State v. Chapman

250 A.2d 203, 1969 Me. LEXIS 240

• Court: Supreme Judicial Court of Maine
• Decided: January 2, 1969
• Status: Published

Opinions

WEBBER, Justice.

Pursuant to M.R.Crim.P., Rule 37A(b) and 15 M.R.S.A., Sec. 2115-A there is reported for our determination an interlocutory order suppressing evidence prior to trial, from which order the State has appealed.

The following issues are framed for decision here:

“1. Whether or not the items taken by law enforcement officials were abandoned property at law and, therefore, not under the protection of the Fourth Amendment to the United States Constitution.

2. Whether or not the search and seizure was unreasonable under the Fourth Amendment to the United States Constitution on the particular facts of this case.

(a) Whether failure of law enforcement officials to obtain a search warrant while processing a murder scene is vio-lative of the Fourth Amendment of the United States Constitution?

(b) Whether the law enforcement officials could have satisfied requirements of the specificity clause of the Fourth Amendment to the United States Constitution had they tried to obtain a search warrant ?”

The motion to suppress, as amended, concerned an empty whiskey bottle with coagulated blood and hair adhering to the bottom; also a pair of women’s shoes. Whether or not a search without warrant is reasonable depends upon the facts of each case. In the instant case the facts are not in dispute.

On November 11, 1967 at about 2:00 A.M. Fred Fortier, a South Paris police officer, responding to a radio call from the office of the Sheriff of Oxford County, went to the home of the defendant. In answer to his knock, the defendant opened the door and said, “Good morning, Fred. Come on in.” The defendant and the officer were well acquainted. The defendant then walked into his living room and sat down, saying, “I guess she is gone, Fred.” The officer then observed Mrs. Chapman “slumped over in a chair” in that portion of the room used as a “dinette.” There was blood over her face, hands and clothing. The officer picked up Mrs. Chapman’s left arm and found it cold and stiff. He then went to the telephone and called Deputy Arsenault, desk officer in the Sheriff’s office. In about fifteen minutes Dr. Dixon, the medical examiner, arrived. During this interval the defendant spontaneously volunteered the information that “she fell down” and that “she hemorrhaged.” He did not state where, how or why she “fell” and was not questioned. At about 2:35 A.M. the County Attorney, the Sheriff and one or more deputy sheriffs arrived. The County Attorney, who had also known the defendant for several years, exchanged greetings with him and then asked, “Do you mind if we look around a little bit?” — to which the defendant responded, “No, not at all. Go right ahead.” The officials observed the body of Mrs. Chapman and the presence of quantities of blood in the hallway, both bedrooms, the living room and kitchen. They observed a pair of women’s shoes on the living room floor and a pair of trousers in the corner of the bedroom. A photographer arrived and took some interior pictures for the State. At about 3:00 A.M. the defendant was taken into custody and transported by the Sheriff to his office. No formal charge was lodged against him at that time. The other officials continued their investigation of the premises. Lieutenant Jordan of the Maine State Police, a criminal investigator and photographer was called at his home in Augusta by an officer at State Police headquarters at about 3:00 A.M. At about the same time Detective Greely, also of the Maine State Police, was called at his home in Freeport. Both officers departed promptly for South Paris and arrived at the Chapman home at about 4:30 A.M. where they were admitted by Officer Fortier, then in sole charge of the premises. In the interim at an unstated time the body of the decedent had been removed to a hospital in Rumford for post mortem examination. Jordan and Greely made only a cursory examination of the premises, remaining 20 to 25 minutes. After a brief stop at the Sheriff’s office they departed for the Rum-ford hospital. At about 5:00 A.M. Officer Fortier was relieved by Deputy Sheriff Chamberlain who continued to maintain police access to and control over the premises. The County Attorney and the Sheriff also traveled to Rumford to observe the autopsy. Dr. Haladjien, a pathologist, began the autopsy about 9:00 A.M. Lieutenant Jordan took photographs during the course of the examination. The doctor found a deep laceration at the bridge of the nose and a fracture in that area. He found multiple bruises about the face and in the region of the left eye. He was able to determine that the decedent had died lying on her back and that the cause of death was hemorrhagic shock. He concluded that she had suffered a severe trauma at the bridge of the nose which could have been caused by a blunt or a sharp instrument, a fist or even by a fall upon a sharp object or upon the floor. After the completion of the autopsy, the officials stopped briefly for coffee and then returned to South Paris. All four returned to the Chapman home where they were admitted by Deputy Sheriff Chamberlain. They arrived at about noon. They then began a more thorough investigation of the premises. On his first visit Lieutenant Jordan had observed the trousers, above referred to, in the bedroom and had discovered that they contained fecal matter. On his second visit his attention was called to a spot on the inside of the door frame leading to the cellar which appeared to be blood. This officer then proceeded through this door and down the cellar stairs. Here he found a trace of what appeared to be fecal matter on the door frame leading to the basement garage. He then entered the garage. There he observed three trash cans with covers. In the center can, after removing part of the paper, cans and trash which it contained, he found an empty “Four Roses” whiskey bottle upside down. Noting that the bottle showed evidences of coagulated blood and hair on its bottom, he first caused it to be photographed in its then position, after which he removed it and placed it in the possession of Detective Greely at 12:45 P.M. It was subsequently locked in the evidence closet at State Police headquarters in Augusta. Either on that occasion or on a subsequent visit two days later Lieutenant Greely removed the pair of shoes which were on the living room floor. The defendant was subsequently charged with murder. No search warrant was ever sought for or obtained by the police.

