State v. Murphy

Decision Date12 March 1970
Citation465 P.2d 900,2 Or.App. 251
PartiesSTATE of Oregon, Respondent, v. Daniel Paul MURPHY, Appellant.
CourtOregon Court of Appeals

Oscar D. Howlett, Portland, argued the cause and filed the briefs for appellant.

Jacob B. Tanzer, Solicitor Gen., Salem, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

SCHWAB, Chief Judge.

The defendant was tried to a jury on the charge of murder of his wife. He was convicted of murder in the second degree. On appeal he contends that fingernail scrapings taken from him against his will were wrongfully received in evidence. The state produced testimony that analysis of the scrapings revealed skin, blood cells, and white cotton fiber. This evidence was obviously introduced as tending to prove that the defendant had acquired these substances under his fingernails by strangling his wife while she was in bed.

At the time the police took the fingernail scrapings they had not formally arrested the defendant. He was not charged with murder or any other crime until about a month later. The defendant's position is that the police did not have a right to search him by taking scraping from his fingernails without his consent and without a warrant except as incident to a lawful arrest.

We borrow in large part from the statement of facts in defendant's brief.

On August 25, 1967, City of Portland detectives, Hutchins and Prunk, were assigned to investigate the murder of Doris Murphy. They arrived at the Murphy home shortly after 8 a.m. They could see throat lacerations and abrasions and it appeared to the detectives that Mrs. Murphy had been strangled. The deceased was lying on her back in bed and the bed was perfectly made up. There were no signs of forced entry, struggle, or robbery. The detectives talked to the son of the deceased and defendant. The son told them that the defendant had been away and had been expected home the night of August 24. By making a telephone call to Camp Sherman, Oregon, and talking to a Mr. Jones, the detectives learned that the defendant had left Camp Sherman on the night of the 24th to go to Portland. They also learned from the defendant's son that the deceased and the defendant did not get along well and in the past 'had fights.' While talking to the son the detectives noticed that he had 'no fingernails.' Through Mr. Jones Detective Prunk left a death message at Camp Sherman for defendant.

At 4 p.m. on the same day, August 25, defendant called the Portland police station and talked to Detective Prunk. Without asking any questions about his wife defendant immediately began to tell Prunk where he had been the night before. He also agreed to come to Portland immediately. Defendant told Prunk on the telephone that he had left Camp Sherman about 8 p.m. the night of the 24th in his old pickup to bring a washing machine to Portland to be repaired and on the way had stopped in Salem for a couple of drinks. When he got home the door was locked so he slept in the pickup parked in the driveway. Early in the morning he work up and tried to push the truck out of the driveway because it made a lot of noise, but it got caught in the step or curb. He then drove off to another place where he slept until daylight and then took the washing machine to be repaired.

The defendant did return to Portland and went to the Portland police station about 7:45 p.m. When Detective Hutchins saw the defendant in the police station he noticed a dark spot on defendant's right thumb. This prompted him to think about fingernail scrapings although, as he put it, he probably would have anyway in view of the fact that he had observed lacerations on the throat of the deceased. While the defendant and the detectives were discussing the case, two lawyers representing the defendant arrived. The discussion continued after the lawyers arrived and during this time a deputy district attorney who was present and the two detectives discussed taking fingernail scrapings. The defendant refused to give the fingernail scrapings or to take a polygraph test and exhibited a disinterest in the case. Nevertheless, the police detained the defendant long enough to take the scrapings in question and then released him.

By holding the defendant long enough to take fingernail scrapings from him, the detectives did not Arrest the defendant in the strict sense of the word. An Arrest in its strict sense is the taking of a person into custody for the commission of an offense as the prelude to prosecuting him for it. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It follows that the state cannot rely on the rule that 'The notable exception to the demand for a search warrant is, of course, the search made as an incident of a lawful arrest.' State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962). This rule, however, is not determinative of the case at hand for, while the incident-to-arrest exception is 'notable,' it does not follow that it is exclusive.

'* * * In terms of the quantum of evidence required, this (probable cause for a search) is substantially the equivalent of the probable cause needed for an arrest warrant and of the reasonable grounds needed for an arrest without warrant.' LaFave, Search and Seizure: The Course of True Law * * * Has Not * * * Run Smooth. 255 Ill.L.Forum 259--260, 1966.

In the usual situation, as in this case, the same evidence that constitutes probable cause to arrest constitutes probable cause to search the person arrested for evidence of the crime for which he is seized. Perhaps this is the reason that in many cases courts have upheld warrantless searches which came prior to arrest by characterizing the searches as 'incident to arrest.'

'Search before arrest is not uncommon in current practice. In some instances, the search precedes the formal announcement of arrest because it is necessary for the officer to act quickly for his own protection. In many instances, however, no formal announcement is made because the officer knows that the person will not actually be taken to the station unless the search proves to be fruitful. That is, in those cases where the defendant might be arrested because of reasonable grounds to believe he presently possesses contraband, the common sense sequence--as far as the police are concerned--is search followed by arrest only if contraband is found, as opposed to arrest, search, and then release if nothing is found.

'In these and similar cases, the better view is that the search is not unlawful merely because it precedes the arrest. Such is the California position, which has been explained as follows:

"Thus, if the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested and the place where he is arrested, there is nothing unreasonable in his conduct if he makes the search before instead of after the arrest. In fact, if the person searched is innocent and the search convinces the officer that his reasonable belief to the contrary is erroneous, it is to the advantage of the person searched not to be arrested. On the other hand, if he is not innocent or the search does not establish his innocence, the security of his person, house, papers, or effects suffers no more from a search preceding his arrest than it would from the same search following it.'...

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27 cases
  • State v. Newton
    • United States
    • Oregon Supreme Court
    • October 27, 1981
    ...out not to be constitutionally necessary, see, Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); and State v. Murphy, 2 Or.App. 251, 465 P.2d 900 rev. den., cert. den. 400 U.S. 944, 91 S.Ct. 246, 27 L.Ed.2d 248 5 The commissioners adopted the requirement, but recognized a ......
  • State v. Douglas
    • United States
    • Oregon Supreme Court
    • September 22, 1971
    ...as such search and seizure cases involving drugs. State v. Peterson, Or.App., 90 Adv.Sh.1285, 469 P.2d 40 (1970); State v. Murphy, 2 Or.App. 251, 465 P.2d 900 (1970). I do not believe the rules laid down by the United States Supreme Court pursuant to the Fifth Amendment to the United States......
  • State v. Florance
    • United States
    • Oregon Supreme Court
    • October 17, 1974
    ...particularly describing the place to be searched, and the persons or things to be seized.' (Emphasis added)4 See also State v. Murphy, 2 Or.App. 251, 258, 465 P.2d 900, cert. denied, 400 U.S. 944, 91 S.Ct. 246, 27 L.Ed.2d 248 (1970). Habeas corpus granted in Murphy v. Cupp, 461 F.2d 1006 (9......
  • State v. Williams
    • United States
    • Oregon Court of Appeals
    • May 28, 1974
    ...that furnishes probable cause to arrest and search. Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); State v. Murphy, 2 Or.App. 251, 465 P.2d 900, Sup.Ct. review denied, cert. denied 400 U.S. 944, 91 S.Ct. 246, 27 L.Ed.2d 248 (1970). As we said in State v. Temple, 7 Or.Ap......
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