Exigent Circumstances

The house of every one is to him as his castle and fortress, as well for his defense against injury and violence as for his repose.
~Sir Edward Coke
Semayne’s Case” (1604)

One of the fundamental freedoms Americans enjoy is the right to be secure in our homes, free from unreasonable (i.e., warrantless) searches by the government. This Fourth Amendment right has taken a few hits lately in the this post-9/11 era, but the idea of the cops simply walking into someone’s home to have a look around if they suspect him or her of complicity in a crime is still something most Americans can’t stomach.
 
It makes for great entertainment drama when a judge tosses out some evidence from an unlawful search and allows a killer to go free, but what happened in Texas in 1994 to the people who worked to bring Richard Brimage, Jr. to justice for the violent murder of Mary Beth Kunkel wasn’t just compelling television.
 
In reality, for a while it appeared that prosecutors weren’t going to be able to use Mary Beth’s nearly nude, hog-tied body that was found in a car in Brimage’s garage as evidence that he had kidnapped, assaulted and murdered her.
 
In 1987, Mary Beth Kunkel, 19, attended Texas A&I University in Kingsville, Texas. She was a former high school homecoming queen who was dating a guy who worked at a nearby Lockheed plant. Through her boyfriend, Mary Beth had met Richard Brimage, Jr., a 31-year-old worker at the plant.
 
Brimage was a drug addict ne’er-do-well who was living with his parents near the A&I campus having been released in January 1987 after serving a little more than 2 years for a forgery conviction. He had been sentenced to five years with a suspended sentence for signing his parents’ names to checks to feed his drug habit. Brimage could not stay clean while on probation and in 1985 he was ordered to serve the remainder of his sentence in prison.
 
It was October 1987 when Brimage called Mary Beth’s home and identified himself to her mother as “George,” a co-worker of Mary Beth’s boyfriend. When she got on the phone, Brimage told Mary Beth that he had some drafting tools for her boyfriend and asked if she could come over and pick them up. Brimage didn’t really want to give her drafting tools as a gift for her boyfriend. His motive was much more base.
 
“I wanted her sexually real bad and that is why I lured her to my house,” he would later confess.
 
Mary Beth wasn’t the first woman Brimage had tricked this way. The first time he tried the ruse, however, he apparently lost his nerve.
 
On September 21, 1987, two weeks before the murder, Brimage invited a friend of his sister’s to the house on the pretense of surprising his sister, who he claimed had just returned from a trip. Once the she was inside the house, Brimage told her his sister was in another room. As she turned toward that room, Brimage hit her over the head, knocked her to the ground and jumped on top of her.
 
The stunned woman said later that “something snapped” and Brimage got off her and apologized profusely, begging her not to tell the police. She filed a police report, however, and while the attack wasn’t enough to prompt an arrest, it would lead police almost directly to Mary Beth’s killer and contribute somewhat to the problem that arose from the search of the Brimage home.
 
When Mary Beth arrived at the house, Brimage was not alone. His parents had left on an extended vacation, but Leo Molina, Brimage’s drug dealer and friend was there, waiting in the master bedroom of the home.
 
Mary Beth came inside and was looking at the tools while Richard stood behind her. He lunged for her, grabbed her by the shoulders and began dragging her to the bedroom, where Molina was waiting.
 
“She struggled and started screaming and I forced her into the master bedroom,” Brimage confessed. “She continued screaming and I kept hitting her and choking her… We wrestled for a while and when she would not stop screaming, I finally choked her with my hands. I wasn’t sure she was dead, so I started to tie her up so she would not struggle anymore.”
 
Although Mary Beth was found semi-nude and Brimage’s confession overtly refers to the sexual nature of the attack, the medical examiner was not able to state whether or she had been raped.
 
The struggle that led to her death probably was brief, the coroner said, lasting no more that a few minutes. He said that he found no physical evidence of sexual assault, but that did not rule out an assault, and he opined that “the sexual nature of the crime was obvious because of the positioning of the body and the way the body was tied up with the legs spread and the feet tied back underneath the body with the body arched to expose the genital area.”
 
