State v. Epperson

RENDLEN, Judge.

Defendant Russell Lee Epperson was convicted on three counts of murder in the first degree for killing his wife Fern and their two children, Richard and De Ann. The jury assessed punishment on each count at life imprisonment and the court ordered that the sentences run consecutively.

On appeal, defendant contends that evidence used against him in the prosecution of the case was obtained during a warrant-less search of his home by members of the municipal police force of the City of Mexico, Missouri, in violation of his rights under the Fourth Amendment to the Constitution of the United States and Art. I, § 15 of the Constitution of the State of Missouri. This contention turns on the answers to the following questions: (1) Was there an emergency situation justifying the warrantless entrance of defendant’s house by the police which led to the discovery of the bodies? (2) Can the initial entry and discovery be justified only by the subjective rationale and beliefs of the searching police officers or may it be based upon the objective facts known to the police officers and the logical deductions based thereon? (3) Was the additional warrantless search of the defendant’s home immediately after the police had found the bodies of the three missing persons and ascertained that the defendant probably was not present, justified by the exigencies of the situation?

Appeal was taken to the Court of Appeals, St. Louis District, which, in an opinion suggesting affirmance, determined that resolution of the issues involved an original construction of the Fourth Amendment to the Constitution of the United States and Art. I, § 15 Mo.Const.1945, and thus fell within the exclusive jurisdiction of this Court under Art. V, § 3, Mo.Const., as amended 1970. See City of St. Louis v. Tinker, 542 S.W.2d 512, 513[1] (Mo.banc 1976). Accordingly the Court of Appeals, without rendering a final decision, ordered the case transferred here. Portions of the well reasoned Court of Appeals’ opinion have been utilized without quotation marks.

Defendant Epperson and his wife, Fern, lived with their two small children at 608 *262West Pearson, Mexico, Missouri. On Monday, March 24, 1975, Fern’s mother, Mrs. Mary Ann Smith, attempted unsuccessfully to telephone her daughter at the Epperson home. Mrs. Smith then called defendant at his place of employment and inquired concerning the whereabouts of her daughter. He told her that Fern and the children had gone to Columbia to do some shopping, which Mrs. Smith considered strange as Fern usually left the children with her when shopping.

The next day, March 25, Mrs. Smith again tried calling her daughter at home but received no answer. That evening she and her husband saw Epperson on the town square in Mexico and he told them Fern was with his mother. However, when Mrs. Smith informed him that she knew Fern and the children were not with his mother Epperson said that he did not know where they were. After Mrs. Smith returned home she received a call from Epperson who told her that Fern had telephoned and said she would be home in the morning with the children.

On March 26, at approximately 8:30 a. m., Epperson again called Mrs. Smith and asked her to come to his house. At first she refused but when he told her that Fern would be there about 9:00 a. m. she agreed to go. At 8:45 a. m. appellant picked up Mrs. Smith in his truck and took her to his home. As she and the defendant went into the house he removed something from a cabinet, keeping it behind him while he locked the outside kitchen door. He stood against the door facing Mrs. Smith, keeping his left hand behind him and told her she should go into the front room and sit down. He also told her several times that “I’ll sure be glad to get this all over.” Mrs. Smith saw her daughter’s purse on the clothes dryer in the kitchen and knowing that whenever her daughter left the house she took her purse with her, she became quite suspicious. At that time she also detected an odor in the house which, from prior experience, she associated with death. After making the excuse that she had some food in the oven at her home Mrs. Smith left the Epperson residence and went to the home of a neighbor, Mrs. Mitchell, and placed a call to the Police Department of the City of Mexico. Officer Schnidler, responding to that call, met Mrs. Smith at the Mitchell house where she related the matters that had occurred. Schindler promptly summoned Sergeant Duffner and relayed this information to him.

Both officers immediately went to the Epperson home and finding all of the windows were covered with drapes or blinds, knocked on the doors without response. Ordering Schindler to remain near the house to observe if anyone left or entered, Sergeant Duffner walked next door to the home of Epperson’s neighbor and through a series of calls obtained information as to Epperson’s place of employment and that of his wife, as well as the school in which Richard was enrolled. He learned that Fern Epperson had been on vacation that week but had not kept her usual Tuesday evening bowling date. From defendant’s employer he found that defendant had stated the day before that he had taken his wife to the hospital for x-rays but a call to the family doctor revealed that he had not seen Mrs. Epperson since December of 1974 and Mrs. Smith had informed him that the hospital had no record of Fern reporting for x-rays. School personnel where Richard was enrolled told Sergeant Duffner that Epperson had called the school the day before and told them that his son Richard would be absent because of illness. Following a conference with the Chief of Police, Duffner was ordered to determine from Epperson’s parents whether they had seen him and request that the parents come to the house.

