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Oliver v. U.S.

April 13, 1995

LISA OLIVER, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia. (Hon. Robert S. Tignor, Trial Judge).

Before Ferren and Steadman, Associate Judges, and Gallagher, Senior Judge. Opinion for the court by Associate Judge Steadman. Dissenting opinion by Associate Judge Ferren.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge: Appellant challenges the warrantless police entry into her home which resulted in the retrieval of a kidnapped baby. We conclude, as reflected in the trial court's ruling, that the entry and seizure of the baby were justified by emergency circumstances and hence lawful under the Fourth Amendment. The identification of the baby as the kidnapped baby sufficiently attenuated the taint of appellant's conceded illegal seizure to make appellant's subsequent confession admissible into evidence. Accordingly, we affirm appellant's conviction of the offense of kidnapping. *fn1

I. FACTS AND PROCEDURE

At approximately 1:15 p.m., on Monday, October 23, 1989, Charlotte Braxton, the nursing assistant on duty at the boarder baby *fn2 nursery at the D.C. General Hospital, returned from lunch and noticed that an eighteen-day-old baby boy was missing. When she had left for lunch, "Karen," a first-time volunteer, and Anna Denkins and Cornell Benjamin, lunch-hour volunteers from the D.C. National Guard, had been watching the babies in the nursery. Braxton informed the nurse in charge that she was leaving for lunch. While normally a member of the hospital staff was around the nursery, all three volunteers had left the nursery by the time Braxton returned from lunch and the only person present in the nursery at that time was another volunteer.

Detective Renager Lee and his partner responded to a radio run for the apparent kidnapping. Their investigation focused on appellant, Lisa Oliver, after Detective Vernon Jones received a telephone call from a Ms. Washington later in the evening. *fn3 Ms. Washington told the detective that she had spoken with appellant on the telephone the previous day, and that appellant had said she was going to have her labor induced. Ms. Washington explained that she had become suspicious of appellant's story when she spoke with appellant again earlier that day and appellant had told her appellant had delivered the baby at 11:00 a.m., but had brought him home immediately because of the kidnapping at D.C. General Hospital.

Sometime near midnight on October 23, an investigative team consisting of Lieutenant Biglow, Sonja Harper, Detective Hammon, and Detective Jones brought Anna Denkins to appellant's home to see whether she could identify appellant as "Karen," the nursery volunteer. *fn4 Denkins told the officers that appellant was heavier, shorter, and lighter-complected than "Karen" and was not the woman with whom she remembered volunteering. Denkins and the officers left appellant's home. Within the hour, however, they returned to attempt to identify the baby. *fn5 Denkins also could not identify the baby. She explained that the baby missing from the nursery had unusual reddish, tapered hair, whereas the baby at appellant's home had browner, curlier hair. Before Denkins and the police officers left appellant's home, appellant mentioned that Dr. Worth *fn6 had delivered her baby that day at Howard University Hospital.

The next morning, Detective Rufus A. Jenkins, Jr. became involved with the kidnapping investigation. After reviewing the case file and reports of the leads gathered on October 23, *fn7 he went to D.C. General Hospital and obtained the baby's footprint. Afterward, he went to Howard University Hospital to verify the information that appellant had given the officers the previous night. Not only did Detective Jenkins discover that no doctor named "Worth" was on the staff of Howard University Hospital, but also he discovered that appellant had not been a patient at the hospital within the past five years. He contacted Lieutenant Bolten and Sergeant Carl, the other members of his investigative team, and jointly they decided to interview appellant once again.

Detective Jenkins, Lieutenant Bolten, and Sergeant Carl knocked on the door of appellant's home at approximately 11:00 a.m., on October 24. Appellant's brother, Lamard Oliver, answered the door, and the officers told him that they wanted to speak with appellant. Mr. Oliver explained that appellant was in the basement, and then he called down to her that the police were there. Appellant responded, "Should I put on clothes?" *fn8 Mr. Oliver walked down the stairs into the basement, and the officers followed behind him. *fn9

Detective Jenkins then confronted appellant with the information he had obtained from Howard University Hospital: that hospital records refuted her claim she had delivered a baby there the previous day, and that no doctor named "Worth" was on the hospital staff. Appellant offered no further explanation and instead in a distraught manner responded that, because the baby had not been identified the previous night, she did not know why the police just did not leave her alone. Detective Jenkins then told appellant that she had to come down to the Robbery Branch for further investigation. During this Discussion, Mr. Oliver went upstairs, followed by one of the officers. Mr. Oliver had told the officers earlier that he picked up his sister at D.C. General the day before. The officer told Mr. Oliver that he had to go to the Robbery Branch too because he had picked up his sister the day before at D.C. General Hospital and therefore might be an accessory to the kidnapping.

