he found were

the items listed in his return. (A. 173). Of the items listed

in his return, a necktie, books of matches partially

burned and a fresh pile of straw were in fact located

outside of the car. (A. 173). There is no evidence in the

record which supports the proposition that either the

white sock or floormat (Trial Ex. 32 and 37) were ever

seen by Undersheriff Howard.

The white sock and floormat (Trial Ex. 32 and 37)

were not simply “taken up and labeled” by Mr. Mauer of

the State Crime Laboratory. He searched the vehicle.

(A. 160). He searched the vehicle the day after the search

warrant had been executed by Undersheriff Howard.

(A. 158). He searched the 1960 Dodge while it was

_ located at the Fond du Lac County Sheriff's Garage.

(A. 158). Mr. Mauer, the State Crime Laboratory repre-

sentative, did not make recoveries from the car while it

was located in the farm area. (A. 155). No further

warrant for the search of the car had been obtained, but

the State Crime Laboratory representative stated that he

was acting in the capacity of the Sheriff's Department of

Fond du Lac County. (A. 155-156). The items that were

Tecovered by Mr. Mauer were not listed and attached to

the search warrant as a return. (A. 156). These items

seized in the third search of the 1960 Dodge were

introduced in evidence at Dombrowski’s trial.

(A. 153-154).

At the time of Mauer’s search, the warrant had already

been executed and a return prepared. It cannot thereafter

serve as a basis for unlimited additional searches. 79

C.J.S. Searches and Seizures, §83, p. 897.

As the Court of Appeals correctly pointed out, there

was no continuing authority under the warrant issued the

previous night. First, the white sock and floormat were

not described in the warrant and were not observed the

night before. Second, when the warrant was returned—

before Mauer came on the scene—it was functus officio.

(Pet. App. 111). Mr. Mauer did not have prior justifica-

tion for an intrusion in the course of which he came

inadvertently across a piece of evidence incriminating

Dombrowski. It is clear that his discovery was not

“inadvertent”. He was searching for further evidence

concerning the homicide. Accordingly, the plain view

doctrine does not justify his warrantless search and

seizures. Coolidge v. New Hampshire, 403 U.S. 443,

467-468 (197,1).

THIS COURT SHOULD NOT MODIFY WISCONSIN'S

EXCLUSIONARY RULE ADOPTED PRIOR

TO THE MAPP DECISION

A. Issue Should Not Be Considered

Petitioner in his statement of the questions presented

poses the question, “4. Does the ‘exclusionary rule“serve

society’s needs?” and indicates that question was not

considered by the Court of Appeals (Petitioner’s Br. p.

3). Perhaps it should also be added that this issue was

never briefed in the Court of Appeals. Nor was this issue

‘presented by the Petitioner to the District Court,

Wisconsin Supreme Court or County Court of Fond du

Lac County, Wisconsin. It should not be considered by

this Court. Bivens v. Six Unknown Named Agents, 403

U.S. 388, 397-398 (1971).

B. Wisconsin Exclusionary Rule

Assuming arguendo that a modification of the exclu-

sionary rule is considered by this Court, notwithstanding

it not being considered by the courts below, on the

merits the exclusionary rule should not be modified.

When the Petitioner in this case asks this Court to modify

the exclusionary rule enunciated in Mapp v. Ohio, 367

US. 643 (1961), the Petitioner is in reality asking this

Court to modify Wisconsin’s own “exclusionary rule

applicable to state criminal cases which was adopted by

the Wisconsin Supreme Court prior to the Mapp decision.

Wisconsin case law holds’ that whether a search and

seizure are valid is a question of federal constitutional

law. Kluck v. State, 37 Wis. 2d 378, 386, 155 N.W.2d 26,

29 (1967). If evidence obtained by an illegal search is

admitted into evidence and has a prejudicial effect on the

defendant’s case, then the Fourteenth Amendment due

process clause requires that a subsequent conviction be

teversed. Mapp v. Ohio, 367 U.S. 643 (1961); Browne v.

State, 24 Wis. 2d 491, 129 N.W. 2d 175, 131 N.W.2d 169

1964); Kluck v. State, 37 Wis. 2d 378, 386, 155 N.W.2d

, 29 (1967).

te The State of Wisconsin adopted the exclusionary rule

Prior to the Mapp decision and has held inadmissible in

nsin Courts evidence obtained by illegal search and

. Hoyer v. State, 180 Wis. 407, 417, 193 N.W. 89,

93 (1923); Jokosh v. State, 181 Wis. 160, 163, 193 N.W.

976, 977 (1923); State v. Kroening, 274 Wis. 266,

272-276, 79 N.W.2d 810, 814-816 (1954). In Kluck y.