The parents agreed to this suggestion and met the officers at the Epperson home where, again, knocking on the doors produced no response. Epperson’s father pointed out that his son’s motorcycle was not there and surmised he might be elsewhere riding it. However, the motorcycle was located at Epperson’s place of employment but he could not be found. The parents then told the officers they would not break into their son’s house and they then went to the home *263of the neighbor where Mrs. Smith was waiting. Nevertheless the father, accompanied by the two officers, again went to the home and the officers told the father that he should be the one to enter the house. He eventually agreed to assist and after unsuccessfully trying to open the doors, a storm window was removed and an unlocked bedroom window opened. Duffner assisted the father in raising the window and a ladder was placed against the side of the building, the blinds were pulled back and the father and two police officers entered a bedroom of the house.

When they pulled back the blinds they saw what was apparently a human form lying under a sheet on the bed. While Schindler and Epperson’s father went to the other parts of the house to see if anyone else was there Sergeant Duffner removed the sheet and discovered the bodies of Mrs. Epperson and the two children. The children had plastic bags over their heads and the son had a cord around his neck. Each showed signs of violent mistreatment. There was a sock in the bag over the daughter’s head and another sock was near the wife’s face. When the others returned to the room where the bodies were found, Duffner called his superior officers and then made an investigation of the house. As he walked through the house he saw a five gallon can of gasoline in the hallway near the bedroom, a chisel for an air hammer partially wrapped in towels in a chair in the living room and a bottle of chloroform on the top of the sewing cabinet in the kitchen. Later during an autopsy it was determined that blows by a blunt instrument had been inflicted on the victims and chloroform was found in their vital organs. Epperson, who could not be found, became the subject of an intensive manhunt and was apprehended ten days later.

I.

Defendant contends that facts known to the police when they broke into the defendant’s house were not sufficient to justify the warrantless entry and original search. It first should be noted that by objective standards sufficient facts had been made known to the police to establish probable cause that a crime had been committed. These facts include (1) the defendant’s wife and children had been missing several days; (2) defendant had given false and inconsistent explanations for their absence; (3) defendant’s unusual, suspicious and nervous manner in the days following the disappearance of his family; (4) an odor of decomposing flesh had been detected in the house, and (5) defendant’s unexplained disappearance, though he had been in the house with Mrs. Smith shortly before the police arrived.

The question we first must decide is whether the facts were sufficient to establish exigent circumstances justifying a warrantless entry of the house. In general, an entry and search without a warrant are deemed unreasonable under the Fourth Amendment to the Constitution of the United States unless the action falls within certain carefully delineated exceptions. United States v. U. S. District Court, 407 U.S. 297, 318, 92 S.Ct. 2126, 32 L.Ed.2d 752 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970). The burden is on the State to show an exception exists. Coolidge v. New Hampshire, supra, 403 U.S. at 455, 91 S.Ct. 2022; Vale v. Louisiana, supra, 399 U.S. at 34, 90 S.Ct. 1969. Among the exceptions are searches incident to a valid arrest, searches of cars stopped on a road, seizures of evidence in plain view, stop and frisk searches, searches with consent, searches to prevent destruction of evidence, searches to prevent the flight of a criminal, and searches in response to a need for help. See Coolidge v. New Hampshire, supra, 403 U.S. at 455-473, 91 S.Ct. 2022; Vale v. Louisiana, supra, 399 U.S. at 34-35, 90 S.Ct. 1969; Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Chapman v. United States, 365 U.S. 610, 615, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).

*264The State contends that the entry and search fall within the “need for help” or the “emergency” exception, claiming that the odor of death combined with the long, unexplained absence of defendant’s wife and children, defendant’s suspicious behavior and his disappearance at the time of the search, gave probable cause to believe there was a medical emergency in which someone might be ill or injured and in need of immediate help. The State also urges these facts constituted probable cause to believe a crime has been committed and raised the possibility that a victim might be in need of assistance or medical aid which also justified the warrantless search.

