CUPP v. MURPHY

Print this transcript Transcript: 

Argument of Thomas H. Denney

Chief Justice Warren E. Burger: We’ll hear arguments next in 72-212 Cupp against Murphy.

Mr. Denney you may proceed.

Mr. Thomas H. Denney: Mr. Chief Justice and may it please the Court.

This is a federal habeas corpus case here on writ of certiorari to review a judgment of the United States Court of Appeals for the Ninth Circuit.

The petitioner is the superintendent of the Oregon State Penitentiary and he has the respondent Daniel P. Murphy in his custody.

An Oregon State Trial Court convicted Murphy of second degree murder, the second degree murder of his wife.

His conviction was affirmed by the Oregon Court of Appeals, the Oregon Supreme Court denied a petition for discretionary review of that decision.

This Court denied Murphy’s petition for certiorari, Murphy then commenced this presently federal habeas corpus action, the United States District Court to the District of Oregon relying very much on the opinion of the Oregon Court of Appeals and agreeing with it in full denied habeas corpus relief and on Murphy’s appeal to the Ninth Circuit, the Ninth Circuit reversed and remanded ordering petitioner Cupp to release Murphy within 60 days unless the State of Oregon retries him within that time.

There’s been only one question raised in preserve throughout these proceedings and that is the legality of the seizure of certain evidence which was used in Murphy’s trial.

In the State Court Trial as part of the showing that Murphy strangled his wife while she was asleep in bed and while wearing a rayon acetate night gown.

The state introduced some scrapings that were taken from underneath Murphy’s fingernails while he was at the police station and those scrapings revealed the presence of blood, skin cells, cotton fibers and rayon and acetate fibers.

The case -- well the Oregon Court of Appeals and the US District Court and our position here can be reduced into three simple propositions basically.

The first being that as the Courts of Oregon held, the police had probable cause to either arrest or to search Murphy at the time they conducted the search that there were exigent circumstances justifying an immediate taking of the evidence from Murphy even though the police did not formally place Murphy under arrest nor did they seek to obtain a search warrant to seize this evidence from underneath Murphy’s fingernails and finally that the momentary detention while this evidence was taken was more reasonable or at least no less reasonable than the full scale formal arrest would have been or then detaining Murphy indefinitely.

Restraining him physically to the degree that would have been necessary to prevent possible loss or destruction of this evidence, for the longer time that would have been necessary to obtain a search warrant after Murphy arrived at the police station, on the issue of whether or not there was probable cost to conduct the search every court below has held that there was probable cause for the police to act but of course the question is briefed and argued here.

I think that in their brief, counsel for Murphy and counsel for the American Civil Liberties Union who are appearing here amicus curiae on Murphy’s behalf understate the evidence.

The facts of the case in this particular situation were that the police had the -- were investigating a strangulation murder.

The deceased was found in her bed in a perfectly made up room.

There was no signs of disturbance, no signs of forced entry of the house, no signs of robbery.

All of this we think tends to show that the killer was probably known to the deceased.

The Murphy’s have been separated for some time and Murphy was not living in the Murphy house at the time of the homicide but he had been and the police learned expected home that night.

The deceased was manually strangled to the observation of the homicide detectives.

There was not a formal medical report on this point for some time but the officers made their own opinion which I think is enough to go to constitute probable cause even though we of course don’t have at this point legal admissible opinion as to the cause of death.

There were scratches on the neck of the deceased which appeared to the officers to be scratches made from fingernails of the strangler.

This was later confirmed at least to be a fingernail scraping by the pathologist who examined the body.

And the son, the 18-year-old son of the Murphy’s who was the only other person in the house or known to be in the house on the night of the murder was apparently a chronic nail biter.

Now the record is not perhaps is clear on this point as it might be desired but the police do say that he bit his fingernails well back into the quick, he had no fingernails it was absolutely impossible to scrape them.

I believe that’s all the record specifically says, I conjecture from this perhaps unjustifiably, I don’t know that he is a chronic nail biter who has bit his nails for a long time.

There’s a suggestion in trying to negate the existence of probable cause in respondents brief that there is no evidence in the record as to when this nail biting occurred.

