City of St. Paul v. Stovall
| Decision Date | 16 January 1948 |
| Docket Number | No. 34432.,34432. |
| Parties | CITY OF ST. PAUL v. STOVALL. |
| Court | Minnesota Supreme Court |
Appeal from Municipal Court of St. Paul; John W. Finehout, Judge.
Marshall Stovall was convicted of possessing gambling devices in violation of a city ordinance, and he appeals.
Reversed.
John Edmund Burke and Edward K. Delaney, both of St. Paul, for appellant.
Bruce J. Broady, Corp. Counsel, and John J. McNeil, Asst. Corp. Counsel, both of St. Paul, for respondent.
Appeal from a judgment of conviction of the municipal court of St. Paul finding defendant guilty of possession of gambling devices in violation of an ordinance.
Defendant was arrested without a warrant on June 15, 1946, at his home in St. Paul. On June 17, 1946, a complaint was filed charging that he "did wrongfully, unlawfully, and wilfully have in his possession at 411 Rondo Avenue, gambling devices, to-wit, one dream book, a daily tally book, and 36 sheets of bets placed, known as `Policy,' in violation of the charter and ordinances of said City and against the peace and dignity of the state of Minnesota." The case was tried on January 3, 1947, before the court without a jury. Defendant was found guilty and ordered to pay a fine of $100 or, in default thereof, to serve 30 days in the workhouse.
The principal questions involved are:
(1) Did the court have jurisdiction, in view of the arrest of defendant without a warrant and after a search of his home without a search warrant, in a misdemeanor case?
(2) Was the evidence sufficient to establish that the city's exhibits constituted gambling devices as of June 15, 1946?
(3) Was the evidence sufficient to convict defendant of possession of gambling devices?
1. During the proceedings, defendant's counsel objected to the proceedings on the ground that the arrest was made without a warrant and that the evidence used in support of the complaint was obtained illegally. Upon appeal, defendant argued that the municipal court was without jurisdiction because the arrest was illegal. It is conceded that the arrest was made without a warrant. M.S.A. § 629.34, provides that a peace officer may, without a warrant, arrest a person for a public offense committed or attempted in his presence. Other instances where an arrest without a warrant is permitted relate to felonies and need not be considered here.
We cannot say that the facts here show the arrest to have been illegal. Two police officers went to the neighborhood of defendant's residence about 10 o'clock in the morning of June 15, 1946. They watched his house from a distance for about an hour and saw quite a few people—estimated at between 15 and 20—going into the house. About 1 o'clock that afternoon, policemen William C. Schmidt, who had observed the place in the morning, and George C. Failes were sent to defendant's house by their superior officer. Failes testified that when they knocked on the door and asked the woman who answered for the occupant of the first floor she called defendant, who let them in. Failes said that they "told him [defendant] what the complaint was" and that "He denied at that time that there was any policy writing in his place, invited us to look around." He further testified that defendant said, "We haven't done anything since you warned us the last time." Officer Schmidt, who was with him, testified to substantially the same effect. Both officers stated that after they got into the house defendant invited them to look around, and that while looking around in the dining room officer Failes found certain paraphernalia claimed to be gambling devices, hereinafter referred to as exhibits B, C, and D, in a writing desk. Defendant claimed that when the woman who answered the door called him the officers were coming into the hallway of his home. He said that they were in plain clothes and that he did not know who they were. With reference to the search made by the officers, defendant testified:
Defendant was taken to headquarters that day by the officers after they found the paraphernalia in the writing desk, and bail was posted.
Even where an arrest is illegal, the court before whom the defendant is brought for trial has jurisdiction to proceed in the case. In State v. Volk, 144 Minn. 223, 225, 174 N.W. 883, 884, Mr. Justice Holt quoted with approval Commonwealth v. Tay, 170 Mass. 192, 193, 48 N.E. 1086, where it was stated: "* * * If she [the defendant] was illegally arrested, she had her remedy by action for that wrong, and the illegal arrest did not prevent the court from acquiring jurisdiction to try the complaint."
In State v. Nugent, 108 Minn. 267, 121 N.W. 898, while the fact situation was not exactly the same as in the case at bar, it was held that the court had jurisdiction of the subject matter of the action and of the person of the defendant. There, the defendant was convicted in municipal court for violation of an ordinance of the city of Minneapolis prohibiting the sale of intoxicating liquor to minors. No warrant was issued for his arrest, but upon complaint being filed against him he voluntarily appeared in person and pleaded not guilty, and his trial proceeded without objection. See, also, State ex rel. Brown v. Fitzgerald, 51 Minn. 534, 53 N.W. 799.
While it is true in the instant case that defendant, through his counsel, made timely objection to the proceedings on the ground that the arrest was made without a warrant and that the evidence used in support of the complaint was obtained illegally, we believe that under the facts and circumstances of the case as they appear from the record there was no reversible error with reference to the jurisdiction of the court. Neither can we hold that the evidence used in support of the complaint was obtained illegally, since it appears from the record that defendant waived any rights which he might have had when he permitted the officers to enter his home and "look around" without a search warrant, as he admits himself that he did not try to stop them in any way. As stated in De Lapp v. United States, 8 Cir., 53 F.2d 627: "* * * It is well established that consent of the accused to a search of his premises operates as a waiver of the right to assert that the same was unreasonable, and under such circumstances there is no need of a search warrant." See, also, Waxman v. United States, 9 Cir., 12 F.2d 775; Schutte v. United States, 6 Cir., 21 F.2d 830; Poetter v. United States, 9 Cir., 31 F.2d 438. In State v. Siporen, 215 Minn. 438, 10 N.W.2d 353, it was held that evidence obtained by search and seizure was admissible even though the search was unlawful. To the same effect, see State v. Ryan, 156 Minn. 186, 194 N.W. 396; State v. Kaasa, 198 Minn. 181, 269 N.W. 365; State v. Denner, 159 Minn. 189, 198 N.W. 430; City of Mankato v. Grabowenski, 154 Minn. 265, 191 N.W. 603; State v. Sauer, 217 Minn. 591, 15 N.W 2d 17; State v. Rogne, 115 Minn. 204, 132 N.W. 5; State v. Pluth, 157 Minn. 145, 195 N.W. 789.
We do not approve or condone any laxity on the part of public officers in making arrests or searches without warrants when the facts and circumstances make it possible for them to be equipped with the proper legal documents. We recognize, however, as stated in State v. Olson, 115 Minn. 153, 155, 131 N.W. 1084, 1085, that
We believe that it is a major responsibility of the proper administrative authorities to establish procedures for the guidance of officers which will make it possible for them to procure and bring into court evidence obtained in a manner which does not offend constitutional limitations. The fact that evidence procured as the result of an illegal search may be admissible should not be used as justification for improper invasion of the privacy of a man's home.
2-3. Our most serious questions are whether the evidence was sufficient to establish that the city's exhibits constituted gambling devices as of June 15, 1946, and whether the evidence was sufficient to convict defendant of possession of gambling devices.
Ordinance No. 424 of the city of St. Paul, approved July 30, 1884, and amended by ordinance No. 1766, approved June 4, 1894, for the violation of which defendant was convicted, provides in part as follows:
A gambling...
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