# Brief for Respondent — Cady v. Dombrowski

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for Respondent
- **Published:** January 1, 1973
- **Citation:** 413 U.S. 433

## Text

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

s

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

o
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.

2

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

3

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

* * * * *

4

(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;
or

(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

5

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

6

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.

7

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

8

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).

10

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
we

11

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

12

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,

13

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).

14

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

15

(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
I,

“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”’.

‘
ae

16

(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.]

17

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)

7

a

18

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)

om
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).

20

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

21

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

22

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.

23

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:

A

24

"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:

25

“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.

26

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-

28

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).

ve
a
oft
xy

29

‘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.

30

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).

33

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.'!

I.

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 Court of Appeals held that the police were lawfully on
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).

34

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)}.

35

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

36

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).

I.
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.

37

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,

38

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

39

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
a

40

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

41

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

42

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.
7

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

43

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.

44

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0188%3A4. Public record. Not legal advice.