My inference from my reading of the record simply as it this was a chronically reoccurring condition.

In any rate, they also learned, the police also learned from the son Patrick Murphy that Murphy was expected home that evening.

The police called camp Sherman Oregon which is in eastern Oregon incidentally rather than in southern Oregon as the record several times says.

It’s in central Oregon about a 100 miles east of Salem and left word of Mrs. Murphy’s death.

Murphy was not at camp Sherman at the time, they learned from the person that they talked to over the telephone that he had substantially been going into Portland that preceding night and he was expected back.

The police left word for Murphy to call and he did about 4 PM, without -- apparently according to the record, without inquiring into the circumstances of his wife’s death other than to confirm the fact that his wife was indeed dead.

Murphy immediately went into a long account of where he had been the night before without any questioning on the officers part.

He then agreed to come to Portland to discuss the case further with the police.

When he arrived to the station, he was fully advised of his Constitutional Rights and he had two lawyers called who came to the station to represent him. Murphy again seemed curiously disinterested in the circumstances of his wife’s death and instructed his behavior struck the detectives as unusual in that respect.

While they were talking to him one of the detectives saw a dark spot underneath Murphy’s right thumbnail which prompted him to think about taking fingernail scrapings.

They asked Murphy for permission to scrape his fingernails and on the advice of counsel he refused where upon the police scraped the fingernails anyway.

There is also testimony in the record that when the request for fingernail scrapings was made, Murphy suddenly and immediately put his hands behind his back and started moving his hands and that he then inserted them to his pockets moving them around very vigorously so that change or something metallic in the pocket was heard rattling.

We think that all of this, all of these circumstances clearly gave the police probable cause to act to secure the fingernail scrapings.

Justice Potter Stewart: He was detained against his will for the limited time necessary to take the scrapings which were also taken against his will.

Mr. Thomas H. Denney: That is correct.

Justice Potter Stewart: So why wasn’t that from the constitutional point of view an arrest?

Mr. Thomas H. Denney: I thought --

Justice Potter Stewart: Even though it might not have been from the point of view of Oregon law, why wasn’t it from the constitutional point of view and arrest just as in Davis against Mississippi?

We said although Mississippi says, this was not an arrest, this was only a dragnet taking people into a Court to take the finger -- a jailhouse to take their fingerprints.

We said from the constitutional point of view, yes it was a seizure so why wasn’t this?

Mr. Thomas H. Denney: I --

Justice Potter Stewart: In Mississippi we said it was an unreasonable seizure and an unreasonable search but why not these have been a seizure under the Fourth and Fourteenth Amendment, That was a reasonable one.

Mr. Thomas H. Denney: I would have no difficulty if the Court --

Justice Potter Stewart: But you keep avoiding that in your brief, you said they wasn’t arrested, he wasn’t arrested, he wasn’t arrested.

Why was not this from a constitutional point of view an arrest just as it was in Davis?

Mr. Thomas H. Denney: Perhaps it is, the definition that the Oregon --

Justice Potter Stewart: Or a seizure to use the constitutional phrase.

Mr. Thomas H. Denney: Right, I suppose the only answer I can give there Mr. Justice Stuart because it does occur to me that this could be perfectly well denominated an arrest and that would be --

Justice Potter Stewart: A seizure would be in the Fourth and Fourteenth Amendments and the seizure upon probable cause and a search incident to that reasonable seizure within the bounds of Chimel against California, why isn’t that your case?

Mr. Thomas H. Denney: The reason I think is because the Oregon Court of Appeals held rightly or wrongly and we have followed this all the way along and I believe that they sited one of the decisions of this Court in so said, that the arrest is the taking of the person into custody to make him answer for the charge.

Justice Potter Stewart: Well that maybe well true as a matter of Oregon law just as in Louisiana, they said that as a matter of Louisiana law taking that young man Davis down to the station house was not an arrest, I am sorry the Mississippi law.

Mr. Thomas H. Denney: I see.

Justice Potter Stewart: But we said, we said in Davis against Mississippi that is a matter of the Fourth and Fourteenth Amendment, so it was a seizure.

Mr. Thomas H. Denney: Well I’m simply adhering to what the Oregon Court said --

Unknown Speaker: Well that is very understandably.

