
ROBERT L. SHAPIRO
State Bar No. 043693
JOHNNIE COCHRAN, JR.
State Bar No. 33334
GERALD F. UELMEN
State Bar No. 39909
ALAN DERSHOWITZ
State Bar No. BB0121200
F. LEE BAILEY
State Bar No. 0820520
LAW OFFICES OF ROBERT L. SHAPIRO
2121 Avenue of the Stars
l9th Floor
Los Angeles, CA  90067
310/282-6255; 310/550-3000

Attorneys for Defendant,
ORENTHAL JAMES SIMPSON

ORIGINAL FILED

AUG 29, 1994

SUPERIOR COURT

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES


PEOPLE OF THE STATE OF CALIFORNIA.
Plaintiff,
v.
ORENTHAL JAMES SIMPSON,
aka O.J. SIMPSON,
Defendant.

Case No. BA097211

MOTION TO SET ASIDE  INFORMATION UNDER SECTION
995 OF THE PENAL CODE; MEMORANDUM OF POINTS AND AUTHORITIES


TO THE CLERK OF THE ABOVE-ENTITLED COURT AND TO THE DISTRICT
ATTORNEY OF THE COUNTY OF LOS ANGELES:

NOTICE IS HEREBY GIVEN that on Wednesday, September 7, 1994, at 9:00 A.M., or as soon thereafter as the matter may be heard, Defendant ORENTHAL JAMES SIMPSON, through his counsel, will move to set aside Counts One and Two of the Information, pursuant to Section 995 of the Penal Code, on the ground that the defendant has been committed without reasonable or probable cause that he was the perpetrator of the murders charged. This motion is based on the thirteen-volume transcript of  the preliminary hearing conducted in this matter on June 30 through July 8, 1994, the exhibits, papers, records and pleadings in this case, the attached memorandum of points and authorities, and argument as may be adduced at the hearing of this motion.


DATED:  Aug. 26, 1994

Respectfully submitted,

Law Offices of Robert L. Shapiro
By: Robert L. Shapiro
By: Johnnie Cochran, Jr.
BY: Gerald F. Uelmen
By: Alan Dershowitz
By: F. Lee Bailey
ttorneys for Defendant

ORENTHAL JAMES SIMPSON


TABLE OF CONTENTS

I.   SUMMARY OF ARGUMENT
II.  STATEMENT OF FACTS
A.   Investigative Activity at 875 S. Bundy .
B.   Entry to Premises at 360 N. Rockingham .
C.   Investigative Activity at 360 N. Rockingham .
D.   Evidence Connecting the Defendant O. J. Simpson
       With the Crime
E.   Evidence of Malice Aforethought .
III. ARGUMENT
A.   The Magistrate Erroneously Excluded the Search
   Warrant Affidavit from Evidence .
B.   The Court Must Reassess the Factual Findings
      After Considering the Erroneously Excluded
      Search Warrant Affidavit
C.   The Warrantless Entry to Mr. Simpson's Home
      Was Not Justified by Exigent Circumstances
D.   Illegal Investigative Activity was Permitted
      to Continue After the Alleged Benevolent
      Purpose of the Entry had been Accomplished
E.   The "Plain View" Doctrine Did Not Permit
      Warrantless Seizure and Analysis of Minute
      Stains
F.   There Was Not Sufficient Evidence to Find
      Probable Cause that O. J. Simpson Was the
      Perpetrator of the Crimes Charged

G.   There Was Not Sufficient Evidence to Find
      Probable Cause that the Homicides Were
      Committed with "Malice Aforethought" .


TABLE OF AUTHORITIES


Birt v. Superior Court (1973) 34 Cal.App.3d 934

Coolidqe v. New Hampshire (1971) 403 U.S. 443

Garabedian v. Superior Court (1963) 59 Cal.2d 124

Mincey v. Arizona (1978) 437 U.S. 385

People v. Baird (1985) 168 Cal.App.3d 237

People v. Caffero (1989) 207 Cal.App.3d 678

People v. Cain (1989) 216 Cal.App.3d 366

People v. Dickson (1983) 144 Cal.App.3d 1046

People v. Duncan (1986) 42 Cal. 3d 91

People v. Leiqhty (1988) 205 Cal.App. 3rd 922

People v. Smith (1972) 7 Cal.3d 282

People v. Timms (1986) 179 Cal.App.3d 86

Schmerber v. California (1966) 384 U.S. 757

Skinner v. Railway Labor Executives Ass'n.  (1989) 489 U.S.
    602

Somers v. Superior Court (1973) 32 Cal.App.3d 961

State v. Cota, 675 P.2d 1101 (Or. App. 1984)

Tharp v. Superior Court (1984) 154 Cal. App. 3d 215

Thompson v. Louisiana (1984) 469 U.S. 17

United States v. Jacobsen (1984) 466 U.S. 109

United States v. Preslar, 610 F.2d 1206 (4th Cir. 1979)

LaFave, Search and Seizure: A Treatise on the Fourth
    Amendment (2nd Ed. 1987)



MEMORANDUM OF POINTS AND AUTHORITIES

I.   SUMMARY OF ARGUMENT

The first task facing the court will be to review the

factual conclusions of the magistrate regarding the

admissibility of the evidence seized without warrant at the home

of the defendant.  While ordinarily the findings of the

magistrate regarding the credibility of the officers would be

controlling, those findings were fatally flawed by the exclusion

from evidence of the sworn affidavit executed by one of the

testifying detectives.  In that affidavit, he presented a

scenario that was significantly inconsistent with his testimony

at the hearing, containing a number of misrepresentations and

concealments.  While the search pursuant to the warrant obtained

by the affidavit was not in issue, because the prosecution

announced it would not offer any evidence obtained pursuant to

the warrant, the affidavit itself was highly relevant both to

impeach the credibility of the officer and as substantive

evidence of the true nature of the search.  Thus, this court

must independently reassess the credibility of the officers

giving full consideration to the improperly excluded affidavit.

   The second task facing the court will be to review the

legal conclusions of the magistrate.  The defendant will contend

that the legal conclusion that exigent circumstances justified a

warrantless entry to a private residence was erroneous and not

supported by the facts; that the legal conclusion that

investigative activity could continue after the alleged

benevolent purpose of the entry had been accomplished was

erroneous and not supported by the facts; and that the legal

conclusion that the "plain view" doctrine permits warrantless

seizure and analysis of minute stains was erroneous and not

supported by the facts.

   After excluding the incompetent evidence that was

unlawfully acquired, the third task facing the court will be to

determine if there is sufficient evidence remaining to find

probable cause to believe the defendant O.J. Simpson perpetrated

the crimes charged in the information.

   The fourth and final task facing the court will be to

determine if there is probable cause to believe that the

homicides charged were committed with the "malice aforethought"

required for a charge of murder.