On Monday, November 13, 1967 Lieut. Greely returned to the premises by arrangement made by the County Attorney and the defendant’s attorney for the purpose of making measurements and diagrams of the rooms. As already noted, it may have been either on this occasion or on November 11th that he took possession of the shoes.

Two controlling facts emerge in this recitation. The first entry of Officer Fortier was a lawful entry by the express consent and invitation of the defendant. From that time until about 12:45 P.M. on November 11, 1967 when the police investigation of the premises was terminated, the police never abandoned their possession and control of the premises.

At the outset we can briefly dispose of the matter of the shoes removed by Lieut. Greely. Given the lawfulness of the original entry, we need only consider that the shoes were plainly visible on the living room floor. Their discovery was not the product of a search. As material evidence they were properly subject to removal by the State. It matters not, therefore, whether they were removed on November 11, 1967 during the investigation or on November 13, 1967 when Lieut. Greely was again on the premises by consent of the defendant given by his attorney. “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. ” Harris v. United States (1968) 390 U.S. 234, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067.

The discovery of the bottle, however, was the product of a search and the issue is then whether or not that search was reasonable under all of the existing circumstances. The test was stated in United States v. Rabinowitz (1950) 339 U.S. 56, 70 S.Ct. 430, 435, 94 L.Ed. 653 wherein the Court said: “The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. * * The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances — the total atmosphere of the case.”

Our own research and that of learned counsel for both the State and the defendant have revealed the paucity of opinion with respect to the right of police officals to conduct an investigation on the premises where an apparently violent death has occurred and a homicide or other serious crime may have been committed, and to which premises the police have gained lawful entry without warrant.

In Stevens v. State (Alaska 1968) 443 P. 2d 600, 602, 603 the police were called to the defendant’s home in which decedent had been shot and killed. The local Chief of Police first responding to the call, in the early morning hours was admitted by defendant’s wife. The Court posited the lawfulness of his entry, not upon consent, but upon the reasonable belief of the officer that an emergency existed. The officer next arrested the defendant “to prevent him from taking his own life, as he was threatening to do,” and left the premises to place the defendant in custody. He then returned with the Mayor. After a superficial inspection the officer locked the house with a padlock. At 3:00 A.M. the Mayor called the Alaska State Police. About ten hours after the first entry, officers from the State Police Department and the District Attorney arrived and were admitted by the local officer. They then made a complete investigation and removed many evidentiary items, most but not all of which were in plain view.

