State v. Boardman
| Decision Date | 06 April 1978 |
| Docket Number | No. 12152,12152 |
| Citation | 264 N.W.2d 503 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Steven Allen BOARDMAN, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Peter H. Lieberman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.
Ronald E. Brodowicz, Rapid City, for defendant and appellant.
*
The defendant in this case appeals from the judgment of conviction for first degree burglary. He was convicted by a jury in the Seventh Judicial Circuit and sentenced to nine years in the penitentiary. Error is alleged to have occurred in allowing the admission into evidence of fruits of a search of the vehicle in which the defendant was riding, the giving of an accessory instruction, the addition of a witness' name to the information at the time of trial and failure of the judge to excuse certain jurors for cause. We affirm.
At approximately 8:45 p. m. on January 11, 1976, the Piggly Wiggly store on East Saint Patrick Street in Rapid City was robbed. Two men wearing ski masks demanded money from the store manager at gunpoint. The robbers took cash, checks, a cash drawer and money deposit bag with them. The manager phoned the police immediately after the robbers left the store and gave a description of the robbers. At 8:50 p. m. the report of the robbery was broadcast on the police radio. Hearing the broadcast, Officer Chandler of the Rapid City Police Department drove his vehicle to an area east of the crime scene to cover what he believed to be a logical escape route.
At a point approximately two miles from the crime scene, the officer encountered a dirty, faded green pickup truck coming from the direction of the store. Officer Chandler observed that the driver of the car was a juvenile who had been in trouble with the law several times, including an arrest for grand larceny. The area being lightly traveled, the officer made a U-turn and followed the pickup. He observed that there were three males in the truck in their late teens or early twenties, and that the individuals were acting very nervous and furtive after seeing that the police car was following them. Because of his concern that the individuals might be armed, Officer Chandler followed the truck for several miles while awaiting a backup unit to assist in making the stop. By the time the backup unit arrived and the truck was pulled over, the vehicles were over two miles beyond the city limits.
At the time the truck was stopped, the police had received the following information over the police radio: 1
1. Armed robbery at the Piggly Wiggly;
2. Two males, one with a gun, both wearing stocking caps over their faces and blue jeans;
3. Unknown mode of travel; direction of travel possibly east;
4. Took money tray with them;
5. One about six feet, one about five feet eight inches, both having fairly slight builds;
6. One has dark colored, probably black boots on;
7. Took rust brown deposit bag containing cash and checks; took cash drawer with money in it.
In addition to this, Officer Chandler personally knew the driver of the vehicle as a person who had been in trouble with the law before. After stopping the truck, one of the other officers informed Officer Chandler that the other two occupants of the truck had previously been involved in a burglary.
On stopping the truck and ordering the occupants out, the police observed that all three were males wearing blue jeans, and two of them had black boots. Also, they fit the height descriptions and had slight builds. The suspects were pat-searched for weapons, and the truck was examined but nothing was found at that point. The suspects were then informed that they were going to be returned to the scene of the crime for identification purposes. It is unclear at what point it was broadcast, but either before leaving for the Piggly Wiggly or on the way, the police radio carried a report that a grey, 1955 or 1956 Ford pickup had been observed being pushed east on Oakland Street by young people, and that some checks and the cash drawer had been found on Oakland Street. The suspects had first been observed by Officer Chandler a distance of less than one mile from the point where this truck had been seen being pushed.
At the scene of the crime, a lineup consisting of the three suspects and several people off the street was arranged, and the defendant was picked out by the employees of the grocery store, based on his build, height and clothing. A second search of the truck was then made and a large amount of change, mainly quarters, was found under the seat. An inspection of the bed of the pickup revealed more change and three keys, which the manager of the store identified as the keys to the cash register and deposit bag. The suspects were then formally placed under arrest and a more thorough search of their persons at the police station uncovered more evidence linking the suspects to the crime.
The defendant's first challenge is to the admission of the fruits of the search into evidence. He contends that the arrest was made at the time when the three suspects were first stopped and frisked, prior to being returned to the store for the lineup. At that time the arrest was not supported by sufficient probable cause and was made beyond the geographic jurisdiction of the police department, so the subsequent search was improper and the fruits of the search were not admissible according to the defendant.
The United States Supreme Court in Terry v. Ohio, 1968, 392 U.S. 1, 22, 88 S.Ct 1868, 1880, 20 L.Ed.2d 889, 906, recognized that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." The court required that in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.
Admittedly, the officer was acting on a limited amount of information at the time he stopped the truck. However, we believe he had enough information to make an investigatory stop. At the time of the stop, the officer knew a robbery had been committed by two males, the vehicle containing the suspect was on one of the logical escape routes approximately five minutes after the crime, the police radio had given the direction of travel of the robbers as "possibly east," and he knew the driver of the vehicle as someone who had been in trouble with the police before.
The facts of this case are similar to a case in which an investigatory stop and the subsequent arrest and search and seizure were upheld by the U.S. Court of Appeals for the Eighth Circuit. In Orricer v. Erickson, 1973, 8 Cir., 471 F.2d 1204, police in Vermillion, South Dakota, observed that a grocery store appeared to have been the scene of an attempted nighttime burglary. Two suspects were observed in an alley behind the store but escaped. The Vermillion police undertook investigatory stops of all vehicles in the vicinity and eventually located the suspects. The court had this to say:
Orricer v. Erickson, supra, at 1207.
In light of this, we believe the police were justified in stopping a vehicle driven by a person known to have been in trouble with the law and found on a logical escape route from the scene of the crime. See also Carpenter v. Sigler, 1969, 8 Cir., 419 F.2d 169. After the investigatory stop was made, further information was received which confirmed the suspicions of the officer and provided probable cause for arrest. As the U.S. Supreme Court said in a case subsequent to Terry :
Adams v. Williams, 1972, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612.
SDCL 23-22-7 allows a peace officer to make an arrest without a warrant "(3) (w)hen a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it." SDCL 23-22-8 allows an officer to make a warrantless arrest at night of any person whom he has reasonable cause for believing has committed a felony, and the arrest is justified even though it afterward appears that no felony had been committed. Assuming the arrest did occur at the point where the defendant was restrained and taken to the scene of the crime for identification, Officer Chandler knew at that point that all three suspects had been involved with violations of the law in the past and that the two older ones had been connected with a prior burglary. He knew that the clothing and height descriptions given matched those of the suspects, and he knew that the vehicle containing the three had been observed by him on a...
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