STATE of Missouri, Respondent, v. Russell Lee EPPERSON, Appellant.
No. 60308.
Supreme Court of Missouri, En Banc.
Sept. 12, 1978.
Rehearing Denied Oct. 10, 1978.
571 S.W.2d 260
Defendant Russell Lee Epperson was convicted on three counts of murder in the first degree for killing his wife Fern and their two children, Richard and De Ann. The jury assessed punishment on each count at life imprisonment and the court ordered that the sentences run consecutively.
On appeal, defendant contends that evidence used against him in the prosecution of the case was obtained during a warrantless search of his home by members of the municipal police force of the City of Mexico, Missouri, in violation of his rights under the
Appeal was taken to the Court of Appeals, St. Louis District, which, in an opinion suggesting affirmance, determined that resolution of the issues involved an original construction of the
David V. Bear, Columbia, for appellant.
John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant Epperson and his wife, Fern, lived with their two small children at 608
The next day, March 25, Mrs. Smith again tried calling her daughter at home but received no answer. That evening she and her husband saw Epperson on the town square in Mexico and he told them Fern was with his mother. However, when Mrs. Smith informed him that she knew Fern and the children were not with his mother Epperson said that he did not know where they were. After Mrs. Smith returned home she received a call from Epperson who told her that Fern had telephoned and said she would be home in the morning with the children.
On March 26, at approximately 8:30 a. m., Epperson again called Mrs. Smith and asked her to come to his house. At first she refused but when he told her that Fern would be there about 9:00 a. m. she agreed to go. At 8:45 a. m. appellant picked up Mrs. Smith in his truck and took her to his home. As she and the defendant went into the house he removed something from a cabinet, keeping it behind him while he locked the outside kitchen door. He stood against the door facing Mrs. Smith, keeping his left hand behind him and told her she should go into the front room and sit down. He also told her several times that “I‘ll sure be glad to get this all over.” Mrs. Smith saw her daughter‘s purse on the clothes dryer in the kitchen and knowing that whenever her daughter left the house she took her purse with her, she became quite suspicious. At that time she also detected an odor in the house which, from prior experience, she associated with death. After making the excuse that she had some food in the oven at her home Mrs. Smith left the Epperson residence and went to the home of a neighbor, Mrs. Mitchell, and placed a call to the Police Department of the City of Mexico. Officer Schnidler, responding to that call, met Mrs. Smith at the Mitchell house where she related the matters that had occurred. Schindler promptly summoned Sergeant Duffner and relayed this information to him.
Both officers immediately went to the Epperson home and finding all of the windows were covered with drapes or blinds, knocked on the doors without response. Ordering Schindler to remain near the house to observe if anyone left or entered, Sergeant Duffner walked next door to the home of Epperson‘s neighbor and through a series of calls obtained information as to Epperson‘s place of employment and that of his wife, as well as the school in which Richard was enrolled. He learned that Fern Epperson had been on vacation that week but had not kept her usual Tuesday evening bowling date. From defendant‘s employer he found that defendant had stated the day before that he had taken his wife to the hospital for x-rays but a call to the family doctor revealed that he had not seen Mrs. Epperson since December of 1974 and Mrs. Smith had informed him that the hospital had no record of Fern reporting for x-rays. School personnel where Richard was enrolled told Sergeant Duffner that Epperson had called the school the day before and told them that his son Richard would be absent because of illness. Following a conference with the Chief of Police, Duffner was ordered to determine from Epperson‘s parents whether they had seen him and request that the parents come to the house.
The parents agreed to this suggestion and met the officers at the Epperson home where, again, knocking on the doors produced no response. Epperson‘s father pointed out that his son‘s motorcycle was not there and surmised he might be elsewhere riding it. However, the motorcycle was located at Epperson‘s place of employment but he could not be found. The parents then told the officers they would not break into their son‘s house and they then went to the home
When they pulled back the blinds they saw what was apparently a human form lying under a sheet on the bed. While Schindler and Epperson‘s father went to the other parts of the house to see if anyone else was there Sergeant Duffner removed the sheet and discovered the bodies of Mrs. Epperson and the two children. The children had plastic bags over their heads and the son had a cord around his neck. Each showed signs of violent mistreatment. There was a sock in the bag over the daughter‘s head and another sock was near the wife‘s face. When the others returned to the room where the bodies were found, Duffner called his superior officers and then made an investigation of the house. As he walked through the house he saw a five gallon can of gasoline in the hallway near the bedroom, a chisel for an air hammer partially wrapped in towels in a chair in the living room and a bottle of chloroform on the top of the sewing cabinet in the kitchen. Later during an autopsy it was determined that blows by a blunt instrument had been inflicted on the victims and chloroform was found in their vital organs. Epperson, who could not be found, became the subject of an intensive manhunt and was apprehended ten days later.
