State ex rel. Trimble v. Hedman

• Decision Date: 26 November 1971
• Docket Number: No. 43049,43049
• Citation: 192 N.W.2d 432,291 Minn. 442
• Parties: , 49 A.L.R.3d 903 STATE of Minnesota ex rel. Constance L. TRIMBLE, Appellant, v. Kermit HEDMAN, Sheriff of Ramsey County and Custodian of the Ramsey CountyJail, Respondent.
• Court: Minnesota Supreme Court

Page 432

192 N.W.2d 432

291 Minn. 442, 49 A.L.R.3d 903

STATE of Minnesota ex rel. Constance L. TRIMBLE, Appellant, v. Kermit HEDMAN, Sheriff of Ramsey County and Custodian of the Ramsey CountyJail, Respondent.

No. 43049.

Supreme Court of Minnesota.

Nov. 26, 1971.

Syllabus by the Court

1. Evidence necessary to establish probable cause to justify issuance of warrant for arrest or search warrant need not be as convincing as evidence which will sustain a conviction.

2. Identification by comparison of voice by ear, whether voice is heard over the telephone, at a lineup, or by means of a mechanical recording, is admissible if proper foundation is laid for its reception.

3. Voiceprints, or spectograms, are admissible to corroborate voice identification by ear, if proper foundation is laid establishing experties of one preparing the spectrograms.

4. Even though recording of appellant's voice was surreptitiously obtained without her knowledge or consent, there was no violation of constitutional or statutory rights so as to make its reception inadmissible, so long as no attempt was made to use any privileged information thus obtained.

Wiese & Cox and Neil B. Dieterich, Minneapolis, Thomson, Wylde & Nordby, St. Paul, for appellant.

William B. Randall, County Atty., Paul Lindholm and Steven C. DeCoster, Asst. County Attys., St. Paul, for respondent.

Heard and considered en banc.

OPINION

KNUTSON, Chief Justice.

This is an appeal from an order of the District Court of Ramsey County discharging a writ of habeas corpus.

The facts may be briefly stated. On May 22, 1970, just after midnight, a call was received by the St. Paul Police Headquarters requesting that assistance be sent to a pregnant woman who was about to deliver, who lived at 859 Hague Avenue. Within minutes two officers, Officer Glen Kothe and Officer James Sackett, were dispatched to that address. When they arrived, they went to the front door and knocked but received no response. Officer Kothe then went around to the rear door. While at the rear of the house he heard an explosion, saw a flash, and heard Sackett cry out. Kothe ran to the front of the house and found that Sackett had been shot. He died shortly afterwards. It turned out that he had been shot with a high-caliber rifle.

All emergency calls received by the St. Paul Police Department are recorded. The tape which contained the call that lured Officer Sackett to his death was forwarded to the Michigan State Police Crime Laboratory for examination. There, Detective Sergeant Ernest Nash, who was in charge of the voice identification unit, made voiceprints (spectrograms) of the tape. Subsequently, tape recordings of 13 voices were also sent to Sergeant Nash and he made voiceprints of these. One such recording was of the voice of petitioner herein, Miss Trimble. After comparing the tape originally sent with that known to be of Miss Trimble's voice, Sergeant Nash concluded that the voice of the unknown caller and that of Miss Trimble were one and the same.

The recording of Miss Trimble's voice was made without her knowledge while she was at the Ramsey County Welfare Department office, where she had been requested to come to check up on 'eligibility factors' of AFDC payments which she was receiving. Prior to this time, arrangements had been made with the St. Paul Police Department to have Miss Trimble converse with a member of the department, Officer Carolen Bailey, while at the welfare office in the belief that she was discussing her welfare payments. The sole purpose of the call from Officer Bailey was to record Miss Trimble's conversation and have voiceprints made therefrom.

Prior to recording Miss Trimble's voice, approval for calling and surreptitiously recording her voice and that of another person was obtained from District Court Judge Stephen Maxwell, upon application by Officer Earl Miels of the St. Paul Police Department Homicide Division.

Based on the opinion of Sergeant Nash that Miss Trimble had made the call on May 22, 1970, which lured Officer Sackett to his death, Captain Ernest Williams obtained a warrant for her arrest and also a warrant to search the premises where she lived. The information given to the judge to show probable cause for the arrest warrant was that Sergeant Nash after comparing tapes by spectrograms had identified Miss Trimble as the person who had made the call.

