Dombrowski v. Cady

• Decision Date: 02 June 1972
• Docket Number: No. 71-1094.,71-1094.
• Citation: 471 F.2d 280
• Parties: Chester J. DOMBROWSKI, Petitioner-Appellant, v. Elmer O. CADY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

471 F.2d 280 (1972)

Chester J. DOMBROWSKI, Petitioner-Appellant, v. Elmer O. CADY, Respondent-Appellee.

No. 71-1094.

United States Court of Appeals, Seventh Circuit.

Argued January 19, 1972.

Decided June 2, 1972.

Rehearing and Rehearing Denied July 24, 1972.

Certiorari Granted December 11, 1972.

William J. Mulligan, David E. Leichtfuss, Milwaukee, Wis., for petitioner-appellant.

Robert W. Warren, Atty. Gen., Mary V. Bowman, Asst. Atty. Gen., Madison, Wis., for respondent-appellee.

Before KNOCH, Senior Circuit Judge, and KILEY and FAIRCHILD, Circuit Judges.

Rehearing and Rehearing En Banc Denied July 24, 1972.

Certiorari Granted December 11, 1972. See 93 S.Ct. 556.

KILEY, Circuit Judge.

The district court denied petitioner Dombrowski habeas corpus relief from his imprisonment in Wisconsin for murder. We reverse.

Dombrowski, a Chicago policeman, on September 9, 1967, drove his 1960 Dodge to Fond du Lac, Wisconsin, to visit his brother's farm. That evening the Dodge was disabled and on September 10 was towed to the farm, where Dombrowski left it. He returned to Chicago with his brother. In Chicago, at 12:30 a. m. September 11, Dombrowski rented a 1967 black-over-maroon Ford. Dombrowski was seen about 9:40 a. m. purchasing two hand towels in Kewaskum, Wisconsin.

About 10:30 p. m. that night Dombrowski drove the Ford off a highway and crashed into a bridge abutment. A passerby took him to Kewaskum where Dombrowski notified the sheriff's office about the Ford mishap. Two deputies drove him to the scene of the accident, and on the way he told them that he was a Chicago policeman.

At the scene one of the deputies searched the inside of the Ford, looking for defendant's service revolver. The trunk was not searched. The Ford was locked by a deputy, who kept the keys, and the Ford then was towed to a private garage in Kewaskum. Dombrowski was taken to the sheriff's office in West Bend where he was "arrested" for "drunken driving" and taken to the West Bend hospital.

After leaving the Ford, one of the deputies, at approximately 2:13 a. m., went to the Kewaskum garage and — without the knowledge or consent of Dombrowski — made a warrantless search of the Ford. The deputy seized from the trunk, inter alia, a towel, a piece of a floor mat, a night stick and a police officer's uniform pants. All items were spattered with blood.

Dombrowski, while in the hospital during the morning of September 12, retained an attorney from West Bend. The attorney conferred with Dombrowski at the hospital and then informed the local county prosecutor that a body could be found on Dombrowski's brother's farm. At about 3:00 p. m. Washington and Fond du Lac County Sheriff's officials went to the farm and conducted an extensive warrantless search. In the search a dead body was found in the dump area about three blocks from where the Dodge was parked. Near the body a white sock was found.

One officer peered into Dombrowski's Dodge and saw the back seat saturated with what appeared to be blood, and a briefcase stained with blood. The Dodge, however, was not searched at the time. A warrant was obtained at about 8:00 p. m. and the car seat and briefcase were seized. The next morning, September 13, another search was made and a bloodied sock and piece of floor mat were seized. The items seized in the search of the Ford early on September 12 and in the searches of the Dodge were admitted into evidence, over objection, at the Dombrowski trial for the murder of the man found dead on the Dombrowski farm. The jury convicted Dombrowski and he was sentenced to life imprisonment. The Supreme Court of Wisconsin affirmed the jury conviction. State v. Dombrowski, 44 Wis.2d 486, 171 N.W.2d 349 (1969).

I.

A majority of the Wisconsin Supreme Court¹ decided that the police action which discovered the incriminatory evidence in the Ford was not a search, but an inspection, under the doctrine of Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

This habeas proceeding followed. Dombrowski alleged, inter alia, that the search and seizure were unreasonable and violated his Fourth Amendment right. The district court, in denying Dombrowski habeas relief, followed the Wisconsin Supreme Court's opinion and held that the "inspection" was reasonable and not violative of Dombrowski's Fourth Amendment right.² It is conceded here by the State that the "inspection" was a search.