Mr. Thomas H. Denney: At page 79 of the printed appendix, they site Terry versus Ohio for the definition that they used and went from there to say well even if it isn’t an arrest or assuming that it isn’t an arrest.

Chief Justice Warren E. Burger: But you’re not confined to the Oregon State Supreme Court’s basis to defend this judgment here.

Mr. Thomas H. Denney: Well I appreciate that Mr. Chief Justice but I did not have the confidence in the position that the Oregon Court of Appeals did not adopt that I have here, it’s that simple.

Of course if --

Chief Justice Warren E. Burger: All I did was --

Justice Potter Stewart: That sounded like a statement but I was asking it was a question.

Mr. Thomas H. Denney: Yes if this Court of course holds that is an arrest within the meaning of the search and seizure incident to a lawful arrest problem, that is the end of the case of course and --

Justice Potter Stewart: If there was a probable cause.

Mr. Thomas H. Denney: Yes.

Unknown Speaker: Well do you have exactly what the Oregon police did their?

Mr. Thomas H. Denney: I beg your pardon Your Honor?

Unknown Speaker: What did the Court of Appeals do?

Mr. Thomas H. Denney: The Court of Appeals held that there were no exigent circumstances.

Unknown Speaker: But they set it aside even assuming there was probable cause.

Mr. Thomas H. Denney: Yes Your Honor and --

Unknown Speaker: And we can proceed on the basis that there was probable cause in which event you say it doesn’t make any difference whether it was an arrest or not?

Mr. Thomas H. Denney: That is true, that is essentially the position that the Court of Oregon Court of Appeals took and perhaps they misunderstood the decisions of this Court as to whether this was an arrest or not.

As for the exigent circumstances which justified the immediate seizure from Murphy’s person whether or not he was under arrest.

We think it’s quite clear that this evidence at least was potentially readily destructible and perhaps if the testimony of the Deputy District Attorney who was present at the time the request was made and one of the detectives if that testimony is to be believed.

It was in fact in the actual process of destruction at the time the police took the fingernails scraping.

Unknown Speaker: So you know this because there was probable cause or just because there was a seizure protected by the Fourth Amendment.

Would you say that the police has the right to take the fingernail scraping?

Mr. Thomas H. Denney: No, in the absence of the exigent circumstances which are present here, I’m not arguing for a blanket rule that probable cause just by a seizure warrant less seizure from the person.

Unknown Speaker: There are different types of considerations.

Mr. Thomas H. Denney: Very much so and if anything the situation here is even more critical because the alcohol in Schmerber’s blood stream was so -- would only dissipate itself over a relatively lengthy period of time where as Murphy could have destroyed the fingernail scrapings if given the opportunity in a matter of seconds.

Again assuming that this was not an arrest within the meaning of the Fourth Amendment and that the search in this case has to be justified without the arrest factor involved in it, it is our position as developed in the brief that this is in fact a less serious invasion of Murphy’s privacy then would have been the case.

Either had the police made a full scale arrest and kept him indefinitely while the fingernail scrapings were analyzed instead of releasing him after the scrapings were taken or holding him at the station and forcibly restraining him from making any attempt to destroy the evidence which was literally at his fingertips.

As the Oregon Court of Appeals observed, we just don’t think proper application of the Fourth Amendment requires any such extreme measure.

Argument of Howard R. Lonergan

Mr. Howard R. Lonergan: Mr. Chief Justice.

Chief Justice Warren E. Burger: Mr. Lonergan.

Mr. Howard R. Lonergan: I think the first consideration is rather like this case held in Coolidge that’s implicit in Coolidge.

Essentially every extension into the protection of the Bill of Rights is really not an end in itself but it’s merely to the springboard for the next extension.

For example --

Chief Justice Warren E. Burger: Sometimes the reverse of that proposition is true too, isn’t it?

Mr. Howard R. Lonergan: I do not know of any.

Chief Justice Warren E. Burger: Well, go on.

Mr. Howard R. Lonergan: You take note for example Mr. Justice Stewart has mentioned “was this not an arrest?”

Well of course that would be contrary to this case, this Court’s decision in Terry because it held there that the detention was not an arrest because it was not the first step in a criminal proceeding.