The Supreme Court of the United States has held a warrantless search was reasonable in an emergency situation when a police officer heard a shot and a cry for help. McDonald v. United States, 335 U.S. 451, 454, 69 S.Ct. 191, 93 L.Ed. 153 (1948). For a discussion of the emergency doctrine and its history see State v. Sutton, 454 S.W.2d 481 (Mo.banc 1970). Because of the circumstances of the case, the search in Sutton was subsequently ruled unconstitutional in Root v. Gauper, 438 F.2d 361, 365 (8th Cir. 1971), but in Root it was recognized that Missouri had “the prerogative” to accept that doctrine, and we reaffirmed our adoption of the emergency exception in State v. Miller, 486 S.W.2d 435 (Mo.1972). See also Wayne v. United States, 115 U.S.App.D.C. 234, 240-243, 318 F.2d 205, 211-214 (1963).

It has been persuasively stated that whenever the police have reliable information of a death, an emergency exists sufficient to justify an immediate search because apparent death may turn out to be a barely surviving life, still to be saved. Patrick v. State, 227 A.2d 486, 489[3-9] (Del.Supr.1967). Here, although the odor of decomposing flesh would indicate death of one of the persons involved, at least three persons were missing under very unusual circumstances and Epperson could not be found. One or more could have been in immediate need of help to prevent death. Many courts have approved searches upon the emergency exception rationale in situations similar to the case before us. See People v. Brooks, 7 Ill.App.3d 767, 289 N.E.2d 207 (1972); People v. Hill, 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1 (banc 1974); People v. Clayton, 34 Ill.App.3d 376, 339 N.E.2d 783 (1975); People v. Lovitz, 39 Ill.App.3d 624, 350 N.E.2d 276 (1976); State v. Pires, 55 Wis.2d 597, 201 N.W.2d 153 (1972); Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975); People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976), cert. denied, 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191.

People v. Brooks, supra, concerned facts remarkably similar to those at bar. There the victim and defendant, who were mother and son, lived together in the mother’s apartment. Friends of the victim were unable to contact her for several days and when they questioned defendant concerning her whereabouts they received incredulous answers. After the janitor of the victim’s apartment building noticed an odor of death in the place, he contacted the police. Upon arrival, the police detected a strong “odor of death,” entered the victim’s apartment and discovered her body in the living room. The Illinois Court upheld the entry and subsequent search of the apartment as a reasonable response to an emergency situation. We hold that the exigent circumstances presented by this record justified the entry and original search of the house as “reasonable” under the Fourth Amendment to the United States Constitution and Art. I, § 15, Mo.Const., 1945.

II.

The defendant, as further challenge to the entry and search, places great emphasis on the police officers’ statement of their subjective belief that no crime had been committed and their somewhat ambiguous statements as to a possible emergency. The State counters with the contention that when the legality of a search is in question the subjective thoughts of the police are not controlling but instead the objective facts within their knowledge and the reasonable conclusions objectively drawn therefrom are determinative.

*265The Supreme Court of the United States has measured both probable cause and the warrant requirements for searches against objective standards. It has stated that in determining the reasonableness of a particular search, “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?” (Emphasis added.) Terry v. Ohio, supra, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889. The Court in Terry emphasized that subjective good faith alone is not enough; that there must also be objective reasonableness to enable meaningful review by the court.

Many lower federal courts and some state courts have said, sometimes in dicta, that objective reasonableness alone suffices to uphold either an arrest or a search. See United States ex rel. LaBelle v. LaVallee, 517 F.2d 750, 754[7-8] (2d Cir. 1975), cert. denied, 423 U.S. 1062, 96 S.Ct. 803, 46 L.Ed.2d 655 (1976); United States v. McCoy, 517 F.2d 41, 43 n. 1[1] (7th Cir. 1975), cert. denied, 423 U.S. 895, 96 S.Ct. 195, 46 L.Ed.2d 127 (1975); United States v. Vital-Padilla, 500 F.2d 641, 644[2] (9th Cir. 1974); White v. United States, 448 F.2d 250, 254[5] (8th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 974, 30 L.Ed.2d 798 (1972); Sirimarco v. United States, 315 F.2d 699, 702[7] (10th Cir. 1963), cert. denied, 374 U.S. 807, 83 S.Ct. 1696, 10 L.Ed.2d 1032 (1963); State v. Donnell, 239 N.W.2d 575, 578[6] (Iowa 1976); Commonwealth v. Miller, 366 Mass. 387, 318 N.E.2d 909, 911[4] (1974); Commonwealth v. Donnelly, 233 Pa.Super. 396, 336 A.2d 632, 637[5-6] (1975), cert. denied, 424 U.S. 974, 96 S.Ct. 1477, 47 L.Ed.2d 744 (1976). Cases holding that the objective facts were not enough have done so on the basis that the police officers’ subjective motives were demonstrably in bad faith. See Mills v. Wainwright, 415 F.2d 787, 790[1] (5th Cir. 1969); Moss v. Cox, 311 F.Supp. 1245, 1251-52[13-15] (E.D.Va.1970). Contra United States v. Dunavan, 485 F.2d 201, 205[4 — 6] (6th Cir. 1973). This is not a problem here as the officers in good faith were searching for persons missing under unusual circumstances rather than to harass the defendant or entering to search for evidence linking him with a crime.