We are primarily concerned with the Alaska Court’s views with respect to the right and duty of police to make a thorough investigation, particularly in a homicide case, or, to use the phrase commonly employed, to “process the scene.” The Stevens Court made these pertinent observations. “After his legal entry, and upon learning that a homicide had been committed, it became Chief Knudson’s duty to conduct an investigation into the circumstances. This duty carried with it the right to inspect the premises. * * * The duty police officer who responds to an emergency call and discovers a homicide is not necessarily a competent officer to conduct the type of investigation necessary to protect the interests of society. This is particularly the case with respect to a small frontier village such as Hoonah. In a more populous area the officer discovering a homicide could remain at the scene until trained investigators arrived to conduct an investigation. In that situation the presence of the officer making the legal entry would continue until summoned investigators arrived. Only minutes or possibly no more than an hour or two would ordinarily elapse between the legal entry and the commencement of the police investigation of the homicide. The lapse of time between the legal entry and the commencement of the investigation in the usual case has not been held to be so unreasonable as to affect the legality of the presence of the investigating officers on the premises.” (Emphasis ours)

We realize, of course, that Stevens was dealing with the legality of the investigatory presence on the scene and not primarily with search and seizure during that investigation, but we find persuasive the Court’s views as to the right and obligation of the police to make a thorough investigation of premises on which a violent death has occurred, even to the extent of securing the aid of trained and experienced investigators. We note especially the view expressed that the police, by keeping control of the death scene, do not lose the benefit of their initial lawful entry.

It has been held that a search once lawfully begun may be interrupted and later continued if the “totality of circumstances” under such continued search is reasonable. People v. Williams (1967) 67 Cal.2d 226, 60 Cal.Rptr. 472, 474, 430 P.2d 30, 32. The Court deemed it significant that “defendant’s automobile was under constant police surveillance during the interval of postponement, and the delay was not of unreasonable duration.” The Court cited its prior decision in People v. Webb (1967) 66 Cal.2d 107, 56 Cal.Rptr. 902, 424 P.2d 342, 351 which relied upon the theory of a continuing series of events. Webb in turn relied in part on Price v. United States (1965) 121 U.S.App.D.C. 62, 348 F.2d 68, 70 (cert. den. 382 U.S. 888, 86 S.Ct. 170, 15 L.Ed.2d 125) in which it was stated, “The search * * * was part of a continuing series of events which included the original arrest and continued uninterruptedly as lawful police investigation and action.” (Emphasis ours)

In the recent case of Terry v. State of Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Supreme Court had occasion to deal for the first time with search and seizure without warrant and where there was, at least at the outset, no probable cause for arrest (“stop and frisk”). Because the opinion seems to us to rest in part on a concept of proper and carefully restricted police investigatory and protective procedures, and because it sets forth certain general guidelines for constitutionally permissible behavior, we quote excerpts from it at length commencing at page 1875:

“The exclusionary rule (excluding from evidence the fruits of unlawful searches and seizures) has its limitations, however as a tool of judicial control. It cannot properly be invoked to exclude the products of legitimate police investigative techniques on the ground that much conduct which is closely similar involves unwarranted intrusions. upon constitutional protections. * * *

Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime. * * * Nothing we say today is to be taken as indicating approval of police conduct outside the legitimate investigative sphere. Under our decision, courts still retain their traditional responsibility to guard against police conduct which is overbearing or harassing, or which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials. And, of course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate. * * *

We do not retreat from our holdings that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, * * * or that in most instances failure .to comply with the warrant requirement can only be excused by exigent circumstances, * * *. But we deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat— which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures. * *

In order to assess the reasonableness of [the officer’s] conduct as a general proposition, it is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,’ for there is ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails’ * * * And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate? * *’ * Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. * * *

Applying these principles to this case, we consider first the nature and extent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. * * * It would have been poor police work indeed for an officer of 30 years’ experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further. * * *

And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. * * *

The manner in which the seizure and search were conducted is, of course, as vital a part of the inquiry as whether they were warranted at all. The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing preconditions upon its initiation. * * * Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation.” (Emphasis ours)