Regardless of whether or not a physical rape occurred, Brimage and Molina treated her as a sexual object, which only adds depraved to senseless and violent as adjective choices to describe Mary Beth’s murder.
 
“Leo, I remember was trying to feel up her shorts and touch her between her legs,” Brimage wrote in his confession. “After I was certain she was dead, tied up, I took off her shorts, so I could admire her body.”
 
Later that day, October 5, 1987, Mary Beth’s boyfriend found her car parked on the Texas A&I campus, not far from Brimage’s house. Her purse was in the car. He became alarmed, and by October 6, police had opened a missing persons investigation to find Mary Beth.
 
Within 24 hours Brimage emerged as the main suspect of the investigation. The circumstantial evidence was compelling.

  • Mary Beth’s car was found near his home.
  • Mary Beth had last been seen turning down the street where Brimage lived.
  • Brimage did not show up for work on the day Mary Beth disappeared
  • Brimage had been named as a suspect in an earlier assault of a woman at his home
  • Most importantly, perhaps, Brimage was also missing.

Captain George Gomez of the Kingsville Police Department contacted an attorney who was a relative of Brimage. He told the man that he had reason to suspect Brimage in Mary Beth’s disappearance, and asked for permission to search Brimage’s residence. The attorney stated he would try to contact Brimage’s parents, but that he did not have authority to give consent to a search of the residence.
 
Later that day, as a result of the publicity the case was getting, Gomez was summoned to an area motel where Brimage had stayed the previous night. He apparently had fled and left behind his suitcase.
 
At Brimage’s trial, Gomez testified to what he found: “a pair of scissors, a piece of red knit material that had been cut and appeared to have been cut with the scissors that were in the suitcase because the edges had red lint on them, and long strands of hair and some other – and – and the red piece of cloth had what appeared to be a dried bloodstain on it, sir.”
 
He correctly deduced that the items were connected to Mary Beth’s disappearance.
 
Gomez returned to the police station and met with the attorney/relative of Brimage’s and with District Court Judge Max Bennett, Brimage’s uncle.
 
Judge Bennett would later testify as to what happened next.
 
“Mr. Gomez, we’re here on a matter to bring something to your attention,” the judge told the policeman. “I have just broken into the Brimage house. There has been a disturbance there, and I think you ought to go over there.”
 
The group then proceeded to Brimage’s residence. Judge Bennett let them in the house and a search commenced.
 
The master bedroom was littered with clothing and other items. There was a sheet covering the window even though it was already screened by both drapes and blinds. Part of the bottom of the window was broken. Some of the clothing was cut up and there were several bloodstains around the room. A pair of green shorts were found on the floor, along with a cut up bra, in plain view near the laundry basket.
 
Gomez then proceeded to the garage, which was attached to the house and had room for two cars. A yellow Cadillac was parked in the garage. As Gomez approached the car, he saw what appeared to be bloodstains on the left rear quarter panel and smelled “the odor of something that was dead.” He opened the trunk and observed Mary Beth’s body, with much of her clothing cut away.
 
Less than 48 hours had elapsed between the time the police had been notified of Mary Beth’s disappearance and discovery of her body.
 
Gomez later testified that Mary Beth’s wrists were bound, her legs were bent back behind her and tied to her elbows with shoelaces, and there was a ligature around her throat. He also testified there was something jammed down her throat and there were remnants of a red blouse on her.
 
Over the course of two days, police examined the crime scene, but no search warrant was obtained prior to these searches and as a result, Richard Brimage almost got away with murder.
 
Gomez testified that he did not ask Bennett whether he had authority to consent to a search of the Brimage residence, nor did he ask Bennett to sign a consent-to-search form.
 
Bennett testified that he did not have permission to enter the house himself, much less grant consent for a police search. He admitted that the Brimages “probably would have objected” to his breaking into the house, but that he “would have gone into the house whether they objected or not.”
 
Neither Gomez nor Bennett characterized the police search of the Brimage home as a response to an “emergency” situation. Gomez testified that he “assumed he was the elder brother of the family, or whatever, [and could] give me the right to go into that house.”
 