Now of course the word arrest that we give it its English and French meaning literally, it is any stopping and yet Terry saw the contrary.

So I don’t think we can say it was an arrest.

Furthermore we have the situation of when you say it was on probable cause, it is about the thinnest case of probable cause that I can see from the actual facts because I think Mr. Denney been up the facts to a circumstance.

Unknown Speaker: How can you do in a judgment of the Court of Appeals that just to go on with something that was wrong?

Mr. Howard R. Lonergan: I don’t think it did rest on that assumption, it says even if they were.

Unknown Speaker: All right, then you have to consider that statement there is a justified in having us look for case and accepts there.

Mr. Howard R. Lonergan: I would think that you have to determine whether this probable cause, if you reached that point?

Unknown Speaker: No, we don’t reached those questions, but normally ask the Court (Inaudible).

Mr. Howard R. Lonergan: I recognize, but be that as it may if I might say it that ordinarily for example.

If there’s question as whether there was probable cause to arrest.

The answer is generally they did not arrest in the traditional sense of the word.

Ordinarily for example if an officer makes an arrest as I understand the underlying English decisions.

He has to justify on the position he’s taken, here they did not justify themselves in their own minds at least that they were arresting for the crime of murder.

Instead on the instructions of the District Attorney, they were scraping his fingernails for evidence and I think the probable cause there comes down to this point.

Ordinarily on a search for evidence or to get probable cause for warrant let’s say.

You must have probable cause that the material is there, here as the officer testified that he had no idea what would turn up until he get a lab examination and that he would have done this to any suspect no matter that the dark spot or anything.

So I don’t think really it presents the correct probable question.

The probable cause if we are going to make the springboard is whether the material was present.

Chief Justice Warren E. Burger: You don’t attach much weight to the evidence that -- to the testimony that there was an effort to dispose an apparent effort to dispose of the evidence.

Mr. Howard R. Lonergan: He’s in the presence of the police, they can restrain anything like that rather than --

Chief Justice Warren E. Burger: Well if they restrain him then is he arrested?

Mr. Howard R. Lonergan: I would say not according to the definitions that this Court gave in Terry.

Chief Justice Warren E. Burger: What about Davis?

Mr. Howard R. Lonergan: Well Davis, I don’t consider that an arrest case, I consider that a seizure all right.

This is a seizure case, the Fourth Amendment applies, the fourth Amendment applies in Terry.

They seized this I think is for closest, Davis is the closest one to this case, they seized him because he was a suspect.

They finger printed him without warrant and therefore this Court held that that was illegal and the evidence should be suppressed.

I think that applies here, he is a suspect, he is seized, his fingernails were scraped without a warrant and therefore it violated the Fourth Amendment but it’s not to my mind an arrest because they certainly didn’t consider it an arrest.

Justice William H. Rehnquist: Will you say then for constitutional purposes, you can have a seizure under the Fourth Amendment that doesn’t qualify as an arrest which would support a search incident to a seizure to arrest, as search incident to the arrest?

Mr. Howard R. Lonergan: Yes, Terry was just that sort of a case.

This Court held in Terry that it wasn’t an arrest but it had to comply with the Fourth Amendment.

There had to be sufficient for that detention.

I think there’s no question that that’s Terry all the way through.

Terry was not an arrest, Terry was not arrested, he was however detained and this Court said the Fourth Amendment applied.

Justice Thurgood Marshall: Terry was arrested after they found the gun.

Mr. Howard R. Lonergan: Later but not at the stopping.

Justice Thurgood Marshall: Well, about a minute later, do you say that there were no grounds for a probable cause to arrest him at all?

Mr. Howard R. Lonergan: I don’t see it, they have a stormy marriage that is hardly grounds for -- he was somewhere present by his own statement, he was somewhere present but this other business like a cut with the fingernails.

That isn’t what the evidence is, it was something sharp that the fingernails of the son were bitten but when would it been.

That the bed was made up, when was it made it up?

After she was killed?

The doors were locked, when were they locked?

After she was killed?

In other words, the evidence to me is highly flimsy.

It’s certainly doesn’t warrant a man of reasonable probability to reach that conclusion and the answer is the police did not do it.

