Ortega v. State

ROSE, Justice,

dissenting.

I dissent because I believe that the war-rantless search of Richard Ortega’s home cannot be justified under any recognized exception to the warrant requirement and because the evidence of the prior bad acts of appellant was improperly admitted and highly prejudicial.

I

In Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), a unanimous Supreme Court refused to recognize a general exception to the warrant requirement which would permit a warrantless search at the scene of a homicide. Under Mincey, the need to protect lives and avoid injury justifies the police in making a prompt, warrantless search of the area to-determine whether other victims or killers are present. 437 U.S. at 392, 98 S.Ct. at 2413. No other warrantless search is permitted, absent a recognized exigency beyond the fact that a killing has occurred.

*946The need to preserve blood and other body fluids present at the death scene is not the sort of exigency which justifies the warrantless search for and seizure of such evidence. In Mincey, blood and other body fluids were present throughout the area, since a shoot-out had resulted in one person dead and three wounded in various rooms of the defendant’s apartment. Instead of determining that the evanescent character of these fluids justified their immediate collection, the' court found that

“ * * * [t]here was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant.” 437 U.S. at 394, 98 S.Ct. at 2414.

The facts and holding of Mincey compel the conclusion that blood and other body fluids, often associated with homicide, are not subject to a warrantless search and seizure simply on the basis of their evanescent qualities.

The Supreme Court’s ruling in Mincey is supported by the known chemical characteristics of blood. According to the Wyoming State Crime Laboratory, dried blood is stable for months and produces reliable results when tested to determine type, species specificity and certain enzyme activity. Ironically, when blood-soaked clothing or paper is sealed in a plastic bag for safekeeping, bacterial activity can cause the blood to deteriorate within a short time.

The majority cite Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), in support of their proposition that the need to preserve evanescent evidence justifies the police in making a warrantless search for and seizure of blood and body fluids. Both of those cases, however, were concerned with the warrantless seizure of evidence which was certain to disappear within a short time. In Schmerber the Court upheld the warrantless withdrawal of a blood sample from petitioner’s body for the purpose of measuring alcohol content. The Court reasoned that the delay necessary to obtain a warrant threatened destruction of the evidence, since the quantity of alcohol in the blood stream begins to diminish once drinking stops.

In Cupp v. Murphy, supra, the police, without obtaining consent or a warrant, took scrapings from the fingernails of a suspect in a strangulation case. The suspect was not under arrest at the time and the Court found the limited search to be necessary to preserve the readily destructible evidence under his fingernails.

In the case at bar, the blood and other fluids sought by the police officers were present on clothing, toweling and a tissue inside the defendant’s home. All occupants of the house had been removed and the police were in control of the area at the time the search occurred. There was no possibility that the clothes or towels would be laundered, that the blood-soaked items would be destroyed, or that the blood samples would naturally deteriorate before a warrant could be obtained. In short, no exigent circumstances existed which could justify the failure of the investigating officers to obtain a search warrant. Therefore, I would hold that the search in this case was unreasonable and a violation of the state and federal constitutions.

I do not believe that the warrantless intrusion can be upheld on the ground that Mr. Ortega consented to a search of his home by reporting the killing to the sheriff’s office. Shortly after the shooting, the appellant telephoned the sheriff’s office for assistance and advised that he would go to the front door of his home with his hands in the air when the authorities arrived. He followed this procedure and met the officers in his front yard. By the time the objectionable search occurred he had been removed from the premises. Such conduct cannot be construed as an invitation to search one’s home.

This reasoning finds support in recent decisions by the Colorado Supreme Court and the Illinois Appellate Court. In People v. Roark, Colo., 643 P.2d 756 (1982), the court determined that an emergency call to the police station reporting a death did not constitute a consent to search the premises *947after the occupants had been removed and the emergency had passed. The court in People v. Annerino, 97 Ill.App.3d 240, 52 Ill.Dec. 714, 422 N.E.2d 923 (1981), refused to find that the defendant consented to a warrantless search of his home by reporting a fatality to the police and requesting assistance in removing the victim from his kitchen.

I would have hoped that this court would be extremely cautious in expanding exceptions to the warrant requirement and would not have found an implied consent to search where no express consent was given. It seems to me that we are charged with jealously protecting those safeguards which insure that all people remain free from unreasonable searches and seizures.

“ * * * If this court is not careful, we are going to chip away at the Fourth Amendment rights of the American citizen until — one day — they will have disappeared altogether. We must never forget that these rights were forged out of the steel and fire of bitter human experience which warns that, for all of those who may one day need the protecting arms of the criminal justice system (including you and me), there must be ground rules which will protect against the unscrupulous, the overzealous and their wiles. To pretend that these threatening forces have not found and will not find their way into the system is to close our eyes to reality, which we do at the risk of collapsing the greatest criminal justice system the mind of man has ever devised.” Jessee v. State, Wyo., 640 P.2d 56, 73 (1982) (ROSE, Chief Justice, dissenting).

II

It has long been my position that courts should exercise extreme caution in admitting evidence of prior bad acts in criminal cases. Grabill v. State, Wyo., 621 P.2d 802 (1980), dissenting opinion; Goodman v. State, Wyo., 601 P.2d 178 (1979), dissenting opinion. The danger in admitting such evidence is that it requires the defendant to meet and explain conduct other than that with which he is charged. Such testimony has a recognized tendency to lead the jury to believe that it is permissible to convict for acts other than those for which the defendant is on trial. Kwallek v. State, Wyo., 596 P.2d 1372, 1378 (1979).

It is conceded that under Rule 404(b), W.R.E., evidence of prior wrongdoing is admissible to prove motive, inter alia. However, such evidence may be excluded -under Rule 403, W.R.E., when its probative value is substantially outweighed by the danger of unfair prejudice. Evidence which is shocking, sensational, or evocative of hostility or punitive impulses has been deemed unfairly prejudicial and, therefore, inadmissible. Goodman v. State, 601 P.2d at 184; 2 Louisell & Mueller, Federal Evidence, § 126, pp. 16-18.

In this case the incident described by the State’s witness, a neighbor of Ortega, occurred two months prior to the shooting. The witness testified that from his ground floor bathroom window, he observed an altercation between Mr. and Mrs. Ortega. The witness’ vision was obscured by a fence, seven feet high. He was unable to hear what was said, and did not actually see appellant urinate on Mrs. Ortega. It is not at all clear to me that testimony of this quality, concerning an incident which occurred two months earlier, had probative value in proving Ortega’s motive on the night of the shooting. Given the highly inflammatory nature of this testimony and the likelihood that it would generate feelings of hostility toward the defendant, I conclude that the danger of unfair prejudice substantially outweighed any possible probative value. It was error to admit this evidence and subject Richard Ortega to the risk of conviction for improper reasons.