Gomez said that Bennett was clearly upset when they met at the police station but that the judge did not communicate just what had made him so upset. That lack of communication between Bennett and Gomez was what made the Texas appeals court wonder whether or not the search passed constitutional muster.
 
“I sensed that there was an extreme urgency to get in the house,” Gomez testified at a hearing on the admissibility of the evidence. “I had no idea what was in that house. I hadn’t anticipated what was in the house and he said, ‘You need to get in there.’ And there was an extreme sense of urgency in his voice conveyed to me, sir.”
 
Both Gomez and Bennett testified that they did not discuss securing a search warrant for the Brimage residence prior to the search of the house by the police. When asked whether he, as a district judge, was “concerned about entering a house on a search for evidence in a criminal case without a search warrant,” Bennett replied that he was not, explaining, “I was prepared to accept the consequences of doing something I thought was necessary….I was not concerned about those legal aspects at all. I was not functioning as a lawyer or as a judge.”
 
Brimage was arrested shortly after the search and gave police a written confession of his crime.
 
Leo Molina was also arrested and later agreed to plead guilty to murder and testify against Brimage. In return the prosecutor took the death penalty off the table. He was sentenced to 50 years.
 
Prior to Brimage’s trial, the court held a hearing on the admissability of the evidence seized as a result of the search. The court ruled that the search was good and that the jury should see the evidence. With the mountain of physical and circumstantial evidence pointing toward Brimage as the killer, the Texas jury did what Texas juries often do and convicted him and sentenced Brimage to death.
 
In 1994, the Texas Court of Appeals heard arguments in Brimage’s case and one could almost hear the collective slap of judges hitting their foreheads in disbelief when the facts surrounding the search were presented to them.
 
The judges were forced to hold their noses and rule that the trial court erred in allowing jurors to see the fruits of the search.

In order for the warrantless search of Brimage’s house to be justified under the apparent authority doctrine, the facts must show that the searching officers acted reasonably in relying on Bennett’s apparent authority to consent to its search. This was not the case. The circumstances surrounding Bennett’s alleged consent were such that no person could reasonably believe that he had the authority to give the consent necessary for the police to enter and search the Brimage home.

The court also rejected the idea that exigent circumstances would have allowed the police to enter the home without a warrant.
 
It is generally accepted that “the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.” This was not the case in this instance, the court found.

The State argues that the warrantless search of Brimage’s home is justified because the police believed that the missing girl might be in the house and that she might be injured or in need of assistance. The facts developed at the pre-trial hearing, however, do not bear this out. Quite to the contrary, the police characterized the search as “evidentiary” in nature. The decision to search the residence was arrived at almost casually, based entirely on the “consent” granted by Bennett. The police were not expecting to find a body at the house, much less an alive and injured victim in need of assistance.

The Texas Court of Appeals tossed the conviction and ordered a new trial for Brimage. The question of whether or not his confession and the other evidence provided by Leo Molina was still good was up in the air.
 
The State of Texas asked the Appeals Court to reconsider its decision, which it did. In 1996, the appellate court reversed course and admitted that it had used the wrong standard to judge whether or not the warrantless search was reasonable.
 
“We should have used an objective rather than subjective standard,” the court wrote in reinstating the conviction and sentence.
Silverman Bar Preparation gives a succinct definition of the two standards:

An objective perspective essentially means that the mindset of the individual is not important, but rather what is important is how a reasonable person would have acted under similar circumstances. In that respect, an objective standard is synonymous with the reasonable person standard. (In criminal law, you see this standard in self-defense when it is asked whether a reasonable person would have feared for his life…) A subjective perspective, on the other hand, takes into consideration the mindset of the individual, rather than asking how a reasonable person would have acted under similar circumstances.

The distinction did not interest Brimage, who apparently agreed with the court and ordered all appellate action on his behalf stopped.
 
In February 1997, 41-year-old Richard Brimage was put to death by lethal injection. His was the first in what would become a record-setting year for executions in the state of Texas.