Appellant, who had been wearing a gown and possibly a housecoat, dressed herself and the baby while the two officers waited on the other side of the room. After appellant had dressed, Detective Jenkins escorted her outside and placed her in his unmarked police car. Lieutenant Bolten took the baby and placed him in another unmarked police car with Mr. Oliver. When appellant protested that she wanted the baby to go with her, Detective Jenkins explained that they were taking the baby to the hospital for identification and that the baby would be returned to her if he was not identified.

When they reached the Robbery Branch at approximately noon, Detective Jenkins took appellant to a small interrogation room. He advised her of her Miranda *fn10 rights; however, he told her that she was not under arrest. Detective Jenkins then confronted appellant again with the fact that the records at Howard University Hospital could not confirm the information she had given him regarding the baby's birth. Appellant responded that she had actually gone into labor at the Upper Cardozo Clinic and that the doctor there had referred her to Providence Hospital. Detective Jenkins called Providence Hospital, and there was no record of appellant's delivery. When confronted with this information, appellant told Detective Jenkins that she had delivered the baby at Prince George's General Hospital. While Detective Jenkins was on the telephone with Prince George's General Hospital, Lieutenant Bolten called to tell him that medical personnel at D.C. General Hospital had identified the baby. Soon afterward, Prince George's General Hospital confirmed that appellant had not given birth there.

Between 12:30 and 1:00 p.m., Detective Jenkins told appellant that the baby had been identified, readvised her of her Miranda rights -- which appellant waived -- and placed her under arrest. For the next hour, she was questioned by several police officers, who encouraged her to make a statement. Appellant then met privately with her boyfriend for ten to fifteen minutes and afterward met with her brother, Mr. Oliver, for approximately the same amount of time. When Mr. Oliver left the interrogation room, both he and appellant had tears in their eyes. Mr. Oliver walked past Detectives Jenkins and Hardisty, and told them that appellant was ready to talk.

Detective Jenkins entered the interrogation room with Detective Hardisty, consoled appellant, and asked her whether she was willing to give a statement. Appellant responded affirmatively. First, she orally admitted taking the baby from D.C. General Hospital, and then she agreed to make a written statement. Detective Jenkins began typing appellant's four-page statement at 2:15 p.m. He and appellant both signed the completed statement at 2:45 p.m.

The trial court held a suppression hearing. During this hearing several witnesses for both the defense and the prosecution testified. The main issues for the court were whether (1) Ms. Oliver voluntarily went to the police station; (2) the baby was seized in violation of the Fourth Amendment; (3) the confession should be suppressed as the fruit of a poisonous seizure; and (4) the validity of the lineup. The trial court found that Ms. Oliver did not voluntarily go to the police station, but rather was detained. The government conceded that at the time the police took Ms. Oliver to the police station there was no probable cause for arrest. The trial court was inclined to rule that the seizure of the child was lawful, but reserved final ruling until later. The court also reserved ruling on the legality of the confession and the lineup based on the product of an unlawful arrest until later. However, the court denied the suppression of the lineup based on suggestivity. Finally, the court suppressed the statements made by Ms. Oliver at the police station prior to the confession.

After briefing by the parties, the trial court ruled on those aspects of the suppression motion it had reserved for further consideration. The court concluded that the seizure of the baby was reasonable and lawful, relying, as we understand it, on the exigent circumstances presented. Based on the identification of the baby as the missing child from the hospital, the court concluded that when the police were informed of this information they had probable cause to arrest Ms. Oliver. According to the court, Ms. Oliver's confession followed the police acquisition of that additional information and had been made after she had been advised of her Miranda rights. The court concluded that "there was a significant event independent of the initial unlawful seizure which made possible the taking of the alleged confession." Since the seizure of the child was lawful and therefore the additional evidence leading to Ms. Oliver's continued detention was not the product of any unlawful police activity, the court denied the defense motion to suppress the identification of the missing baby, the confession, and the lineup identifications of the appellant.

II. EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. CONST. AMEND. IV. "It is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Welsh v. Wisconsin, 466 U.S. 740, 748, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984) (quoting United States v. United States District Court, 407 U.S. 297, 313, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972)). Fourth Amendment law presumes that warrantless searches and seizures inside a home are unreasonable absent exigent circumstances. Payton v. New York, 445 U.S. 573, 586, 590, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980). Otherwise put, searches and seizures without a warrant "'are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions.'" Mincey v. Arizona, 437 U.S. 385, 390, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978) (quoting Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967)).

One exception to the warrant requirement is in "exigent circumstances" where the situation presents compelling factors such that entry cannot be delayed. United States v. Booth, 455 A.2d 1351, 1354 (D.C. 1983). Although normally this exception involves "hot pursuit" of a known offender, or likely destruction of evidence, one subset of such exigent circumstances, known as the "emergency" exception, acknowledges the need to protect a person inside the premises who is reasonably believed to be in peril. Earle v. United States, 612 A.2d 1258, 1263 (D.C. 1992); Booth, supra 455 A.2d at 1354-55. The emergency exception allows police officers to make a warrantless entry and search when they reasonably believe that a person within the home is in need of immediate aid. Mincey, supra, 437 U.S. at 392. "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Wayne v. United States, 115 U.S. App. D.C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.), cert. denied, 375 U.S. 860, 11 L. Ed. 2d 86, 84 S. Ct. 125 (1963), quoted in Mincey, supra, 437 U.S. at 392-93. "The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others." Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 298-99, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967).

The trial court here manifested in its pretrial ruling *fn11 that the warrantless entry of the police and the seizure of the baby were justified under this emergency exception to the warrant requirement. We must accept the trial court's factual determinations relating to exigent circumstances unless clearly erroneous. Derrington v. United States, 488 A.2d 1314, 1323 (D.C.), recall of mandate denied, 509 A.2d 605 (D.C. 1985), cert. denied, 486 U.S. 1009 (1988). However, appellate "deference to the trial court . . . is limited to its factual findings." Booth, (supra) , 455 A.2d at 1355 n.5; United States v. Harris, 629 A.2d 481, 488 (D.C. 1993); United States v. Minick, 455 A.2d 874, 880 n.6 (D.C.) (en banc), cert. denied, 464 U.S. 831, 78 L. Ed. 2d 112, 104 S. Ct. 111 (1983). "Facts being what they are, however, they must be examined in the context and sequence in which they occur." Washington v. United States, 585 A.2d 167, 168 (D.C. 1991). "The ultimate determination as to whether exigent circumstances justified a warrantless entry remains a Conclusion of law, which we decide de novo." Harris, supra, 629 A.2d at 488. Thus, as a subset of the exigent circumstances exception the emergency exception is also ultimately reviewed de novo with due deference to the trial court's factual findings.

The principles governing the application of the emergency exception as interpreted by prior case law in the District of Columbia were set forth in Booth, supra, 455 A.2d at 1351. Warrantless entry in an "emergency" requiring preventive action may be permitted by the exception if a person inside the premises is reasonably believed to be in danger even though no crime has necessarily been committed. Id. at 1354. *fn12 Three criteria must be met to satisfy the requirements of the emergency doctrine.

First, the police officer must have probable cause, based on specific, articulable facts, to believe that immediate entry is necessary to assist someone in danger of bodily harm inside the premises. Second, the entry must be tailored carefully to achieve that objective, the officer can do no more than is reasonably necessary to ascertain whether someone is in need of assistance, and then to provide that assistance. Finally, the entry must not be motivated primarily by the intent to arrest or to search, but by an intent to investigate a genuine emergency and to render assistance.

Id. at 1355-56 (citation and footnotes omitted).

We examine each of those requirements under the facts here as found by the trial court, keeping in mind that "in reviewing a trial court order denying a motion to suppress, the facts and all reasonable inferences therefrom must be viewed in favor of sustaining the trial court ruling." Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc). We also keep in mind the repeated admonition of the Supreme Court that determinations under the Fourth Amendment "'deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Illinois v. Gates, 462 U.S. 213, 231, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949)).