When the inside of the Ford was searched at the scene of the mishap, the police had no knowledge of the homicide. The search of the Ford was aimed at finding Dombrowski's service revolver. The trunk was not searched, presumably because — the revolver not being in the passenger area of the Ford — there was no danger to the arresting officers. When the deferred search was made at the Kewaskum garage, the officer knew no more than he did at the time of the original search. At the time of the second search, no further evidence was needed to sustain the charge of driving while intoxicated. The search must therefore have been for incriminating evidence of other offenses. See United States v. Ware, 457 F.2d 828 (7th Cir. March 29, 1972) (dissenting opinion). We are not persuaded that protection was needed, since the revolver was, if any place, in the locked trunk.

There was no basis upon which the police could reasonably decide that they were in danger, or that the Ford was a "fleeting target" which posed danger to evidence, or which might be driven out of the jurisdiction so as to invoke the exception to the Fourth Amendment warrant clause enunciated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The Ford, immobilized by the accident, was locked by the police at the Kewaskum private garage in the early morning when searched. The police had no inkling that there was evidence in the Ford of any offense by Dombrowski other than the drunken driving of which the police knew. And it seems highly unlikely that in the small town of Kewaskum there was danger of anyone going to the garage, getting into the Ford, and driving it away. Cf. United States v. Castaldi, 453 F.2d 506 (7th Cir. 1971). When the police searched the Ford at the scene of the accident they had probable cause to arrest Dombrowski for driving while intoxicated. They had no justification to search except to look for the gun in the interest of safety. There was no justification therefor under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970),³ for the warrantless deferred search.

Under Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), warrantless searches are per se unreasonable. There are but few exceptions, and to come within one of them it must be shown that the "exigencies of the situation" rendered the warrantless search imperative. Coolidge at 454-455, 91 S.Ct. 2022. There is no showing in the record here of any exigency justifying the deferred search of the Ford.

We think the deferred search was unreasonable under the Supreme Court's holding in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). In Preston acting upon a telephone complaint that "three suspicious men acting suspiciously," police found Preston and two other men sitting in a parked car in a business district. Preston at 365, 84 S.Ct. 881. Under questioning the men gave evasive answers, stated they were unemployed, and had among them only twenty-five cents. The men were arrested for vagrancy and taken to the police station. The car was taken by police to a garage. After the men were booked for vagrancy, police went to the garage and a warrantless search of the car produced two loaded guns from the glove compartment and various incriminating items from the trunk. The warrantless searches "at another time and place" were held unreasonable since the men were under arrest and were no danger to the officers, could not have destroyed the evidence of the "crime" of vagrancy, or could not have removed the car from the jurisdiction. Preston at 368, 84 S.Ct. 881.

Here the bloodied towel, piece of floor mat, night stick, and officer's uniform pants seized in the deferred search substantially contributed to Dombrowski's conviction of murder. The towel and piece of floor mat were matched at the trial with evidence seized in a subsequent search of Dombrowski's Dodge on the farm the morning of September 13. The trial was therefore tainted by the use of the bloody towel and piece of mat, seized in the unreasonable warrantless search of the Ford. We hold that the trial court committed error of constitutional dimension in denying Dombrowski's motion to suppress the items seized in the Ford and admitting them into evidence at the murder trial over his objection.

II.

Should Dombrowski be tried again it is likely that Wisconsin will intend to use evidence gathered in the searches of the farm and the Dodge. The reason is that the Wisconsin Supreme Court has decided the searches of the farm and Dombrowski's Dodge on September 12 and 13 were not illegal⁴ and that no constitutional error was committed in admitting the products of the searches into evidence. Assuming the case is retried, the trial court would be bound by that decision and corresponding rulings would likely be made upon Dombrowski's objections. We are not bound by the Wisconsin Supreme Court decision, however. See Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). We deem it prudent to preclude, if we can, serious error at a second state trial. We conclude therefore that we should consider Dombrowski's constitutional challenges of the September 12 and 13 searches of the Dodge.

The five hour warrantless search of the farm on September 12 began about 3:00 p. m. The sheriff's police before entering the farm had possession of the items seized in the search of the Ford in Kewaskum and had received the subsequent information from Dombrowski's attorney that a body could...