State v. Fish, 40672

• Decision Date: 26 April 1968
• Docket Number: No. 40672,40672
• Citation: 280 Minn. 163,159 N.W.2d 786
• Parties: STATE of Minnesota, Respondent, v. Earl A. FISH, Appellant.
• Court: Minnesota Supreme Court

Page 786

159 N.W.2d 786

280 Minn. 163

STATE of Minnesota, Respondent, v. Earl A. FISH, Appellant.

No. 40672.

Supreme Court of Minnesota.

April 26, 1968.

Syllabus by the Court

1. Persons found under suspicious circumstances are not clothed with a right of privacy which prevents law-enforcement officers from inquiring as to their identity and actions. The essential needs of public safety permit police officers to use their faculties of observation and to act thereon within proper limits. It is not only the right but also the duty of police officers to investigate suspicious behavior, both to prevent crime and to apprehend offenders. Such right does not extend to the right of search in the absence of probable cause.

2. Permission to operate a motor vehicle upon public highways is a license or privilege, and a police officer may under authority of Minn.St. 171.08 demand of every operator of a motor vehicle that he display his license.

3. Probable cause justifying an arrest without a warrant exists if the facts and circumstances known to the officer warrant a prudent man in believing that an offense has been committed.

4. Under circumstances where defendant was observed by deputy sheriffs driving his automobile from the premises of a bar at 2:30 a.m., an arrest did not occur when defendant was detained to determine his identity and to display his driver's license. Where it appeared, however, that while deputy sheriffs were waiting for radio report as to defendant's status as a licensed driver events followed which brought to the deputies' attention that the premises were burglarized at about the time defendant was observed leaving, there was probable cause for police officers to believe that defendant had committed the burglary and such probable cause warranted arrest and search of the automobile without a warrant.

C. Paul Jones, Public Defender, Bruce D. Willis, Minneapolis, for appellant.

Douglas M. Head, Atty. Gen., Gerard W. Snell, Acting Sol. Gen., St. Paul, Robert W. Johnson, County Atty., G. D. Giancola, Asst. County Atty., Anoka, for respondent.

Heard before KNUTSON, C.J., and MURPHY, ROGOSHESKE, SHERAN, and PETERSON, JJ.

OPINION

MURPHY, Justice.

This is an appeal from a judgment of conviction on a charge of burglary (Minn.St. 609.58) after jury trial. The information charged that defendant broke into Hunter's Inn, a bar and general store in rural Anoka County, in the early morning of February 28, 1966, and stole various articles of personal property. Reversal or a new trial is sought on the asserted grounds that the evidence used by the prosecution was the product of an unlawful search and seizure.

It appears from the record that one Donald Napier, a high school boy, was employed to do cleanup work at the Hunter's Inn. His duties brought him to the inn at 2:30 a.m. on the morning of the burglary. Entering the building from the front, Napier heard noises of loose coins and running footfalls and observed the shadows of two figures on the wall, indicating the presence of two people unlawfully on the premises. He immediately left the building and drove about 5 miles to the nearest telephone where he reported the facts to the sheriff's office.

At about the same time or shortly thereafter, two Anoka County deputy sheriffs were in the same area making a routine security patrol. They observed defendant's car leaving the Hunter's Inn parking lot. They knew the inn should not have been open for business after 1 a.m. and were curious as to the presence of defendant's automobile there. After following defendant's car for a few blocks, the officers stopped it and asked defendant to display his driver's license. When he could not produce one, the sheriffs detained him while a radio check was made to determine his status as a licensed driver. Defendant and his passenger were asked to remain in the automobile until the license check was completed. In looking through the window of defendant's car, one of the officers noticed a bow and quiver similar to one he had seen on display in a window at Hunter's Inn. While the radio check was being made, the officers received a message from the Anoka County Sheriff's office that a burglary might have been committed at Hunter's Inn. The officers then contacted the Blaine police squad by radio and requested that they report and stand by while they investigated.

In the meantime, the youth, Donald Napier, appeared on the scene on his return trip from making the report of the alleged burglary to the sheriff's office. He stopped to inform the sheriff's deputies of the burglary. The deputies then went to the inn and found that it had in fact been burglarized. They found that the west door had been forcibly opened. The cash register in the bar had been forced open and there was other damage to the premises. The deputies returned to the place on the road where defendant and his passenger had been detained and advised them of their constitutional rights. They then called the sheriff's investigators and, after their arrival, made a search of the automobile after placing defendant in the squad car. They found four bows, a quiver containing six arrows, a small black transistor radio, and a pair of binoculars, all of which it later developed had been stolen from the Hunter's Inn. The car also contained a claw hammer, a cold chisel, a wood chisel, a screwdriver, and two wrecking bars. It developed from the evidence that subsequent tests by the State Crime Bureau revealed that paint and fragments of wood found in a pocket of defendant's coat and on his glove matched material of a pool table which had been dismantled by the burglars. It would appear from the record that defendant was represented by competent counsel and no defense to the prosecution was interposed.

The issue presented for review is whether at the time defendant was stopped by the deputy sheriffs an arrest occurred so as to deprive defendant of his liberty. It is contended that an arrest without probable cause did in fact occur and, consequently, the search was unreasonable and the admission at trial of the evidence seized was a violation of defendant's rights under the Fourth and Fourteenth Amendments to the United States Constitution and under Minn.Const. art. 1, § 10. It is urged that denial of these asserted rights constitutes reversible error.

In support of his contention that the arrest occurred when defendant's car was stopped and that the arrest could not be made lawful by the subsequent discovery of stolen property in the car, defendant relies on Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134; and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436. The Henry case is illustrative of the point upon which defendant relies. In that case government agents stopped defendant in an automobile with stolen merchandise. Under the facts in that case, it would appear that the arrest occurred when the car was stopped. The government claimed that the arrest and incidental search were based on probable cause. It appeared, however, that the search was based on something less than probable cause, and the Supreme Court said (361 U.S. 103, 80 S.Ct. 171, 4 L.Ed.2d 139): 'When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete.' It is important to note, however, that in the Henry case the stop, arrest, and search were simultaneous events occurring in the absence of probable cause.

1. It is ordinarily true that an arrest is made by the actual restraint of the person of the defendant or by his submission to the custody of the officer. Minn.St. 629.32. It is also true that subject to certain exceptions enumerated in § 629.34 and arrest cannot be made without a warrant. ¹ Since we must appraise the propriety of the search in light of the factual context of the record before us, it is important to observe that we have by our decisions recognized that persons found under suspicious circumstances are not clothed with a right of privacy which prevents law-enforcement officers from inquiring as to their identity and actions. The essential needs of public safety permit police officers to use their faculties of observation and to act thereon within proper limits. It is not only the right but the duty of police officers to investigate suspicious behavior, both to prevent crime and to apprehend offenders. State ex rel. Branchaud v. Hedman, 269 Minn. 375, 130 N.W.2d 628, certiorari dismissed, 381 U.S. 907, 85 S.Ct. 1456, 14 L.Ed.2d 289; State v. Clifford, 273 Minn. 249, 141 N.W.2d 124; State v. Sorenson, 270 Minn. 186, 134 N.W.2d 115. See, also, United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. Of course, the right of police officers to stop a suspicious person does not extend to a right of search in the absence of probable cause. ²

2. In light of the record before us...