Furthermore, the officers’ testimony reveals that though they may have considered this a “missing persons” investigation they also considered the medical emergency factors involved. In response to the question why he did not get a search warrant Sergeant Duffner testified:

Well, I really didn’t know what I had. I didn’t know — I knew the circumstances, that Russell Epperson and his wife were gone, and as far as I was concerned, I was just looking to try to find them to see if they had skipped the country or they were injured or what. I didn’t really know what I had. I mean there was no indication further to my prior investigation of any foul play involved of [sic] anything. As far as I knew they were just gone wherever they went; I couldn’t tell. (Emphasis ours.)

From this response it appears the officer in charge of the search considered the probability that someone in the house might be injured and need medical aid. By an objective standard there are sufficient facts to justify the officers’ initial entry into defendant’s home, despite the ambiguous testimony as to their subjective belief.

Following the entry under the emergency doctrine, the officers could seize evidence of the crime in the bedroom under the theory of “plain view,”1 if such evidence was readily observable and was discovered inadvertently rather than by anticipation or by a concerted search, and was immediately recognized as evidence of a crime. Coolidge v. New Hampshire, supra, 403 U.S. at 465, 91 S.Ct. 2022; State v. Dayton, 535 S.W.2d 479, 486[6-8] (Mo.App. *2661976). Here, following the officers’ permissible warrantless entry through the window of the bedroom, they could properly pull back the sheet to see if the form observed on the bed was that of a living person. It is then that evidence, such as the bodies, cord, socks and plastic bags came into “plain view,” which the police immediately recognized as evidence of a crime. All such items found in the bedroom, as well as the photographs taken there, were properly admitted in evidence. For similar decisions in other states see Patrick v. State, supra, 227 A.2d at 489-90[9-11]. People v. Brooks, supra, 289 N.E.2d at 214; People v. Hill, supra, 117 Cal.Rptr. at 412, 528 P.2d at 20.

III.

The admission of evidence from rooms of the house other than the bedroom presents a somewhat different problem and cannot be justified under the plain view doctrine except as they might be said to have been inadvertently discovered during a continuation of the emergency search for injured or missing persons. This evidence was discovered as the result of Sergeant Duffner’s search of the rest of the house immediately following the initial search for defendant (a source of potential danger) or other victims by Officer Schindler and Epperson’s father. If the evidence had been found moments earlier during Schindler’s cursory search, it would clearly have been admissible under the plain view theory. United States v. Blake, 484 F.2d 50, 57[7-8] (8th Cir. 1978), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 669 (1974); State v. Dayton, supra, 535 S.W.2d at 484-86[1-4],

However, the evidence adduced at the hearing for the motion to suppress and at trial revealed that the bottle of chloroform, the gasoline can and the chisel were found and the photographs and diagram of the other rooms were made by Sergeant Duff-ner after he had discovered the bodies of the three missing persons and Officer Schindler had ascertained that neither defendant nor any other victims were in the house.

In People v. Brooks, supra, after the police discovered the body of defendant’s mother in his apartment following the war-rantless entry justified by the emergency exception, they searched the apartment and discovered a bloody rug in the bathroom and a blood splattered shirt in one of the bedrooms. Shortly thereafter other police personnel arrived and photographed the apartment’s interior. All of this activity occurred without a search warrant, though upon the discovery of the body defendant became the only suspect. In that case the defendant claimed the search and seizure of physical evidence violated his rights under the Fourth Amendment. However, the Illinois Court justified the initial entry, the immediate discovery of the body, as well as the subsequent search which yielded the rug and shirt by the emergency exception. See also People v. Clayton, 34 Ill.App.3d 376, 339 N.E.2d 783 (1975) and People v. Lovitz, 39 Ill.App.3d 624, 350 N.E.2d 276 (1976) for remarkably similar fact situations with the same result.

