"The Assault Case"

Participants: These Cases are posted on the internet for your convenience. The case YOU will argue is assigned randomly so that we have roughly equal numbers of people arguing both sides of both cases. (In other words, you can't request one case or the other) YOU MUST REGISTER, be assigned a case and obtain the research materials packet before beginning work.

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STATE OF MONTANA,

Plaintiff and Respondent,

v.

BILL BADGUY,

Defendant and Appellant.

FACTUAL AND PROCEDURAL BACKGROUND

This is an appeal of a District Court ruling in a criminal action. The Defendant and Appellant, Bill Badguy, was charged with the felony offense of Aggravated Burglary. After he was charged, Badguy filed a motion to suppress certain evidence obtained by the police during the investigation. The District Court denied Badguy's motion to suppress. Following that ruling, Badguy pled guilty, but reserved his right to appeal the District Court's adverse ruling on his suppression motion.

On February 14, 2001, Violet Victim was awakened at about 3:00 a.m. after hearing noises coming from the garage attached to her house. Believing that her husband may have returned home early from his business trip to celebrate Valentine's Day, Violet threw on her robe and walked to the garage. As Violet entered her garage, she saw a man standing by her husband's tool cabinet. The cabinet door, which had been closed and locked, was open. Violet turned on a light and asked the man what he was doing. He replied: "I guess I'm in the wrong house." Violet reached for a telephone on the garage wall, stating her intent to contact the police. The man rushed at Violet and began striking her about the head and body with his fists. The intruder then fled the garage. Violet called the police.

Officers from the Peaceful Police Department responded to Violet's residence. Violet reported that she did not know the identity of her attacker, but gave a general description of the man's physical appearance and clothing. Violet was bleeding from injuries to her mouth and forehead. There was blood on Violet's robe. Violet also complained of pain in her ribs and shoulder. Officers found that a window on the garage door had been broken. The officers saw blood on the window frame and on the tool cabinet. The officers began searching the area around Violet's residence.

Officer John Law subsequently observed a man fitting the general description given by Violet of her attacker. The man was walking out of an alley about three block's from Violet's house when the officer saw him. As the officer stopped his patrol car, the man turned around and began walking away at a fast pace. Officer Law directed the man to stop. The man complied with the officer's request. Officer Law identified himself as a police officer and indicated that he was investigating a recent burglary. The officer noted the time of day and told the man that he matched the description of the burglar. Officer Law conducted a pat-down search of the man for weapons. The officer found no weapons, but did find a flashlight and a large screwdriver in the man's coat pocket. Officer Law noted that the man was wearing gloves. The officer already had been advised by the police dispatcher that blood was found at the crime scene. Officer Law directed the man to remove his gloves. When the man did so, Officer Law saw what appeared to be fresh blood and cuts on the man's hands. Officer Law placed the man, later identified as Bill Badguy, under arrest.

Officer Law transported Badguy to the local jail. Before placing Badguy in a jail cell, the officer took digital photographs of Badguy's hands. The officer also swabbed the blood on Badguy's hands. The blood evidence subsequently was submitted to the state crime laboratory for analysis. Forensic scientists at the crime laboratory matched the blood swabbed from Badguy's hands with the blood found on the garage window frame and tool cabinet. Violet later viewed a photographic lineup depicting several men including Badguy. She was not able to identify Badguy's photograph as that of her attacker. The State charged Badguy with Aggravated Burglary, alleging that he caused bodily injury to Violet after entering or remaining in her residence unlawfully.

Badguy initially pled not guilty. Badguy filed a motion to suppress the blood evidence swabbed from his hands shortly after his arrest. Badguy claimed that his constitutional right to be free from unreasonable searches and seizures was violated by the seizure of such evidence without a search warrant or his consent. Badguy argued that the officer's action in swabbing his hands was a "search," conducted to gather evidence to be used against him. Badguy argued that a warrantless search requires both probable cause and exigent circumstances. He claimed that no exigent circumstances existed because he was in custody at the time his hands were swabbed and the police could have obtained a warrant.

The District Court ruled that the swabbing of Badguy's hands was not a search and, therefore, did not require a search warrant. In the alternative, the District Court ruled that the swabbing of Badguy's hands was a lawful search incident to arrest which did not require a warrant.

Following the District Court's ruling, Badguy pled guilty. He reserved his right to appeal the District Court's adverse ruling on the suppression motion.

ISSUES

1. Did the police officer's conduct in swabbing Badguy's hands to obtain blood evidence constitute a "search" within the meaning of Article II, Section 11 of the Montana Constitution and as that term is used in Sections 46-5-101 et seq. of the Montana Code Annotated.