They did not reach the conclusion that they had probable cause to arrest this man, they did not arrest him.

He wasn’t arrested until a month later after an indictment was obtained.

They discussed it with the District Attorney, if he had instructed him to place him under arrest that they had sufficient they would have placed him under arrest.

The case has shifted its ground, it was an exigent circumstance case, now the state had later on made an attempt to make a probable cause case but it was probable cause to search.

If we make this springboard that now you have probable cause to search persons and houses just like automobiles, you have discarded the Fourth Amendment.

If you make exigent circumstances the ground, you again have discarded the Fourth Amendment because all evidence is subject to destruction, and all evidence is subject to destruction.

If all the police have to say is “I feared it would be destroyed and therefore I searched” you have discarded the magistrate, you have discarded the warrant, you have discarded the affidavit of probable cause.

They had time enough to call a Deputy District Attorney.

They had time enough to call a magistrate.

He was in the presence of the police, if he were trying to spoil evidence they could have restrained him from doing it.

This Court allowed the detention for the purpose of getting a search warrant in that male case.

Well is it, the same thing applies here as see.

Chief Justice Warren E. Burger: Well now you’ve just said if he was trying to destroy evidence this police could restrain him, didn’t they?

Mr. Howard R. Lonergan: Restrained him from destroying the evidence?

Chief Justice Warren E. Burger: Yes.

Mr. Howard R. Lonergan: Apparently not.

Chief Justice Warren E. Burger: Well I thought immediately when this activity was noticed, they then proceeded to take the fingernail scrapings.

Mr. Howard R. Lonergan: They called the Deputy District Attorney and asked him what to do.

Chief Justice Warren E. Burger: Well they held him right there all the time.

Mr. Howard R. Lonergan: Well he was there.

Chief Justice Warren E. Burger: Yes.

Mr. Howard R. Lonergan: So apparently he didn’t make any serious attempted to destroy the evidence otherwise he probably do don’t know.

Chief Justice Warren E. Burger: Well he didn’t make a successful attempt that ‘s all we know now, isn’t it?

Mr. Howard R. Lonergan: Well we know he didn’t make a successful attempt but it probably could have been serious or he would have succeeded.

Chief Justice Warren E. Burger: Hasn’t the Court said often that in evaluating these things, they must be evaluated as a trained experienced police officers sees through his eyes in light of all the surrounding circumstances.

so by putting his hands in his pockets and putting his hands behind him after the subject of fingernail scrapings comes up might mean nothing to a tourist who is going by but it might mean a great deal to an experienced police officer.

Mr. Howard R. Lonergan: Well they said that what motivated him they said that he was a suspect and they would have done it to any suspect and they had as I say they had time enough to call the Deputy District Attorney and get his opinion on the subject and follow that.

They had time enough to call a magistrate and get his authorization and that that would have complied.

I see it really no different from Davis that instead of getting a warrant in Davis, they rounded them up and get him.

If you are going to say exigent circumstances, you have discarded the Fourth Amendment, all evidence can be destroyed and as to the probable cause can I say if we are going to jump the automobile poised for flight now to allow searches of persons and I assume houses on probable cause.

Even that is not available because they had no idea what they would find as they testify until the lab examination.

Chief Justice Warren E. Burger: Thank you, Mr. Denney do you have anything further?

Rebuttal of Thomas H. Denney

Mr. Thomas H. Denney: Just briefly, two points Your Honor.

I think that the fact that the police did not in fact arrest Murphy at that time or did not formally place him under arrest and hold him indefinitely.

No more negates to the existence of probable cause than the fact that a person is arrested establishes that there is.

This is a matter for the Courts to review in the light of what the facts and circumstances known the police officer are and our position is that there was ample cause here and I think we have been supported in that determination by every court below.

The second thing is I do not see this case as controlled by Davis and with respect are advocated by counsel here because as I have developed in our petitioners brief.

The Davis, there was no probable cause, this was a summary roundup off every negro in the community when all the assailant the rape case new was that her assailant was a negro and the fingerprinting of them all.

Our contention here is that the finger of probable cause are pretty well focused on Murphy at the time the police acted.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.