Neilson v. State

• Decision Date: 23 August 1979
• Docket Number: No. 5073,5073
• Citation: 599 P.2d 1326
• Parties: Roger A. NEILSON and John L. Pogliano, Appellants (Defendants below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1326

599 P.2d 1326

Roger A. NEILSON and John L. Pogliano, Appellants (Defendants below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 5073.

Supreme Court of Wyoming.

Aug. 23, 1979.

James H. Barrett of Trierweiler, Bayless, Barrett & McCartney, Cheyenne, for appellants.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., James W. Gusea, Asst. Atty. Gen., and Sandra K. Dunn, Legal Intern, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

Appellants-defendants were tried jointly, and both were found guilty by a jury of the crime of grand larceny in violation of § 6-7-301, W.S.1977. ¹ The amount stolen was $196.30. This appeal is from the judgment entered upon the verdicts.

Appellants contend that the trial court erred: (1) in denying appellants' pretrial motion to suppress as evidence certain items seized from an automobile and by allowing the subsequent introduction of these items into evidence at trial; (2) by instructing the jury relative to aiding and abetting the commission of a felony when such was not charged in the information; (3) by failing to instruct the jury as requested by appellants relative to the lesser included offense of petit larceny inasmuch as the stolen $196.30 was insufficient to provide $100.00 value for each appellant, and thus (according to appellants), at least one of them could not be guilty of grand larceny, and (still according to appellants) the jury should have been given the opportunity to so find or to find that each appellant stole less than $100.00; and (4) in denying appellants' motion for acquittal. Appellants also contend that the verdicts did not conform to the evidence and were not supported by it. This last contention and the contention relative to the denial of the motion for acquittal are predicated on the same reasoning as is the contention relative We affirm inasmuch as we do not find reversible error.

to failure to instruct on the lesser included offense.

In the early evening of September 19, 1978, Craig Robertson, an employee of the Ramada Inn in Laramie, encountered appellants in the first-floor hallway at the rear of the Ramada Inn building. They were then in the vicinity of a stairway and two soda vending machines. A third vending machine was located on the second floor near this stairway. A few seconds later, Robertson noticed appellants standing in the middle of the hall; and about five to eight minutes later, while walking in the back parking lot, he observed them leave by a back door of the building and enter a white over maroon Cadillac. One of them had one hand in the pocket of his coat with the other hand draped over the outside of the same pocket. There was a big bulge in that pocket. Robertson immediately reported his observations to the motel manager, Edward Agni.

Agni saw the Cadillac drive away from the Ramada Inn in the direction of the nearby Holiday Inn. He telephoned the Holiday Inn to alert its management that the drivers of the Cadillac were suspected of having stolen money from Ramada Inn's vending machines. He gave a description of the Cadillac. He then examined the vending machines on the first floor and found that they had been emptied of money. He verified the fact that the machines should have contained money by checking the motel records and by telephoning the local beverage dealer. He then called the police.

Officer Herderich was at the police station when the dispatcher received Agni's call. While Herderich and another police officer were proceeding to the Ramada Inn in response to the call, they received a radio message that the automobile in question had been at the Holiday Inn and was last seen heading south on Highway 287. Herderich drove south on Highway 287 and overtook a white over maroon Cadillac with Colorado license number SF 280 five miles south of Laramie. Since the vehicle answered the description of the automobile in question, he stopped it. Appellant Pogliano was the driver, and appellant Neilson was a passenger. Herderich displayed a weapon and ordered appellants to first place their hands on the windshield and then exit the automobile. Herderich then conducted a "pat down" search of each appellant, moved them to the back of the stopped vehicle, and placed them under the control of his companion officer. Herderich then made a search of the front of the passenger compartment for weapons. He found none, but he felt a bank bag under the front seat, which seemed to be full of coins. He did not then remove the bag. He separated appellants and advised each of them of the reason for the stop and of their "Miranda rights." He did not then handcuff appellants or advise them that they were under arrest.