I.
Defendant contends that facts known to the police when they broke into the defendant‘s house were not sufficient to justify the warrantless entry and original search. It first should be noted that by objective standards sufficient facts had been made known to the police to establish probable cause that a crime had been committed. These facts include (1) the defendant‘s wife and children had been missing several days; (2) defendant had given false and inconsistent explanations for their absence; (3) defendant‘s unusual, suspicious and nervous manner in the days following the disappearance of his family; (4) an odor of decomposing flesh had been detected in the house, and (5) defendant‘s unexplained disappearance, though he had been in the house with Mrs. Smith shortly before the police arrived.
The question we first must decide is whether the facts were sufficient to establish exigent circumstances justifying a warrantless entry of the house. In general, an entry and search without a warrant are deemed unreasonable under the
The Supreme Court of the United States has held a warrantless search was reasonable in an emergency situation when a police officer heard a shot and a cry for help. McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153 (1948). For a discussion of the emergency doctrine and its history see State v. Sutton, 454 S.W.2d 481 (Mo.banc 1970). Because of the circumstances of the case, the search in Sutton was subsequently ruled unconstitutional in Root v. Gauper, 438 F.2d 361, 365 (8th Cir. 1971), but in Root it was recognized that Missouri had “the prerogative” to accept that doctrine, and we reaffirmed our adoption of the emergency exception in State v. Miller, 486 S.W.2d 435 (Mo.1972). See also Wayne v. United States, 115 U.S.App.D.C. 234, 240-243, 318 F.2d 205, 211-214 (1963).
It has been persuasively stated that whenever the police have reliable information of a death, an emergency exists sufficient to justify an immediate search because apparent death may turn out to be a barely surviving life, still to be saved. Patrick v. State, 227 A.2d 486, 489[3-9] (Del.Supr.1967). Here, although the odor of decomposing flesh would indicate death of one of the persons involved, at least three persons were missing under very unusual circumstances and Epperson could not be found. One or more could have been in immediate need of help to prevent death. Many courts have approved searches upon the emergency exception rationale in situations similar to the case before us. See People v. Brooks, 7 Ill.App.3d 767, 289 N.E.2d 207 (1972); People v. Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1 (banc 1974); People v. Clayton, 34 Ill.App.3d 376, 339 N.E.2d 783 (1975); People v. Lovitz, 39 Ill.App.3d 624, 350 N.E.2d 276 (1976); State v. Pires, 55 Wis.2d 597, 201 N.W.2d 153 (1972); Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975); People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976), cert. denied, 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191.
People v. Brooks, supra, concerned facts remarkably similar to those at bar. There the victim and defendant, who were mother and son, lived together in the mother‘s apartment. Friends of the victim were unable to contact her for several days and when they questioned defendant concerning her whereabouts they received incredulous answers. After the janitor of the victim‘s apartment building noticed an odor of death in the place, he contacted the police. Upon arrival, the police detected a strong “odor of death,” entered the victim‘s apartment and discovered her body in the living room. The Illinois Court upheld the entry and subsequent search of the apartment as a reasonable response to an emergency situation. We hold that the exigent circumstances presented by this record justified the entry and original search of the house as “reasonable” under the
II.
The defendant, as further challenge to the entry and search, places great emphasis on the police officers’ statement of their subjective belief that no crime had been committed and their somewhat ambiguous statements as to a possible emergency. The State counters with the contention that when the legality of a search is in question the subjective thoughts of the police are not controlling but instead the objective facts within their knowledge and the reasonable conclusions objectively drawn therefrom are determinative.
