In last week’s post, we explored how the 1994 investigation into OJ Simpson offered an excellent real-world example of how the exigent circumstances doctrine worked in the first moments of a high-profile homicide investigation.
This week, in my fourth post of this series, we explore how the issuance of two search warrants for the home of John Wayne Gacy broke open the investigation into one of our country’s most horrific and notorious serial killers. Specifically, the second of those two warrants led to the discovery of twenty-seven teenage corpses in the crawl space under Gacy’s house and two more under his garage and driveway. As you will read in this post, however, the probable cause supporting those warrants was, at best, questionable. But no appellate court in the country would, on this evidence, be interested in overturning Gacy’s convictions—despite the strong merits of what became the core of his appellate clams. Collectively, the investigation of Gacy’s home provides an extraordinary opportunity for students to learn and apply the probable standard through a real-world investigation.
A primer on probable cause
Recall the two core Fourth Amendment clauses: the warrant clause and the reasonableness clause. Although there is some dispute about the interrelationship between the two clauses, what is not in dispute is that the textual term “probable cause” is at the heart of the Fourth Amendment. Probable cause is the quantum of suspicion generally necessary to support law enforcement acquiring a warrant, executing an arrest, or searching/seizing property. In its well-known decision of Illinois v. Gates, 462 U.S. 213, 238 (1983), the Supreme Court described the probable cause standard as follows:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Interestingly, the Court has never quantified probable cause. Rather, the Court has called it a “fluid concept” that is “incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.” Accordingly, probable cause is a standard less demanding than proof beyond a reasonable doubt that roughly translates into “a reasonable ground for belief of guilt,” where more than a “bare suspicion” of guilt is necessary.
The Court has been careful to emphasize that probable cause is an objective concept. As such, a reviewing court does not consider whether an officer believed that probable cause did or did not exist at the time of an investigative action. That said, courts have shown a willingness to consider some of an officer’s subjective attributes when determining the existence of probable cause in certain cases. For example, courts often consider an officer’s particular knowledge or expertise, personal experience patrolling a particular area, and/or the number of years the officer has served.
Particular officer characteristics aside, law enforcement may demonstrate the existence of probable cause through two types of information. First, and most basically, an officer might rely on their own direct information—such as personal observation. Second, an officer might learn information from an informant—hearsay information—that establishes probable cause to take a particular investigative action. An officer may permissibly rely on hearsay information if, as Gates makes clear, the informant is reasonably trustworthy.
Bringing the foregoing concepts together, probable cause justifies three—and only three—categories of investigative activity—search, arrest, and seizure. First, in order to have probable cause to search, police must have reliable information to reasonably believe that contraband is located at the place and time of the search. Second, probable cause to arrest (a seizure of a person), requires that police have reliable information to reasonably believe that the person to be arrested has committed, is committing, or is about to commit a crime. Finally, probable cause to seize property exists when officers have reliable information to reasonably believe that the property to be seized was involved in a crime.
How then does all of this work practically? In short, the officer walking the beat will make an on-the-spot determination, based either on personal experience or hearsay information, that probable cause to arrest, search, or seize property exists. Alternatively, the officer may elect to obtain a warrant by filling out a warrant form and an accompanying affidavit, wherein the officer will lay out why probable cause exists to support a search or seizure.
The Rise & Fall of John Wayne Gacy
Gacy’s background
John Wayne Gacy, one of America’s most prolific and notorious serial killers, was a man of many faces—literally. There is much to be said about Gacy’s background but, in the interest of brevity, I’ll cover just the salient points. Before beginning, I commend this book to readers who would like to learn more about Gacy.
Born March 17, 1942, in Chicago, Illinois, Gacy was one of three children parented by an abusive and alcoholic father. In 1972, Gacy’s second wife, Carole Hoff, and her two daughters moved into Gacy’s home at 8213 West Summerdale Avenue—the very home where many of his murders would take place. Between 1973 and 1978, Gacy would start his own construction business, known as Painting, Decorating and Maintenance (“PDM”) Contractors, and become a well-known community leader.
Gacy’s community work helped mask a much darker side of his life. In 1972, Gacy killed his first victim, Jack McCoy, and buried him in the crawl space of his home under a layer of concrete. To search for prospective victims, Gacy began hiring a number of teenaged boys to work for his construction company. He also identified victims through his membership in the “Jolly Joker” clown club. As part of that membership, Gacy would dress up as a circus clown and perform at various fundraising events and parades. He would also visit hospitalized children.