II.  STATEMENT OF FACTS

   This statement of facts was compiled from the daily

transcripts of the preliminary hearing in which each volume is

separately paginated.  References to the Reporter's Transcript

(R.T.) include both volume and page numbers, separated by a

slash:  Volume/Page.

   A.   Investigative activity at 875 S. Bundy

   The initial arrival of police at the scene of the homicides

at 875 S. Bundy was in response to a radio call to the location

across the street, "Possible 459 suspects there now, 874 South

Bundy," shortly after midnight on Monday, June 13, 1994.   (R.T.

8/6)  The first detectives at the scene were Ron Phillips and

Mark Fuhrman, partners assigned to West Los Angeles Homicide.

Fuhrman was called by Phillips at 1:05 A.M., and both arrived at

2:10 A.M.   (R.T. 7/23-24)  Fuhrman was told by Phillips in the

initial call at 1:05 A.M. that one of the victims was the ex-

wife of O.J. Simpson.   (R.T. 7/31)  Fuhrman had previously

visited O.J. Simpson's home on a call in 1985.   (R.T. 7/71)

Within an hour of their arrival at the Bundy scene,

Phillips and Fuhrman were informed that they were off the case,

that because of the "V.I.P. nature of the homicide," it was

being reassigned to the Robbery-Homicide Division and that

Detectives Vannatter and Lange would be taking over the

investigation.   (R.T. 7/60-61)  They then went out onto the

street to await the arrival of Detectives Vannatter and Lange,

who arrived more than an hour later.   (R.T. 7/30)

Detective Vannatter was first called at 3:00 A.M., and

arrived at the Bundy scene to take charge of the investigation

at 4:05 A.M.   (R.T. 8/31)  Detective Phillips then led Detective

Vannatter on a "walk-through" of the crime scene.  Vannatter

observed the two victims lying at the entrance gate, with "a lot

of blood" having run down the walkway towards the sidewalk.

(R.T. 8/33)  He testified he observed a left-handed leather

brown glove and a blue knit cap lying at the feet of Ron

Goldman.   (R.T. 8/33)  Prior to Vannatter's arrival, Detective

Fuhrman had observed a glove.  When asked how closely he

observed it (singular), Fuhrman testified:

"There's an iron fence and through that iron fence you can

get very close to the male victim.  And looking there I

could see them down at his feet" (plural, emphasis

supplied).

(R.T. 7/64)  When asked if he picked up the glove to examine it,

he responded:

"Not at that time, no.

(R.T. 7/65)

Detective Vannatter also examined the walkway leading away

from the bodies to the rear of the residence, where he observed

a trail of bloody shoe-prints, with what he believed were "blood

droplets that appeared to be not associated with the two

victims, as if the person leaving the bloody footprints was

dripping blood from something."  (R.T. 8/34)

Vannatter was also informed that the two young children of

Nicole Brown Simpson and O.J. Simpson had been taken from the

house at 875 S. Bundy to West L.A. police headquarters.   (R.T.

8/31)

Vannatter was joined by his partner Detective Lange after

20-25 minutes, and decided to proceed to the house of O.J.

Simpson.  He testified that his purpose in going to Mr.

Simpson's home was to notify him of his former wife's murder and

to arrange for the care of his children.  Simpson was not

considered a suspect, nor did the detectives believe that any

related events had occurred at Simpson's home.   (R.T. 7/71)

Detective Vannatter testified:

"Knowing that one of the victims had been identified as

Nicole Simpson, knowing that her husband -- or ex-husband

at that point -- was a very well-known person; that we had

two children in custody, two minor children that had been

taken from this very traumatic scene, we made a

determination to go to Mr. Simpson's residence and attempt

to notify him of the death before the media got word of it

and to also make arrangements for the disposition of the

two children that were his children."

(R.T. 8/35)

All four of the homicide detectives involved in the

investigation up to this point -- Vannatter, Lange, Phillips and

Fuhrman -- then left the scene of the homicide and proceeded to

the home of O.J. Simpson two miles away at 360 N. Rockingham.

(R.T. 7/69)  Detectives Vannatter and Fuhrman gave contradictory

explanations why Detectives Phillips and Fuhrman were included

on this foray although they had already been relieved of their

responsibility for the case.  Detective Vannatter said, "they

were assisting us," and testified that he would have had no

difficulty locating the Simpson residence, since he "worked that

division for three years."  (R.T. 8/35, 99)  Detective Fuhrman

testified, "Detective Lange and Vannatter didn't know the area,"

and that Vannatter asked him to "lead us up there."  (R.T. 7/70)

Detective Fuhrman stopped taking notes of any of his activities

after leaving the Bundy address, and prepared no reports,

because, as he put it, he knew he was off the case.   (R.T. 8/8)

   B.   Entry to premises at 360 N. Rockinqham

   The four detectives arrived at the Simpson residence

shortly after 5:00 A.M.   (R.T. 7/72)  The premises are a single-

family home on a large corner lot completely surrounded by walls

and fences, with two gates, one facing Ashford Street and one

facing Rockingham.  (R.T. 7/18)  An intercom with a call button

and speaker box is located at the Ashford Street gate.   (R.T.

7/32, 8/36)

   All four detectives began pressing the call button, and

could hear it ringing inside the residence.  They continued to

ring the bell for 10-15 minutes.  (R.T. 7/33)  They observed an

upstairs light on inside the residence.  Two cars were parked on

the inside driveway.  (R.T. 7/33, 8/38, 9/4-5)

  Detective Vannatter observed a posted sign that the

premises were protected by Westec Security, a private security

company.  He requested Detective Phillips to contact them via a

cellular phone, and secure a telephone number for the residence.

(R.T. 8/38-39)  A Westec patrol unit responded to the scene, and

a Westec supervisor arrived a few minutes later.   (R.T. 7/35)

The supervisor informed the detectives there was a full-time

maid on the premises and provided the residential telephone

number.  The number was called, and an answering machine

responded, with a recording of O.J. Simpson requesting a

recorded message be left.  (R.T. 8/41-42)

   The single event that allegedly transformed the police

visit from a "notification call" to an emergency demanding

immediate rescue operations was the discovery of a dried speck

approximately 1/8 to 1/4 inch in diameter above the door handle

on a white Ford Bronco parked in front of the residence on

Rockingham.  (Exhibits 8A-C, R.T. 7/78-80)  The circumstances

leading up to the discovery of this stain were the subject of

sharply divergent and contradictory accounts by the two

detectives who testified, however.

   Detective Fuhrman testified that the vehicle was parked "in

a very haphazard manner," with the tires turned into the curb."