Many lower federal courts and some state courts have said, sometimes in dicta, that objective reasonableness alone suffices to uphold either an arrest or a search. See United States ex rel. LaBelle v. LaVallee, 517 F.2d 750, 754[7-8] (2d Cir. 1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 803, 46 L.Ed.2d 655 (1976); United States v. McCoy, 517 F.2d 41, 43 n. 1[1] (7th Cir. 1975), cert. denied, 423 U.S. 895, 96 S.Ct. 195, 46 L.Ed.2d 127 (1975); United States v. Vital-Padilla, 500 F.2d 641, 644[2] (9th Cir. 1974); White v. United States, 448 F.2d 250, 254[5] (8th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798 (1972); Sirimarco v. United States, 315 F.2d 699, 702[7] (10th Cir. 1963), cert. denied, 374 U.S. 807, 83 S.Ct. 1696, 10 L.Ed.2d 1032 (1963); State v. Donnell, 239 N.W.2d 575, 578[6] (Iowa 1976); Commonwealth v. Miller, 366 Mass. 387, 318 N.E.2d 909, 911[4] (1974); Commonwealth v. Donnelly, 233 Pa.Super. 396, 336 A.2d 632, 637[5-6] (1975), cert. denied, 424 U.S. 974, 96 S.Ct. 1477, 47 L.Ed.2d 744 (1976). Cases holding that the objective facts were not enough have done so on the basis that the police officers’ subjective motives were demonstrably in bad faith. See Mills v. Wainwright, 415 F.2d 787, 790[1] (5th Cir. 1969); Moss v. Cox, 311 F.Supp. 1245, 1251-52[13-15] (E.D.Va.1970). Contra United States v. Dunavan, 485 F.2d 201, 205[4-6] (6th Cir. 1973). This is not a problem here as the officers in good faith were searching for persons missing under unusual circumstances rather than to harass the defendant or entering to search for evidence linking him with a crime.
Furthermore, the officers’ testimony reveals that though they may have considered this a “missing persons” investigation they also considered the medical emergency factors involved. In response to the question why he did not get a search warrant Sergeant Duffner testified:
Well, I really didn‘t know what I had. I didn‘t know—I knew the circumstances, that Russell Epperson and his wife were gone, and as far as I was concerned, I was just looking to try to find them to see if they had skipped the country or they were injured or what. I didn‘t really know what I had. I mean there was no indication further to my prior investigation of any foul play involved of [sic] anything. As far as I knew they were just gone wherever they went; I couldn‘t tell. (Emphasis ours.)
From this response it appears the officer in charge of the search considered the probability that someone in the house might be injured and need medical aid. By an objective standard there are sufficient facts to justify the officers’ initial entry into defendant‘s home, despite the ambiguous testimony as to their subjective belief.
Following the entry under the emergency doctrine, the officers could seize evidence of the crime in the bedroom under the theory of “plain view,”1 if such evidence was readily observable and was discovered inadvertently rather than by anticipation or by a concerted search, and was immediately recognized as evidence of a crime. Coolidge v. New Hampshire, supra, 403 U.S. at 465, 91 S.Ct. 2022; State v. Dayton, 535 S.W.2d 479, 486[6-8] (Mo.App. 1976).
III.
The admission of evidence from rooms of the house other than the bedroom presents a somewhat different problem and cannot be justified under the plain view doctrine except as they might be said to have been inadvertently discovered during a continuation of the emergency search for injured or missing persons. This evidence was discovered as the result of Sergeant Duffner‘s search of the rest of the house immediately following the initial search for defendant (a source of potential danger) or other victims by Officer Schindler and Epperson‘s father. If the evidence had been found moments earlier during Schindler‘s cursory search, it would clearly have been admissible under the plain view theory. United States v. Blake, 484 F.2d 50, 57[7-8] (8th Cir. 1973), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974); State v. Dayton, supra, 535 S.W.2d at 484-86[1-4].
However, the evidence adduced at the hearing for the motion to suppress and at trial revealed that the bottle of chloroform, the gasoline can and the chisel were found and the photographs and diagram of the other rooms were made by Sergeant Duffner after he had discovered the bodies of the three missing persons and Officer Schindler had ascertained that neither defendant nor any other victims were in the house.
