State ex rel. Branchaud v. Hedman

• Decision Date: 25 September 1964
• Docket Number: No. 39285,39285
• Citation: 269 Minn. 375,130 N.W.2d 628
• Parties: STATE of Minnesota ex rel. Arnold D. BRANCHAUD, Relator, v. Kermit HEDMAN, Sheriff of Ramsey County, Respondent.
• Court: Minnesota Supreme Court

Page 628

130 N.W.2d 628

269 Minn. 375

STATE of Minnesota ex rel. Arnold D. BRANCHAUD, Relator, v. Kermit HEDMAN, Sheriff of Ramsey County, Respondent.

No. 39285.

Supreme Court of Minnesota.

Sept. 25, 1964.

Rehearing Denied Nov. 2, 1964.

Syllabus by the Court

1. Persons found under suspicious circumstances are not clothed with a right of privacy which prevents police officers from inquiring of them as to their identity and actions.

2. The right of the police to stop a person found in suspicious circumstances does not extend to a right of search in the absence of probable cause. The constitutional immunity from unreasonable searches and seizures, however, may be waived by consent or permission to make the search and seizure.

John S. Connolly, St. Paul, for relator.

Walter F. Mondale, Atty. Gen., William B. Randall, County Atty., Gerald E. Rutman, Sp. Asst. County Atty., St. Paul, for respondent.

MURPHY, Justice.

This matter is before us in postconviction proceedings initiated by petition for writ of habeas corpus. Defendant was convicted of the offense of third-degree burglary. The verdict of guilty was returned by the jury on June 14, 1961. On December 7, 1961, an alternative motion for a new trial, judgment of acquittal, or certification to this court was denied and sentence imposed. The sentence was suspended and he was placed on probation for 5 years. No appeal was taken from the judgment of conviction. Proceedings were thereafter instituted in the district court to revoke probation because defendant had violated the terms of the court's order. The violation is predicated upon a subsequent conviction of defendant for the offense of attempted burglary. The conviction in the second case was on October 9, 1963, and after a denial of a motion for a new trial, a sentence of 2 to 5 years was imposed. An appeal has been taken from that judgment. This proceeding was interposed to forestall revocation of the probation order entered at the time the previous sentence was imposed and to test the validity of that sentence. Defendant claims that the evidence used to convict him in that case was the fruit of an illegal search and seizure.

Because no timely appeal was taken from the conviction in the previous case, we would not ordinarily review the asserted errors which defendant now puts forth. However, as we pointed out in State v. Mertz, Minn., 130 N.W.2d 631, filed September 18, 1964, recent decisions of the United States Supreme Court, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148, indicate that the principle of res judicata is inapplicable in habeas corpus proceedings. Since the issue raised relates to the asserted denial of due process under the Fourth and Fourteenth Amendments, we accordingly treat the matter as a proceeding in the nature of an application for postconviction relief and proceed to consider the error assigned.

From the fragmentary record which we have, it appears that on the afternoon of May 13, 1961, Mr. and Mrs. Milton Hedin left their home for a weekend trip. On leaving they locked and secured the doors and windows. On returning home the next afternoon, they found that their home had been entered, a door had been broken, articles had been strewn about the premises, a small amount of money had been taken, and their television set was missing. The record further shows that about 9 p.m. on the evening of May 30, 1961, two officers of the St. Paul Police Department were on patrol duty in a vacated area of the city which had been cleared for redevelopment purposes. In going through this area they noticed a car parked on a side street in a place which would not ordinarily be used for parking. They passed the street and then backed up and turned in. As they did so, they noticed the lights of the parked car being turned on. As they approached the car, the occupant got out and 'ran around to the front and lifted the hood.' The officers inquired as to his identity and he gave his name as Arnold Branchaud and said that he was having motor trouble. The officers asked to see his driver's license. They noticed that the trunk of the car was secured by a hasp and padlock. They asked if they could look in the trunk and he consented. One of the officers said that defendant opened the trunk. It was the recollection of the other officer that defendant voluntarily surrendered the keys to the first officer and gave him permission to open it. There is no evidence of threats or coercion having been used to induce defendant to surrender the keys to the police or to open the trunk for them. When the trunk was opened, it was found to contain a television set, later identified as the one taken from the Hedin home. When asked where he got the television set, defendant appeared agitated and 'was sweating quite profusely even though it was a cool evening, cool enough to wear a jacket.' When he was asked why he was sweating, he said to the police officer, 'You would be scared too if you were stopped.' When asked where the television set came from, defendant gave three contradictory stories, apparently in rapid succession. He was then brought to police headquarters. Thereafter he was charged and convicted of the offense of burglary.

As far as we can gather from the record there is no claim that the television set is not the set which was taken from the Hedin home. We cannot find from the record that a motion was made a suppress the use of the television set as evidence in the trial. The error is predicated upon objection sustained to certain questions asked by defense counsel on cross-examination with reference to whether the police had knowledge of the theft of the television set at the time they accosted defendant. The specific objection to the introduction of the television set as it appears in the record is that 'it is immaterial, not relevant, no proper foundation and also on the grounds that it is evidence that should be excluded on the grounds of the 14th Amendment to the United States Constitution and the section of the Minnesota Constitution dealing with illegal search and seizure.'

1. In the argument before this court it appears to be the claim of defendant that the evidence used against him was the product of an exploratory search without probable cause in violation of his rights under the Fourth and Fourteenth Amendments. It seems to be further urged that since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, police officers are not permitted to accost a suspicious character on a public street for questioning. While the Mapp case and numerous decisions recently handed down by the United States Supreme Court clearly establish that under state and Federal procedures citizens are entitled to uniform protection from unreasonable searches and seizures, we do not understand that these decisions have gone so far as to require or suggest that state police officers follow precise procedures in making arrests, searches, and seizures. The Fourth Amendment protects the individual only from 'unreasonable' searches and seizures; and whether a search and seizure is 'unreasonable' must depend upon the particular facts of each case.

Nor do we feel that the legality of the arrest of defendant is tainted because the police officers accosted and interviewed defendant without actual information that he was carrying stolen property in his automobile. ¹ Under the circumstances here, the police officers did no more than what they were required to do in performance of their duties. In Frye v. United States (9 Cir.) 315 F.2d 491, 494, the court pointed out that--

'* * * the local policeman, in addition to having a duty to enforce the criminal laws of his...