(R.T. 7/36-37)  Crime scene photographs taken from front, rear

and both sides of the car established that this testimony was

patently false.   (Exhibits F1-4, R.T. 8/10-11)  Furhman

testified he immediately inspected the vehicle with a flashlight

and found the stain above the driver's door handle.   (R.T. 7/37)

He also testified he found "three or four little lines, red-

stained lines" at the lower seam of the door.   (R.T. 7/37)  This

second stain was apparently observed by no one else, was

remembered by no one else, and was not photographed or preserved

for analysis.  (R.T. 8/97, 9/87)  He testified that after he

observed the "stain," he looked in the interior of the vehicle

and saw a package addressed in handwriting to O.J. Simpson, a

shovel, and what appeared to be heavy-gauge plastic.   (R.T.

7/39)

   According to Detective Vannatter, both he and Fuhrman first

looked in the rear of the Bronco, and he saw a package addressed

to Orenthal Productions, which he knew to be Mr. O.J. Simpson's

first name.   (R.T. 8/39)  He asked Fuhrman to run a Department

of Motor Vehicle check, and then returned to the other

detectives at the gate.  He was then directed back to the Ford

Bronco when Fuhrman told him he saw what he believed to be blood

on the car.   (R.T. 8/41)  Detective Vannatter testified he "did

not recall" seeing any other stains on the door.   (R.T. 8/97)

   Both Detectives Vannatter and Fuhrman could offer no factor

other than the color of the stain for their conciusion that it

was blood.   (R.T. 7/78-79, 8/97)  A criminalist did not examine

the single stain until sometime between 7:10 A.M. and 10:10

A.M., applying a presumptive test that did not exclude the

possibility of blood, but could not confirm whether it was human

blood or animal blood.   (R.T. 9/81-87)

   In an attempt to impeach the credibility of Detective

Vannatter, which was erroneously excluded, the defense offered


the affidavit for a search warrant sworn to at 10:45 that

morning in which he falsely stated that:

"Detectives observed what appeared to be human blood, later

confirmed by scientific investigation personnel to be human

blood on the driver's door handle of the vehicle."

(Exhibit H, R.T. 22-24)

After the observation of the suspected blood spot, a

decision was made to "go over the wall."  (R.T. 8/45)  Detective

Fuhrman climbed over the 5 1/2-foot wall, unhinged the Ashford

Street gate and opened it to admit the other detectives.  All

four proceeded to the front door of the premises and knocked.

Receiving no answer, they went to the rear of the premises to

the guest rooms bordering the swimming pool.   (R.T. 8/46-47)

They went to the first guest room and awoke Brian "Kato"

Kaelin, a long-term house guest of Mr. Simpson.  They asked

where Mr. Simpson was, and Kaelin informed them he was in

Chicago.  They expressed no concern about any injured persons on

the premises, and were told that Mr. Simpson's daughter,

Arnelle, was in an adjoining guest room.  (R.T. 9/35, 37).

Leaving Detective Fuhrman with Kaelin, the other three

detectives awoke Arnelle Simpson at 5:30 A.M.  She told them she

could get in touch with her father, and led them into the house

through the front door to place a telephone call.   (R.T. 9/61-

62)  She placed a telephone call to Cathy Randa, her father's

administrative assistant, and Ms. Randa provided the officers

with the telephone number of the hotel in Chicago where O.J.

Simpson was staying on a business trip planned two months in

advance.  Both Arnelle Simpson and Cathy Randa confirmed that

this telephone call was made at 5:45 A.M.   (R.T. 9/64, 75)

Within five minutes after this call, Ms. Randa received a

telephone call from Mr. Simpson.  (R.T. 9/76)  Arnelle Simpson

also explained to the officers that the maid had weekends off,

that she and Kato were the only persons on the premises, and

made arrangements to retrieve the Simpson children from the West

L.A. police station.   (R.T. 9/65-66)  Thus, within one hour of

their arrival, the detectives had accomplished all of the

ostensible purposes of their visit to Mr. Simpson's home.

   Again, the court rejected admission of the search warrant

affidavit to challenge the credibility of Detective Vannatter.

Less than five hours after learning of the planned business

nature of Mr. Simpson's trip to Chicago, Detective Vannatter

swore under oath in an attempt to mislead the magistrate issuing

a search warrant that "Simpson had left on an unexpected flight

to Chicago during the early morning hours of June 13, 1994."

(Exhibit H, R.T. 9/28-29)

   C.   Investigative activity at 360 N. Rockinqham

   Police remained in full control of the premises at 360 N.

Rockingham from the time of their entry at 5:30 A.M. throughout

the entire day on Monday, June 13, 1994.  From the outset, they

engaged in investigative activity such as interviewing persons

on the premises about events related to the homicides at 875 S.

Bundy, and searching for and seizing evidence.

   Significantly, Detective Vannatter summoned a criminalist

to the Rockingham premises at 5:30 A.M., before entry was even

made.   (R.T. 9/81)  His explanation for that call was a

particularly revealing one:

    "I requested a criminalist to respond to my location,

    knowing that regardless of what I had there, whether I had

    another scene, someone injured or whatever, there was going

    to have to be collection of evidence.  So I requested a

   criminalist respond to my location."

(R.T. 8/45)

   The criminalist arrived at 7:10 A.M. and remained on the

premises for three hours identifying, testing, photographing and

seizing evidence before even going to the scene of the homicide

itself.   (R.T. 9/82)

   After the detectives awoke Mr. Kaelin, they entered his

room, searched his closet, and scrutinized his clothing and

shoes for bloodstains, examining the pattern in an effort to

match the bloody footprints at the Bundy crime scene.   (R.T.

9/36, 7/96)  They asked him who drove the Bronco, the current

location of the keys to the Bronco, and interrogated him in

great detail about the activities of himself and O.J. Simpson

the evening before.  (R.T. 9/38, 48)

   Arnelle Simpson was asked if an officer could take an

envelope containing a bill addressed to her.  (R.T. 9/68)  The

driveway was closely inspected to look for blood drops.   (R.T.

8/60-61)

   The alleged discovery of a leather glove matching a glove

seen at the Bundy premises was a direct result of the

investigative activity of the detectives.  The glove was

allegedly found by Detective Fuhrman on a narrow passageway

where the house backed up against a tall fence, strewn with

debris and overgrown with vegetation.  (Exhibits 9A-D, R.T.

7/52-54)  The area is accessible only through a gate next to the

garage, inside the enclosed premises of the Simpson home.  The

only reason for Detective Fuhrman to venture into this largely

inaccessible part of the premises was to do follow-up

investigation to his interrogation of Mr. Kaelin, who told him

of hearing a loud banging noise in that area at approximately

10:45 P.M. the night before.  (R.T. 7/48)

   The suggestion that Detective Fuhrman was "looking for the

body of a possible victim" is simply creative and transparent

fiction.   (R.T. 7/101)  At no time did any officers suggest to

Mr. Kaelin that they had any concerns about a suicide or murder

occurring on the Rockingham premises, or that there were any

injured persons on the premises.  (R.T. 9/35)  Nor were any such

concerns ever expressed to Arnelle Simpson (R.T. 9/64)  Mr.

