State v. Rogers

• Decision Date: 02 October 1978
• Docket Number: No. KCD,KCD
• Citation: 573 S.W.2d 710
• Parties: STATE of Missouri, Respondent, v. Judy Irene ROGERS, Appellant. 29113.
• Court: Missouri Court of Appeals

Page 710

573 S.W.2d 710

STATE of Missouri, Respondent, v. Judy Irene ROGERS, Appellant.

No. KCD 29113.

Missouri Court of Appeals, Kansas City District.

Oct. 2, 1978.

Motion for Rehearing and/or Transfer Denied Nov. 13, 1978.

Joe Hamilton Scott, Public Defender, 5th Judicial Circuit, St. Joseph, for appellant.

John D. Ashcroft, Atty. Gen., Nannette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

SHANGLER, Presiding Judge.

The defendant Judy Rogers was convicted of the second degree murder of one Sandra Beam and was sentenced to a term of life imprisonment. The murder was shown as an act of revenge. The victim had encouraged the defendant to attend a party where she was set upon and raped by the male company. The sufficiency of the evidence to convict is not in question, therefore we forgo the sordid narrative.

The circumstances of the crime are best described as a debauchment which commenced when victim Sandra Beam allowed her pubic hairs to be shorn and thereafter was subjected to forced ingestions of vodka, gin, nail polish and other harmful substances. In the course of this bacchanalia, which extended over two days, the victim alternately passed out, was revived by relays of those present, disgorged, was forced to ingest again, and was battered and abused until she died. These events were at the residence of one Gloria Sowards who kept the defendant Irene Rogers and another, Karen Sharp, as house guests. The women and victim Sandra Beam were acquainted as enrollees at the Excelsior Springs Job Corps Center. They were joined at the residence in the early morning of June 8, 1976, by three men, McDaniel, Russell and Henderson. Later that day, that company was joined by one Stanley Swope. Each of them, at one time or another, joined to restrain and abuse the hapless Sandra Beam. The defendant Irene Rogers commenced that course when she denuded the victim of pubic hair in the presence of the men and on their wager. The defendant also forced her to drink more, struck her repeatedly, first with a belt and whiffle ball bat and then beat her head upon the floor. The evidence was sufficient to support the conviction.

The police came to the Sowards residence in response to a telephone call to the dispatcher at about five p. m. that the dead body of one Sandra Beam was at that address. At about five-thirty p. m. Officers Taff and McGaughy knocked at the front door of the premises and saw two men take flight from the rear. They gave chase and caught McDaniels, but the other escaped. By this time, two other officers, Funk and Lopez arrived on the premises and were let in by a small child (the infant daughter of Gloria Sowards). These officers found a young woman laid out on a recliner chair in the front room, covered with a blanket. It was the body of Sandra Beam already dead. They summoned an ambulance and then went to the front yard of the house where they began to question the small crowd of people gathered there. In the course of this investigation, Judy Rogers and Karen Sharp were arrested as they stood on the sidewalk outside the house in the crowd. An hour or more later Gloria Sowards arrived and was met by police officers outside the house. She entered her home, identified the body of Sandra Beam as her babysitter and was arrested also. In the interim, three additional police officers, who had arrived at about five-thirty that evening, began to search the premises. No warrant had been issued for that purpose. Search of the front room disclosed a rope behind the heater (used to bind the victim to the chair) and an extension cord. Search of the trash in the kitchen discovered bottles of gin and vodka and a bottle of fingernail polish, among other miscellany; and from the cabinets of the kitchen were seized a bottle of alcohol and a bottle of liquid silver polish.

The defendant Rogers brought formal motion under § 542.296 to suppress from evidence these and other items seized by the police on the Sowards premises on the ground that they were taken without authority of warrant. The motion was submitted on a stipulation by the parties of facts which include those we have recited. The trial court overruled the motion and admitted the evidence. The State justifies the police entry and search of the premises on the exigent circumstances ¹ exception to the warrant requirement which accords validity to a warrantless search of the scene of a homicide or of a serious personal injury with likelihood of death where there is reason to suspect foul play. Davis v. State, 236 Md. 389, 204 A.2d 76 (1964); Patrick v. State, 227 A.2d 486 (Del.1967); People v. Sutton, 65 Cal.App.3d 341, 134 Cal.Rptr. 921 (1977). The entry and investigation of emergency, however, must be without accompanying intent to search or arrest. United States v. Barone, 330 F.2d 543, 545(4) (2d Cir. 1964). Thus, the doctrine treats the search which follows as merely an extension of the investigative entry (State v. Oakes, 129 Vt. 241, 276 A.2d 18, 24(5-6) (1971)) and strictly circumscribed by the nature of the emergency to which it responds. Mincey v. Arizona, --- U.S. ----, 98 S.Ct. 2408, 2414, 57 L.Ed.2d 290 (1978).

