Cady v. Dombrowski

PETITIONER:Cady
RESPONDENT:Dombrowski
LOCATION:Allegheny County District Court

DOCKET NO.: 72-586
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 413 US 433 (1973)
ARGUED: Mar 21, 1973
DECIDED: Jun 21, 1973

ADVOCATES:
Leroy L. Dalton – for petitioner
William J. Mulligan – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – March 21, 1973 in Cady v. Dombrowski

Warren E. Burger:

72-586, Cady against Dombrowski.

Mr. Dalton.

Leroy L. Dalton:

Mr. Chief Justice and may it please the Court.

This is an action in habeas corpus in which the Court Appeals for the Seventh Circuit granted Dombrowski the respondent a writ from his imprisonment in Wisconsin for murder unless the State elects to retry Dombrowski.

Dombrowski was convicted of murder in 1968 in Fond du Lac County, Wisconsin.

An appeal was taken to the Wisconsin Supreme Court which affirmed that a collateral attack was made on that judgment in the District Court of Milwaukee.

Habeas corpus was denied.

The case went to the Seventh Circuit.

On September 9, 1967, Mr. Dombrowski who was an off-duty Chicago policeman drove his 1960 Dodge automobile to his brother’s farm near Kewaskum, Wisconsin.

That evening, the car became disabled.

In the following afternoon, he had it towed to his brother’s farm.

He left it there and returned to Chicago with his brother that day.

At 12:30 a.m., the following morning, that’s September 11, he rented a 1967 red Thunderbird at the O’Hare Airport in Chicago.

At 10:30 that night, still the 11th, he was involved in an accident near Kewaskum, Wisconsin.

He called the Sheriff’s Department and two officers picked him up in the Village of Kewaskum and went to the scene of the accident.

He informed them that he was a Chicago police officer.

They found the car off to the highway and they called for a wrecker, and Officer Bowdry did a cursory inspection of the interior of the vehicle to see if his service revolver was there.

It was not.

The vehicle was towed to the garage at Kewaskum where it was parked outside of the garage and Dombrowski was taken to the Sheriff’s office in West Bend. He was later charged with drunk driving, became incoherent and was at the hospital being checked by a doctor, unable to communicate with the doctor.

An officer Weiss, the other officer who had been on the Sheriff’s department for five-and-a-half months decided that in view of the fact that this man was a Chicago police officer, he very likely had that gun somewhere in his vehicle and he should go back and look for it.

So, he drove back to the unattended vehicle, opened up the front door, looked in the front end and found a Book of Rules of the Chicago Police Department.

Obviously, feeling then that he was on the right track because if a man carries his rulebook, he probably has his other paraphernalia of his police officer status, he opened the trunk still looking for the gun but he found bloody material including officer’s pants, a nightstick covered with blood and a tarp, a floor tarp from a Dodge automobile.

Potter Stewart:

And the —

Leroy L. Dalton:

Saturated with blood.

Potter Stewart:

The automobile this time was that a repair shop?

Was it?

Leroy L. Dalton:

It was outside of a filling station garage in this small town.

Potter Stewart:

That had been towed there?

Leroy L. Dalton:

It had been towed there and left there outside of the garage by the officers.

The officers called the tow operator and he brought the vehicle there.

Had it been a locked?

Leroy L. Dalton:

Yes, it had been locked?

Yes, and this Officer Weiss, where did he get the key to open it?

Leroy L. Dalton:

From officer Bowdry.

It had been taken from Dombrowski when he was left in the hospital?

Leroy L. Dalton:

Yes.

Warren E. Burger:

Had Dombrowski authorized them to take the car to this place?

Leroy L. Dalton:

He was present at the time and made no objection.

The record —

But why was it taken there at all, just because it was some place to —

Leroy L. Dalton:

Well, it –-

For safekeeping or what?

Leroy L. Dalton:

It’s something that happens all the time in our society now where a mobile society and we get in trouble with automobiles.

In this case, it was disabled.

It can’t stay on the highway, it has to go somewhere.

So, it — and the officers having the custody, so they have to take that vehicle —

So, this was the usual arrangement for the custody of the car?

Leroy L. Dalton:

Yes.

With the station?

I mean, what —

Leroy L. Dalton:

This was a standard procedure apparently in this part of the county where the sheriff’s office called this wrecker operator and had him tow these cars to disabled cars to his place until they were properly taken care of, on some way or another.

Thurgood Marshall:

Was it in the custody of the police?

Leroy L. Dalton:

I think so, yes.

I think it was their responsibility especially in that hour of the night.

Thurgood Marshall:

But they have secured the car?

Leroy L. Dalton:

Pardon?

Thurgood Marshall:

Couldn’t they have secured the car without searching?

Leroy L. Dalton:

I don’t think that was —

Thurgood Marshall:

My question was, could.

Leroy L. Dalton:

Well, they could have — I suppose they could have taken the car right to West Bend to their police station.

Leroy L. Dalton:

I would imagine they could.