Kaelin had spent the entire night in his room without hearing

any noises or unusual sounds after what he thought was an

"earthquake" eight hours earlier.  (R.T. 9/56)  No attempt was

even made to question Arnelle Simpson about any unusual events

the night before, even though her room adjoined Mr. Kaelin's.

(R.T. 9/64)  Nor was any effort made to check out the area by

simply opening the window in Kaelin's adjoining bathroom.   (R.T.

9/39-40)

   In any event, the information obtained from Mr. Kaelin and

the follow-up search of the passageway behind the house came

well after the initial purpose of the entry had been

accomplished.  The evidence is consistent and undisputed that

the call was placed to notify Mr. Simpson at 5:45 A.M., and

Arnelle Simpson immediately initiated steps to retrieve the

children.  Detective Fuhrman's own estimate of the time he

discovered the glove was between 6:15 and 6:30 A.M.   (R.T.

7/105-106, 8/18)  Detective Vannatter testified that he saw the

glove and observed blood droplets in the driveway around 6:45

A.M.  (R.T. 8/62), and later added that no more than 30 minutes

elapsed between his observation of the glove and blood drops and

his decision to secure the premises and seek a search warrant at

7:30 P.M.   (R.T. 8/66-67)

   Both Arnelle Simpson and Brian Kaelin were informed at

approximately 7:30 A.M. that they would have to leave the

premises of their home.  Kaelin was told to wait out on the

street for officers to take him to a police station for an

interview (R.T. 9/39), and Arnelle Simpson was simply asked to

leave the premises. (R.T. 9/66)

   After instructing the criminalist regarding the protection,

marking and photographing of physical evidence, Detective

Vannatter left the premises to seek a search warrant, which was

not issued until 10:45 A.M.

   Once again, the defense was precluded from challenging

Detective Vannatter's credibility by showing that, in the sworn

affidavit for the search warrant, he made no reference

whatsoever to any emergency or exigent circumstances at the

Simpson premises, relating only that the glove was observed

"during the securing of the residence," and falsely stating that

the glove was "containing human blood."  (Exhibit: H, R.T. 9/22)

   D.   Evidence connecting the defendant O.J. Simpson with

the crime.

    There is, of course, no dispute that a double homicide

occurred on the premises at 875 S. Bundy on the evening of

Sunday, June 12, 1994.   The question is whether there is

probable cause to believe that the defendant O.J. Simpson

perpetrated the crime.  In order to find probable cause,

sufficient evidence to support the probability of the following

factual scenario proposed by the prosecution would be required:

    1.   That the victims were both killed by a single

assailant, between 10:00 P.M. and 11:00 P.M. on

Sunday, June 12, and that assailant was Mr. Simpson.

    2.   That Mr. Simpson went from the premises at 875 S.

Bundy to his home at 360 N. Rockingham in time to

respond to an airport limousine pick-up at 10:56 P.M.

    3.   That Mr. Simpson dropped or deposited a glove worn at

the murder-scene on a narrow passageway behind his

home.

   The evidence presented at the preliminary hearing fell

woefully short of establishing the probability of any of these

three propositions.

   1.   The "single assailant" theory is highly improbable in

terms of the nature of the wounds inflicted and the positions of

the victims' bodies.  Both victims were found in close proximity

to each other at the entrance gate to the home.   (R.T. 8/32)

The coroner identified four separate stab wounds to the neck of

Nicole Brown Simpson, and three cutting wounds to the scalp, all

antemortem.   (R.T. 12/62, 70)  He identified two wounds to the

neck, five to the face, three stab wounds in the torso, and

numerous other smaller wounds on the scalp of Ronald Goldman,

all antemortem.   (R.T. 12/81-87)  He testified that there were

"two morphologically different types of stab wounds on the

victims," and that two knives could have produced the injuries

on both of the victims.   (R.T. 13/24-25)  It is highly

improbable that all of these wounds could have been inflicted by

a single assailant on two different victims without an outcry or

attempt to escape.

   No greater precision to fix the time of death within an

approximate range of two hours was presented.  Based upon

gastric contents of the victims' stomachs, body temperature

determinations and rigor mortis determinations, the coroner

offered a range of 9:00 P.M. to midnight as the time of death of

Nicole Brown Simpson.   (R.T. 13/16)  Mr. Goldman was observed

leaving the restaurant where he was employed at 9:50 P.M.   (R.T.

4/11)  He was wearing black pants, a white shirt and black shirt

when he left the premises.  (R.T. 4/17)  His body when found at

the scene was clothed in Levi jeans, a long-sleeved shirt or

sweater and canvas boots.  (R.T. 12/73)  Apparently he walked to

his apartment and changed clothes before proceeding on foot to

the Bundy address.  (R.T. 4/17)

   The bodies were not discovered until after midnight by a

couple who were led to the premises by a dog.  (R.T. 4/79)

   The only attempt to place Mr. Simpson at the scene of the

homicides was through the testimony of a serologist who analyzed

a single drop of blood which was removed from the walkway

leading to the rear of the Bundy premises, 86 feet west of the

west curb of Bundy and 1 foot 10 inches north of the north wall.

(Exhibit 19, Photo I.D.114; R.T. 11/53, 76)  There was no

attempt to show the age of this blood drop, or to link it with

any other blood at the scene except by its proximity.  In fact,

this particular blood drop varied from the others in its

apparent color.   (R.T. 11/77)  The criminalist described

variations in color as the only indication of the age of a

bloodstain, and testified one is generally unable to determine

whether stains are placed or dropped at the same time.   (R.T.

11/67)

   Since this stain was found in a location where Mr. Simpson

would be a frequent visitor (the home of his ex-wife and two of

his children), the inability to date the drop or associate it

with other evidence at the premises is critical.

   In any event, the serological analysis of this single drop

of blood was far from conclusive.  The serologist testified that

he tested it for blood type, enzyme group and PGM subtype.  The

results were indicative of Type A blood, ESD Type 1 and PGM

subtype 2+2-.   (R.T. 12/5, 8, 9)  Testing of the defendant and

the victims produced the following results:

               Blood Type       ESD      PGM

    Nicole Brown Simpson A               1        1+

    Ronald Goldman O                     1        2+1+

    O.J. Simpson A                       1        2+2-

Based on these results, he testified that Nicole Brown Simpson

and Ronald Goldman could be excluded as the source of the blood

drop, but O.J. Simpson could not.  (R.T. 12/9)

   On cross-examlnation, he conceded that this conclusion

assumes that the blood drop is not a mixture of the blood of two

individuals, and that if it were, his results could also be

consistent with a mixture of the blood of Nicole Brown Simpson

and a fourth person with Type O blood and a 2+2- PGM subtype.

(R.T. 12/34)  This, of course, would exclude the defendant as a

potential source.