In Camara v. Municipal Court, (1967) 387 U.S. 523, 87 S.Ct. 1727, 1733, 1735, although the Court was dealing with war-rantless administrative searches (fire, health and housing code inspection programs), some language in the opinion is of general application. The Court said, “In assessing whether the public interest demands creation of a general exception to the Fourth Amendment’s warrant requirement, the question is not whether the public interest justifies the type of search in question, but whether the authority to search should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search. * * * Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” (Emphasis ours)

With these several guidelines in mind, we turn to an analysis of the facts to determine whether or not the “totality of circumstances” rendered reasonable and therefore constitutionally lawful the war-rantless search and seizure in this case. We begin with the consensual entry of Officer Fortier upon the premises which the defendant readily concedes was lawful. Once there, he was faced at once with an emergency. Mrs. Chapman was dead. The severe wound upon her body and the presence of quantities of blood, not only in the vicinity of the body, but in several rooms, were strongly suggestive of the possibility of violent death or homicide. At that moment the duty and obligation of the police arose to make a thorough investigation to determine whether the decedent was the victim of foul play and if so by whom and by what means. Officer Fortier initiated proper police investigative procedures by telephoning for assistance. In response to his call those officials directly charged with the investigation of a potential homicide case gathered at the scene. The circumstances there present created a difficult and somewhat unusual problem for solution by further investigation. The police could not immediately rule out the possibility that death had resulted from a fall as voluntarily and spontaneously represented to them by the defendant. Such a fall could have occurred as the result of a cerebral accident, an acute heart failure or other seizure, or even as the result of the consumption of alcohol. Or it could have occurred as the result of a tragic accident. There were indications, however, pointing with equal if not greater persuasiveness toward the application of violent force by some assailant as the cause of death. The logical next step in the investigation was to secure and observe an autopsy which might eliminate (as it did) at least some of the alternative possibilities. Recognizing that the investigation of the scene was by no means completed, the police carefully maintained their exclusive control of the premises, thus insuring the exclusion of unauthorized persons and the protection and preservation of any evidence thereon. Thus when the examination of the premises was resumed, it was but the continuation of a single investigation, a “continuing series of events,” commenced with a lawful entry and pursued because of the exigency of circumstances. Although the police had from the beginning a reasonable basis for suspecting that a weapon had been used, the actual cause of death and the element of criminal conduct could not be known or rise above the level of a rational possibility until the weapon was actually found at the termination of the investigation.

There is no more serious offense than unlawful homicide. The interest of society in securing a determination as to whether or not a human life has been taken, and if so by whom and by what method, is great indeed and may in appropriate circumstances rise above the interest of an individual in being protected from governmental intrusion upon his privacy. In our view this is such a case. We see here no more than the “legitimate and restrained investigative conduct undertaken on the basis of ample factual justification” which is not proscribed by the Fourth Amendment. Terry v. State of Ohio, supra. The public had a right to expect and demand that the police would conduct a prompt and diligent investigation of these premises to ascertain the cause of this apparently violent death and to solve any crime committed in the course thereof.

It has been suggested that the police could and should have obtained a search warrant before those officers who attended the autopsy returned to the scene. We cannot agree. No warrant was required to gain entry since the police were still in sole possession and control of the premises. As to obtaining a warrant to search and seize, no officer could have supplied the requisite factual affidavit. The pathologist had been able to do no more than rule out natural causes of death. He had not ruled out accidental fall as an alternative possibility. Although the officers reasonably entertained a lively suspicion or “hunch” that death had been caused by an assailant, they could not recite facts which would support a finding of probable cause to believe a crime had been committed. Moreover, it was impossible to describe with any specificity whatever the weapon to be searched for or to assert that there was any reason to believe that such unidentifiable weapon could be found upon the premises. Innumerable objects great and small would answer the description of a “blunt or sharp instrument.” For aught that was known at this moment, an assailant might have pushed his victim violently against a desk, a bed, table or chair—or he might have struck her with his fist. All of these theories remained as reasonable subjects for speculation and conjecture up to the very moment when the bottle was found. There was the hope, but no more than a hope, that an instrument might be found bearing some traces of blood or tissue, but a mere hope unsupported by facts will scarcely furnish probable cause to believe such an object can and will be found on the premises.

