Ostrowski v. State, s. 5781

• Decision Date: 10 June 1983
• Docket Number: 5782,Nos. 5781,s. 5781
• Citation: 665 P.2d 471
• Parties: Phillip OSTROWSKI, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 471

665 P.2d 471

Phillip OSTROWSKI, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Nos. 5781, 5782.

Supreme Court of Wyoming.

June 10, 1983.

James R. McCarty, Casper, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Sr. Asst. Atty. Gen., Michael L. Hubbard, and Randall T. Cox (argued), Asst. Attys. Gen., for appellee.

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

RAPER, Justice.

Phillip Ostrowski (appellant) was tried and found guilty by a jury in the district court of Natrona County on seven criminal counts. The seven counts were contained in two separate criminal actions ¹ brought by indictment against him by the State. Both actions were joined for trial over appellant's objection. After judgment and sentence in the combined criminal actions was entered, appellant appealed separately from each action. On appeal, we have consolidated the cases. In his briefs, appellant raises a veritable barrage of issues. We consolidate and summarize them to be:

1. Whether evidence used against him at trial was legally seized either pursuant to a valid arrest or pursuant to properly issued and executed search warrants 2. Whether the trial court erred in permitting the State to amend one count of an indictment at the close of evidence;

3. Whether the evidence supports a conviction for concealing stolen property;

4. Whether the trial court erred in denying appellant's motion to dismiss one count--Count V in No. 8513--of concealing stolen goods made upon the ground that it did not specify the property appellant was charged with concealing;

5. Whether the trial court erred in joining both indictments brought against appellant for trial;

6. Whether the trial court erred in refusing to instruct the jury as requested by appellant;

7. Whether appellant was denied his right to a fair trial as a result of remarks made by the prosecutor at trial;

8. Whether the trial court erred in admitting several exhibits over appellant's objection that a chain of custody had not been established; and

9. Whether the trial court erred in permitting the hearsay testimony of Rhonda Thenes over appellant's objection.

We will affirm.

From November 1980 through June 1981 the Casper Police Department had investigated a number of burglaries and robberies that had occurred in Casper, Wyoming. During the course of their investigations, the police began to piece together information that implicated appellant in one way or another in a number of those crimes. Investigation of appellant continued through the first ten months of 1981. By November 10, 1981, the police had obtained enough incriminating information against appellant that provided, in their opinion, sufficient probable cause to arrest him for certain of his criminal activities--namely, concealing stolen property. On November 10, 1981, a "pick up and hold order" for the arrest of appellant was issued and disseminated throughout the Casper Police Department. Patrolman Anderson of the Casper Police Department, acting on that order, stopped and arrested appellant in the evening of November 10.

After placing appellant under arrest, Patrolman Anderson searched appellant and a portion of the interior of his car. Those searches produced drugs and other evidence that were used at the trial to convict appellant. Immediately following appellant's arrest the police obtained a warrant to more thoroughly search appellant's car. Their search of the car turned up more incriminating evidence that was also used against him. Some time later, police obtained search warrants for various residences and appellant's safety deposit box. Searches conducted pursuant to those warrants also produced incriminating evidence used against appellant at trial.

Additional facts will be discussed where pertinent to our discussion of the various issues presented.

I

Appellant questions whether the police had probable cause to arrest him without an arrest warrant, and secondly, whether the several search warrants issued after his arrest had been issued on sufficient probable cause. We answer those questions in the affirmative.

On the question of whether the police had probable cause to arrest appellant without a warrant, he argues that Patrolman Anderson did not have sufficient personal knowledge as probable cause to arrest without a warrant; therefore, the arrest was constitutionally invalid. He also urges, in the alternative, that those investigating appellant's criminal activities were without sufficient knowledge to give them probable cause to issue the pick-up-and-hold order upon which appellant was arrested. Appellant cites Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), in support of his position.

At the outset, we take note that at the time appellant was arrested, there was no outstanding warrant for his arrest. We, therefore, deal with the body of law surrounding warrantless arrests. Section 7-2-103, W.S.1977, provides statutory authority for a peace officer to arrest a suspected felon without a warrant so long as he does so with probable cause to believe a felony has been committed and the suspect committed it. We have upheld that view by applying it on numerous occasions. Lopez v. State, Wyo., 643 P.2d 682 (1982); Neilson v. State, Wyo., 599 P.2d 1326 (1979), cert. denied 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980); DeHerrera v. State, Wyo., 589 P.2d 845 (1979).

The Fourth Amendment to the United States Constitution ² permits an officer to arrest a suspect without a warrant if there is probable cause to believe that a crime was committed and it was committed by the suspect. Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). This court has said that in deciding whether probable cause is sufficient to justify a warrantless arrest, it must be determined that "the facts and circumstances within the peace officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a reasonably cautious or prudent man to believe that the person arrested has committed * * * an offense." Neilson v. State, supra at 1333 (citing Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). That view continues to reflect the United States Supreme Court's view of what is probable cause sufficient to justify an arrest. Michigan v. DeFillippo, supra.

In Lopez v. State, supra at 684, we stated that in deciding whether there was probable cause to make a warrantless arrest, the test is as stringent as that applied to magistrates in cases where an arrest warrant has issued. The facts and circumstances considered in determining probable cause for arrest need not amount to proof of guilt or even prima facie evidence of guilt but must be more than mere suspicion. Raigosa v. State, Wyo., 562 P.2d 1009 (1977) (citing Brinegar v. United States, supra). Since the constitutional standard governing probable cause is grounded upon reasonableness, our inquiry requires an objective consideration of the evidence in the record. Neilson v. State, supra, 599 P.2d at 1333. The standard of reasonableness must be viewed with practicality and good sense. Vrooman v. State, Wyo., 642 P.2d 782 (1982).

With that general review, we go to appellant's first argument. He argues that since the arresting officer, Patrolman Anderson, did not have personal knowledge of appellant's suspected involvement in criminal activity, he lacked probable cause to arrest. Patrolman Anderson acted solely on the basis of the pick-up-and-hold order issued by investigators from the Casper Police Department. Appellant relies on Whiteley v. Warden of Wyoming Penitentiary, supra, in that since Patrolman Anderson lacked personal knowledge, he lacked probable cause to arrest. He argues that Whiteley precludes probable cause being determined on the basis of the collective knowledge of law enforcement personnel. It is his position that the arresting officer must have sufficient personal knowledge of the facts to have probable cause to make a warrantless arrest. To so hold would be unrealistic as well as contrary to law.

The Whiteley decision stands for the proposition that, where there was no probable cause to issue an arrest warrant in the first instance, an arrest made by police solely on the knowledge that a warrant had been issued was constitutionally invalid when the arresting officer himself lacked independent probable cause to make a warrantless arrest. The Court's decision did not condemn the arresting officers for acting solely on the pick-up-and-hold order. The Court said:

"We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest." Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. at 568, 91 S.Ct. at 1037.

Arresting officers can rely on the knowledge of investigating officers and their determination of probable cause in making an arrest. Williams v. State, Wyo., 557 P.2d 135 (1976). In United States v. Bernard, 607 F.2d 1257 (9th Cir.1979), the court held an arresting officer need not, at the time he makes a warrantless arrest, possess sufficient personal knowledge of the facts to give him probable cause to make the arrest; probable cause may be determined upon the knowledge of all agencies or officers participating in the arrest. In Bernard, the court quoted from United States v. Stratton, 453 F.2d 36 (8th Cir.1972), cert. denied 405 U.S....