   With respect to a random match probability, the serologist

used computations of the frequency of each of these three

characteristics based upon an internal compilation of crime lab

results, rather than a random sample of the population as a

whole.  (R.T. 12/13)  Using a frequency of 33.7% for Type A,

79.6% for ESD Type 1, and 1.6% for PGM subtype 2+2-, he simply

multiplied the factors to produce a frequency of .43% for the

combination of these three factors.   (R.T. 12/16-17)  An

objection that there was no foundational showing that these

three factors are independent was overruled.  (R.T. 12/10, 19)

   Even accepting this computation, however, it simply shows

that the probability that a person selected at random would

match the identified factors in the blood drop was 1 in 200, or

1 in 100 if the drop was a mixture.  In the City of Los Angeles,

that means 40,000 to 80,000 persons could produce blood with

identical markers.  (R.T. 12/35-36)

   2.   The attempt to prove that Mr. Simpson went from the

premises at 875 S. Bundy to his home at 360 N. Rockingham was

nothing less than leaping to conclusions by the police coupled

with sleight of hand by the prosecutor.  Detective Vannatter's

testimony regarding the stain on the door of the Bronco on the

Motion to Suppress was incorporated as part of the record for

the preliminary hearing.  (R.T. 10/89)  The only analysis of

that stain presented at the preliminary hearing was the result

of a presumptive test administered at the scene by criminalist

Dennis Fung.   (R.T. 11/37)  The presumptive test was indicative

of blood, without the ability to distinguish animal blood from

human blood.  The presumptive test will also produce false

positives on a number of vegetable substances frequently found

in fast food ingredients.  (R.T. 11/64-65)  No attempt was made

to link this stain with the blood of Mr. Simpson or either of

the victims of the homicide at 875 S. Bundy.

   The prosecutorial sleight of hand involved the

transformation of a witness' testimony that he didn't notice

whether a car was there or not on two occasions lnto testimony

that it was not there on the first occasion and it was there on

the second occasion.  Limousine driver Allan Park, who picked up

Mr. Simpson the night of June 12 to transport him to the

airport, testified that when he arrived at the premises at 10:25

P.M., he "didn't notice" any white Ford Bronco parked on

Rockingham.  (R.T. 6/15)  He similarly testified that when he

left the premises with Mr. Simpson in the back of the limousine,

he "didn't look to see" if there were any cars parked in front

of the house on Rockingham.   (R.T. 6/40)  In her summation, the

prosecutor asserted that "when Allan Park drove down to the

Rockingham gate at about 10:40, the Ford Bronco was not there."

(R.T. 13/40)  There is simply no evidence to support that

assertion.

   The selective nature of this device can also be noted.  Mr.

Park also testified that he "didn't notice" any injuries to Mr.

Simpson's hands as they were packing up the limousine and

getting ready to leave for the airport.   (R.T. 6/41)  If his

testimony that he "didn't notice" the Bronco justifies a

conclusion it wasn't there, then his testimony he "didn't

notice" injuries to Mr. Simpson's hands would justify a

conclusion that Mr. Simpson's hands were not injured at the time

he left for Chicago on the evening of June 12.

   3.   The key item of evidence by which the prosecution

attempted to link Mr. Simpson to the scene of the homicide was

visual match between two gloves, one found at the foot of Ronald

Goldman, and one allegedly found or. the debris-strewn passageway

at the rear of Mr. Simpson's home.  It must be noted at the

outset that the glove at Mr. Simpson's home was the fruit of an

unlawful entry and an illegal warrantless search.  Thus, it

cannot be considered as evidence justifying a finding of

probable cause.

   Even if it is deemed admissible evidence, however, its

probative value is greatly diminished by its incongruity with

any rational theory of the prosecution's case.  The criminalist

suggested that the presence of five "blood drops" on the

driveway at 360 N. Rockingham revealed a "trail" from the Bronco

to the front door of Mr. Simpson's home.   (R.T. 11/41-43)  Once

again, the only test results presented with respect to these

drops was the presumptive test that does not distinguish animal

from human blood and presents false positives for various

vegetable substances.  But even if they are assumed to be human

blood, the "trail" does not lead to the rear passageway where

the glove was found.  In fact, no footprints or "blood drops"

were found leading to the glove or anywhere in its vicinity.

(R.T. 11/70)

    Even weaker is the attempt to link the glove in any way to

Mr. Simpson.  No blood tests of the glove were offered other

than the same inconclusive presumptive test.  (R.T. 11/68-69)

Apart from its presence behind his home, in an area where

numerous persons besides himself would have access, there is no

explanation of how it got there or who or what deposited it.

E.   Evidence of malice aforethouqht

   If the prosecution theory of Mr. Simpson's guilt is

accepted, it requires acceptance of a scenario that is

completely inconsistent with a planned killing.  The testimony

of Brian "Kato" Kaelin establishes that on Sunday evening, Mr.

Simpson attended a dance recital for his daughter at which he

saw his former wife Nicole, returned to his home around 7:00

P.M., seemed tired and relaxed, and went out for a hamburger

with Kaelin from 9:10 P.M. until approximately 9:40 or 9:45 P.M.

(R.T. 6/86-94, 99-101)  All of the witnesses to the movements of

Ronald Goldman confirm that he had no plans to even be at the

home of Nicole Brown Simpson until he received a telephone call

from her at approximately 9:35 P.M.   (R.T. 4/10, 16)  Not one

shred of evidence supports even an inference that Mr. Simpson

went to Nicole Simpson's house that evening with "malice

aforethought."

   While the prosecution did present evidence that Mr. Simpson

purchased a collectable knife on May 3, 1994 (R.T. 2/44-45, 66-

71), the coroner was unwilling to offer a definitive opinion

that the knife was consistent with the wounds inflicted in the

absence of detailed measurements of the blade.   (R.T. 12/100)

Nothing but the wildest speculation links the purchase of the

knife with the murders of Nicole Brown Simpson and Ronald

Goldman.

III. ARGUMENT

A.   The Magistrate Erroneously Excluded the Search Warrant

Affidavit from Evidence.

At the conclusion of the testimony of Detective Vannatter,

counsel for the defendant offered, as Exhibit H, the affidavit

he signed to apply for a search warrant on the morning of

Monday, June 13, 1994.  The prosecutor voiced a strenuous

objection on the grounds of lack of foundation and relevancy.

(R.T. 9/19-20)  The court sustained the objection on the grounds

the affidavit was hearsay.  (R.T. 9/21)  Detective Vannatter was

then recalled and acknowledged that he was the affiant.   (R.T.

9/22-23)  He acknowledged stating that scientific investigation

personnel confirmed there was human blood on the driver's door

handle of the Bronco, but when asked when he was so informed, an

objection was sustained.  The Court then ruled:

"I'm not going to go into the -- what I agree with the

prosecution would amount to a traversal of the search

warrant since the prosecution has indicated that they are

in fact not going to offer any of the evidence that was

recovered after its execution."  (R.T. 9/28)

Thereafter, a single question was permitted, and the

detective admitted stating in the affidavit that "Simpson had

left on an unexpected flight to Chicago during the early morning

hours of June 13th . . ."  (R.T. 9/29)  The Court later

reiterated its ruling that the search warrant affidavit itself

was inadmissible.