Thurgood Marshall:

Or they could’ve put it inside the garage?

Leroy L. Dalton:

Well, this was a filling station type operation where there isn’t room inside the —

William J. Brennan, Jr.:

Well, I gather anyway that Officer Weiss’ purpose, he’d still have searched even if it have been housed in the garage, will he not?

Leroy L. Dalton:

I assume —

William J. Brennan, Jr.:

If he’s looking for the service revolver, was he?

Leroy L. Dalton:

I think he was concerned and this is of course not in the record because the officer was not cross-examined during anyone of these five different proceeding to establish anything other than his intention to preserve that gun for that fellow officer.

William J. Brennan, Jr.:

When was Dombrowski first arrested?

Leroy L. Dalton:

When?

William J. Brennan, Jr.:

When?

Leroy L. Dalton:

When he was brought to the sheriff.

That’s when they announced that he was — they were charging him with drunk driving.

Now, he was under —

William J. Brennan, Jr.:

That’s before he went to the hospital.

Leroy L. Dalton:

Technically, I suppose, he was under the custody of the officers from the time they took him and took his car to the towing station garage.

But he wasn’t charged with the specific offense until they had talked to the District Attorney when he was charged with drunk driving.

When the officer observed these bloody materials, he picked them out of the trunk.

They were still wet and the tarp was basically was saturated with blood.

He took these materials back to the sheriff’s office and then when Dombrowski was able to communicate, they confronted him and he asked to talk to an attorney.

The attorney was brought in, conferred with Dombrowski, and later, the attorney went to the District Attorney who was from the same area and advised the District Attorney that if they searched the Dombrowski farm, they would find the body.

So, the officers accompanied by one of the attorneys, an associate of the attorney who had relayed the message, went to the farm and —

Potter Stewart:

I missed where they got the information that if they searched the farm, they’d find the body.

Leroy L. Dalton:

They got this from Dombrowski’s lawyer.

Potter Stewart:

A local lawyer?

Leroy L. Dalton:

Yes.

When they had confronted Dombrowski with —

Potter Stewart:

With the bloody —

Leroy L. Dalton:

With the bloody materials, he asked, he didn’t want to speak; he wanted to talk to an attorney and so —

Potter Stewart:

So, a local lawyer was provided.

Leroy L. Dalton:

A local lawyer talked to him and later on came out and advised.

Potter Stewart:

This is in a hospital?

Leroy L. Dalton:

Right, in a hospital.

And he advised the County District Attorney for Washington County where West Bend is located that there be a body on the Dombrowski farm which is just across the County line in Fond du Lac County.

So, —

William H. Rehnquist:

Is Kewaskum in Washington county or Fond du Lac County?

Leroy L. Dalton:

In Washington County.

The village is but the farm, the Dombrowski farm is in —

Potter Stewart:

Fond du Lac.

Leroy L. Dalton:

Fond du Lac County.

Potter Stewart:

Was that a little south?

Leroy L. Dalton:

North, north of Kewaskum and West Bend.

South of Fond du Lac, Fond du Lac is at the foot of the lake, as the name indicates and about half or the third of the way between the Oshkosh and Milwaukee, generally speaking.

Mr. Justice Rehnquist knows that.

This is the area where Mr. Dombrowski grew up.

When the party arrived at the farm, they realized that they’re in Fond du Lac County, so they contacted the Fond du Lac County authorities as well.

In the afternoon of that day, the dead body of Herbert McKinney was found on a dump, on the family farm near a picnic area, which was north of the buildings and the spot where the Dodge vehicle had been parked the day before.

Potter Stewart:

Who was the victim?

Was he a member of the family or –?

Leroy L. Dalton:

The victim was from Chicago.

We have no motive.

We were able to prove only that they frequented the same pool hall in Chicago.

Warren E. Burger:

Is the inference reasonable that the man, the body was in the trunk of the car and carried up to the farm or —

Leroy L. Dalton:

I think, reconstructing the crime that he brought McKinney from Chicago in the Thunderbird because he had rented the car in the middle of the night and the car matching that description was seen by the Dodge somewhere around 4 o’clock to 7 o’clock in the morning.

The pathologist established the time of death as around 7 a.m.

The inside of the Dodge automobile was saturated with blood.

And one of the socks which is alleged to be a contaminated piece of evidence was in the Dodge.

The other sock was out with the body near the dump.

The — I would think the reconstruction would go like this.

He took Dombrowski poss — or he took McKinney possibly when he was unconscious out of the Thunderbird into the back seat of the Dodge, killed him there, shot him and the pathologist established and we were able to established the venue which is a necessary element in first-degree murder in Wisconsin.

The pathologist’s testimony that he, in his opinion bled to death in the Dodge automobile.

Leroy L. Dalton:

He took the body out of the Dodge automobile, put it in the trunk of the Thunderbird, carried it to few hundred yards over to the dump area, pulled the body out of the trunk, and dumped it.

Then at 10:30 that morning, he was seen buying two towels at a store in the village Kewaskum.