The case of Michigan v. Tyler, No. 76-1608, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), is clear authority to render the warrantless entry in the case at bar “reasonable,” under the Fourth Amendment to the Constitution of the United States, and having discovered the victims of the crime, to authorize the police to investigate for and seize readily accessible evidence of the crime. In that case defendants were convicted of conspiracy to burn real property in violation of the applicable Michigan statute. Shortly before midnight on January 21,1970, a fire broke out in the building leased to the defendant, Tyler. The fire department responded, quenched the fire and “was ‘just watering down smoldering embers’ ” when Chief See arrived on the scene about 2:00 a. m. on the morning of January 22. A Lieutenant of the fire department informed the Chief that “two plastic containers of flammable liquid had been found in the building.” Using portable lights the Chief and the Lieutenant entered the gutted store which was filled with smoke and steam to examine the plastic containers. They concluded that the fire *267“ ‘could possibly have been an arson,’ ” whereupon the Fire Chief called police Detective Webb who arrived at about 3:30 a. m. and took several pictures of the containers and the interior of the store. However, they abandoned their efforts to search after the Chief had “[ljooked throughout the rest of the building to see if there was any further evidence, to determine what the cause of the fire was.” By 4:00 a. m. the fire had been finally extinguished and the firemen departed. The Fire Chief and the Detective took the two containers to the fire station where they were turned over to the Detective for safekeeping. They had neither consent nor warrant for the entries of the building nor for the removal of the containers.

About four hours after leaving the premises, Chief See with his assistant returned to the empty building to determine the origin of the fire and examine for arson. After a cursory inspection they left but at about 9:00 a. m. that morning the Assistant Chief and Detective Webb returned to the building looking for evidence of arson and they discovered suspicious burn marks in the carpets which Webb could not see earlier that morning because of the heat, steam and darkness. They also found pieces of tape, with burn marks, on the stairway. After leaving the building to obtain tools they returned and removed pieces of the carpet and sections of the stairs to preserve these bits of evidence suggestive of a fuse trail. The Assistant Chief also searched through the rubble “looking for any other signs or evidence that showed how this fire was caused.” l. c. 502, 98 S.Ct. l. c. 1946. Again, there was neither consent nor warrant for these entries and seizures. Both at trial and on appeal the defendants objected to the introduction of evidence obtained during these searches. Thereafter other investigators entered the premises on January 26 and 29, and again on February 16 to gather evidence concerning the charge of arson and the cause of the fire.

The Court held that Fourth Amendment protection extends to entries by officials, whether they be building inspectors, police, representatives of the health department, firemen or others. That such entries are permissible only on proper warrants or with consent or if exigent circumstances occur of sufficient proportions to render a warrant-less entry “reasonable.” In that case the firemen were deemed to have made a reasonable entry when entering the burning structure to put out the blaze and were permitted to seize the readily observable evidence of arson. Thus the Fourth and Fourteenth Amendments were not violated by the entry of the firemen to extinguish the fire at Tyler’s Auction, nor by Chief See’s removal of the two plastic containers of flammable liquid found on the floor of one of the showrooms.

Prior to 4:00 a. m. on January 22, however, the firefighters suspected arson and summoned the police whose investigation was not only for the cause of the fire’s origin but to determine whether a crime had been committed. Defendants objected to any of the evidence following the time the firefighters and the police detective left the premises about 4:00 a. m., including the entries at 8:00 a. m. and 9:00 a. m. when the Assistant Fire Chief and the Detective returned to the premises, made a detailed inspection but left the building again to obtain tools, then returned and removed parts of the carpet and stairs and continued to search through the rubble. The Court stated that the original exigent circumstance of the fire permitted the entry, noting that the officials charged with extinguishing the fires are also charged with prompt determination of their origin. The Court added that “[ijmmediate investigation may also be necessary to preserve evidence from intentional or accidental destruction. And of course, the sooner the officials complete their duties, the less will be their subsequent interference with the privacy and recovery efforts of the victims.” 1. c. 510, 98 S.Ct. 1. c. 1950. The Court then concluded “[o]n the facts of this case, we do not believe that a warrant was necessary for the early morning re-entries on January 22,” nor the re-entries at about 8:00 a. m. and 9:00 a. m. for “[ujnder these circumstances, we find that the morning *268entries were no more than an actual continuation of the first, and the lack of a warrant thus did not invalidate the resulting seizure of evidence.” 1. c. 511, 98 S.Ct. 1. c. 1951.