The exclusion of the affidavit was clearly erroneous and

highly prejudicial.  The affidavit fell within the exception to

the hearsay rule spelled out in Section 1235 of the California

Evidence Code:

"Evidence of a statement made by a witness is not made

inadmissible by the hearsay rule if the statement is

inconsistent with his testimony at the hearing and is

offered in compliance with Section 770."

Not only was the affidavit admissible to impeach the credibility

of Detective Vannatter, but it was admissible by virtue of

Section 1235 as evidence of the matters stated.  The fact that

the detective described the discovery of the glove as occurring

"in securing the premises" rather than in an exigent search for

victims was crucial substantive evidence that this earlier

version of what happened was the true version, and should be

given greater credence than the version created in response to

the defendant's motion to suppress.

The offer of the affidavit was in full compliance with

Section 770 of the Evidence Code, since it was offered while

Detective Vannatter was still available, and had not been

excused from giving further testimony in the act:on.  Section

770 provides:

"Unless the interests of justice otherwise require,

extrinsic evidence of a statement made by a witness that is

inconsistent with any part of his testimony at the hearing

shall be excluded unless:

(a)  The witness was so examined while testifying as to

give him an opportunity to explain or to deny the

statement; or

(b)  The witness has not been excused from giving further

testimony in the action."

The disjunctive nature of these requirements was intended to

give counsel a tactical option.  As the comment of the Law

Revision Commission explains:

"Permitting a witness to explain or deny an alleged

inconsistent statement is desirable, but there is no

compelling reason to provide the opportunity for

explanation before the inconsistent statement is introduced

in evidence.  Accordingly, unless the interests of justice

otherwise require, Section 770 permits the judge to exclude

evidence of an inconsistent statement only if the witness

during his examination was not given an opportunity to

explain or deny the statement and he has been

unconditionally excused and is not subject to being

recalled as a witness.  Among other things, Section 770

will permit more effective cross-examination and

impeachment of several collusive witnesses, since there

need be no disclosure of prior inconsistency before all

such witnesses have been examined."

The exclusion of the affidavit deprived the defendant of

compelling evidence that the detective in charge of this

investigation was willing to make false and misleading

statements and conceal material facts in order to persuade a

judge to issue a search warrant for the defendant's home.  What

more relevant evidence could be presented to challenge the

credibility of his testimony on a motion to suppress, where the

reasonableness of his warrantless search of the same premises

was at issue?

    Of even greater consequence, however, was the exclusion of

material evidence that the crucial discovery of a glove on the

defendant's premises did not occur during an emergency search

for victims, but "during the securing of the residence."

Detective Vannatter testified at the hearing that he made a

decision to secure the residence after the discovery of the

glove.   (R.T. 8/66-67)

    B.   The Court Must Reassess the Factual Findinqs After

     Considering the Erroneously Excluded Search Warrant

Affidavit.         

    The ruling of  the magistrate excluding the search warrant

affidavit in this case is closely analogous to the situation

presented in Tharp v.. Superior Court (1984) 154 Cal. App. 3d

215.  There, a defendant filed a motion to traverse and quash a

search warrant prior to his preliminary hearing.  At the hearing

on the motion, the magistrate precluded questioning regarding

omissions of information about the credibility of an informant.

The motion to suppress was denied, and the defendant was held to

answer.  In the Superior Court on defendant's motion to set the

information aside under Penal Code Section 995, the Superior

Court concluded that the restrictions on his right to cross-

examine on the motion to suppress denied a substantial right.

The Superior Court then resorted to the procedures outlined in

Penal Code Section 995a(b), which allows a remand to the

committing magistrate to correct "minor errors of omission."

    On appeal, the Court held that a remand was not appropriate

in these circumstances and directed the Superior Court to rule

on the motion to set aside the information:

"The magistrate's erroneous evidentiary ruling was the

direct result of the prosecutor's attempt to limit inquiry

into the affiant's knowledge regarding the informant's

background.  The prosecutor, for reasons we are not privy

to, purposely objected to the admission of relevant

information.  The magistrate in turn excluded the evidence.

Without question, the error was the result of volitional

decisions, unequivocal in nature.  Since the error does not

satisfy the 'of omission' requirement of Section 995a,

subdivision (b), a remand to the committing magistrate is

therefore not authorized."

154 Cal.App.3d at 220.

Thus, this Court is left to reassess the factual findings

made by the magistrate, after duly considering the erroneously

excluded search warrant affidavit.

C.   The Warrantless Entry to Mr. Simpson's Home Was Not

Justified by Exigent Circumstances.

The ruling of the magistrate that the warrantless entry to

Mr. Simpson's home was justified by exigent circumstances

extended the doctrine of exigency beyond any previous reported

decision.  It subjects the protections of one's home embodied in

the Fourth Amendment to the mere post-hoc recitation of

benevolent motives by police officers, avoiding the requirement

that a neutral magistrate review their determinations of

probable cause before a search warrant is issued.

The horrific visions of hostages, kidnap victims and

unattended bleeding bodies conjured up by the officers in

response to the defendant's motion to suppress can only be

described as a "fanciful attempt to rationalize silence into a

justification for [his] warrantless entry."  People v. Smith

(1972) 7 Cal.3d 282 287.  As the Court noted in People v.

Dickson (1983) 144 Cal.App.3d 1046, 1063:

"The risk 'exigent circumstances' will be used as a pretext

is especially grave when officers have some suspicion,

short of probable cause, that criminal activity is under

way on the premises they intend to invade.  This is not to

say an officer's motives must be completely pure when he

enters with the avowed purpose of protecting life and

property.  Clearly when an officer hears gunfire and

screams of pain inside a house he may rush in with an

investigator's curiosity as well as the savior's desire to

save lives.  But where mixed motives are possible the

courts must be alert the savior's image is not merely

pretence for an unconstitutional invasion of a suspect's

private home.

    "Without entering the policeman's head, we can never

be certain whether he was thinking as a savior or an

investigator.  However, where as here the 'exigent

circumstances' rest on a claimed imminent threat of danger

to life and property, we hold the court is entitled to ask

at least two questions.  First, the objective test:  was

the threat so imminent and serious a reasonable policeman

would believe that a warrantless, emergency entry was

necessary to save lives and property?  And, second, the

subjective test:  was this officer indeed motivated

primarily by a desire to save lives and property?"