Towel hands wring, the description of the towel was among the materials retrieved from the Thunderbird.

Now, when the body was found, one of the investigating officers, the undersheriff of Fond de Lac County walked over toward the farm village and he saw this Dodge automobile a known license plate.

He looked in the Dodge and he saw it was saturated with blood in the backseat running over the front of that as he described.

There was blood on the briefcase.

There was blood all over the backseat area, he various upholster and so on in the head — blood.

It didn’t take an awful out of putting together to come to the conclusion that possibly this dead body had been in that car because there was hardly any blood left in that body.

It was laying on the dump with the head down and the body was white.

The pathologist testified later on that this body had pumped practically all of the blood out in an attempt to save the life of the individual.

Whenever the body is injured in a vital area such as the brain or the heart, the rest of the body works and creates terrific pressure to send blood to that emergency area and so you can imagine that blood was spurting out of this wound every time his heart beat.

It did that until there was no more blood to send.

So, they asked for a search warrant.

They went to the judge and they said, we have the body we have the material from the Thunderbird automobile.Among those materials which were blood-soak is a man from a Dodge automobile which is saturated with blood.

We have the Dodge automobile on the farm and then on the backseat it’s saturated with blood.

We would like to take that vehicle and search it for further evidence of this apparent murder and the judge says yes, you do it.

And you impound the vehicle and then it later became —

Did he just say yes or did he issue a search warrant?

Leroy L. Dalton:

He issued a search warrant for the vehicle.

He also directed them to impound the vehicle which is in the record.

The —

Thurgood Marshall:

One vehicle already impounded?

Leroy L. Dalton:

No, Your Honor.

The first one.

Leroy L. Dalton:

The first one but not the Dodge.

Thurgood Marshall:

Well, I thought you said the Thunderbird.

Leroy L. Dalton:

The Thunderbird yes, but the Dodge vehicle was —

Thurgood Marshall:

But I’m talking about the Dodge.

Leroy L. Dalton:

Yes, we’re talking about the Dodge that, it was on the farm.

And so the search warrant issued at 8:15 that evening.

Leroy L. Dalton:

This is September in Wisconsin. And as the record indicates, it was getting dusk when the crime laboratory people arrived from Madison at 7:20.

So, you can bet your bottom dollar that at 8:15 it was getting pretty dark.

The search warrant was issued, the under sheriff from the others went to the scene of the crime and got a tow truck to haul to vehicle into Fond du Lac in sheriff’s garage.

Now, the Seventh Circuit, I think made a serious error in finding that the under sheriff had executed the search warrant at the farm when he went out and looked into the Dodge.

There was testimony that he opened the door and looked in.

I think they questioned him on a motion after verdict as to whether or not he had searched the vehicle and he said yes.

No materials were taken out of that vehicle at the farm and all you have to do is look at the trial record and find out who identified all of these items and a murder case where you got a lot people handling the various items of evidence, you have to have a chain of evidence proof, the chain of evidence firmly establishes that this Mr. Mauer from the crime laboratory was the first man to take anything under that Dodge and that was done while the Dodge was impounded in the sheriff’s garage in Fond du Lac.

Now, there’s a direct quote in the Circuit Court of Appeals decision that the undersheriff seized the tarp and the sock in the Dodge that evening.

It is not true.

It cannot be supported by any interpretation of this record.

In fact, the record is so clear that everything was taken out of that Dodge at the time of the search on the morning of the 13th.

Warren E. Burger:

By whom?

Who did that searching?

Leroy L. Dalton:

Mr. Mauer from the crime laboratory.

Warren E. Burger:

This is not the Deputy.

It is the other —

Leroy L. Dalton:

Mr. Mauer is an expert who — we have a crime laboratory system in our Department of Justice.

They go out and help local unfortunate people on specialized things.

The sheriff called.

Sheriffs in small counties are not experts.

As we all know from all these search and seizure cases.

We’re putting too much burden on them.

But Mr. Mauer was called.

He was told that there’s a search warrant and so since the vehicle was impounded, they waited until the next morning and conducted the thorough search because what was the purpose of the search in that vehicle.

It was to obtain all of the physical evidence of the crime that were — that was available.

And only an expert who knew what take out of the vehicle could decide that at that time.

Mr. Dalton, I’m confused about one thing.

Is it clear that the Seventh Circuit had the entire State record before it?

Leroy L. Dalton:

Yes, Your Honor.

When I was preparing the appendix, I contacted the clerk’s office in Milwaukee and for some reason or other, there was no entry made in the docket to show that after a stipulation had been entered that the record was not brought to Chicago, it did and that letter was later on sent to the Court and the clerk has it now.

Leroy L. Dalton:

So, I apologize for any misleading.

It was unintentional.

I thought I checked everything and I went there personally to see what the record consisted of and it was later on when the — Mr. Mulligan was preparing his brief that these records were found.

Part of them is in the Seventh Circuit in the clerk’s office and part of them in Milwaukee.

But they are here no, all the record (Voice Overlap).

