State v. Wiley

¶1(dissenting).

¶2Assuming the police had probable cause to arrest the defendant along with the others in the apartment,11 respectfully dissent as to the search and seizure portions of the principal opinion on these grounds :

¶3I

¶4The effect of the principal opinion is to allow the police, when they have arrested a defendant on probable cause to believe he has narcotics concealed in his dwelling, to search whatever portion of the dwelling in which they have reason to believe the narcotics are hidden. The justification for this warrantless search is said to be the emergency or exigency found in the possible removal or destruction of the contraband or evidence. The practical consequence is that a warrantless search is authorized in almost every arrest which occurs in a dwelling place, far beyond the limits imposed by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), as it can always be said there is the possibility of removal or destruction of evidence if the police are required to obtain a warrant.

¶5In the case before us, the police arrested everyone in the apartment and took them to the police station. There was no one left in the apartment to remove or destroy the narcotics in the refrigerator. The opinion expressly states the search was made subsequent to the arrest. Yet it is on the basis that the narcotics were going to be removed or destroyed after the arrest that the emergency is found. There is no reason to believe the narcotics would be re*296moved before a warrant could be obtained, a circumstance required under Coolidge v. New Hampshire, 403 U.S. 443, 460-64, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), for the application of the emergency theory. It would have been simple to have left a policeman on guard while a search warrant was obtained. There is no evidence that any other person had or would be allowed access to the apartment.2 Under these conditions, it cannot be said that “. [the officers’] attempt to secure a warrant might delay them sufficiently to cause the criminal to get away or destroy the fruits of evidence of the crime . . .”, United States v. Davis, 461 F.2d 1026, 1030 (3rd Cir. 1972), cited by the principal opinion. An emergency might have existed with respect to the arrest of the persons involved, but once the arrests were accomplished, and it being conceded that the search was not incident thereto, then “Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant.” Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925). “That basic rule ‘has never been questioned in this Court’ .”, Vale v. Louisiana, 399 U.S. 30, 35, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970).

¶6The United States Supreme Court has ruled invalid a search and seizure which closely resembles the facts here, but which is not discussed by the principal opinion. In Vale v. Louisiana, supra, the police, who were watching defendant’s house, observed what they suspected was a sale of narcotics between defendant and a known addict outside the house, after the defendant had gone into the house and brought something out to the addict. They arrested defendant at the front steps, informed him they were going to search the house, and one of the officers made a cursory inspection of the house to ascertain if anyone else was present. Within about three minutes, defendant’s mother and brother returned home carrying groceries and were informed of the arrest and impending search. A search then made of a rear bedroom revealed a quantity of narcotics. The Court reversed and remanded.

¶7The Court first established that the search was not within the permissible scope of a search incident to arrest, Chimel v. California, supra, and then stated, 399 U.S. at 34-35, 90 S.Ct. at 1972.

¶8“The Louisiana Supreme Court thought the search independently supportable because it involved narcotics, which are easily removed, hidden, or destroyed. It would be unreasonable, the Louisiana court concluded, ‘to require the officers under the facts of the case to first secure a search warrant before searching the premises, as time is of the essence inasmuch as the officers never know whether there is anyone on the premises to be searched who could very easily destroy the evidence.’ 252 La., at 1070, 215 So.2d, at 816. Such a rationale could not apply to the present case, since by their own account the arresting officers satisfied themselves that no one else was in the house when they first entered the premises.. But entirely apart from that point, our past decisions make clear that only in ‘a few specifically established and well-delineated’ situations, Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L.Ed.2d 576, may a warrantless search of a dwelling withstand constitutional scrutiny, even though the authorities have probable cause to conduct it. The burden rests on the State to show the existence of such an exceptional situation. Chimel v. California, supra, 395 U.S. at 762, 89 S.Ct. at 2039; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L. Ed. 59; McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153. And the record before us discloses none.”

¶9*297The factual similarity between Vale and the case at bar leaves little room for doubt that it is controlling here. In fact, the Supreme Court saw no significance in the possibility that defendant’s mother and brother, who were present but not under arrest, might remove or destroy the narcotics, a risk which is lacking here, as all the occupants of the apartment were in custody.

¶10A case which does illustrate circumstances contemplated by the emergency' doctrine is Cupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 2004, 36 L.Ed.2d 900 (1973). There the police were investigating the murder by strangulation of defendant’s wife. The defendant volunteered a great deal of information, but refused to let police take a sample of scrapings from his fingernails, the police having noticed a dark spot on his finger which they thought might be blood. Upon refusing, defendant put his hands behind him, appeared to rub them together and then put his hands in his pockets and a metallic sound was then heard, such as keys or coins rattling. The police thereupon took the fingernail scrapings over his protest and without a warrant. The scrappings contained incriminating traces which were introduced in evidence against defendant. The Court upheld the search, but on the ground that defendant was attempting to destroy what evidence he could without attracting further attention and hence the police were justified in making the search which was “necessary to preserve the highly evanescent evidence they found under his fingernails.” This necessity is missing in our case. The narcotics in the refrigerator, after the occupants of the apartment had been arrested, were not “highly evanescent.”

