Ex parte Usrey

• Citation: 527 So.2d 732
• Parties: Ex parte Margie Lee USREY (Re: Margie Lee Usrey v. State). 85-1417.
• Decision Date: 27 March 1987
• Court: Alabama Supreme Court

Page 732

527 So.2d 732

Ex parte Margie Lee USREY (Re: Margie Lee Usrey v. State).

85-1417.

Supreme Court of Alabama.

March 27, 1987.

Rehearing Denied May 8, 1987.

Betty C. Love, Talladega, for petitioner.

Charles A. Graddick, Atty. Gen., for respondent.

BEATTY, Justice.

Certiorari was granted in this case to consider (1) the conclusion of the Court of Criminal Appeals that the warrantless search of this defendant's residence was executed under exigent circumstances; and (2) that court's conclusion that six cartridges taken from the body of the victim were admissible. As to the first issue, as discussed hereinafter, we remand the case to the Court of Criminal Appeals for further consideration. As to the second issue, we find the result reached by the Court of Criminal Appeals to be correct.

Although the facts pertinent to the search and seizure issue appear in the opinion of the Court of Criminal Appeals, they are reproduced here as an aid to understanding our conclusions:

"On May 12, 1983, at approximately 8:04 P.M., in Sylacauga, Alabama, the defendant, Margie Lee Usrey, called a neighbor, Jeannie Davis and stated to her that she had shot her husband, Jerry Usrey. Miss Davis summoned her roommate, Mary Hosey, and the two went to the Usrey residence, which was located some seventy-five feet away. When they arrived they discovered the body of Jerry Usrey in a bedroom of the Usrey trailer, whereupon Jeannie Davis called the Sylacauga Police.

"Officer Marty Batson of the Sylacauga Police Department was dispatched to the scene in response to Miss Davis' call. One of the women other than the defendant met Officer Batson at the door of the residence and advised him that there had been a shooting inside and that, in her opinion, the subject was deceased. After being advised of this, Officer Batson entered the premises without obtaining either a warrant or the consent of Mrs. Usrey. Upon entering the trailer, Officer Batson secured the scene. Officer Batson testified that after securing the scene he was no longer under any fear or apprehension that some unidentified person might be loose in the trailer. Upon securing the scene, Officer Batson called his station, reported the homicide, and requested the detective division, a photographer, and the chief. During the next four hours Officer Batson and others participated in a warrantless search which involved opening closets and chests of drawers, and looking under clothing and beds. During the search evidence was seized and photographs were taken of the interior of the trailer and its contents. The body of the deceased was transported to Cooper Green Hospital in Birmingham, Alabama, where Dr. Joseph Embry performed an autopsy upon the body on May 13, 1983. During the course of the autopsy Dr. Embry recovered six projectiles from the body of the deceased. The only warrant obtained by police in this case was issued on May 16, 1983 three days after the autopsy and four days after the initial search of defendant's residence.

"At trial the photographs taken in the search of defendant's residence and the projectiles removed from the body of the deceased were received into evidence over defendant's motion to suppress and over contemporaneous objection raising the issue of the constitutionality of the searches and seizures. Defendant was convicted of murder on May 27, 1984."

(Emphasis added.) Usrey v. State, 527 So.2d at 727 (Ala.Crim.App.1986). These facts were conceded as "substantially correct" by the State.

In its initial opinion upon submission, the Court of Criminal Appeals referred to the following statement contained in the State's brief before that court:

" 'Furthermore, the seizure of the evidence of this case was justified because the police officers were confronted with an exigent circumstance wherein the evidence might have been surreptitiously removed. The seizure and photographs were necessary to preserve the evidence. Roaden v. Kentucky, 413 U.S. 496 [93 S.Ct. 2796, 37 L.Ed.2d 757] (1973); Billingsley v. State, 402 So.2d 1052 (Ala.Crim.App.1980), reversed on other grounds, 402 So.2d 1060 (1981); Love v. State, 377 So.2d 8 (Ala.Crim.App.1979). Wherefore, the trial court was correct in allowing the photographs in evidence.' "

527 So.2d at 728. That court agreed with that conclusion, without citation of additional authority.

On rehearing, that court, considering this issue again, quoted from the petitioner's brief:

" 'In holding that photographs taken during a four hour warrantless search of defendant's residence were admissible under an exigent circumstances exception to the requirements of a search warrant because items photographed could have been surreptitiously removed this Court completely overlooks the fact that, at the time the photographs were taken, the police had taken control of the premises and had established a 'crime scene.' According to the first officer on the scene, he posted an officer at the entrance of the residence to prohibit entry by anyone without his prior approval. (RT 291). Upon leaving the scene the back door was 'wired' shut and the front door was locked and sealed. (RT 440, 441). Clearly the police had control of the scene and surreptitious removal of evidence was capable of being prevented. Thus the 'exigent circumstance' relied upon by the State to justify this warrantless intrusion is not supported by the record. Therefore, this court's opinion in this regard is in error and is due to be reconsidered and amended.' "

527 So.2d at 730. In analyzing this argument, the Court of Criminal Appeals commented, again without citation of authority:

"There would probably be some merit to this contention of counsel for appellant if the search complained of had occurred during the daylight, instead of soon after 8:04 P.M. on the night of May 12, 1983, at which time it would have almost certainly been very difficult for the officers to obtain a warrant to search the premises in time to execute the warrant and at the same time maintain security of the premises and thereby avoid unjustified entrance thereto and exit therefrom. We continue to hold as we did on original submission of this cause and decline to accept the issue and argument of counsel for appellant as a proper basis for granting the application for rehearing."

(Emphasis added.) 527 So.2d 730.

Thus, on rehearing, the Court of Criminal Appeals found an exigent circumstance in the great "difficult[y]" of the officers, found "almost certainly," to obtain a search warrant because the search itself occurred soon after 8:04 p.m., instead of during daylight (assuming there was a complete absence of daylight at that time on May 12, 1983). In reaching this decision, the Court of Criminal Appeals referred to no additional facts either supported by the record or argued by the State.

Nevertheless, that court, in reaching such a conclusion, apparently conceded that petitioner's argument concerning the search and seizure, and abandoned its original concurrence in the State's position to the effect that the exigent circumstance permitting the search lay in the protection of the evidence. Indeed, the facts as found by the Court of Criminal Appeals suggest that there was no risk of the evidence being removed or otherwise destroyed.

In its argument before this Court, the State now takes a position unlike its initial position. It now argues that the exigent circumstances permitting the questioned search and seizure lay in the danger that others might be harmed: "For all he [Officer Marty Batson] knew, someone could have been hurt and in need of medical attention." Contending that Officer Batson's entry was justified as having been made under exigent circumstances, the State argues that his discovery of all of the other evidence later taken and photographed was admissible under the "plain view" doctrine.

Of course, on certiorari this Court must review the case on the facts found by the lower court, and those facts are expressly conceded by the State in its brief. Under those facts, quoted hereinabove, Officer Batson, upon entering the trailer, secured the scene, and thereupon was under no fear or apprehension that some unidentified person was present in the trailer. Upon securing the scene, Officer Batson reported to his station, requested other officers, together with a photographer, and, subsequently, after the scene had been secured, participated in the search described above without benefit of a search warrant.

I.

Commenting upon what it described as the "fundamental guarantee" of the Fourth Amendment (applicable to the states under the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)), the United States Supreme Court, in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), quoted from Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886):

"It may be that it is the obnoxious thing in the mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."

It then referred to the "per se" rule of the Fourth Amendment applied by Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); and United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951); and McDonald v. United States, 335 U.S. 451, 69 S.Ct....