2. Did the swabbing of Badguy's hands without a search warrant violate Badguy's constitutional right to be free from unreasonable searches and seizures pursuant to Article II, Section 11 of the Montana Constitution?

AUTHORITIES

Montana Constitution, Article II, Section 10

Montana Constitution, Article II, Section 11

Section 46-5-101, MCA

Section 46-5-102, MCA

Section 46-5-103, MCA

Section 46-5-221, MCA

Section 46-5-401, MCA

Section 46-5-402, MCA

State v. Ulrich, 187 Mont. 347, 609 P.2d 1218 (1980)

State v. Holzapfel, 230 Mont. 105, 748 P.2d 953 (1988)

State v. Graham, 271 Mont. 510, 898 P.2d 1206 (1995)

State v. Siegal, 281 Mont. 250, 934 P.2d 176 (1997)

State v. Dolan, 283 Mont. 245, 940 P.2d 436 (1997)

State v. Scheetz, 286 Mont. 41, 950 P.2d 722 (1997)

State v. Elison, 302 Mont. 228, 14 P.3d 456 (2000)

NOTES ON AUTHORITIES

With respect to both Issue #1 and Issue #2, student counsel must recognize that Article II, Section 11 of the Montana Constitution protects individuals against unreasonable searches and seizures. The general rule set forth in the case authorities and statutes is that a search warrant is required. Subject to certain narrowly-defined exceptions, warrantless searches are unreasonable per se. Additionally, student counsel should recognize that the Montana Supreme Court has held that the privacy provisions of the Montana Constitution (Article II, Section 10) give broader protections against unreasonable search and seizure than is provided under federal law. State v. Siegal.

Issue #1.

A search is the use of some means of gathering evidence which infringes upon a person's reasonable expectation of privacy. State v. Elison. In determining what constitutes a search under Article II, Section 11 of the Montana Constitution, the appellate court considers two factors: (1) whether the person had an actual expectation of privacy that society is willing to recognize as reasonable; and (2) the nature of the State's intrusion. State v. Scheetz.

Student counsel for the State may rely on State v. Holzapfel to argue that the swabbing of the blood on Badguy's hands did not constitute a search. In Holzapfel, the Montana Supreme Court held that viewing a defendant's hands under an ultraviolet light for the purpose of determining the presence or absence of detection powder that had been placed on money used to purchase illegal drugs in an undercover operation was not a search. Student counsel for Badguy, however, may argue that State v. Dolan stands for the proposition that the swabbing constituted a search. In Dolan, the Montana Supreme Court held that the administration of a blood test for the purpose of obtaining evidence that a DUI suspect had alcohol in her system was a search and seizure. Student counsel for both parties should address the issues raised by the fact pattern. Is there any significance to the fact that Badguy was wearing gloves? Is it important that the officer swabbed blood from the surface of Badguy's hands, rather than extracting a blood sample from his body?

Issue #2.

Assuming that Officer Law's swabbing of Badguy's hands constituted a search, student counsel must discuss whether such warrantless search violated Badguy's constitutional rights. To be valid, a warrantless search requires the existence of probable cause as well as a judicially recognized exception to the general warrant requirement (such as a search incident to arrest or exigent circumstances). State v. Elison. See also Section 46-5-101. MCA.

Student counsel may note Section 46-5-102, MCA, and discuss whether the swabbing of Badguy's hands was a search incident to arrest. The case authorities identify the policy behind this exception to the warrant requirement (prevent an arrestee from using any weapons in his or her possession, preventing escape, preventing the destruction of incriminating evidence in his or her possession).

Counsel for Badguy may rely on State v. Graham to argue that the officer's failure to obtain a warrant violated Badguy's constituional rights. In Graham, the accused was a passenger in a car stopped by police. The officer learned that there were outstanding arrest warrants for the accused. The officer arrested the accused. The accused requested that her purse be left in the car, but the officer took the purse to the police station. A warrantless search of the purse revealed illegal drugs. The Graham Court held that none of the purposes set forth in Section 46-5-102 could have been served by the warrantless search. Counsel for the State may respond by citing State v. Ulrich. In Ulrich, the Montana Supreme Court held that the swabbing of an accused's hands to conduct a neutron activation test to detect the presence of gunpowder residue was within the permissible scope of a warrantless search incident to arrest. Student counsel for both parties may discuss whether the circumstances and location of the blood evidence made it likely that Badguy could destroy or tamper with such evidence. Student counsel also may discuss the significance of the fact that the swabbing took place after Badguy had been removed from the scene of the arrest and taken to the police station, a secure area.