Specifically,

probable cause does not emanate from an antiseptic courtroom, a sterile library or a sacrosanct adytum, nor is it a pristine "philosophical concept in a vacuum," Bell v. United States, 102 U.S. App. D.C. 383, 386, 254 F.2d 82, 85 (1958), but rather it requires a pragmatic analysis of "every day life on which reasonable and prudent men, not legal technicians act." Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949)

United States v. Davis, 147 U.S. App. D.C. 400, 402, 458 F.2d 819, 821 (1972). "'The evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.'" Gates, supra, 462 U.S. at 232 (quoting United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981)). Likewise, we are mindful that "the circumstances before [the officer] are not to be dissected and viewed singly; rather they must be considered as a whole." United States v. Hall, 174 U.S. App. D.C. 13, 15, 525 F.2d 857, 859 (1976). "The totality of the circumstances -- the whole picture -- must be taken into account." Cortez, supra, 449 U.S. at 417. As one court has noted "viewed singly these [facts and circumstances] may not be dispositive, yet when viewed in unison the puzzle may fit." Davis, supra, 147 U.S. App. D.C. at 402, 452 F.2d at 821.

A. PROBABLE CAUSE

We begin by examining the concept of "probable cause" as it relates to the application of the emergency doctrine. In that context, we interpret "probable cause" to mean "reasonable grounds to believe" -- a formulation that says what we think the Supreme Court meant by "reasonable belief" in Mincey, supra, 437 U.S. at 392; a formulation that reflects the need for solid facts warranting probable cause, not mere reasonable suspicion (as in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968)); a formulation that is commonly used to mean probable cause, see 2 W. R. LAFAVE, SEARCH AND SEIZURE § 6.6(a), at 698-99 (2d ed. 1987) (equating "reasonable grounds to believe that some kind of emergency existed" with a "probable cause requirement"); and a formulation that fits well with a perceived emergency, in contrast with a basis for prospective arrest, for which "probable cause" is the traditional language.

We now turn to examine precisely what the officers knew when they arrived at appellant's home on October 24. Detective Jenkins testified at the suppression hearing that he and the other members of his investigative team (Lieutenant Bolten and Sergeant Carl) had decided to interview appellant for the third time when they discovered, on the morning of October 24, that the information appellant had given to the previous day's investigative team (Lieutenant Biglow and Detectives Hammon and Jones) about the birth of the baby could not be confirmed at Howard University Hospital. Detective Jenkins also testified that, when he became involved with the kidnapping investigation on October 24, he reviewed the case file, including the reports of the leads gathered the previous day. *fn13 Although the case file was not introduced into evidence and Detective Jenkins never testified as to the file's contents, we may reasonably assume, pursuant to Peay, supra, that the file contained (1) the information from Ms. Washington that appellant had told her the unlikely story that appellant had delivered the baby at 11:00 a.m., on October 23 but had brought him home immediately because of the kidnapping at D.C. General Hospital; (2) the information from Ms. Hawkins that appellant had called her on October 20, explaining that she had given birth to a baby on October 4, and had abandoned the baby but now wanted him back, but that the hospital records contained no information of an abandoned baby born on that date; (3) a report from the officers' first visit to appellant's home on October 23, when volunteer Denkins failed to identify appellant as "Karen"; (4) a report from the officers' second visit to appellant's home on October 23, when Denkins failed to identify the baby; and (5) the information that appellant had told the police during the October 23, visits that she had delivered the baby earlier that day at Howard University Hospital attended by Dr. Worth. *fn14

On the morning of October 24, Detective Jenkins went to Howard University Hospital to verify appellant's explanation of the baby's birth. He discovered that the hospital employed no doctor named "Worth" and that appellant had not been a patient at the hospital within the past five years. The discovery that appellant had provided a false exculpatory statement to the police investigators dramatically changed the whole equation. The collapse of appellant's story introduced a new element of urgency. It would seem remarkable that a new mother would lie about where she gave birth. The new information seemed to confirm the strange pattern of conduct reported by Ms. Washington and Ms. Hawkins. Now there were reasonable grounds to believe that the baby was the kidnapped baby; the impelling need was for further access to mother and baby. Since unlike an older kidnap victim the baby could not speak to identify itself, identification through other means had to be the ultimate determinative factor whether the baby was the kidnapping victim; that is, which could convert probable cause into certainty.