By late 1975, Gacy and Hoff began to drift apart. Hoff filed for divorce and moved out of Gacy’s home. After finalizing his second divorce, Gacy became a horrifically prolific killer. Between 1976 and the time of his arrest in 1978, Gacy killed twenty-three teenage boys and buried them in the crawl space under his house. By 1978, Gacy had remarkably filled his crawl space with the corpses of his teenage victims—despite stacking bodies as many as three high. With no more room left in his crawl space, Gacy began dumping bodies along the Des Plains River.
The disappearance of Robert Piest
Gacy finally made a mistake late in 1978. On the afternoon of December 11th, Gacy visited Nisson’s pharmacy in Des Plaines, Illinois, to discuss a potential remodeling project with the store’s owner, Phil Torf. In earshot of this discussion was a fifteen-year-old employee of Nisson’s named Robert Piest. Piest overheard Gacy mentioning that PDM Contractors frequently hired teenage boys at a starting salary of $5 per hour—almost double the salary Piest earned at the pharmacy. After Gacy left the store, Piest told his mother that “some contractor wants to talk to me about a job” and that he would return shortly. Piest was never seen alive again.
When Piest failed to return to the store, his family filed a missing person’s report with the Des Plaines Police Department. During the investigation, Torf revealed that Gacy was most likely the contractor Piest had left the store to speak with. Gacy denied talking to Piest about any job and promised to come to the police station and give a full, written statement about their conversation. When Gacy arrived at the station later that day, he was suspiciously covered in mud, claiming he had just been involved in a car accident.
Search Warrant 1
Convinced Gacy was behind Piest’s disappearance, Des Plaines police officers obtained a search warrant for Gacy’s residence on December 13th. During the execution of that warrant, investigators quickly noticed a rancid odor coming from the crawl space of the home. But the smell was attributed to a faulty sewage line and was not pursued further.
Yet that initial search of Gacy’s home would ultimately uncover vital clues and lead investigators to suspect that Piest may be but one in a number of suspicious disappearances in which Gacy was involved. The search, for example, turned up a 1975 high school class ring engraved with the initials J.A.S., several driver’s licenses of unknown teenage boys, handcuffs, books on homosexuality and pederasty, clothing too small for Gacy, a pistol, and a receipt from the pharmacy where Piest worked. During a review of the items seized from Gacy’s home, investigators realized that the class ring bearing the J.A.S. initials belonged to John Szyc, a young teenager who had disappeared a year earlier. Investigators elected to assign a two-man surveillance team to follow Gacy while police continued their investigation.
Search Warrant 2
On December 14th, just a day after executing the initial search warrant for Gacy’s home, investigators received a phone call from a PDM employee and former roommate of Gacy’s named Michael Rossi. Rossi suggested that Gacy might be involved in a number of other suspicious disappearances, including that of a former PDM employee named Charles Hattula, who was found drowned the previous year. Detectives also learned of a battery charge pending against Gacy, in which the complainant reported that Gacy lured him into Gacy’s car, chloroformed and raped him, and then dumped him in Lincoln Park, Chicago, with severe chest and facial burns as well as rectal bleeding.
By December 18th, the Des Plaines Police Department was closing in on Gacy. Police had traced the serial number of the receipt found during the search of Gacy’s home to a young woman named Kim Byers, a co-worker of Piest’s at Nisson’s Pharmacy. Byers revealed that she had placed the receipt in a jacket she loaned to Piest on the day of his disappearance. Additionally, Michael Rossi gave a second statement to police in which he told investigators that in the summer of 1977, Gacy instructed Rossi to spread ten bags of lime in the crawl space of his home. Another former roommate of Gacy’s, David Cram, also revealed that Gacy asked him to spread lime in the crawl space and dig trenches roughly the size of human graves. Armed with these new revelations, investigators began to compile evidence for a second search warrant of Gacy’s home—this time to include the crawl space.
On December 21, 1978, as investigators were preparing the second search warrant, Gacy began acting erratically. After leaving his lawyer’s office early that morning, Gacy drove to a local Shell Station where he handed the young gas attendant a small bag of marijuana, stating, “The end is coming [for me].” The attendant immediately handed the marijuana over to the surveillance officers. Throughout that morning, Gacy drove to friends and co-workers’ homes, hugging them and, in some cases, confessing to the rape and murder of over thirty young boys. Fearing that Gacy would commit suicide before he could be arrested for murder, officers made the decision to arrest Gacy for distributing marijuana to the young gas attendant. That same evening, Judge Marvin Peters signed a search warrant to search Gacy’s crawl space.