In People v. Brooks, supra, after the police discovered the body of defendant‘s mother in his apartment following the warrantless entry justified by the emergency exception, they searched the apartment and discovered a bloody rug in the bathroom and a blood splattered shirt in one of the bedrooms. Shortly thereafter other police personnel arrived and photographed the apartment‘s interior. All of this activity occurred without a search warrant, though upon the discovery of the body defendant became the only suspect. In that case the defendant claimed the search and seizure of physical evidence violated his rights under the
The case of Michigan v. Tyler, No. 76-1608, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), is clear authority to render the warrantless entry in the case at bar “reasonable,” under the
About four hours after leaving the premises, Chief See with his assistant returned to the empty building to determine the origin of the fire and examine for arson. After a cursory inspection they left but at about 9:00 a. m. that morning the Assistant Chief and Detective Webb returned to the building looking for evidence of arson and they discovered suspicious burn marks in the carpets which Webb could not see earlier that morning because of the heat, steam and darkness. They also found pieces of tape, with burn marks, on the stairway. After leaving the building to obtain tools they returned and removed pieces of the carpet and sections of the stairs to preserve these bits of evidence suggestive of a fuse trail. The Assistant Chief also searched through the rubble “looking for any other signs or evidence that showed how this fire was caused.” 1. c. 502, 98 S.Ct. 1. c. 1946. Again, there was neither consent nor warrant for these entries and seizures. Both at trial and on appeal the defendants objected to the introduction of evidence obtained during these searches. Thereafter other investigators entered the premises on January 26 and 29, and again on February 16 to gather evidence concerning the charge of arson and the cause of the fire.
The Court held that
Prior to 4:00 a. m. on January 22, however, the firefighters suspected arson and summoned the police whose investigation was not only for the cause of the fire‘s origin but to determine whether a crime had been committed. Defendants objected to any of the evidence following the time the firefighters and the police detective left the premises about 4:00 a. m., including the entries at 8:00 a. m. and 9:00 a. m. when the Assistant Fire Chief and the Detective returned to the premises, made a detailed inspection but left the building again to obtain tools, then returned and removed parts of the carpet and stairs and continued to search through the rubble. The Court stated that the original exigent circumstance of the fire permitted the entry, noting that the officials charged with extinguishing the fires are also charged with prompt determination of their origin. The Court added that “[i]mmediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and recovery efforts of the victims.” 1. c. 510, 98 S.Ct. 1. c. 1950. The Court then concluded “[o]n the facts of this case, we do not believe that a warrant was necessary for the early morning re-entries on January 22,” nor the re-entries at about 8:00 a. m. and 9:00 a. m. for “[u]nder these circumstances, we find that the morning
Thus the investigation of the building for arson and the taking of pieces of the stairs, carpet and the flammable liquid found in the plastic containers, as well as the search of the building for other evidence of arson, were a continuation of the exigent entry. The right of the officers to return after daylight and continue their investigation sprang from the fact that the exigent quality of the circumstances continued. The Court stated “[i]n determining what constitutes ‘a reasonable time to investigate,’ appropriate recognition must be given to the exigencies that confront officials serving under those conditions, as well as to individuals reasonable expectations of privacy.” The emergency of the fire permitted the entry. The length of time and scope of the search for evidence of possible arson was extended by finding the plastic containers containing the flammable liquid. However, the Court held that the entries occurring after January 22 “were clearly detached from the initial exigency and warrantless entry.”2
In the case sub judice, the urgent circumstances permitting the warrantless entry included possibility of death, illness, or serious injury to persons in the house. After the entry, the exigent quality of the moment was heightened by discovery of the bodies, apparently brutally murdered. The limited superficial search that followed and the removal of the bodies, the taking of photographs of a few scenes in the house and the removal of the few items of personal property not located in the bedroom were within the reasonable time, spatial scope and limited intensity approved by Tyler. Thus the absence of a warrant or of consent, as in Tyler, did not render the challenged evidence inadmissible and for these reasons defendant‘s contention is denied.
As previously discussed, the bodies, plastic bags and chloroformed socks and venetian blind cord were discovered in the bedroom and admissible under the plain view doctrine and the evidence from the other part of the house (i. e., the gasoline can, chisel, bottle of chloroform and certain of the photographs) were within the scope of the emergency exception to the
MORGAN, C. J., and BARDGETT, FINCH and DONNELLY, JJ., concur.
SEILER, J., dissents in separate dissenting opinion filed.
SIMEONE, J., not participating because not a member of the Court when cause was submitted.
SEILER, Judge, dissenting.