¶11The cases relied on in the principal opinion are cited only for their general language recognizing the emergency doctrine per se, but the facts of those cases are distinguishable, and the principal opinion fails to establish an immediate danger of removal or destruction of evidence under the facts of this case. In United States v. Davis, 461 F.2d 1026 (3rd Cir. 1972), the narcotics were found on the person of the defendant or within the area immediately under the control of the defendants, and all the evidence seized was held to be incident to a lawful arrest under Chimel, id. at 1034. The emergency involved in Davis was pertinent only to the arrest of the defendants and not to the search.

¶12In United States v. Blake, 484 F.2d 50 (8th Cir. 1973), the federal agents virtually saw the defendant throw the narcotics down a clothes chute. The court stated at 54, “The officers could have obtained a search warrant, however the defendant was not under arrest and could have removed or destroyed the white purse [which contained the narcotics]. The delay in obtaining a search warrant could certainly have been fatal.” 3

¶13In United States v. Rubin, 474 F.2d 262 (3rd Cir. 1973), federal agents watched defendants transport a statue which they believed to contain narcotics from the airport to his home. Defendant then left his home and drove several blocks to a gas station where it appeared to the agents he was known to some of the persons present. When arrested, he yelled, “Call my brother.” The agents knew that at least one other person, who was not in custody, had been left at the defendant’s dwelling, and the court stated at 269, “It was not unreasonable for agents to believe that this might well be a signal to alert persons still *298at 1819 South 9th Street of [defendant’s] arrest and of imminent police intervention into their activities . . . .”

¶14The Blake and Rubin cases thus demonstrate emergency situations where there is a very real threat of destruction or removal of evidence by persons not in custody with access to the contraband. In this case, there was no such threat.

¶15The principal opinion establishes much too broad a concept of emergency. If it prevails, then as said by the United States Supreme Court when asked to uphold doubtful police procedures, “If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of a case in which it should be required.” Chapman v. United States, 365 U.S. 610, 615-16, 81 S.Ct. 776, 779, 5 L.Ed.2d 828 (1961), quoting Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 779, 92 L. Ed. 436 (1948).

¶16II

¶17In addition to the emergency theory, the principal opinion states that the search in this case can be sustained upon another ground, to wit: “. . .it was important in these early moments after the arrest that the defendant and others either be detained or released and the investigation continue, if the information concerning the location of the substances proved to be false. It was reasonable therefore for the officers to immediately examine the one location to which their attention had been directed to verify the accuracy of the information.” This is certainly a novel justification for a warrantless search. Under this theory no constitutional right of a suspect need be observed if to do so would interfere with a quick determination by the police as to whether they have the man they are after. As to fourth amendment rights it would practically wipe out judicial involvement in the decision as to when the right of privacy must yield to the right of search.

¶18A similar argument was rejected in United States v. Hamilton, 490 F.2d 598, 601 (9th Cir. 1974). In that case, the government tried to justify the warrantless search of a secret compartment in a truck (in which, the agents were told by an informant, they would find marijuana) on the ground that the information provided was thus verified. The court stated, “It is hornbook law that ex post facto verification does not satisfy the Fourth Amendment. Wong Sun v. United States, 371 U. S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).”

¶19The principal opinion sees an analogy to Grant v. State, 446 S.W.2d 620 (Mo.1969), but the analogy is not apt. That was a rape case. The victim ran to a neighboring farmhouse and called the officers. While taking the assailant’s description, they received word a man had been seen on a nearby farm. They arrested and brought him back to the victim, handcuffed, for an immediate one-to-one identification confrontation. Under Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L. Ed.2d 1199 (1967), this procedure was held not to violate due process as constituting an unfair identification. As pointed out in the Grant opinion, while the police knew a crime had occurred and they had the defendant in custody, they did not know for sure whether he was the assailant. But in the present case there was no uncertainty about who the participants were if a crime had been committed. They were the people in the apartment. The police were not looking for the narcotics in the refrigerator to decide whether to look for someone other than the people in the apartment. If there were no narcotics in the refrigerator, then it was a false alarm, not a case where a crime had occurred, but the police did not yet have the culprits.

¶20The two cases are not similar but because the procedure approved in the Grant case enabled the police to determine quickly whether they had the right man, it is sought to approve what was done in the present case on the ground that it likewise enabled the police to decide quickly wheth*299er they were right. As said earlier, under this approach no constitutional right would be applicable if it interferes with the police making a quick decision. The short answer to this is that no such exception appears in the fourth amendment.

¶21Under the proposed opinion, the overriding consideration in fourth amendment cases becomes helping the police in bringing crime investigations to a conclusion in a minimum length of time. This is a dangerous precedent to set and I am unable to subscribe to it. It is a long step toward reducing “. . . the Amendment to a nullity and [leaving] the people’s homes secure only in the discretion of police officers.” Johnson v. United States, supra, 333 U.S. at 14, 68 S.Ct. at 369.