Armed with that second search warrant, police and evidence technicians drove to Gacy’s home to search his crawl space. Upon arrival, however, officers found that Gacy had unplugged his sump pump, causing his crawl space to flood. After draining the crawl space, evidence technician Daniel Genty entered and began digging. Within minutes, Genty discovered the partial remains of a human arm and yelled out to detectives that they could arrest Gacy for murder.
Authorities eventually discovered the remains of twenty-seven corpses in the crawl space underneath Gacy’s house, in addition to two more underneath his garage and driveway. It would take more than a month for authorities to dig up the bodies found on Gacy’s property.
How does the investigation into Gacy benefit students in the classroom?
Gacy was convicted in 1980 of committing thirty-three murders and sentenced to death. On appeal, he raised a number of issues, including that the December 13 and 21 warrants lacked probable cause. Let me offer just a handful of probable cause-related discussion points related to the two search warrants. Before doing so, let me also encourage you to share this podcast episode with your students. It includes a fascinating interview with the attorney who prosecuted Gacy. In it, he admits that whether probable cause actually existed to support the two search warrants was indeed questionable.
Probable cause for the December 13 search warrant
Gacy asserted on appeal that no probable cause existed to support issuance of the December 13 search warrant. That warrant relied on four major pieces of information to support the state’s assertion that probable cause existed to search Gacy’s home for evidence of unlawful restraint. First, Kim Byers, Piest’s co-worker, told Detective Kozenzak that Piest approached her and said, “Come watch the register, that contractor guy wants to talk to me, I’ll be right back.” Second, Piest’s mother, Elizabeth, told Detective Kozenzak that when she arrived at Nissen’s to pick up Piest from work, he asked if she would “wait a few minutes while he spoke to a subject about a summer construction job.” Third, Gacy’s recent presence at the pharmacy. As Detective Kozenzak recounted in the first warrant , “[o]n the date in question John W. Gacy was observed in the store at 1920 Touhy Ave. on two different occasions.” Finally, the first search warrant highlighted Gacy’s prior criminal record, noting that Gacy “was arrested and convicted in Waterloo, Iowa in 1968 for Sodomy and sentenced to 10 yrs. in prison. The Sodomy arrest involved 15 and 16 year-old youths.”
Gacy made a handful of core arguments about why the warrant lacked probable cause. First, he contended that it failed to connect Gacy to “that contractor guy.” Second, he asserted that Kozenzak did not clarify how he knew Gacy was at Nissen’s on two occasions on December 11. Third, he argued that the facts as provided in the search warrant “would not lead a reasonable person to conclude that a crime had been committed.” Specifically, he said, “[t]he described activities were innocent activities which had to be presumed to be innocence for the purpose of establishing probable cause.” Finally, Gacy claimed that the search warrant failed to provide “any factual assertions that evidence of the unlawful restraint would be found in [his] residence or vehicles.”
The state responded by, in short, imploring the appellate court to read the warrant “as a whole.” After all, said the state, “[t]he question is not whether the affidavit is a masterpiece of writing, the question is whether taken as a whole it supplies probable cause when read in a common sense and realistic fashion.”
On a basic level, I ask students whether probable cause existed to believe that evidence of “unlawful restraint” would be present at Gacy’s home on December 13. Doing so provides an opportunity to make two important points. First, as a practical matter, the Supreme Court’s decision in Gates was not published at the time of the December 13 warrant, but it was out by the time the Illinois Supreme Court considered Gacy’s case. In fact, the Gacy Court cited to Gates in evaluating the presence of probable cause. That certainly seems wrong because a different—and stricter—probable cause standard governed the December 13 warrant at the time it was issued by Detective Kozenczak. How then could the prosecution get the benefit of a lighter standard that was not even in existence at the time Gacy was investigated? What could Gacy’s appellate team have done to ensure that the December 13 warrant was scrutinized by the stricter Aguilar-Spinelli standard? The answer I give students is that appellate counsel for Gacy should have requested from the appellate court, at the time Gates came out, the opportunity to separately brief and address the relevance of Gates to Gacy’s case. Practically speaking, I hope students appreciate just how important it is for them to monitor whether any case decided during their representation of a client may impact an upcoming trial or appeal.