I respectfully dissent. What the police did here was to break into a man‘s home. It is true that they did so rather politely, using defendant‘s father as their arm, and not resorting to a sledge hammer, but the fact remains that they entered a man‘s home, a cherished and well nigh sacred place to most of us, by force, without first obtaining a search warrant to do so.
This is being justified on the ground it was warranted by an emergency. In my opinion, we are providing a dangerous and alarming precedent here, one which will give the police extremely broad powers and which seriously reduces the protection of the
Wiser men than I have pointed out the dangers of relaxing
As said in McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948):
“We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the
Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.”
See also, Brinegar v. United States, 338 U.S. 160, 182, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948) (per Jackson, J., dissenting):
“We must remember that the extent of any privilege of search and seizure without warrant which we sustain, the officers interpret and apply themselves and will push to the limit.”
“And we must remember that the authority which we concede to conduct searches and seizures without warrant may be exercised by the most unfit and ruthless officers as well as by the fit and responsible, and resorted to in case of petty misdemeanors as well as in the case of the gravest felonies.”
The question before us is not simply whether there was an emergency making reasonable a warrantless entry and search of defendant‘s home. The question is whether this particular warrantless entry, search and seizure can be upheld under the emergency doctrine in light of the almost
Under part I, the opinion discusses the state‘s contention that the entry was justified under the “need for help” or “emergency” exception, saying the circumstances gave probable cause to believe there was a medical emergency “in which someone might be ill or injured and in need of immediate help” (emphasis supplied). Then the opinion refers to the rule of certain cases that whenever the police had reliable information of a death, an emergency exists sufficient to justify an immediate search, because apparent death may turn out to be barely surviving life, still to be saved. The opinion points out the odor of decomposing flesh indicated death of at least one person, but there were three persons missing and “one or more could have been in immediate need of help to prevent death.” But this justification was not acted on by the police for over two and a half hours. I fail to see how the belated warrantless entry made by the police can be justified as being appropriate under an emergency calling for immediate entry to help someone inside the house in need of immediate assistance.
The exigency of the situation when it first became apparent objectively, whether the police appreciated it or not, that something was seriously wrong inside the Epperson house cannot be extended to, nor render reasonable, in my opinion, a forcible entry made several hours later, during which interval the police could have obtained a search warrant. What we are developing here is a new weapon for the police—the continuing exigency justification, where a delayed entry will be held to relate back to
Not only does such a doctrine fail to comport with the way reasonable people, including policemen, ordinarily react to emergency “need of help” situations, it means the police can safely delay entry, so far as entering legally is concerned. This is not calculated, in my opinion, to produce prompt action by the police in an emergency and this may delay legitimate investigation.1
In Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) there was a lapse of one and a half to two hours between the initial appearance of the police investigator on the scene and the second appearance around 4:00 a. m. Then there was a third entry around 9:00 a. m. All three entries were held valid and a search warrant was not required. But the difference in the cases is that in Michigan v. Tyler the first entry was made at the time the emergency arose, while the smoldering embers of the arson were still being extinguished, and the court found that the subsequent warrantless entries mentioned above “were no more than an actual continuation of the first“, Id. at 511, 98 S.Ct. at 1951, not detached from the initial exigency. In the case at bar there was no entry at the initial exigency. The entry came several hours later, long after the objective indicia first suggested the possibility of death or need for help within the Epperson house.
In Patrick v. State, 227 A.2d 486, 489 (Del.Supr.1967), cited as supporting the action of the police, the court speaks in terms of the police duty “to act forthwith upon the report of the emergency“, not to miss the chance that “a spark of life remains“, as the basis for the emergency situation exception. In the Patrick case, the police “immediately entered the premises“, id. at 488, upon their arrival at the scene. In the present case, if there had been a spark of life existing at 9:15 a. m. (which is when the police first learned of the situation) in someone needing immediate aid, it would have died out long before the police finally entered at approximately 11:50 a. m.
People v. Brooks, 7 Ill.App.3d 767, 289 N.E.2d 207 (1972), also relied upon and discussed in the proposed opinion, likewise speaks in terms of an emergency which required “immediate action.” In the Brooks case, the janitor in the apartment building caused the police to be called. When they were going up the stairs to the deceased‘s apartment they noticed the odor of decomposing flesh. When they got to the front door of the apartment the police opened the door and promptly went in and found the deceased (who had been dead for several days) on the couch in the living room. Id. at 210. There was no delay on the part of the police in acting. The Brooks case, id. at 213, quotes with approval the language of Mr. Justice Burger in Wayne v. United States, 115 U.S.App.D.C. 234, 318 F.2d 205, 212 (1963), cert. denied 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963), in which he stresses the duty of the police, when confronted by an emergency, to act and the need for swift police response in order to support what would otherwise be an illegal entry.
