State v. Duren, 39058
| Decision Date | 23 August 1963 |
| Docket Number | No. 39058,39058 |
| Citation | 266 Minn. 335,123 N.W.2d 624 |
| Parties | STATE of Minnesota, Respondent, v. Robert F. DUREN, Relator. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. Under Minn.St. 629.37, a private citizen may arrest another without warrant for a misdemeanor committed in his presence; but after such arrest he must inform person arrested of reason therefor (§ 629.38) and thereafter deliver him promptly to a magistrate or police officer (§ 629.39). Where such requirements are complied with, it is immaterial that arrest was made by citizen at request of police officers who arrived after the misdemeanor had been committed.
2. In such an arrest, it is essential that acts constituting misdemeanor shall have been committed or attempted within presence of person making arrest. Where information with respect to offense is gained not from sensory perception of person making arrest but rather from knowledge imparted to him by another, arrest would be invalid. Principle is followed as safeguard against danger of depriving innocent person of freedom where only a misdemeanor is involved; rule does not apply with respect to felonies because of greater danger to public where felon is at large.
3. Where evidence disclosed that arrest for driving while intoxicated was made by arresting witness who later testified that at time of such arrest she had no knwledge of defendant's intoxication from her sensory perceptions, and admitted that all information with reference to such intoxication had been supplied her by police officers who had arrived at scene of accident after defendant had left his car, and there was nothing otherwise which revealed to arresting witness that defendant was intoxicated, Held such arrest invalid.
Schultz & Springer and Arnold E. Kempe, St. Paul, relator.
Donald L. Lais, City Atty., Theodore J. Collins and Daniel A. Klas, Asst. City Attys., St. Paul, for respondent.
Keith M. Stidd, City Atty. and Ronald H. Linman, Asst. City Atty., Minneapolis, amicus curiae.
Motion by the state to quash a writ of prohibition issued by this court on March 13, 1963, commanding the municipal court of the city of St. Paul, and the Honorable J. Clifford Janes, one of its judges, to refrain from proceeding herein until further order of this court; and to show cause why they should not be permanently restrained from proceeding herein.
The writ was issued upon a petition of defendant, Robert F. Duren, wherein he asserted that he had been unlawfully arrested and taken into custody by the police of St. Paul for the offense of driving a motor vehicle while under the influence of alcohol; and wherein he asserted that on February 15, 1963, he had appeared specially in the municipal court of St. Paul and objected to its jurisdiction to determine this action and moved for dismissal. Therein he set forth that with respect to the offense described no complaint had ever been signed by anyone and that no warrant for his arrest had ever been issued.
The record indicates that on February 10, 1963, at the intersection of Kellogg Boulevard and Summit Avenue in St. Paul, defendant was taken into custody by police officers of St. Paul pursuant to a 'CERTIFICATE AND DECLARATION OF ARREST BY PRIVATE PERSON AND DELIVERY OF PERSON SO ARRESTED TO PEACE OFFICER'
executed by Valdora Ellingson. This certificate was as
follows: 'CERTIFICATE AND DECLARATION OF ARREST BY
PRIVATE PERSON AND DELIVERY OF PERSON SO
ARRESTED TO PEACE OFFICER
'Date Feb. 10, 1963
'Time 0255
'Place Kellogg & Summit
'I Valdora Ellingson, hereby declare and certify that I have arrested
'(Name) Robert Francis Duren
'(Address) 857 Albion
'For the following reasons: Driving while under the influence of intoxicating beverages and I do hereby request and demand that you David Hubenette A PEACE OFFICER, take and conduct this person whom I have arrested to the nearest magistrate, to be dealt with according to law; * * * at which time I shall be present and I will, then and there, sign under oath, the appropriate complaint against this person for the offense which this person has committed, and for which I made this arrest; and I will then and there, or thereafter, as soon as this criminal action or cause can be heard, testify under oath of, and concerning the facts and circumstances involved herein. * * *
'Name of person (private party) making this arrest
'Valdora Ellingson
'Address 434 Herschel
'Peace Officer witness to this statement:
'David F. Hubenette 407
'Roy C. La Belle'
At about 2 a.m. that date Miss Ellingson was seated in a parked automobile on the east side of Kellogg Boulevard near Summit Avenue when an automobile driven by defendant turned off of Summit onto Kellogg and collided with the right side of the automobile in which she was seated. Thereafter she observed defendant leave his automobile and commence talking to a Mr. Holt, who had come out to the scene of the accident from his nearby residence. Five or ten minutes later, two St. Paul police officers--David F. Hubenette and Roy C. La Belle--arrived in a police car. At no time did defendant have any conversation with Miss Ellingson, who remained in her automobile, and she was unaware of the conversation which had taken place between defendant and the police officers. After the latter had arrived, defendant was instructed to get into their car and Miss Ellingson was requested to sign the CERTIFICATE AND DECLARATION OF ARREST above set forth, explaining to her that, since neither of them observed defendant while in the act of driving his automobile, they were not qualified to arrest him for driving it while intoxicated. Miss Ellingson thereupon signed the certificate described.