Thurgood Marshall:

Why would it fall to Seventh Circuit?

Leroy L. Dalton:

The Seventh Circuit asked for the record to be sent down there several months after the other — the rest of the record went.

Thurgood Marshall:

But was it there when this case was decided?

Leroy L. Dalton:

Yes.

Thurgood Marshall:

How do we know?

He said you didn’t know it until you checked it.

Leroy L. Dalton:

Well, subsequently, the clerk in Milwaukee found a transmittal letter.

It wasn’t in this file, apparently in this file.

And the letter was sent to this Court after the record came down.

It was added to the record here.

Thurgood Marshall:

Added to the record here but I mean, was that into the record in the Court of Appeals?

Leroy L. Dalton:

Yes, the Court of Appeals, I’m satisfied, have the full record.

Thurgood Marshall:

You’re satisfied.

Leroy L. Dalton:

Yes.

Well, another question Mr. Dalton, I take it that all of the items taken from the Dodge were taken within the 48 hours, it issues the warrant?

Leroy L. Dalton:

Yes, it did.

The return on the warrant was made on the 14th.

That’s another fact that the Seventh Circuit determined that is not supported by the record.

They said that the warrant was executed and a return prepared and therefore the warrant was functus officio.

Well, tell me —

Leroy L. Dalton:

What kind of games are we playing?

We can’t even take a vehicle that’s been impounded and search it for evidence of murder without —

But did it — I understood that the decision of the Seventh Circuit turned not on any search.

I know it did a lot of talking about the search of the Dodge.

But I thought what really happened here was that they reversed on the search of the Ford.

Leroy L. Dalton:

On both of them, Your Honor.

Do you think it’s on both?

Leroy L. Dalton:

Yes.

If I may just at the moment, the search by Officer Weiss, if we want to call the search, every Court has picked up a new name and we try to stay away from the word search because we — we really don’t know what a search is.

It was done by Officer Weiss with the intention of securing some property of Mr. Dombrowski.

Five different times, there were fact-finding hearings where this fact could’ve been refuted by Mr. Dombrowski including a hearing before the District Court of Milwaukee which he did not avail himself of, so the only thing in the record is Mr. Weiss’ statement that he was looking for the gun.

He had no knowledge of any other kind.

He was completely surprised by the evidence of murder which emerged when he opened the trunk.

Warren E. Burger:

At that time, the only crime, if any, was the crime of drunken driving and the consequences of the accident, is that right?

Leroy L. Dalton:

That’s right, Your Honor.

The — I think on that point, that nowadays police officers are not just law enforcers.

We have millions of vehicles on the highway everyday and everywhere where you and I drive our vehicles, we might force a local law enforcement official to either arrest us for violating the law, to come to our aid if we have an accident, to come to our aid if we have a heart attack.

In any of a number of circumstances, a law enforcement officer may be called upon to help someone who is in a vehicle away from his home.

It seems to me that this Court should look at what we are calling now, I guess, inventory searches, and see whether or not you can’t find some area where a person that gets out in the highway with his vehicle doesn’t leave behind a little bit of that privacy that we are so concerned about.

It’s very difficult to play the dual role of a law-enforcement officer and the helper.

Well, I take it the officer didn’t want to as excuse or his only advice was that he wanted to. If there was a gun in the car, he didn’t want it floating around in that car —

Leroy L. Dalton:

That’s right.

— he wants to get it out.

Leroy L. Dalton:

And that record is so clear on that, that we think that this act of the guy of sending that rookie police officer to look after this fellow officer’s gun should not result in the freeing of a man who has been convicted fairly of first degree murder.

Thank you.

Warren E. Burger:

Thank you, Mr. Dalton.

Mr. Mulligan.

William J. Mulligan:

Mr. Chief Justice and may it please the Court.

We have before us two searches, a search of a Ford Thunderbird and search of a Dodge.

In connection with the search of the Ford Thunderbird, I think it is imperative to consider some of the additional facts surrounding the circumstances of the various searches that were conducted of that automobile.

His counsel indicated on September 11, 1967 at 10:30 at night, that car was involved in a one-car accident.

Mr. Dombrowski, an off-duty Chicago police officer summoned the sheriff’s deputies to the accident, to come with him to the accident scene.

He communicated with those officers during that time period.

He assisted them in locating the accident.

He told them what his occupation was, told them that there were no other persons involved in the accident, that he was alone at the scene.

William J. Mulligan:

He told them three different versions of how the accident occurred.

He furnished them his license and identification.

The officers investigated that accident and called the record.

Prior to the removal, Officer Bowdry searched through the entire interior of the car.

He searched under the seat, in the glove compartment and in the backseat of that car.

Mr. Mulligan, when you said he gave them three different versions, were they inconsistent versions of the accident?

William J. Mulligan:

In — in some details, I think you’d have to consider them to be inconsistent, basically, he said — I think characterizing this is inconsistent, yes.