State, 37 Wis. 2d 378, 386, 155 N.W.2d 26, 29 (1967)

Justice Hanley of the Wisconsin Supreme Court stated

the purpose of the Wisconsin exclusionary rule as

follows: —

“*®**The purpose of exclusion of evidence in

violation of the strictures placed upon searches and

seizures has for its purpose the protection of

privacy. see”

This Court has recognized that the role of the Fourth

Amendment is to protect against invasions of privacy and

to protect the security a man relies upon when he places

himself or his property within a constitutionally pro-

tected area, be it his home or his office, his hotel room or

his automobile. It protects him from unwarranted govern-

mental intrusion. Warden v. Hayden, 387 U.S. 294, 305

(1967); Hoffa v. United States, 385 U.S. 293, 301

(1966).

Ker v. California, 374 U.S. 23, 34 (1963) ssitectionl

“workable rules governing arrests, searches and seizures

to meet ‘the practical demands of effective criminal

investigation and law enforcement’ in the States”. The

opinion of the Court stated:

“Preliminary to our examination of the search and

seizure involved here, it might be helpful for us to

indicate what was not decided in Mapp [v. Ohio,

367 U.S. 643]. First it must be recognized that the

‘principles governing the admissibility of evidence i i

federal criminal trials have not been restricted .

those derived solely from the Constitution. In _

exercise of its supervisory authority over the admin-

istration of criminal justice in the federal courts. . .

this Court has . . . formulated rules of evidence to be

applied in federal criminal prosecutions’ ... Mapp,

however, established no assumption by this Court of

supervisory authority over state courts,...and,

- consequently, it implied no total obliteration of

state laws relating to arrests and searches in favor of

federal law. Mapp sounded no death knell for our

federalism; rather, it echoed the sentiment of Elkins

v. United States, supra, at 221, that ‘a healthy

federalism depends upon the avoidance of needless

conflict between the state and federal courts’ by

itself urging that ‘[f]ederal-state cooperation in the

solution of crime under constitutional standards will

be promoted, if only by recognition of their now

mutual obligation to respect the same fundamental

criteria in their approaches.’ 367 U.S., at 658.”

(Emphasis in Ker.) Id. at p. 31.

This Court should avoid modifying Wisconsin’s exclusion-

ary tule prohibiting the introduction of evidence ob-

tained as a result of an illegal search and seizure.

C. Exclusionary Rule Should Not Be

Modified at This Time

The popular rhetoric of Petitioner suggesting the effect

of the exclusionary rule to be that a murderer will be a

fee man'* must, of course, be balanced against the

gate’s announced intention of retrying Dombrowski if

Petitioner does not succeed in this matter. (R. Letter

tated 9/1/72 from Mary V. Bowman, Attorney for Cady,

0 Hon. Myron L. Gordon). Criticisms for this type seek

lo shift popular blame to the courts from those who were

responsible for the unconstitutional conduct.

Legal arguments advanced by Petitioner for modifica-

tion of the exclusionary rule are primarily drawn from

Mec Petitioner’s Br. p. 40.

bef

two sources. They are: (1) Professor Oaks’ law review

article, Studying the Exclusionary Rule in Search and

Seizure, 37 U. Ch. L. Rev. 665 (1970) and (2) Chief

Justice Burger’s dissent in Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971).

It is claimed that the exclusionary rule has not worked.

There is no empirical data to conclusively establish this.

Such proof is not found in Professor Oaks’ article. His

article states that the evidence is not conclusive, al-

. though, in pages 678-709 and especially the summary of

findings on pages 706-709, it sets forth a good deal of

statistical data challenging the effectiveness of the exclu-

sionary rule. For example, he cites a study of arrests and

convictions for seizures of property in Cincinnati, Ohio

before and after the Mapp decision as showing no

significant changes in police behavior. In commenting on

this analysis the American Bar Association, Section on

Criminal Law, Majority Report, to the House of Dele-

gates, 107c, [concerning the exclusionary rule and Senate

Bill No. 2657 (92d Congress, Ist Session, as amended)]

states:

“* * * The majority position of the Council is that in

actuality there is no way to be certain what precise

‘effect the exclusionary rule has had on police

conduct without an extensive examination of at

least..a-representative sample of police actions in

connection with particular searches, seizures and

arrests. This is so because no notoriety attends /egal

police conduct, and both incidents and the motiva-

tion for it go unrecorded. It is probable that very

marked, but unmeasured, improvements in police

procedures have taken place. For example, there has

not come to the attention of the courts since the

Mapp decision any cases revealing such outlandish

police practices as took place in California in the

Irvine and Cahan cases, with the exception, perhaps,

of the revelation of illegal federal wiretapping

practices in the 1960's.