The facts in Brooks are significantly different from the facts in the present case, in which we have no such swift response. The police knew as early as 9:15 to 9:20 a. m. that Mrs. Smith noticed the odor of decomposing flesh in the Epperson house and that her son-in-law was acting suspiciously and that she had reason not to believe his explanations of the whereabouts of her daughter and two grandchildren.2
The state in its brief states that “speed was of the essence to bring aid to anyone who needed it . . .” But the police took no action then. Instead, as the facts related in the proposed opinion show, the police tried to figure out some way by which they could induce someone else to break in the house so that the entry would not be charged to them. It was almost noon, two and a half hours later, when the police finally entered the bedroom. If entry to the premises could be delayed this long, obviously there was no immediate need emergency. A true emergency does not invite delayed action. The two are mutually inconsistent.
Someone may say, however, that despite the delay by the police, the need for help and in that sense the emergency, continued throughout the period of delay. But the point is that if so, the justification for dispensing with a search warrant did not, because one could easily have been obtained during that time, as discussed later herein. If the police are confronted with an emergency they should act. If they choose to delay, then they should obtain a search warrant. They should not be permitted both to delay and to dispense with a search warrant. That is not what is called for by the
Under part II, the opinion takes up the matter of objective standards, quoting from Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) about whether the facts available at the moment of the search would warrant a man of reasonable caution in believing what was done was appropriate. The moment of search here was shortly before noon, over two and a half hours after the officer had reason to believe there was a dead body in the house and that three people were missing. I do not believe a reasonable man would consider it was appropriate to wait two and a half hours and then enter the premises to see if there might be someone inside alive and in need of help.
The opinion then, still under part II, says that what the officers were doing was in good faith searching for persons missing under unusual circumstances. I agree.
The opinion states that the validity of the search must be judged on objective reasonableness, but then quotes Sgt. Duffner‘s subjective thoughts “as far as [he] was concerned” that he really didn‘t know what he had, that he was just looking to see “if they had skipped the country or they were injured or what.” There is no testimony in the record that Sgt. Duffner ever expressed these thoughts to anyone. In fact, he testified he did not think anyone was in the house, that he was not alarmed, but was extremely curious. The record shows that Duffner consulted several times during the morning with the chief of police, Chief Bolli, as well as with Officer Schindler. Chief Bolli told them the police were not to break in the house. Much of the police discussion related to the possibility of getting defendant‘s father to do the breaking in. There is no mention (except for Duffner‘s thought to himself) of there being any need to break in because someone inside needed help and quickly.
As the proposed opinion states, the general rule is that an entry and search without a warrant is unreasonable and the burden is on the state to show an exception exists. The state has failed to do so. The “need for help” or “emergency” justification comes from the state as an afterthought to justify a belated entry. The officers were curious about what had happened to Epperson, his wife, and children. They wanted to enter the house to investigate, not to try to give first aid to someone who might be in dire circumstances.
Defendant‘s motion to suppress the evidence discovered and seized after the unlawful entry should have been sustained. It is true this would result in a reversal and a new trial for a defendant who no doubt is guilty as charged. But we cannot disregard the
The recent Mincey decision, mentioned earlier, states: “There was no indication that evidence would be lost, destroyed or removed during the time required to obtain a search warrant. Indeed, the police guard at the apartment minimized that probability. And there is no suggestion that a search warrant could not easily and conveniently have been obtained.” Id. at —, 98 S.Ct. at 2415. See, also United States v. Donovan, 429 U.S. 413, 436 n. 24, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977), as follows: “Although law enforcement officials can often take action without a warrant when they have been unable to foresee the circumstances that eventually confronted them, they still must obtain a search warrant when their prior knowledge is sufficient to establish probable cause . . .” Here there can be no doubt that for a considerable period of time prior to their breaking into the house, the police officers had sufficient knowledge to establish probable cause.
“The point of the
It is our duty to uphold defendant‘s constitutional rights under the