The —

Warren E. Burger:

Well, at that time, your friend indicated that Dombrowski was suffering from over-indulgence in alcohol and perhaps from some shock from the accident, do you agree with that?

William J. Mulligan:

I think the record indicates Mr. Chief Justice that Dombrowski had been drinking but it was not until for the first time that the West Bend Police Station that the record indicates that he became in any way uncommunicative and it wasn’t until at 2 o’clock the following morning when he was in the West Bend Hospital that he was unable to speak at all and that no prior time, at the accident scene or at the West Bend Sheriffs Department or the Police Department to the officers who searched the car for the gun, even asked Mr. Dombrowski whether he was required to have a gun and whether he in fact had such a gun or where it might be located.

Well, do you accept the version that what they were doing, they were doing as a favor for a fellow officer anyway?

That’s the reason they were searching for the gun?

William J. Mulligan:

Well, Officer Weiss testified that he was searching for the officers’ service revolver.

I don’t think the motivation is clear whether this was a search for some beneficial purpose or whether it was investigatory in nature.

I think the record could be interpreted either way with respect to that.

It is not clear from the record.

At the scene, when Officer Bowdry made this search, he locked the car before it was towed away.

The car was removed to a private garage in Kewaskum.

It was not in police custody nor representative of the sheriff’s office, remained with the vehicle.

It is not clear from the record where the keys to the automobile were.

Potter Stewart:

The tow truck, I suppose, belong to the service station, to which the car was taken?

William J. Mulligan:

Yes, Mr. Justice.

Potter Stewart:

This is a small town did — did the police or the sheriff’s office have facilities to impound automobiles and design a man to guard it?

How?

William J. Mulligan:

I think that it’s clear from the record that had the sheriff’s department desire to impound the car and keep in safekeeping, this Thunderbird. They would’ve done what they did later on.

They would’ve towed the car to the sheriff’s garage.

Potter Stewart:

With the Dodge, what they did later on with the Dodge.

William J. Mulligan:

Yes.

And I think that indicates that they did have the facilities have they desired to do so, to safe keep it and subsequently with respect to one of these vehicles.

They parked it at a county garage while it was being held to the trial.

Potter Stewart:

There was no reason of course to impound the red Thunderbird.

There was no, at that time, no grounds to suspect murder or anything else except if the Chief Justice said few moments ago just that Dombrowski had been drunk and had a wreck.

William J. Mulligan:

That is correct.

There was no probable cause for any reason to seize the vehicle at that time.

William H. Rehnquist:

Well, the Thunderbird activity of the place was carried on by Washington County Police, wasn’t it?

William J. Mulligan:

That is correct, Mr. Justice.

William H. Rehnquist:

And the ultimate impoundment of the Dodge was carried on by Fond du Lac County.

William J. Mulligan:

Yes that is correct.

William H. Rehnquist:

Police.

Isn’t it conceivable if the Washington County sheriff might have one modus operandi and the Fond du Lac County sheriff have another?

William J. Mulligan:

It is possible that there could be separate methods of operation.

However, it is indicated in the record that when Sheriff Howard went to execute the search warrants.

One was issued on September 12 for the Dodge and then a search warrant was issued on September 12 for the Thunderbird.

And he, when he went to search or execute the search warrant for the Thunderbird went to the sheriff’s garage at West Bend to execute it.

It’s only logical to presume the interim of that vehicle after the goods, bloody articles were located, was taken to the sheriff’s garage at West Bend, Wisconsin and impounded there.

Warren E. Burger:

I’m not sure just what the point here or whether you had a point in mind in comparing the casual weight of the first car, the Ford involved in the accident was taken to the filling station as compared with the more careful steps with respect to the Dodge but would you agree that it might be reasonable to take very casual steps with respect to just a damaged car with no criminal acts involved except drunken driving and much more precise and careful steps when there appeared to be a homicide involved?

William J. Mulligan:

Yes, I think there’s a logical basis for treating them differently and I think what’s indicated here by the difference in the way these cars were handled is that in the one case with respect to the Thunderbird that it was never considered to be in police custody.

It was merely taken to the private garage and left there in a locked condition.

As opposed to the way you would handle something that was in your custody where you’re maintaining a chain of control over the article.

Warren E. Burger:

Well, that automobile involved in the accident would be an important item of evidence even in a drunk driving charge, would it not?

To show the extent of the damage, as it would bear upon the quality of the driving, just as an evidentiary matter?

William J. Mulligan:

I doubt that such evidence would normally be offered in a drunken driving case.

The fact that the car has been in an accident really is an indicative of the nature of the driving that took place prior to it and I think it be some question whether would be material or relevant if it had been seized as evidence of that crime but there’s no indication in the record here that it was seized.

Warren E. Burger:

Well, does Dombrowski ran into some immovable object, didn’t he?

William J. Mulligan:

Yes.

Warren E. Burger:

He didn’t hit another car?

William J. Mulligan:

No.

Warren E. Burger:

Well, you suggest that the condition of the car would not be an evidentiary irrelevant piece of evidence in establishing the drunken driving charge?

