Roose v. State

Decision Date08 June 1988
Docket NumberNo. 87-68,87-68
Citation759 P.2d 478
PartiesRodger Lee ROOSE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Rodger Lee Roose, pro se.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Sr. Asst. Atty. Gen., and Patricia M. Samuels, Student Intern, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

MACY, Justice.

Appellant Rodger Roose appeals pro se from his conviction of five counts of burglary in violation of § 6-3-301(a), W.S.1977, and one count of larceny in violation of § 6-3-402(a) and (c)(i), W.S.1977.

We affirm.

A summary of appellant's issues on appeal is as follows:

1. Whether the trial court erred in allowing items seized in two separate searches and items seized as a result of those searches to be introduced as evidence;

2. Whether sufficient evidence existed for the conviction of appellant on each of the six counts; and

3. Whether the trial court erred in refusing to give appellant's proposed jury instruction.

On the evening of April 11, 1986, a 911 emergency telephone call was received reporting the recent theft of an automobile, and police officers were dispatched in an attempt to locate the vehicle. Prior to leaving the police department, the officers were alerted that the driver of the vehicle might be armed and dangerous because a suspected burglar had previously abandoned an automobile and because numerous earlier burglaries in the area had resulted in the theft of several firearms. A short time later, a police officer spotted the reported vehicle being driven by an unknown person and pulled the vehicle over to the curb. That officer, with the assistance of another officer, then attempted to make a felony traffic stop.

During that felony traffic stop, the suspect exited the vehicle as directed by the police officers, but he failed to follow police orders to keep his hands up and began to move forward as if to run in spite of a police order to halt. As the suspect moved, he also reached with his left hand toward the small of his back. One of the officers, believing the suspect was reaching for a weapon and perceiving a threat, discharged his shotgun, hitting the suspect. The suspect was then apprehended.

During the search incident to his arrest, the suspect was frisked for weapons. Only a wallet and a pocket knife were found and removed from the pockets of his pants. The officers asked the suspect to identify himself, but he refused. He was arrested, taken into custody, and transported by ambulance to the hospital for medical attention. At the hospital, the suspect continued to refuse to identify himself; however, he was identified as Rick King through the use of rent receipts found in his wallet.

Between March 21 and April 11, 1986, five burglaries occurred in Douglas, Wyoming, but, because each of the burglaries was similar in nature, it was suspected that they were committed by the same burglar. While the fifth burglary was in process, it was interrupted, and a vehicle search of the surrounding streets produced a vehicle having license plates which were reported stolen in an earlier burglary and being registered in the name of a previous burglary victim. The keys to the vehicle, which were left in the ignition, were on a key ring which also contained a key to a post office box which was rented to Brad Steer. In a separate investigation involving mailbox tampering in Douglas, it was learned that Brad Steer had numerous aliases, one of which was Robert Moore. The injured suspect, then known as Rick King, fit the description of Robert Moore which was given by postal employees.

At the scene where the suspect was shot, a police officer collected numerous articles of evidence. Among these articles was some of the suspect's clothing, including a pair of pants which was cut off him in order to render treatment before he was taken to the hospital. Later, as the pants were being logged into evidence, it was discovered that they contained various coins. These coins were identified as being missing as a result of a previous burglary.

On April 12, 1986, police officers obtained a search warrant for the suspect's residence. In that search, they recovered stolen property from the five burglaries which had occurred in Douglas. The police also discovered materials and equipment used for producing false identification, jewelry which was in the process of being converted, and a note written in the suspect's handwriting, which listed the names, addresses, and dates of requests for holds in mail service in Douglas, including the residence which was the site of the interrupted burglary. Later, the suspect was correctly identified as appellant Rodger Roose.

On April 30, 1986, an information was filed charging appellant with one count of burglary, three counts of aggravated burglary, one count of attempted aggravated burglary, and one count of larceny. Appellant pleaded not guilty to those charges on May 1, 1986. On June 6, 1986, an amended information was filed which charged appellant with one count of burglary, four counts of aggravated burglary, and one count of larceny.