Thus the investigation of the building for arson and the taking of pieces of the stairs, carpet and the flammable liquid found in the plastic containers, as well as the search of the building for other evidence of arson, were a continuation of the exigent entry. The right of the officers to return after daylight and continue their investigation sprang from the fact that the exigent quality of the circumstances continued. The Court stated “[i]n determining what constitutes ‘a reasonable time to investigate,’ appropriate recognition must be given to the exigencies that confront officials serving under those conditions, as well as to individuals reasonable expectations of privacy.” The emergency of the fire permitted the entry. The length of time and scope of the search for evidence of possible arson was extended by finding the plastic containers containing the flammable liquid. However, the Court held that the entries occurring after January 22 “were clearly detached from the initial exigency and warrantless entry.”2

In the case sub judice, the urgent circumstances permitting the warrantless entry included possibility of death, illness, or serious injury to persons in the house. After the entry, the exigent quality of the moment was heightened by discovery of the bodies, apparently brutally murdered. The limited superficial search that followed and the removal of the bodies, the taking of photographs of a few scenes in the house and the removal of the few items of personal property not located in the bedroom were within the reasonable time, spatial scope and limited intensity approved by Tyler. Thus the absence of a warrant or of consent, as in Tyler, did not render the challenged evidence inadmissible and for these reasons defendant’s contention is denied.

As previously discussed, the bodies, plastic bags and chloroformed socks and Venetian blind cord were discovered in the bedroom and admissible under the plain view doctrine and the evidence from the other part of the house (i. e., the gasoline can, chisel, bottle of chloroform and certain of the photographs) were within the scope of the emergency exception to the Fourth Amendment as delineated in Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). We are also convinced that had admission of this latter evidence been deemed improper, such admission would have been non-prejudicial. The evidence of defendant’s guilt was strong and certain. Defendant fled the area and despite an intensive search covering several counties, was not apprehended until ten days after the discovery of the crime. We are aware, as stated in State v. DeGraffenreid, 477 S.W.2d 57, 65 (Mo.banc 1972) “that error which in a close case might call for a reversal may be disregarded as harmless when the evidence of guilt is strong.” See State v. Davis, 556 S.W.2d 45 *269(Mo.banc 1977) and Thomas v. United States, 281 F.2d 132 (8th Cir. 1960).

The body of testimony from thirteen State’s witnesses occupying almost two hundred transcript pages and some twenty-six exhibits, not including those discovered in Duffner’s search, were unrebutted. Defendant offered no evidence. We believe beyond a reasonable doubt the overwhelming weight of the evidence was such that the claimed error, and we find none, could only have been non-prejudicial. The judgment of the trial court is affirmed.

MORGAN, C. J., and BARDGETT, FINCH and DONNELLY, JJ., concur. SEILER, J., dissents in separate dissenting opinion filed. SIMEONE, J., not participating because not a member of the Court when cause was submitted.

. The Supreme Court of the United States has stated, “Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate.” Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971).

. The United States Supreme Court has recently disapproved Arizona’s “murder scene exception” to the reasonable search requirement of the Fourth Amendment in Mincey v. Arizona, - U.S. -, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), and condemned the admission of evidence taken in an extended four day warrant-less search during which a number of police officers proceeded to gather evidence from defendant’s apartment. This search followed the warrantless entry and fatal wounding of a narcotics agent and the arrest of defendant in his apartment who was also wounded in the shootout. The officers, after the removal of defendant, the wounded officer and other suspects, proceeded in the four day search. During that period "the entire apartment was searched, photographed and diagramed. The officers opened drawers, closets and cupboards, and inspected their contents; they emptied clothing pockets; they dug bullet fragments out of the walls and floors; they pulled up sections of the carpet and removed them for examination. Every item in the apartment was closely examined and inventoried and two or three hundred objects were seized. In short, Mincey’s apartment was subjected to an exhaustive and intrusive search.” l. c. -, 98 S.Ct. l. c. 2412. The exigency of the situation could not extend to nor render reasonable such an intensive, long term search. The facts in Mincey were clearly distinguishable from those in Tyler, or those in the case at bar.