United States v. Ronald Seibelt Goldenstein, United States of America v. John Larry Ray

STEPHENSON, Circuit Judge

(dissenting).

The issue presented by this case is far-reaching in its implications for effective police action and investigation. The precise question is whether the Fourth Amendment prohibits the police, operating under an emergency engendered by a gun battle, from entering the hotel room of one of the participants and there performing a warrantless search for the express purpose of ascertaining whether “there was another victim or if there was a gun involved that could be associated with the shooting.” * Believing, as I do, not only that such a search is reasonable but also that failure to conduct such a search would have been patently unreasonable, I must respectfully dissent.

In invalidating this search I believe the majority ignores the gist of the framework of past Supreme Court decisions delineating an exception to the warrant requirement in situations where police officers have probable cause to search but, due to the presence of emergency or exceptional circumstances, find it impracticable to secure a warrant. I refer, of course, to Warden v. Hayden, 387 U.S. 294, 298-299, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1963); Chapman v. United States, 365 U.S. 610, 615, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); United States v. Jeffers, 342 U.S. 48, 52, 72 S. Ct. 93, 96 L.Ed. 59 (1951); McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153 (1948); and Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 92 L.Ed. 436 (1948). For me, the principles and common-sense meaning of those decisions make it clear that such a case as this is one of the “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 (1967), where a warrant-less search of a “dwelling” can withstand constitutional scrutiny.

The crucial facts which bear upon entry into the hotel room and the attendant search are (1) that a man had been severely wounded in a gun battle in the hotel lobby; (2) that one of the gunfighters had fled upstairs, armed and wounded; (3) that the fleeing suspect had been registered in Room 728; (4) that this information was conveyed immediately to Officer Ueland upon his arrival at the scene some 10 minutes after the shooting; and (5) that upon entering the room into which the suspect had just moments before fled, Officer Ue-land observed an undershirt stained with what appeared to him to be fresh blood. It is in the face of these facts and the *1014obvious emergency generated thereby that the majority would have Officer Ueland, who then was alone, to halt his pursuit and to leave the scene to secure, at 2:00 a. m. on a Saturday morning,1 a search warrant empowering him to enter the room and to seek out clues as to the identity2 and whereabouts of the suspected killer. I am unable realistically to say that Officer Ueland’s decision to search was unreasonable. Delay in order to obtain a warrant would have given this dangerous suspect just the time he needed to take refuge in flight, to further conceal his identity, and, perhaps, to shoot and maim others.

The majority seems to agree that there can be no doubt, upon the basis of the obvious urgency of the moment, that entry into the room was lawful and justified. The master issue, however, and the one upon which I am divided from the court, is whether Officer Ueland, after learning that the room was vacant, nevertheless, could reasonably conduct a thorough and warrantless investigation of the room and its contents for the narrow purpose of determining who the suspect was, to where he might have fled, and whether he left weapons behind. For me, the answer to this question can only be in the affirmative. The man lying near death in the lobby, the room clerk’s information as to the identity, the likely location and the dangerous and wounded condition of the suspect, and the blood-stained undershirt in the room add up to the necessity for positive, swift, and effective police work and to the reasonableness of Officer Ueland’s action. In short, the right of Officer Ueland to enter and to investigate in this emergency, without an accompanying intent to search unlawfully, is for me inherent in the very nature of his duties as a responsible peace officer, and derives from the decisions I have set forth above.

The real reason for the reversal of this case emerges from the mists of Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). It is said by the majority that “[t]he right to search emergency doctrine would under the circumstances of this case be no greater than the right to search incident to a lawful arrest.” This statement is apparently founded upon the hypothesis that had “Wagner” (Goldenstein) been in the room, Officer Ueland could not have extended his search beyond Golden-stein’s person and the area within his immediate control. Thus, unless Gold-enstein had been sitting upon, or standing near, the suitcase, Officer Ueland could not have included its contents within the scope of his search. While all of this may be so, I know of no Supreme Court decision which purports to equate the emergency situation with the search-incident-to-a-lawful-arrest instance. I am therefore unable to understand why the court purports to treat these two separate and distinct exceptions to the warrant requirement interchangeably, and to consider the emergency exception as if it must be governed by the same restrictions as to scope as are implanted on the search-ineident-to-arrest exception. That being so, I find it unnecessary to speculate what Officer Ueland could or could not have done had Golden-stein been in the room.

The five Supreme Court decisions which I have set forth above explicitly recognize that the presence of urgent circumstances may in some instances justify and require a warrantless official intrusion into privacy. While the emergency or exceptional circumstances language has been stated in each of these cases, I am frank to admit, in fairness *1015to the majority, that the contours of this exception have not developed and that the Court has never pinned it down to a workable and effective meaning. But surely it was precisely toward providing for such circumstances as are present here that the Court formulated the emergency doctrine. If not, it is difficult indeed to think of a case in which it ever could be applied.

I would affirm.

R., at 7.

. The Government, on its brief, tells ns that “[n]o magistrate, [j]udge, or other judicial officer is available in the United States at that time and would probably not be available until some time Monday, November 30, two days later.” Neither defendant lias seen fit to comment on this assertion.

. Room 728 was registered to one “Robert Wagner.” The police later learned that “Robert Wagner” was, in fact, Ronald Goldenstein, one of the defendants here.