Miss Trimble was arrested on October 30, 1970, pursuant to the warrant so issued. She appeared specially in municipal court and objected to the jurisdiction of the court on the grounds that the warrant was improperly granted and the arrest illegal. On November 12, 1970, she was indicted by a grand jury and charged with murder in the first degree. She then applied to the district court for a writ of habeas corpus which, after hearing, was discharged. This appeal was taken therefrom.

At the outset, it should be noted that we deal here with the sufficiency of the proof to justify issuance of an arrest and search warrant, not with the sufficiency of proof to sustain a conviction.

In Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134, 138 (1959), the court stated that 'probable cause' for arrest did not require evidence sufficient to establish guilt. This court followed that decision in State v. Fish, 280 Minn. 163, 169, 159 N.W.2d 786, 790 (1968), saying:

'* * * (P)robable cause for arrest exists where there is a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. Probable cause is concerned with probabilities and is something more than mere suspicion and something less than evidence which would sustain a conviction.'

See, also, State v. Sorenson, 270 Minn. 186, 198, 134 N.W.2d 115, 124 (1965), where we said:

'Since the police deal with probabilities, not legal proof, in deciding whether to arrest without a warrant, this means, according to Jackson v. United States, 112 U.S.App.D.C. 260, 263, 302 F.2d 194, 197:

"* * * The police are entitled to rely upon hearsay which would be inadmissible in judicial proceedings, and upon various other factors which would not be admissible in evidence against an accused on trial. Rumor, gossip, common conversation, general reputation, hearsay, all these may well go into the police evaluation of the total situation which confronts them.'

'The arresting officer need not have in hand evidence which would suffice to convict. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.'

At the habeas corpus hearing three experts testified. Dr. Oscar Tosi, who testified for the state, is a professor at Michigan State University. He has an impressive background of education and experience in audiology and speech sciences and electronics. He belongs to many acoustical societies. Detective Sergeant Nash of the Michigan State Police, who also testified for the state, is in charge of the voice identification unit of the Michigan State Police Crime Laboratory. He has studied under Kersta, who will be mentioned hereinafter, at voiceprint laboratories in New Jersey, and has been trained in the use of the voiceprint-sound spectrograph. He does his work in this field with that machine and was, at the time he testified, a student at Michigan State University majoring in audiology and speech sciences. He also has studied under Dr. Tosi.

Dr. Peter Nielsen Ladefoged testified for the defense. He is professor of phonetics at the University of California in Los Angeles, where he has been employed for 8 years. Prior to that time he was a phonetician in the University of Edinburgh, Scotland, in the Department of Phonetics there, where he had been employed for many years. The qualifications of all of these experts are hardly open to question.

The spectrograph was invented during World War II, but its use in identification of people began about 10 years ago. At that time, Mr. Lawrence G. Kersta and a team of researchers at Bell Laboratories began experimenting with voice identification by spectrograph analysis. Their experiments showed a remarkably high, 99.65-percent success in identifying speakers by comparison of voiceprints.

These claims of almost absolute identification by use of voiceprints were criticized by many scholars in the field of acoustics as being unscientific. It is clear also that Kersta has a financial interest in the development of the process since by 1966 Kersta had left Bell Laboratories and founded his own firm, Voiceprint Laboratories, which began manufacture of spectrograph equipment for commercial distribution. For criticism of Kersta's work, see P. Ladefoged and R. Vanderslice, The 'Voiceprint' Mystique, Working Papers in Phonetics 7 (U.C.L.A.1967).

Because of the criticism being leveled at Kersta and his method of identification as opposed to his claims of success, the Acoustical Society of America's Technical Committee on Speech Communication made a study of the legal implications of speaker identification by the Kersta method. That report ended:

'We conclude that the available results are inadequate to establish the reliability of voice identification by spectrograms. We believe this conclusion is shared by most scientists who are knowledgeable about speech; hence, many of them are deeply concerned about the use of spectrographic evidence in the courts. Procedures exist, as we have suggested, by which the reliability of voice identification methods can be evaluated. We believe that such validation is urgently required.' Bolt et al., Speaker Identification by Speech Spectrograms: A Scientists' View of its Reliability for Legal Purposes, 47 Journal of the Acoustical Society of America 597, 603 (1970).

In the article, the group of scientists called for additional research into speaker identification by spectrographic analysis, especially in more controlled experiments. The Kersta experiments had always...