William J. Mulligan:

Well, I think there’s some question whether it would be — I think the officers testifying as to the location of the car being off the highway and had left the highway is probably as indicative of drunk driving as the particular extent of damage that may have occurred to the vehicle itself.

The officers that left the accident scene at 11:33 that night, they went to the West Bend Sheriff’s Office.

William J. Mulligan:

At the West Bend Sheriff’s Office, Mr. Dombrowski conferred with an Assistant District Attorney there.

It wasn’t until 11:58 that evening that he was arrested for drunk driving.

He was taken to the West Bend Police Department.

There, he was offered an opportunity to take a breathalyzer test but refused that test.

He was then taken to the West Bend Hospital to be treated for injuries that he had sustained in the accident.

At the hospital, he talked by telephone to the doctor and it was not until the doctor came to the hospital at 2 o’clock that there was any indication that Dombrowski was uncommunicative.

Does the record show, what was the matter with him at that time?

That’s quite a period of time and was he still — but was he still drinking or what was it?

William J. Mulligan:

He had presumably been still drinking until the officers met him at the Pleasure Inn in Kewaskum sometime after 10:30 that evening.

He was described in the hospital as having blood upon him, possibility of nose bleeding and at one point, his legs began shaking and his head went back.

I believe the way it was described in the record by the doctor when he testified and at this point, he was not able to express himself.

The doctor with the officers told, Dombrowski’s wife in Chicago to see if there were some other explanation as to what his condition could be other than perhaps drinking and a nosebleed from the accident.

During that conversation, the police officers did not take the opportunity to inquire Mrs. Dombrowski as to what she might have known with respect to the officer’s revolver whether he had it with him or where it might be located.

Warren E. Burger:

Who made that call, the doctor or the police?

William J. Mulligan:

The police officers together with the doctor made that call.

Warren E. Burger:

But are you suggesting that the doctor wanted to find out whether he suffered perhaps from epilepsy or heart condition or something of that kind?

William J. Mulligan:

I think that is think is indicative — indicated in the record that he was seeking to see if there was some other medical reason for the man’s condition at that time.

After this, Dombrowski remained in the hospital, under guard at all times, thereafter.

At 2:13 that morning, approximately four hours after the time of the accident and two-and-a-half hours, two-and-a-quarter hours from Mr. Dombrowski’s arrest, Officer Weiss went back from West Bend to Kewaskum, Wisconsin to the private garage, unlocked the car and again searched the interior of the vehicle.

He had to unlock the trunk to look into the trunk where he searched for Dombrowski’s gun.

In the —

Thurgood Marshall:

Did the record showed that he originally searched the car for the gun and they first went out, didn’t they search the whole car for the gun?

William J. Mulligan:

Yes, the record indicates that initially, Officer Bowdry searched the entire interior part of the automobile.

He went in the glove compartment, under the seat, in the backseat of the vehicle before he locked it and had towed away.

Thurgood Marshall:

Was he searching for the gun?

William J. Mulligan:

Yes.

Thurgood Marshall:

Or just searching for any thing special?

William J. Mulligan:

He was — I believe that the record at that point is that he was searching.

Weiss described the search as a search for the service revolver.

It isn’t even clear from the record whether at the accident scene or at any time prior to that that Dombrowski himself was searched to see if he have the weapon on his person and that was noted by the Wisconsin Supreme Court when they considered this matter.

Warren E. Burger:

That wouldn’t be very difficult to observe when they took him into the station and down to the hospital in that period of time, they certainly would’ve — quite casual observation of them whether he had a typical service revolver on him, wouldn’t they?

William J. Mulligan:

Well, Mr. Dombrowski was off duty at the time and he was not in uniform.

Perhaps at the hospital if he was changed into hospital attire, it might have been possible to note that but I’m not so sure that a service revolver could be detected on an off-duty police officer wearing civilian clothes and concealing it upon his person.

There never was any consent by Dombrowski to search the Thunderbird.

That does not appear when it comes to the time of the second search of that automobile to then anything additional that had come to the police attention that would’ve given them probable cause to search the vehicle at 2:13 that morning.

The County Court —

Warren E. Burger:

Or would it be unreasonable for police to assume in this day and age than an unattended car sitting in a filling station light overnight might be broken into both trunk and the body of the car by either vandals or youngsters or somebody been on theft.

William J. Mulligan:

Mr. Chief Justice, I don’t think that is reasonable conclusion to reach in a rural community of — in Wisconsin and the nature of Kewaskum, Wisconsin that it became any more target of a break in and perhaps Dombrowski’s home in Chicago where he may well have kept the service revolver and I don’t think a fact that he was in Wisconsin would’ve have given them a right to have his home in Chicago searched the possibility.

Warren E. Burger:

I’m not talking about right — I’m talking about the practical aspect.

Are you suggesting that the conditions are so safe in that part of Wisconsin that no one ever has his car broken into at night if it’s left out unattended?

William J. Mulligan:

Well, I’m not sure that it has never occurred but I think that —

Warren E. Burger:

Perhaps not as often as Chicago.