Defendant was not shown the form which Miss Ellingson signed, but thereafter was promptly taken by the police to the St. Paul Public Safety Building under arrest. He was advised by the police officers that he had been arrested upon suspicion of driving his automobile while under the influence of intoxicants. It was stipulated by the parties that defendant's arrest was a citizen's arrest by Miss Ellingson and not by the police officers and no complaint was ever signed and no warrant was ever issued herein.
The record discloses that the following testimony was taken at a hearing on the motion to dismiss:
'Q Did you (Valdora Ellingson) of your own vision see who was driving the car?
'A I just seen Mr. Duren come out of the driver's side of the car. I didn't actually see him drive.
'Q How long from the time of the collision until the police came would it have been?
'A Around five to ten minutes--not too long.
'Q Did you talk to Mr. Duren in that five or ten minute period?
'A No.
'Q You remained in your car?
'A Yes.
'Q And did you, when the police came, did you tell them you had arrested this individual?
'A No.
'Q * * * Did the police officers ask you to sign this?
'A Yes.
'Q You never talked to the defendant at all that night, did you?
'A No.
'Q You didn't walk over to him, touch him, or any contact whatever?
'A No.
'Q What did the police officers tell you when they asked you to sign this form?
'A He said that it appeared that he was intoxicated and he thought that I should sign the form, and the man he was with also told me that he was drunk and I should sign the form.
'Q You didn't see him actually, did you?
'A No, I didn't.
'Q You didn't know if he was or wasn't, is that correct?
'A Right.
'Q Is this then correct, that based on what the police officers told you and other people, but not on your own knowledge-- 'A Right.
'Q Did the defendant get in your car at any time?
'A No.
'Q Of your own knowledge just then you--repeat it to make it clear--you have no opinion one way or the other as to whether the defendant was intoxicated or not?
'A No.
'Q * * * What was the reason you signed this form?
'A They said since it was my car I should sign the form--it was my property.
'Q * * * When the cars collided, your car and the defendant's car, you didn't see him coming, did you?
'A I didn't see him coming, no.
'Q * * * Now, after the cars collided what, if anything, did you notice about the defendant's car?
'A Well, after he hit me he went over to the other side of the road--the right side--and he parked and he waited a while and then he got out and he come and looked over at my car, and at that time the fellow that I was with came out of the apartment and he came over and started talking to him.
'Q Now, the man you were with did not come out of the apartment until after the defendant had gotten out of his car, is that right?
'A Well, he saw him pull over to the other side and then he was just coming--
'Q Which side of the car did the defendant get out of?
'A The right--the driver's side, left side.
'Q Did you (Officer David F. Hubenette) have a conversation with him (defendant)?
'A Yes, we talked to him immediately.
'Q Well, could you tell us what that conversation was at that time?
'A We asked him if he had an accident and he stated he did.
'Q Did you ask him if he had been driving a car?
'A Yes.
'Q And what did he say?
'A he stated he had been.
'Q Did you notice anything about the demeanor of the defendant, Mr. Duren?
'A On our first arrival as he was standing in front of the squad car we could see that he was standing still and swaying, and also his eyes were very bloodshot.
'Q And what else did you notice about him?
'A Upon having conversation with Mr. Duren he, his breath smelled strongly of intoxicants and he had a slightly slurred speech.
'Q And then what did you do?
'A We examined the damage from both cars and I talked to Miss Ellingson.
'Q And where was this conversation with Miss Ellingson?
'A It was in her...
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