dissenting.
We decided Fu st in this case that the items found in the bedroom where Mocre was arrested were not unreasonably obtained by the police. We decided that the victim’s purse and another gun, which were in a separate room, could not be admitted into evidence because these items were not under the control of Moore. We based this decision on the language contained in the case of Chimel v. California, 395 U.S. 752 (1969). In the Chimel case, the arresting officer had a warrant for Chimel’s arrest but no search warrant. When the police entered the house, over Chimel’s objections, they conducted a random search of the entire house, including the garage, attic, workshop, and even ordered ChimePs wife to open drawers in the furniture. The Supreme Court of the United States reviewed the law of search and seizure incidental, to an arrest in the Chimel case. While pointing out that the law had been inconsistently applied by the courts, the court stated that a search incident to arrest in a dwelling should be limited to the person of the accused and the “area from within which he might have obtained either a weapon or something that could have been used as evidence against him.” Another reason for this rule is that the evidence may be destroyed or disposed of. The items which were found under the bed of Moore were clearly within his control and one of the items was a gun which Moore could have used against the officers. Therefore, the seizure clearly falls within the rule announced in Chimel. However, the majority now says that because Moore was not on the premises at the moment the search was made it cannot be sustained constitutionally.
It is not disputed that the police, after talking to the victim, who had been raped, shot three times and robbed, were justified in the early morning hours, apparently between six and seven a.m., in going immediately to the residence of Moore’s parents, where he was known to reside, and arresting him without a warrant. The victim had just told the police, at the hospital, that she knew Moore personally and identified him as the assailant. We concluded that the police were justified, had probable cause, to enter the dwelling without an arrest warrant to arrest Moore. At the same time we are now saying that evidence of this crime for which he was arrested without a warrant cannot be used as evidence. This reasoning is typical of the decisions we, that is the courts, have made in the area of the law of search and seizure. There are literally thousands of cases in federal and state courts regarding the law of search and seizure and it has become a legal tangle that not only the lawyers and the judges have to constantly wrestle with but also must be puzzling to laymen and officials who must abide by these decisions or perform their duty consistent with these decisions. At one time the courts were too lenient on search and seizure, and now, in my opinion, they are too technical and strict in apply ing the law. The law of search and seizure and the sometimes unreasonable application of the law of search and seizure have created a legal maze that actually prevents the orderly administration of justice rather than aids it.
There must be a middle ground and it is the duty and obligation of the courts to find it. The constitutional rights of citizens must be protected but at the same time reasonable rules, or a reasonable application of rules, must be found so that the officials charged with enforcing the law have tools to fairly investigate a case, collect evidence, and see that criminals account for their misconduct. It is just as wrong for a person who commits a crime to go free because of a technical mistake by a police officer as it is for a police officer to violate the constitutional rights of an individual. Both parties should be held individually responsible for their individual misconduct. In my opinion we have been too easy on officials who violate the rights of individuals and too quick to find a technical violation of the rules of law.
I could accept the law that a person cannot be arrested in his home without an arrest warrant, and that his home at the same time could not be searched without a search warrant; or I could accept the law that a person can be arrested without an arrest warrant on probable cause, and at the same time his premises reasonably searched for any evidence connected with the alleged crime.
These are propositions that are both reasonable and can be scrutinized by the courts to guarantee the reasonable use of police power. But to say that a person can be taken from his home in the early morning hours without an arrest warrant and at the same time that the police cannot lawfully use evidence taken from under his bed, obviously connected with the crime, cannot be defended logically. Which is the greater threat, or potential threat, to individual rights?
The reason that evidence is normally not used in a trial against a defendant, which has been obtained in violation of the law of search and seizure, is that it is tainted by an illegal act by the police, suspect, because it may have been tampered with, or it may not or cannot be related to the crime involved. There is no evidence in this record that this evidence was suspect in any way, unreliable to any extent or related to any other offense except the crime charged. Moore could receive a fair trial and is in no position, based on the record before us, to argue that he is prejudiced in any way by this evidence being admitted into evidence. The only objection is technical — that he was on his way to jail. In my opinion the majority is unreasonable in the application of the law to the facts.
This court has adopted rules of criminal procedure which are a codification of the current decisions on the law of search and seizure. Their meaning and application will be the subject of much litigaton in the years to come, and I might add, the subject of much dispute and disagreement among lawyers and judges. However, we should in every instance in the application of these rules ask ourselves, was the action of the police unreasonable? Is there evidence of a deliberate attempt by the police officers to evade the law to obtain evidence? Was a mistake by the police a technical mistake or a substantial mistake? Was their act in good faith? Most of all, is the evidence relevant, reliable and is the accused prejudiced in any way by the admissibility of the evidence? In our rules of criminal procedure, we have set forth certain criteria for examining evidence which may have been seized contrary to the law. See Rules of Grim. Proc., Rule 16.2 (1976). We say in these rules that before evidence is suppressed because of a violation of constitutional rights, a determination must be made as to: the importance of the particular interest violated; the extent of deviation from lawful conduct; the extent to which the violation was willful; the extent to which privacy was invaded; the extent to which exclusion will tend to prevent violations of these rules; whether, but for the violation, the things seized would have been discovered; and, finally, the prejudice to the defendant and the effect upon his ability to defend himself. The majority in granting the rehearing in this case have ignored this rule and have not apparently looked to any of these criteria to see whether or not the violation they find should result in exclusion of the evidence.
There is ample authority that the presence of the accused at the moment of the search is not always necessary. In the case of U.S. v. Edwards, 415 U.S. 800 (1974), the court upheld a search of a defendant’s clothes ten hours after he was arrested. The court stated:
This was no more than taking from respondent the effects in his immediate possession that constituted evidence of crime. This was and is a normal incident of a custodial arrest, and reasonable delay in effectuating it does not change the fact that Edwards was no more imposed upon than he could have been at the time and place of the arrest or immediately upon arrival at the place of detention. The police did no more on June 1 than they were entitled to do incident to the usual custodial arrest and incarceration.
The court quoted from a United States District Court case:
While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence. United Stales v. DeLeo, 422 F. 2d 487 (1970). [Emphasis added.]
In another case the United States Supreme Court held that a car which was searched without a search warrant a week after the arrest was a legal search. Cooper v. California, 386 U.S. 58 (1969).
These decisions indicate, just as the constitution states, that it is unreasonable searches and seizures that are unlawful.
The majority now says there are no exigent circumstances in this case which would warrant the police in searching this house without a warrant. I would point out that the arrest occurred immediately after Moore had been personally identified by the victim as her assailant; that the police officers immediately proceeded to Moore’s residence, which was the home of his parents, between the hours of six and seven a.m.; arrested Moore and sent him to jail; and immediately in the presence of his parents who owned the home found this evidence. The majority assumes that the parents of this young man, knowing that he was charged with a serious crime, would not have done everything they could to help their son. Such an assumption presumes that a parent will aid in the conviction of a child. To say that one of the police officers should have guarded the house or evidence while another one went to get a warrant is to propose a legal sham. Either the evidence could have, and should have been gathered at that time or it could not be gathered at that time. That brings us to the question which must be answered in every case, and that is, was the search itself reasonable under the circumstances? I can find nothing in the majority opinion granting the rehearing which would justify excluding the evidence found under the bed of Moore.
I would deny the rehearing.