William J. Mulligan:

Yes, I would agree with it.

It’s less likely that any risk to a vehicle in a town of the nature of Kewaskum, Wisconsin than there is in Chicago or New York or any larger city.

And here, we’re dealing with a vehicle that had already been searched in the interior and there was nothing indicative of anything that would be a target.

Warren E. Burger:

But the trunk hadn’t been searched?

William J. Mulligan:

The trunk had not been searched but was locked and presumably is not type of thing that you could easily get into without a key.

The County Court of Fond du Lac County upheld the search of the Thunderbird in part and the basis that it was a search incident to the arrest for drunk driving.

Do you think that it is clear from the application of the Preston case that such a search that was conducted at a different time and place could not be upheld as incident to the arrest?

Potter Stewart:

Mr. Mulligan, the revolver never was found automatically?

It never was found, was it?

William J. Mulligan:

It never was found.

When the trunk was —

Potter Stewart:

What was found was that bloody material in the trunk of the Thunderbird?

William J. Mulligan:

That is correct.

Potter Stewart:

And that was introduced in evidence over objection, was it?

William J. Mulligan:

Yes.

Pre-trial motions were made to suppress on a voir dire.

An examination was held at trial in which those motions to suppress were renewed.

Potter Stewart:

Was the — was any alleged murder weapon ever found or were introduced an evidence?

William J. Mulligan:

No such weapon was ever produced.

Potter Stewart:

The victim was shot, wasn’t he?

William J. Mulligan:

The victim was shot and apparently beaten with some object.

During the closing arguments, it was even suggested that the defendant could’ve produced the gun, his own service revolver.

As ballistic said — examinations had indicated that the bullet had been riffled with six lands and grooves to the left and that evidence was offered that Colt revolver such as registered to the defendant had such price lin.

Warren E. Burger:

You were not in the trial of the case, were you?

William J. Mulligan:

I was not.

Warren E. Burger:

You were appointed only at this stage of the case?

William J. Mulligan:

I was appointed in the Seventh Circuit.

Warren E. Burger:

Seventh Circuit too?

William J. Mulligan:

Yes.

Byron R. White:

Mr. Mulligan, I take it from what you’ve said that the exclusionary rule issue was raised before the trial courts.

William J. Mulligan:

The motions to suppress —

Byron R. White:

They exclude the evidence.

William J. Mulligan:

— was made before the trial court.

That is correct and preserved in the Wisconsin Supreme Court.

Byron R. White:

In the Supreme Court, the trial was in 1968, wasn’t it?

William J. Mulligan:

Yes.

Byron R. White:

That was five years ago?

William J. Mulligan:

That is correct.

Byron R. White:

You make no claim in this case that or was any claim made in the District Court on habeas that this man was innocent of the crime?

William J. Mulligan:

The — it was alleged in the District Court petition that he had pled not guilty to the offense and there was no confession here.

There has been no indication that Mr. Dombrowski has ever indicated any guilt for this crime.

Byron R. White:

And that his lawyer knows where the body was?

William J. Mulligan:

Well, presumably the mo — Mr. Dombrowski communicated with the Attorney Schlamer in the hospital room and told him information that a body could be found in the picnic area of his brother’s farm.

But in a writ of prohibition had been sought through the Wisconsin Supreme Court to prohibit this disclosure of attorney-client privileged information but that Court interpreted that there had been an intentional, a desire that this information be communicated to other sorts.

But in your their statement that there is a body in that farm is not a confession that this man is the person who committed the crime of murdering that person.

We also submit from the record in this case that the vehicle was never a police custody.

Warren E. Burger:

Speaking of the Thunderbird before.

William J. Mulligan:

Of the Thunderbird.

William J. Mulligan:

And Wisconsin has no law which would authorize authorities to take into custody vehicles that have been involved in auto accidents or vehicles that had been used a drunken driver.

There are laws that are enacted now in Wisconsin which would’ve permitted the impounding of vehicles for use in connection with drug offenses and other matters.

Warren E. Burger:

Do you think you’d have to have an explicit statutory authority, Mr. Mulligan to take into police custody, the car involved in a drunken driving situation where there was damage to the car?

William J. Mulligan:

If that was not — not being seized as evidence of that particular crime, it was being impounded into police custody for some other purpose such as was the case in Cooper versus California.

Warren E. Burger:

Well, but it could be impounded as evidence in the drunk driving case.

William J. Mulligan:

Yes.

Warren E. Burger:

Inherently, could it not?

William J. Mulligan:

Presumably it could be but there is no indication that this car ever was in involved here?

Warren E. Burger:

Well, I understand your argument that that was not the purpose of it but you do concede that they would the power to take it for that for that purpose, if they wanted to use it as evidence.

William J. Mulligan:

Yes.

William H. Rehnquist:

Mr. Mulligan, what material found in the Thunderbird was introduced at the trial of the defendant?