The failure the previous night to identify appellant as "Karen" or the baby as the boarder baby does not abrogate this analysis. Sergeant Denkins had no reason whatever to think at the time of her earlier acquaintance with either Karen or the baby that she would be called upon to make a positive identification of either of them at a later time. Furthermore, given the shifting and uncertain personnel in the nursery, Karen was not the only individual who might have absconded with the infant.

It is true that this case is unlike the typical emergency exception where blood at the scene, gunshots, or cries for help will give the police "probable cause, based on specific, articulable facts, to believe that immediate entry is necessary to assist someone in danger of bodily harm," Booth, supra, 455 A.2d at 1355. However, kidnapping investigations present unusually compelling circumstances for emergency analysis. *fn15 As the trial Judge noted, police seizure of a suspected kidnapping victim, not least of all a helpless infant, is unlike the seizure of drugs or other property for evidentiary purposes. The life, freedom and future of a human being is at stake. The victim, even if presently being adequately cared for and safe, could at any moment be harmed or be absconded to a point beyond discovery. An infant in particular could thus be placed beyond the legal protections to ensure future custody and treatment in its best interests. As the trial court noted, police officers have an obligation to protect human beings and this duty is even greater when a helpless and defenseless infant is involved. In short, a kidnap victim may be deemed inherently endangered.

Other jurisdictions have reflected these unique qualities of kidnapping in holding that kidnapping may create exigent or emergency circumstances, even without direct evidence of a threat of bodily harm to the victim. See People v. Thiret, 685 P.2d 193, 200 (Colo. 1984) (en banc) (finding exigent circumstance when a "three-year-old child had recently been abducted, her life could well have been in danger, and the Sheridan police were engaged in efforts to determine her whereabouts"); Benefiel v. State, 578 N.E.2d 338, 345 (Ind. 1991) (finding emergency situation when a 17 year-old kidnapping and rape victim's life is in danger), cert. denied, 119 L. Ed. 2d 591, 112 S.Ct. 2971 (1992); Johnson v. State, 554 P.2d 51, 54 (Okla. Crim. App.) (finding exigent circumstances in kidnapping case in "hopes of saving a human life" when police suspected that elderly man being held in a trunk of an automobile during cold days), cert. denied, 429 U.S. 943, 50 L. Ed. 2d 314, 97 S. Ct. 364 (1976); People v. Diaz, 170 A.D.2d 618, 566 N.Y.S. 2d 391, 392 (N.Y. App. Div. 1991) (finding emergency situation when father allegedly kidnapped four-year-old son because the "safety of the child was potentially in jeopardy"), appeal denied, 588 N.E.2d 762 (1992).

A recent case in our neighboring jurisdiction involved a report that a man and woman had been missing for eighteen hours. Burks v. State, 96 Md. App. 173, 624 A.2d 1257 (Ct. Spec. App.), cert. denied, 332 Md. 381, 631 A.2d 451 (Md. 1993). An officer spotted the man's car outside a motel room and through a gap in the curtains saw a fully clothed man and woman lying on top of one bed and a third person lying face down on the other bed; all three appeared to be asleep. Id. at 1267. The trial Judge acknowledged that "there was no blood on the scene. There were no signs of injury or struggle. The room was not ransacked from anything that [the officer] could tell, nor did he have any information as to the identity of the perpetrator, or as to whether this person was armed." Id. at 1270. Nevertheless the trial court ruled, and the appellate court affirmed, that for the officer "to have waited to get a warrant or to have called the room to say 'are you all right in there' would have been ill-advised, and may well have resulted in serious injury or escape." Id. Thus, the officer's warrantless entry was permissible under the exigent circumstances exception. Id.

In another recent case, after determining that defendant was wanted for child snatching, officers returned to defendant's apartment where they had seen a child matching the description of the missing boy. State v. Collins, 543 A.2d 641, 651 (R.I. 1988). The court found:

that the discovery that the possible presence in a suspect's apartment of an infant victim of a child snatching or kidnaping created an emergency or exigent circumstance permitting a warrantless entry into said apartment. . . . To expect the police to secure a warrant while the infant remained alone in the apartment or, worse, was removed therefrom by a confederate of defendant strains credulity.