Without discounting the risk of pretext noted by Dickson, the

California Supreme Court clarified the standard to be applied in

People v. Duncan (1986) 42 C'al. 3d 91, 104, emphasizing that the

conduct of the officers should speak more loudly than their

subjective beliefs:

    "In Dickson, the court divided the question whether

exigent circumstances exist into two separate inquiries:

whether the officer's primary motivation was to save lives

and property, and whether a reasonable police officer would

have found the threat so imminent and serious that a

warrantless entry was necessary.   (144 Cal.App.3d at p.

1063).  On the other hand, the court in Peol-le v. Baird

supra, 168 Cal.App.3d 237 244, declared:  'while we agree

that both subjective and objective criteria must be

examined in any motion to suppress, we disagree with the

Dickson court's formulation and application of the

subjective test.  In particular, we object to the court's

requirement that the officer's Primary motivation must be

determined, and question its apparent holding that it is

the appellate court which must determine what the officer

believed.'   (Italics in original.)  We agree with Baird.

    "It is unreasonable to expect an officer to be

unconcerned with the collection of evidence and the capture

of criminals.  While the trial court must find that the

officer believed an emergency to exist, reasonable actions

taken by the officer should not preclude such a finding.

For example, in Stegman the officer waited for a backup

unit before entering the defendants' property.  As the

court stated,  '[p]ersons in the process of manufacturing

illicit drugs may reasonably be expected to be armed and

willing to use arms to prevent apprehension.  An officer is

not required to rush blindly into a potential illicit drug

laboratory and possibly encounter armed individuals

guarding the enterprise, with no regard for his own safety

just to show his good faith belief the situation is

emergent.'   (164 Cal.App.3d at pp. 945-946.)

    "On the other hand, if the officers act in a manner

inconsistent with a motive to preserve life or property,

the warrantless entry or search cannot be justified after

the fact by employing the exigent circumstances doctrine."

Here, of course, the subsequent conduct of the officers

belied their motive to "save lives".  The only concern they

expressed to the occupants they roused from their beds was the

immediate location of O.J. Simpson.  The investigation they

immediately pursued was to locate evidence linking Mr. Simpson

to the crime scene they had just left.  They commandeered full

authority and control over the premises for nearly six hours

before obtaining a search warrant, detaining all lawful

occupants and ultimately evicting them from their own home.

But regardless of what might be said about the true motives

of the officers, the objective reasonableness of the conclusions

to which they leaped based upon the silence they encountered and

the tiny speck of red stain they observed on a car door is where

the ruling of the magistrate wreaks the greatest mischief. All

of the rationalizations offered by the officers are identical to

the traditional rationalizations offered in a case of "hot

pursuit" of a fleeing felon.  The link suggested from the speck

of blood on the door was that the perpetrator of the homicide on

Bundy Drive had come to the Rockingham residence.  As Prosecutor

Marcia Clark put it, in her summation to the magistrate:

"The bloody shoe prints leaving that crime scene with

blood drops alongside them were to the left of those   shoe

prints.  That shows us that the killer was injured

somewhere on his left side.  The blood on the driver's door

handle of the Ford Bronco would logically be

opened with the left hand, and it's no coincidence that we

just happen to find the blood spot on the driver's

door handle."  (R.T. 13/39)

The problem, of course, is that this dramatic discovery is

made at least five and one-half hours after the homicides

occurred, and two miles away from the scene.  No court would

ever call that "hot pursuit".  Cold pursuit cannot be

transformed to hot pursuit simply by the overheated imaginations

of laggard detectives.

The linchpin of every case finding "exigent circumstances"

for warrantless entries following a homicide is temporal and

physical proximity to the actual scene of a reported crime.

This, in fact, is the most notable feature of the case the

magistrate found most analogous, People v. Cain (1989) 216

Cal.App.3d 366.  There, the victim of an attempted rape which

occurred at 4 a.m. immediately called the police.  They

immediately responded.  They heard music coming from the

apartment next door, heard the television playing and saw lights

on.  "At this point in time it was probably 4:15 to 4:30 A.M."

216 Cal.App.3d at 372.  After three or four minutes knocking,

they entered the unlocked door and immediately encountered the

defendant, drunk and asleep in the middle of the floor, wearing

bloodstained clothing.  The only thing the officers seized was

the defendant himself.  While the magistrate may have found the

early morning hours and the lack of a response to knocking were

analogous to this case, in actuality her ruling in this case

extends  Cain from the apartment next door to an enclosed

private residence two miles away, and from an entry 15-30

minutes after the commission of a crime to an entry five and a

half hours after the discovery of a crime scene.  On this

record, the prosecution simply failed to meet the heavy burden

of justifying a presumptively unreasonable warrantless entry to

a private residence.

As the Supreme Court concludes in Coolidge v. New

Hampshire, 403 U.S. 443, 454-55 (1971):

'...'searches conducted outside the judicia, process,

without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment-subject only to a

few specifically established and well-delineated

exceptions.'  The exceptions are 'jealously and carefully

drawn,' and there must be 'a showing by those who seek

exemption...that the exigencies of the situation made that

course imperative.  (T)he burden is on those seeking the

exemption to show the need for it.

D.   Illegal Investigative Activity was Permitted to Continue

After the Alleqed Benevolent Purpose of the Entry Had Been

Accomplished.

The officers claimed to be motivated by their concern for

Mr. Simpson's safety, the need to assure themselves that

additional victims in need of aid were not on the premises, and

the need to arrange for the care of Mr. Simpson's children.

Realistically, these concerns required a 20 minute visit to the

premises. In actual fact, they were accomplished in 30 minutes.

Within a half-hour after their entry at 5:30 a.m., the officers

had personally spoken to Mr. Simpson to notify him of his ex-

wifes' death and arrange his immediate return, they had roused

everyone in the guest rooms and learned that the house was

secure and protected by an alarm system, and they had set in

motion arrangements by Arnelle Simpson to retrieve the children.

The evidence is not in dispute that all investigative and

evidentiary discoveries ensued after the ostensible purpose of

the entry had been accomplished.

The constitutional limitations on the scope of police

activity after an entry justified by exigent circumstances is

well stated by La Fave, Search and Seizure: A Treatise on the

Fourth Amendment, Vol. 2, Sect. 6.6(a), pp. 705-06 (2nd Ed. 1987):

"Once it is determined that the suspicion which led to the

entry is without substance, the officers must be carefully

limited to achieving the objective which ju~tified the

entry -- the officer may do no more than is reasonably

necessary to ascertain whether someone is in need of

assistance and to provide that assistance."

The cases illustrating this limitation include some that

are quite analogous to the conduct of the officers in this case.

In United States v. Preslar, 610 F.2d 1206 (4th Cir. 1979), the

court upheld a warrantless entry to the defendant's apartment in

response to concerns for his safety reported by his landlady.

She informed police she had not seen him for some time, and

detected an unusual odor emanating from his apartment.  The

police entered without a warrant, and found defendant lying

immobile on a bed, covered with blood he had apparently vomited.

Evidence of the discharge of firearms was also apparent.  An

ambulance was called, and defendant was taken to a hospital.