William J. Mulligan:

Basically all the materials found in the Thunderbird were introduced consisted of a bloody nightstick, consisted of a towel, consisted of a floor mat which by expert testimony was later linked to the floor mat in the Dodge, a rule book, a hot sheet from the Chicago Police Department, some pants that had some blood splattering on them.

There is enumeration that there were 13 exhibits that were seized from the Thunderbird that were all offered and admitted into evidence over objection.

And I suppose then if they were improperly admitted, there should be an affirmance here without reaching the question that was taken from the Dodge.

William J. Mulligan:

No, I think we have two searches involved here.

Both of which had a substantial effect on the outcome of the trial.

The articles that were taken from the Dodge were also —

Yes, but what I’ve said is if the — if the materials taken from the Ford should not have been admitted, there has to be a reversal of this conviction, does it not?

William J. Mulligan:

Yes.

And therefore, it would not be necessary to reach the other question.

William J. Mulligan:

That is right.

The Court of Appeals decided the case based on the search of the Thunderbird automobile.

Whether that’s the way Judge Dock (ph) read it because that’s the only search to which he addressed this dissent, wasn’t he?

William J. Mulligan:

That is right and the Court further on in its opinion indicated that in the light of the possibility of a retrial in light of effect of administration of justice, it expressed its opinion with respect to the legality.

But that was advisory apparently not an actual decision on that search, was it?

William J. Mulligan:

I think that it was not the actual decision of the Court and was advisory in character.

The Court only ruled on one aspect of the — even at on advisory nature with respect to the search of the Dodge, namely the search by Mauer.

There’s also a question that was raised with respect to the legality of the search warrant that had issued for the vehicle and the Court specifically withheld expressing opinion as to the constitutionality of the search warrant that was in fact issued.

Doing so because it held that the Mauer search by the State Crime Lab representative was improper and therefore it didn’t — where the items were seized, it did not have reach the validity of the search warrant which had been challenged as a general warrant in the light of the nature of the failure to describe the things particularly that were to searched or seized.

Mr. Mulligan, did the defendant take the stand in this case?

William J. Mulligan:

No, the defendant did not take the stand.

He did offer evidence during the course of the trial and there was testimony that he submitted from family member.

He called police officers to testify in connection with the case but he did not personally testify.

The — my comment that only with respect to the search of the Dodge aspect to this case that the Officer Mauer searched the vehicle was his testimony immediately after receiving the warrant.

He went out and he searched the vehicle.

There was no indication that he was hampered by life conditions.

He indicated that the time he found bloody articles in the car.

He also indicated on his return that he located a tie away from the vehicle, some articles that were located underneath of car, when it was searched, matches, and straw.

He testified on the return of the morning in September 14th, he indicated what was discovered in the search pursuant to the warrant.

Never indicated that the items that have been seized at that time by Mr. Mauer on the following day where anywhere at were all related to that search warrant.

Thank you.

Warren E. Burger:

Thank you. Mr. Mulligan.

Mr. Dalton, do you have anything further?

Leroy L. Dalton:

Thank you Your Honor.

The reasonableness of suspecting that someone may try to get into the trunk of the disabled automobile has been brought up and the allegation by other counsel is that in a small town, you don’t have those worries.

I know a lot of small town District Attorneys that would like to have some proof of that when they are prosecuting people for breaking open trunks and taking spare tires and wheels.

And especially when they see a car disabled to modern State.

How naïve are we?

This is 1973.

People move from here to there to everywhere and small towns are no —

Potter Stewart:

It wasn’t 1973 when this happened.

Leroy L. Dalton:

No, pretty close to it, Your Honor.

William H. Rehnquist:

But you ask him on any important highway?

Leroy L. Dalton:

It’s on Highway 45 between Milwaukee and Fond du Lac.

I just like to pause by saying that we’re not here to determine the guilt or innocence of Dombrowski.

He has been found guilty beyond any reasonable doubt by the proper courts in the State of Wisconsin.

We are here on a collateral attack upon that judgment and what you have to determine is whether or not this Court is going to punish two law enforcement people who thought they were doing their duty five years ago, five-and-a-half years ago.

And what your theory will have to be is that if you free this man, you will thereby have slapped those two officers in the face.

And you would have told them, don’t do it again and you will told other officers don’t do this.

It won’t work.

Leroy L. Dalton:

One of the officers is no longer in Wisconsin.

I don’t know if he’s even in law enforcement.

You cannot by this method, satisfy society’s needs to deal with criminals.

And I would urge that you recognize that this man is a convicted murderer and reverse the Seventh Circuit.

Thank you.

Warren E. Burger:

Thank you, Mr. Dalton.

Mr. Mulligan, you served at the Court’s request on by appointment here as you did in the Seventh Circuit by the appointment of that Court.

William J. Mulligan:

Yes, Mr. Chief Justice.

Warren E. Burger:

And you — we want to thank you for your assistance the Court and of course your assistance to the man you were asked and appointed to represent.

William J. Mulligan:

Thank you.

Warren E. Burger:

The case is submitted.