Following numerous motions by appellant, most of which requested additional time, he filed a motion to suppress evidence on the basis that the search of his residence occurred at night. On November 10, 1986, appellant filed another motion to suppress evidence because excessive force had been used in his arrest, and, on November 24, 1986, he filed a motion to suppress the search warrant used to gain access to his residence. These motions were denied by the court at a pretrial hearing. At that same hearing, appellant also moved for the suppression of evidence on the basis that the rent receipts and coins found as a result of his arrest were produced in an illegal search, but this motion was also denied by the trial court. Additionally, the proposed jury instructions which were submitted by appellant prior to his trial were rejected by the trial court.

A four-day jury trial began on December 4, 1986. On numerous occasions during the trial, appellant renewed his motions concerning the suppression of evidence on the bases of night search, excessive force, defective search warrant, and illegal search and seizure. These motions were continually denied by the trial court. Pursuant to a stipulation between the State and appellant, the jury was instructed only on the five counts of burglary and not on aggravated burglary. 1 Appellant was found guilty on all five counts of burglary and the one count of larceny. On January 13, 1987, appellant was sentenced to a term of eight to ten years in the Wyoming State Penitentiary for each count, said sentences to run concurrently but consecutive to any other sentence which might be imposed for his conviction of another burglary in the Ninth Judicial District. On January 21, 1987, appellant filed his notice of appeal.

ADMITTANCE OF EVIDENCE

Appellant contends that the trial court erred for numerous reasons when it permitted the items recovered during a search of his residence to be introduced into evidence.

Search and Seizure

Appellant alleges that the search made by officers after he was shot was unreasonable because only a weapons frisk should have been made and that the taking of his wallet during a weapons frisk was illegal. He argues that a search warrant was necessary to obtain his wallet and the rent receipts it contained. Similarly, appellant asserts that the search of his pants after they had been cut from his body was illegal. Appellant also asserts that, because the information used in obtaining the search warrant for his residence was secured through illegal searches, the evidence found at his residence must be excluded.

In Brown v. State, Wyo., 738 P.2d 1092, 1097 (1987), quoting from Goddard v. State, Wyo., 481 P.2d 343, 345 (1971), we stated that,

" 'if the initial search is held improper, not only the evidence obtained by such search but everything which becomes accessible to the prosecution by reason of the initial search would be inadmissible as "a fruit of the poisonous tree." ' "

However, for this rule to apply, the initial search must be illegal.

In Brown v. State, we recognized that searches and seizures made without a warrant or outside the judicial process are per se unreasonable under both the Fourth Amendment to the United States Constitution and Art. 1, § 4 of the Wyoming Constitution, subject only to a few specifically established and well-delineated exceptions. See also Wilde v. State, Wyo, 706 P.2d 251 (1985), and Hunter v. State, Wyo., 704 P.2d 713 (1985). Two of these exceptions which we have recognized are search incident to arrest and search and/or seizure to prevent imminent destruction of evidence. Brown v. State, supra; Wilde v. State, supra.

In determining whether the search-incident-to-arrest exception is applicable, it first is necessary for us to determine whether a lawful arrest had been made. In Neilson v. State, Wyo., 599 P.2d 1326, 1333 (1979), cert. denied, 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980), we stated:

"A peace officer may arrest a person without a warrant if, at the moment the arrest is made, he has probable cause to believe that a crime had been committed by the person to be arrested, or he has reasonable grounds to believe that a crime is being committed in his presence by the person to be arrested. Stated another way, the determination of probable cause to arrest without a warrant depends upon whether the facts and circumstances within the peace officer's knowledge and of which he has reasonably trustworthy information were sufficient to warrant a reasonably cautious or prudent man to believe that the person arrested has committed or is committing an offense. The constitutional standard governing probable cause is grounded upon reasonableness. Thus, an appellate court's inquiry into whether or not an arrest is legal in a given case is...

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