“Indeed, if it is assumed that police intend to be

both rational and lawful, and any. other assumption

is insupportable, then the exclusionary rule must

have contributed to more lawful actions by the

police, augmented the professionalism of law en-

forcement officers, and ,improved the integrity of

the judicial process by leeching from it at least some

illegally acquired evidence. Furthermore, the over- _

_ whelming percentage of pleas and convictions which

_ attend charges provides ample proof that the rule

has not stultified either police work or the judicial

_ process. At the same time there is no demonstrated

_ connection between increases in crime rates and the

- rule. To conclude otherwise requires generalizations

- about cause and effect in crime rates which are

- unwarranted without vastly more data and analysis

- than is now available. For there (sic) reasons, it is

- our considered view that the exclusionary rule,

_ while no panacea, is, of all the available alternatives,

_ most likely to motivate police conduct in a lawful

_ direction.” Ibid at p. 9-10.

- On February 12, 1973, the American Bar Association’s

House of Delegates, the policy making body of the

nation’s lawyers, voted 129 to 114 in support of the

Majority Report of the Criminal Law Section, which

opposed Senate Bill No. 2657 and also affirmed the

American Bar Association’s support of the exclusionary

tale i in State and Federal criminal proceedings.

Proposed modification of the exclusionary rule set

forth in Senate Bill No. 2657 differs in only two respects

ffom the American Law Institute’s Model Code of

Pre-Arraignment Procedure, Proposed Official Draft No.

3, April 10, 1972, which Petitioner urges the court to

adopt. It should be noted that the Minority Report to the

American Bar Association House of Delegates, at p. 11,

points out that an important element of the proposed

bill, not found in the American Law Institute draft, is the

right to sue the Federal Government for tort damages for

illegal searches and seizures conducted in violation of the

Constitution by Federal employees.

Chief Justice Burger in his dissent, in Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971), suggests

that an entirely different remedy should be developed by

legislative action, Jd. at p. 422. After suggesting the

framework of such a remedy he notes that once the

constitutional validity of such a statute is established, it

can reasonably be assumed that the states would develop

their own remedial systems on the federal model. Jd. at

pp. 422-424. Specifically, Chief Justice Burger warned:

“Any such legislation should emphasize the inter-

dependence between the waiver of sovereign immun-

ity and the elimination of the judically created

exclusionary rule so that if the legislative determina-

tion to repudiate the exclusionary rule falls, the

entire statutory scheme would fall.” /d. at p. 423 n.

Chief Justice Burger did not proposed that the Court

abandon the suppression doctrine until some meaningful

alternative can be developed. Jd. at p. 420. He counseled:

“,# * ® To overrule Weeks and Mapp, even assuming

the Court was not prepared to take that step, could

raise yet new problems. Obviously, the public

interest would be poorly served if law enforcement

officials ‘were suddenly to gain the impression,

however erroneous, that all constitutional restraints

on police had somehow been removed—that an open

season on ‘criminals’ had been declared. I am

concerned lest some such mistaken impression might

_ be fostered by a flat overruling of the suppression

doctrine cases. For years we have relied upon it as

the exclusive remedy for unlawful official conduct;

in a sense we are in a situation akin to the narcotics

addict whose dependence on drugs precludes any

drastic or immediate withdrawal of the supposed

prop, regardless of how futile its continued use may

be.”"/d. at p. 420-421.

Assuming arguendo that a modification of the exclu-

sionary rule should occur, such a change should be left to

Congress and the state legislatures, which are better

equipped to obtain empirical and other data concerning

such changes and fashion remedies consistent with

national and state experiences. In no event should any

modification be made to retroactively apply to the search

jn this case that occurred over five years ago when the

exclusionary rule clearly applied. If there is to be change

prospectively, the alternative to be selected for Wiscon-

sin, (which has sought to provide training to its law

enforcement personnel through bulletins issued by the

state Attorney General’s office, as well as vocational and

college level training programs), might vary widely from

that of another state which lacks such experience.

At this time the Court should not seek, in effect, to

modify Wisconsin’s exclusionary rule.

CONCLUSION

The decision of the United States Court of Appeals for

the Seventh Circuit should be affirmed.

Respectfully submitted,

WILLIAM J. MULLIGAN

108 West Wells Street

Milwaukee, Wisconsin 53203

DAVID E. LEICHTFUSS

324 East Wisconsin Avenue

Milwaukee, Wisconsin 53202

Attorneys for Respondent

February, 1973

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.