Missouri has given effect to the doctrine to receive evidence of crime taken, without warrant, from premises to which the police were called by a victim in the throes of death from gun wounds. ², ³ The State contends that in the circumstances the evidence taken from the Sowards residence without authority of warrant was from a lawful entry in prompt response to the report of a dead body and during the course of a continuous investigation which never relinquished official control of the premises. Thus, the State discards the contention that the search without warrant was unreasonable even though there was ample time to resort to the judicial process for such authority on the rationale that an entry onto private property in response to an emergency imports reasonableness ipso facto so long as the official action is prompt and the investigation which yields the evidence continuous.

The United States Supreme Court has recently reaffirmed that searches outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable under the Fourth Amendment, and in the course of decision, rejected the doctrine that the mere fact of homicide creates an exigent circumstance that will justify a warrantless search under the Constitution. Mincey v. Arizona, --- U.S. ----, 98 S.Ct. 2408, 57 L.Ed.2d 290 (adopted June 21, 1978). The Court did not question the duty of the police to respond to an emergency, nor the right of an officer at a homicide scene to make a prompt warrantless search of the area for other victims or the presence of the killer, nor the right to seize evidence in plain view during legitimate emergency investigation, but concluded that the mere claim of exigency without showing that evidence would be destroyed or lost during the time required to obtain a search warrant does not justify the sacrifice of privacy entailed by an unlimited search of premises. The Court thus declared that a true emergency will justify police entry upon private premises to give immediate aid, and in cases of homicide, to find victims and seek out killers, but will not justify a search unless there be apt cause for concern that evidence would be lost, destroyed or removed before a search warrant could be obtained.

The facts, both as stipulated and as supplemented by witnesses, show circumstances which, by the Mincey rationale, do not justify the search into the trash bin, the kitchen cabinets and behind the heater in the front room, as incidents to an investigation of a homicide emergency. Nor did the emergency entry justify the seizure of any evidence other than that found in plain view. At the time the search by officers began, the premises were known to be clear of occupants and were secure. There was no threat to the contents of the residence and no cause for search without a warrant. The first officers at the scene, Taff and McGaughy, arrived at five-thirty p. m., and as they approached saw two men flee from the rear, gave chase and captured McDaniel. They returned, but by that time, Officers Funk and Lopez had arrived, were let in by a frightened Sowards child, discovered the dead Sandra Beam, summoned an ambulance and placed the two Sowards infants with a next-door neighbor. The premises were then empty. Another relay of officers arrived at about five- fifty p. m., and ten minutes later, Detective Pasley took charge of the investigation and all three commenced a thorough search of the interior premises. The search continued until about nine-thirty p. m. and was joined by other officers and the prosecuting attorney. Thus, a concerted search activity extended over three and one-half hours After the premises were secured by Officers Funk and Lopez for evidence in hidden places, and no reason appears why a formal warrant was not obtained by judicial process before the privacy of the household was disrupted. (Cf. State v. Dayton, 535 S.W.2d 469, 486(6-8) (Mo.App.1976)). It was a simple matter to protect against theft or destruction of the evidence by a posted guard during the procedure for a warrant. The body had been found and the house searched for sources of potential danger or other victims. The search went beyond the exigency to investigate the report of a dead body which justified the initial entry, and so was illegal. Mincey v. Arizona, supra, l. c. 2413(4); Terry v. Ohio, 392 U.S. 1, 25, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Nor was the search incident to lawful arrest. The purpose of such a search is to protect the officer who arrests from harm and to prevent the destruction of evidence and so may not validly go beyond that proximity within which the arrested person might reach for a weapon or gain access to the evidence. Chimel v....