The Case of the Denver Abortionist: Wolf v. Colorado

On April 25, 1944, the chief investigator for the Denver County District Attorney's office, Ray Humphreys, received an anonymous telephone call that a woman was in room 602 of the Cosmopolitan Hotel, seriously ill from the effects of an illegal abortion. Humphreys and another investigator with the district attorney's office went to the hotel and found Gertrude Martin, whom they immediately sent to the Denver General Hospital.

Under questioning, Ms. Martin admitted that she had had an abortion and revealed that her abortion had been induced by Dr. A. H. Montgomery, while Dr. Julius A. Wolf had cooperated in the abortion by examining her both before and after she had aborted. Both Montgomery and Wolf were arrested by the district attorney's office on the charge of conspiracy to perform a criminal abortion. Dr. Wolf practiced medicine at his office in the Republic Building in Denver and lived at the Cosmopolitan Hotel. A graduate of the University of Denver and the University of Colorado Medical School, he had been a resident of Denver for forty-three years and specialized in the treatment of women's diseases and obstetrics. Andrew Harrison Montgomery, on the other hand, was a chiropractor and druggist and had lived in Colorado for fifteen years.

When Julius Wolf was arrested on April 17, officials of the district attorney's office searched Wolf's office and seized a book on the table in the reception room and another book in a bookcase. These books were Dr. Wolf's daybooks for 1943 and 1944, in which he had listed his patients' names and the dates on which he had seen them. The officials who arrested Wolf had neither a warrant for his arrest nor a warrant to search his office.

Ray Humphreys reported to the press that the investigation was "going ahead full blast, with new angles being developed on the basis of information gleaned from an examination of records seized in the raids." The investigation consisted of contacting Wolf's female patients and questioning them regarding their visits to Wolf's office. By this process, six women admitted to the authorities that Wolf had aided them in securing abortions and that Charles H. and Betty Fulton had also been involved in the process, along with Wolf and Montgomery. The Fultons were also subsequently arrested on the charge of conspiracy to perform illegal abortions.

Julius Wolf was tried twice for conspiracy to perform criminal abortions during the spring and summer of 1944. His codefendant at the first trial was Andrew Montgomery, while Charles and Betty Fulton were his codefendants at the second trial. Wolf was convicted by juries at both trials and was sentenced to not less than one year nor more than eighteen months in the Colorado state prison on his first conviction and-to not less than fifteen months nor more than five years on the second conviction. Andrew Montgomery and the Fultons also were convicted and received prison sentences.

At both his trials, the principal evidence against Julius Wolf were his daybooks and the testimony of women patients whom he had aided in securing abortions. Wolf's attorney, Philip Hornbein, strenuously objected to the introduction of this evidence on the ground that it was the product of an unlawful search and seizure of Wolf's office. The district attorney, Hornbein therefore argued, "was absolutely without right to go into this doctor's private office without any warrant, without any order of court, and engage in a general raid, and take his private books, and then with those books, open them up and find out the names of the patients; this information which is privileged under the law, and go out and contact the patients to see whether any law had been violated." The defense was arguing, Hornbein said, "the straight proposition, the constitutional proposition, that here there was an unlawful seizure and violation of the . . . Constitution." The prosecution, he declared, had searched Wolf's office

without a warrant "and got that book from a doctor's office, a private doctor, looked at the book and found the patients, and went and checked those patients up to see what they had been suffering from. I say to this Court, in all seriousness, that is a proposition I do not believe will stand.""

The District Court for the City and County of Denver, however, overruled Hornbein's objections, and allowed Wolf's daybooks and the testimony to which they had led to be admitted as evidence. On the appeal of Wolf's convictions to the Colorado Supreme Court, Hornbein nonetheless renewed his argument that the search of Wolf's office had been illegal and that the evidence secured in that search should have been excluded at his trial. The Colorado Supreme Court, however, affirmed Wolf's convictions on November 24, 1947.

In Weeks v. United States, decided in 1914, the United States Supreme Court had held that evidence seized in searches by federal officers in violation of the Fourth Amendment's prohibition of unreasonable searches and seizures had to be excluded in federal criminal trials. The Weeks exclusionary rule, as well as the Fourth Amendment, however, did not apply to the states, and the Colorado Supreme Court had ruled in 1925 that evidence secured through searches and seizures in violation of the Colorado Constitution was still admissible in the state's courts. The only test of the admissibility of evidence, the court had held, was whether it was relevant, material, and competent, and not whether it was the product of an unlawful search and seizure.

The court therefore held in the Wolf case that even if the search of Wolf's office had been illegal, the evidence seized in that search was still admissible at his trial under the law of Colorado. If a case were ever to come before it that indicated its 1925 ruling upholding the admissibility of illegally seized evidence had produced an injustice, the court continued, "it will be time enough to consider alteration or modification of that rule. Certainly [Wolf is] in no position to contend that the law of Colorado which has stood for twenty years and been affirmed and reaffirmed by this tribunal and the decisions of sister states, should now be overturned or so modified that [he] may escape the toils in which [his] own felonious conduct has involved [him]."

The Colorado Supreme Court's decision in the Wolf case left unclear whether the search of Wolf's office had been an illegal search and seizure. Since the evidence seized in that search was admissible in Colorado courts whether the search was legal or illegal, this question was irrelevant as far as the court's ruling was concerned. Philip Hornbein had also argued on behalf of Wolf that the search of his office had violated his rights under the Fourth and Fifth Amendments of the federal Constitution, but the Colorado Supreme Court did not address this question either. Hornbein nevertheless appealed the Wolf case to the United States Supreme Court on the basis that the Fourth Amendment applied to the states via the Due Process Clause, and the Court agree to hear the case on April 26, 1948.