But the officer remained, searching the apartment for weapons.

Although the Court found the entry was justified by exigent

circumstances, it invalidated the search on the grounds the

exigency ended when the defendant was taken to a hospital.

The Preslar court concluded that a contrary ruling would

undermine the rejection of a "murder scene" exception to the

Fourth Amendment by Mincey v. Arizona, 437 U.S. 385 (1978).

Even where police are called to the scene of an ~ctual homicide,

they are not entitled to commandeer the premises without a

warrant and engage in a general search for evidence.  ThomPson

v. Louisiana, 469 U.S. 17 (1984).  In People v. Timms, 179

Cal.App.3d 86, 92, the Court concluded:

"Under Thompson and Mincey it is clear that once the police
were summoned to appellant's premises because of a homicide
they could make a prompt warrantless search of the premises
to see if there were any other victims or suspects on the
premises, but emergency calls do not imply consent to
unlimited warrantless searches."

In State v. Cota, 675 P.2d 1101 (Or. App. 1984), the Court

assumed that the entry to the home occupied by a drug suspect

they had just arrested was justified by concern for a small

child they observed in the house.  They asked the child where

his father was, and the child let them to another room in the

house where they encountered Mr. Killmon.  The Court held that,

even if the entry was lawful, the officers should have left

after they encountered Killmon:

"Once he had been found, there was no 'practical necessity'

(citation omitted) for any officer to go farther into the

house. The contraband that is the subject of this case was

discovered after Killmon was located and after the

officer's only other legitimate purpose at or in the house

- the arrest of the defendant - had already occurred.  The

evidence should have been suppressed."  675 P.2d at 1103-

04.

E.   The "Plain View" Doctrine Did Not Permit Warrantless

Seizure and Analysis of Minute Stains.

While police officers who are lawfully in a position to

observe contraband or evidence of a crime are ordinarily

permitted to seize it without a warrant, this doctrine of "plain

view" has never been extended to permit the scrutiny or

inspection of pavement within the curtilage of a home to

identify bloodstains or any other minute particles of evidence.

Even if it were conceded (and it is not) that the police

were entitled to make a cursory inspection of the premises at

Mr. Simpson's house to look for bleeding victims, the absence of

such persons from the pavement on his driveway would have been

immediately obvious even to the nearsighted Mr. Magoo.


  The minute stains identified by the officers in this case,

who waited for daylight to look for them, required the kind of

scrutiny that can only be characterized as a search for

evidence.  While it was aided by sunlight, it was not aided by

search warrant.

     The subsequent activity of a criminalist in swatching and

testing these stains over a three hour period before the

issuance of a search warrant is even more egregious.  Even if it

were concluded the stains were in "plain view" that does not

mean warrantless "field testing" is automatically permissible.

As the U.S. Supreme Court declared in United States v. Jacobsen,

466 U.S. 109, 124-125 (1984):

    ". . . A seizure lawful at its inception can nevertheless

vlolate the Fourth Amendment because its manner of

execution unreasonably infringes possessory interests

protected by the Fourth Amendment's prohibition on

'unreasonable seizures'.  Here, the field test did affect

respondent's possessory interests protected by the

amendment, since by destroying a quantity of the powder it

converted what had been only a temporary deprivation of

possessory interests into a permanent one.  To assess the

reasonableness of this conduct, 'we must balance the nature

and quality of the intrusion on the individual's Fourth

Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.'

In Jacobsen, the Court struck the balance in favor of the

government because of the contraband nature of the substance

tested and the de minimis impact of a drug field test.  Accord,

People v. Leiqhty (1988) 205 Cal.App. 3rd 922.  The testing of

blood stains, of course raises concerns of a whole different

order.  Blood is not contraband, and its analysis can reveal

highly private information.  Cf. Schmerber v. California, 384

U.S. 757 (1966); Skinner v. Railway Labor Executives Ass'n., 489

U.S. 602 (1989).  The destruction or loss of a portion of the

sample can have a significant impact on fragile and

irreplaceable exculpatory evidence.

F.   There Was Not Sufficient Evidence to Find Probable Cause

that O.J. Simpson Was the Perpetrator of the Crimes

Charged.

The prosecution posited the presence of O.J. Simpson at the

scene of this double homicide upon the serological analysis of

single bloodstain. Even if this bloodstain were given the

greatest evidentiary value it could assume, it would not achieve

the value of a fingerprint.  The serologist conceded as much.

(R.T. 12/28-29)

    The analogy is an important one, because even the presence

of a fingerprint of the defendant at the house of his former

wife and children would not provide probable cause to hold him

to answer for the crime of murder. In that respect, the case is

analogous to Birt v. SuPerior Court (1973) 34 Ca:.App.3d 934,

where the Court held the defendant's fingerprint on a cigarette

lighter in a van being utilized to commit a burglary was

insufficient to hold her to answer.

"At most, the presence of petitioner's fingerprint on the

lighter found on the front seat showed that, at some

unknown time and place, she had been inside the van; but

there was no direct or circumstantial evidence to indicate

when and where that had been.  Only by guesswork,

speculation, or conjecture can it be inferred that

petitioner was inside the van, or in the area, at the time

of the McNutt burglary.   (citations omitted;.  If probable

cause is shown by the evidence at bench, we can only assume

that the People could have charged any highway patrolman

whose fingerprints might be found on the window sill of the

van, or the lessor and any prior lessee whose fingerprints

might be inside the vehicle.  The manifest injustice which

lies in such assumptions likewise characterizes the

singling out of petitioner for prosecution."  34 Cal.App.3d

at 937.

G.   There Was Not Sufficient Evidence To Find Probable Cause

That the Homicides Were Committed With "Malice

Aforethought."

Probable cause must be established for each element of the

crime charged, including the element of intent.  Garabedian v.

Superior Court (1963) 59 Cal.2d 124.

     The defendant has been held to answer on a charge of

murder, defined by Penal Code Section 187 as the unlawful

killing of a human being "with malice aforethought."  California

Penal Code Section 188 defines malice:

"Such malice may be express or implied.  It is express when

there is manifested a deliberate intention unlawfully to

take away the life of a fellow creature. It is implied when

no considerable provocation appears, or when the

circumstances show an abandoned and malignant heart."


     In the absence of probable cause of mailce, the defendant

could ony be convicted of the elsser offense of manslaughter,

California Penal Code Section 192. But an information must be

set aside if there is a total absence of evidence to support a

necessary element of the crime charged. Sommers v. Superior

Court (1973) 32 Cal. App. 3d 961.

     In People v. Caffero (1989) 207 Cal. App. 3d 678 the court

upheld the dismissal of an information charging murder, even

though the evidence showed the defendants caused the death of

the victim by neglect, because "the evidence will not support

the inference defendants acted with conscious or wanton

disregard for human life and thus with malice aforethought."

207 Cal. App.3d at 686.
                 