Delay in searching for a magistrate on a legal holiday might well have been costly. There was good reason for urgency in proceeding with the investigation. Even though police protection of the premises prevented the possibility of removal of incriminating evidence therefrom, there was still the very real possibility that if a weapon had in fact been used, it had been concealed by the assailant outside and apart from the premises before the arrival of the first officer. In such a location the evidence would be in danger of being lost or destroyed. The very facts of this case dramatically illustrate the risks attendant upon delay in proceeding with and completing the investigation. For if it had been abandoned or deferred, in the normal course of events the trash barrels would have been picked up by the collector engaged by the defendant for that purpose, and the incriminating evidence would have been removed and destroyed without the knowledge of anyone that it even existed. Without doubt the crime, if such it was, would have then become and remained insoluble. The impracticability, and in this case the impossibility, of procuring a search warrant on the basis of the facts actually known and not merely surmised are factors in assessing the reasonableness of the warrantless search. In the words of Camara, the burden of obtaining a warrant in such a case as this would be not only likely but well nigh certain to “frustrate the governmental purpose behind the search.”

Terry teaches also that reasonable search and seizure must not involve improper police harassment and must be “reasonably related in scope to the justification for their initiation.” Although we rest the reasonableness of this search upon the exigency of the circumstances rather than upon any consent of the defendant to a search, we think the outward manifestations of consent on the part of the defendant do at least have the effect of negativing any claim of harassment. Moreover, the scope of this search was clearly within permissible limits and warranted by visible indications on the scene pointing toward homicide as one rational explanation of death.

The State has argued that deposit of the bottle in a trash barrel constituted abandonment. We do not accept that argument. The barrel was still in the garage under the main house, a part of the premises in which the owner dwelt. The position of the bottle well down in the barrel and covered with trash and paper strongly suggests that it was intentionally hidden and concealed there. This was the view taken in Work v. United States (1957) 100 U.S.App.D.C. 237, 243 F.2d 660, 663. We distinguish Abel v. United States (1960) 362 U.S. 217, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 in which the defendant abandoned his hotel room and the wastebasket therein in which he deposited evidentiary items just before his final departure.

The defendant relies in part on State v. Brochu (Me.1967) 237 A.2d 418. In that case there were two entries, the first by consent of the defendant and the second on the following day under the protection of a search warrant. In the interim and between the two searches the defendant Bro-chu was arrested and taken into custody. The State argued alternatively that the consent of the defendant, never revoked, justified the second entry and search, but that in any event the second search was protected by warrant. We repudiated the first contention on the ground that a consent to the first entry and search could not be deemed to continue after defendant’s arrest. Brochu is distinguishable upon its facts. After the first entry and search the investigation of the premises terminated and the police left with no intention to return. Thereafter the premises were in the custody and possession, not of the police, but of occupants who were related to the defendant. The need to make another entry and search arose only because the police obtained new information from a daughter of the defendant. There was not the single uninterrupted investigation or continuous series of events which we find in the instant case, nor was there the exigency of circumstances arising out of conditions apparent at the scene at the moment of first inspection which would make reasonable a search without probable cause for arrest and without warrant. Moreover, in Bro-chu it was both possible and practicable to procure a warrant for the second search, which as we have noted is not true in the instant case.

We are satisfied that if the police cannot, after lawful entry, make the sort of prompt, orderly and methodical investigation of the scene of a violent death that is here shown, the protection of the legitimate interests of society will be seriously weakened. The bottle and shoes, if otherwise admissible, should not be excluded from the evidence on constitutional grounds.

The entry will be

Appeal sustained. Case remanded to the Superior Court for further proceedings not inconsistent with this opinion.