As for the second point, I want students to question whether there was probable cause to support searching Gacy’s home for unlawful restraint on December 13. Certainly, there was reason to talk to Gacy and ask for him to come to the station, but a search warrant for his home for evidence of unlawful restraint seems an entirely separate matter—particularly under the Aguilar-Spinelli standard.
Probable cause for the December 21 search warrant
Gacy also argued on appeal that probable cause did not exist to support the December 21 search warrant of his crawl space. The affidavit in support of that second warrant, also authored by Detective Kozenzak, included the following language:
On December 21, 1978 I had occasion to speak to Officer Robert Schultz, Star #215 of the Des Plaines police department. Officer Shultz has been a Des Plaines police officer for the past eight and one-half years. He told me that on Tuesday, December 19, 1978 at 7:30 p.m., he was at the John Gacy residence at 8213 W. Summerdale, Norridge, Ill. on surveillance assignment. At that time, John Gacy approached Officer Schultz’s police vehicle and asked him if he would like to enter his residence. Officer Schultz responded in the affirmative and entered the Gacy residence via the kitchen entrance with Mr. Gacy. Once inside Officer Schultz immediately detected an odor similar to that of a putrified human body. Officer Schultz further indicated that during his tenure as a Des Plaines police officer, he had smelled the odor of at least forty (40) putrified human bodies, and that the odor he detected in the Gacy residence smelled similar to the odor of putrified bodies he has smelled in the past.
Gacy argued on appeal, as it related to the December 21 warrant, that there were “no facts demonstrating that Schultz had been trained in detecting particular odors.” Gacy added: “Evidence that Schultz, in fact, lacked the ability to differentiate the odor of a putrified human body from the odor of other decaying objects is reflected in his two day delay in bringing his discovery to the attention of his supervisors.” In response, the state argued that “an experienced officer detecting the odor of decaying human flesh in the house where there was valid reason to believe Robert Piest had been was more than sufficient, standing alone, to show probable cause and to convince a reasonably prudent man that the issuance of a search warrant was proper.”
A few questions emerge from Gacy’s arguments. To begin, I ask students in pointed fashion whether they agree with the state’s argument that an experienced officer can establish probable cause to search when he or she smells the odor of decaying human flesh. Here’s my take: The state is right. Although the Supreme Court has consistently said the probable cause inquiry is an “objective” one, it has nonetheless considered an officer’s specialized experience as part of that calculus. To my mind, then, an officer who has experience with the smell of death would absolutely count in favor of probable cause to search the home.
I then transition the conversation to what the class makes of the delay between warrants. In particular, I want to know whether they agree with Gacy that Schultz’s delay in telling his superiors about the smell in Gacy’s home alters the probable cause analysis. As they consider that question, I remind the class that officers had already been in Gacy’s home during execution of the first search warrant, yet no one reported a peculiar odor. This is a good argument for Gacy. One would think that an officer who is concerned about whether Piest is still alive and smells decaying flesh inside the prime suspect’s home would not wait to report that to his superiors. Viewed from that perspective, Schultz’s delay very much hurts the state’s probable cause argument, particularly when considered alongside the fact that no one else reported smelling an odor of death during the December 13 search.
Next, I ask whether Schultz was an “informant” for Gates purposes? That is, given that Detective Kozenzak is relying on hearsay information (what Schultz told him), must the magistrate evaluate Schultz’s “veracity” and “basis of knowledge”? The answer is yes. For purposes of Gates, students should evaluate Schultz as a known informant who has provided hearsay information, which triggers both an evaluation of his veracity and basis of knowledge.
Finally, I point out to students that the December 21 warrant relied, in part, on items found during the December 13 warrant. That bootstrapping approach to generate probable cause is worth mentioning to students. That is, to mention that investigators relied on items found from search #1 of a home to justify search #2. But a basic question arises: should officers be permitted to re-enter a suspect’s home based on evidence they already seized? After all, they seized both the receipt and the class ring following search #1 so should that information support probable cause for a subsequent search? To be fair, other evidence of Gacy’s culpability existed by that point, but the brief discussion makes the point: Something independent from the evidence seized during the earlier search is likely needed to generate the probable cause necessary to justify a follow-up search of Gacy’s home.
Looking ahead
I’ll be back next week with thoughts on teaching the exclusionary rule through the case of Alex Levin and Operation “Pacifier”—the largest hacking operation in U.S. history.
Great series, Brian.
Posted by: Steve L. | October 22, 2019 at 03:10 PM