Id. at 652. Likewise here, it is unreasonable to expect police to leave the victim in the control of the captor while the officers obtain a warrant. This is true even if the victim apparently is being well treated. A person's status as a kidnapping victim places him or her in continuing danger of harm at the hands of his or her captor. We will not hold that the police must delay rescue to obtain a warrant if probable cause exists to believe that a kidnapping victim is being held inside the premises. In such a situation, time is of the essence.

We do not think that this case is in any way controlled by the prosecutor's perhaps unwarranted concession *fn16 at the suppression hearing that the police officers did not have probable cause to arrest appellant for kidnapping at the time they took her from her home to the Robbery Branch:

I don't think probable cause for the arrest existed at that time, basically because of the fact that there had been the misidentification. *fn17 [The officers] had to continue with their investigation. There had to be further questioning of Ms. Oliver.

(Emphasis added.) We may accept for present purposes that a prosecutor's concession of no probable cause "precludes our considering" the record facts ourselves to determine whether the probable cause standard was actually satisfied. Arizona v. Hicks, 480 U.S. 321, 326, 94 L. Ed. 2d 347, 107 S. Ct. 1149 n.* (1987). However, probable cause to arrest appellant for kidnapping and probable cause to believe that the baby was an endangered baby are separate questions. *fn18 "The right to search and the validity of the seizure are not dependent on the right to arrest." Carroll v. United States, 267 U.S 132, 159, 69 L. Ed. 543, 45 S. Ct. 280 (1925). "Probable cause to search is not the same as probable cause to arrest." State v. Doe, 115 N.H. 682, 371 A.2d 167, 169 (N.H. 1975).

As one court has noted: "the probable cause determination made by a magistrate considering a search warrant application is not identical to that made by a magistrate when deciding whether or not to issue an arrest warrant." People v. Johnson, 431 Mich. 683, 431 N.W.2d 825, 828 (Mich. 1988). The court described the difference as follows:

It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But even if this is so, it does not follow that probable cause for arrest and probable cause for search are identical in all respects. Each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other.

Id. at 828 (quoting 1 WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL

PROCEDURE, § 3.3, at 184-85 (1984) (footnotes omitted)).

It is a "general proposition that a search warrant, unlike an arrest warrant, may issue, without the slightest clue to the identity of the criminal, if there is probable cause to believe that fruits, instrumentalities or evidence of criminal activity are located at the place to be searched." United States v. Webster, 750 F.2d 307, 318 (5th Cir. 1984), cert. denied, 471 U.S. 1106, 85 L. Ed. 2d 855, 105 S. Ct. 2340 (1985); see also United States v. Tehfe, 722 F.2d 1114, 1118 (3d Cir. 1983), cert. denied, 466 U.S. 904 (1984); State v. Toler, 246 Kan. 269, 787 P.2d 711, 715 (Kan. 1990); Commonwealth v. Pignone, 3 Mass. App. Ct. 403, 332 N.E.2d 388, 392 n.9 (Mass. App. Ct. 1975). Defendants sometimes confuse the need for probable cause to search a premises with the need for probable cause to arrest the defendant. State v. Caicedo, 135 N.H. 122, 599 A.2d 895, 897 (N.H. 1991).

In United States v. Melvin, 596 F.2d 492, 495 (1st Cir.), cert. denied, 444 U.S. 837, 62 L. Ed. 2d 48, 100 S. Ct. 73 (1979), the appellant argued that in order for a search "warrant to have been proper there had to have been probable cause to believe that he was responsible for the explosion." Under this theory "the search of appellant's home was improper unless the police had sufficient evidence prior to the search to arrest him." Id. at 496. The court rejected this argument. Instead the court concluded that one could have probable cause to search without having probable cause to arrest. Id. at 496. In another case the police suspected a man of raping and killing a woman. Doe, supra, 371 A.2d at 167. The police had a suspect, but did not have enough evidence to arrest. The trial court issued a warrant for hair, saliva and blood samples in order to help identify the assailant. The Supreme Court of New Hampshire concluded that the search warrant was justified because probable cause to search is different than probable cause to arrest. Id. at 169. Thus, as one court has noted "it would be unwise to treat the presence of a search warrant for a suspect as a judicial finding of probable cause ...


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