As Herderich completed his search for weapons, Sergeant Puls arrived and took charge of the investigation. Herderich advised him of the bank bag located under the front seat. Puls then obtained consent from Pogliano to search the automobile. ² Puls searched the front passenger compartment of the automobile and found and seized a tubular lockpick from the center of the front seat. Both appellants were then advised that they were under arrest, and they were handcuffed. Puls continued the search of the automobile and seized a blue notebook (containing some type of numerical The Cadillac was towed to the city shops and impounded. It was not searched further until the next morning when Puls conducted a general search of the passenger compartment. Puls testified that he had decided not to obtain a search warrant for this search because he believed it was authorized by Pogliano's previous consent. As a result of this search, Puls seized several items, including a lock tumbler, another bank bag (containing assorted lockpicks and files and three sets of keys), coin wrappers, a cardboard box (containing a depth gauge, lock lubricants, and a number of gloves), and four quarters.

code), a paper cup (holding several rolls of coins and some loose coins), and the bank bag with contents from under the seat. It was later determined that the bank bag and the paper cup contained $183.80 and $12.50 in coins, respectively.

ILLEGAL SEARCH AND SEIZURE

Before trial, appellants filed a motion under Rule 40(e), W.R.Cr.P., to suppress all items seized from the automobile in question as a result of these searches. Following a hearing, the trial court denied the motion. Over objection that they were obtained as a result of an illegal search and seizure, all of the items seized at the scene of the car stop were admitted into evidence at the trial. Of the items seized after the automobile had been impounded, the lockpicks, files, keys, depth gauge, and the four quarters were received in evidence over the same objection.

Before considering this contention of error, two aspects of the applicable procedural standards relative to this issue are noted. First, the trial court did not make findings on appellants' motion to suppress. When such findings are made, they are binding on this court unless clearly erroneous. United States v. Jobin, 1st Cir., 535 F.2d 154 (1976); McDonald v. United States, 10th Cir., 307 F.2d 272 (1962); see also 3 Wright, Federal Practice and Procedure: Criminal, § 678, p. 143. When such findings are not made, this court upholds the general ruling of the trial court if it is supportable by any reasonable view of the evidence. Scarbeck v. United States, 115 U.S.App.D.C. 135, 151, 317 F.2d 546, 562 (1963), cert. denied 374 U.S. 856, 83 S.Ct. 1897, 10 L.Ed.2d 1077 (1963); United States v. Montos, 5th Cir., 421 F.2d 215, 219, n. 1 (1970). Second, the validity of a search and seizure will be considered on the basis of evidence presented at both the hearing on the motions and the trial.

"In determining whether a trial court erred in admitting evidence claimed to have been illegally seized, an appellate court will usually not limit itself to the testimony received on the pretrial motion to suppress, but will also consider pertinent testimony given at the trial. * * *" 3 Wright, Federal Practice and Procedure, supra, § 678, p. 143.

See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 288, 69 L.Ed. 543, 39 A.L.R. 790 (1925); Rent v. United States, 5th Cir., 209 F.2d 893, 896 (1954).

The Fourth Amendment to the United States Constitution and Art. 1, § 4, of the Wyoming Constitution do not prohibit all warrantless searches and seizures, but only those that are unreasonable. Whether a search and seizure is unreasonable depends upon all the circumstances of each case. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 790, 17 L.Ed.2d 730 (1967).

Automobiles are "effects" under the Fourth Amendment for the purpose of subjecting searches and seizures thereof to the constitutional standard of reasonableness. It is recognized, however, that there are differences between motor vehicles and other property, which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964); Carroll v. United States, supra, 45 S.Ct. at 284; Alcala v. State, Wyo., 487 P.2d 448, 453-454 (1971), cert. denied 405 U.S. 997, 92 S.Ct. 1259, 31 L.Ed.2d 446 (1972), reh. denied 406 U.S. 911 92 S.Ct. 1613, 31 L.Ed.2d 823 (1972). In United States v. Chadwick, supra, 97 S.Ct. at 2484, the United States Supreme Court explained:

"Our treatment of automobiles has been based in part on their inherent mobility, which often makes obtaining a judicial warrant impracticable. Nevertheless, we have also sustained 'warrantless searches of vehicles . . . in cases in which the possibilities of the vehicle's being removed or evidence in it destroyed were remote, if not non-existent.' Cady v. Dombrowski, 413 U.S. 433, 441-442, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (19...