State v. Griffin
| Decision Date | 15 July 1983 |
| Docket Number | No. C2-82-604.,C2-82-604. |
| Citation | 336 NW 2d 519 |
| Parties | STATE of Minnesota, Respondent, v. Richard C. GRIFFIN, Appellant. |
| Court | Minnesota Supreme Court |
C. Paul Jones, Public Defender, and Mark F. Anderson, Asst. Public Defender, Minneapolis, for appellant.
Hubert H. Humphrey III, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Chief, Appellate Section, Rick Osborne, J. Michael Richardson and Beverly J. Wolfe, Asst. County Attys., Minneapolis, for respondent.
Considered and decided by the court en banc without oral argument.
Defendant was found guilty by a district court jury of a charge of simple robbery, Minn.Stat. § 609.24 (1982), and was sentenced by the trial court to 30 months in prison, which is the presumptive sentence for this offense (a severity level VI offense) by a person with defendant's criminal history score (three). On this appeal from judgment of conviction defendant seeks a new trial on either or both of two grounds: (1) alleged error in refusing to suppress certain evidence on Fourth Amendment grounds and (2) alleged error in refusing to suppress identification testimony on due process grounds. Alternatively, defendant, claiming that the state failed to prove that his criminal history score was three instead of two, seeks a modification of his sentence from 30 months executed to 27 months stayed, which is the presumptive sentence for the offense by a person with a criminal history score of two. We affirm.
The victim in this case was a 60-year-old woman. She was waiting to catch a bus in south Minneapolis at about 12:45 a.m. on December 1, 1981, when a young man approached her, hit her in the face, grabbed her purse and fled. Police followed the robber's tracks in the freshly fallen snow to the rear of a nearby rooming house, where they found only one set of tracks entering the house and none leaving. The landlady, who answered the front door, told police that she had a roomer named Richie Griffin who fit the description which police gave her. Police went to the rear door, where the footprints were, and knocked. Defendant answered the door. The officers, who noted that defendant's hair was wet, told him why they were there, and defendant replied that he had been there all evening. The officers then had other officers bring the victim to the back door to look at defendant, and she immediately and positively identified him as her assailant.
After arresting defendant in the hallway, the officers gave defendant a Miranda warning, which he said he understood, and asked him which room was his. He indicated that it was the one with the open door, something which was obvious anyhow.
At the omnibus hearing and at trial Officer Theodore Boran testified that the reason they asked which room was defendant's room was that they wanted to get defendant's shoes for him. He added that defendant also had said that he wanted his jacket. He testified that before he entered he looked into the room and saw a brown coin purse and a flashlight on the bed; he knew that a coin purse was among the items which the victim had reported missing. He testified that after he entered the room he saw, through the open closet door, a lady's purse on the floor in the corner of the closet; the purse was open and appeared to him to have been "gone through." He testified that he also saw a jacket and a darkcolored stocking cap, which were wet.
Officer Paul Heeren did not testify at the omnibus hearing but did testify at trial. His testimony differed somewhat from that of Officer Boran. He testified that after he saw the coin purse and the jacket, he walked in to examine them. He testified that once he was inside he examined the jacket, finding that it was wet. He testified that he then saw the cap, which was wet, and the purse in the open closet. He testified that they asked the victim if she could identify the items and she did. He testified that the decision to get the shoes and the coat was "probably" made after they had entered the room and before they took defendant out of the house.
The officers let the victim take the coin purse and the purse. They compared the soles of the shoes with the tracks left by the assailant and found them to be very similar. The officers seized the cap at the house but apparently let defendant wear the jacket and the shoes until he got to the station. At some point, apparently after the purse was seized, defendant spontaneously said that he had not taken the purse, that his "roommate, John Holmes," just came to the door, dropped his things off and left.
The case was assigned for investigation to Lieutenant James Heimerl of the police department later that morning. He talked with the victim on the telephone, who said that she had checked her purse and discovered that her rings were missing. (Officer Boran had seen the rings on the dresser in defendant's room but had not seized them or mentioned them in his report because the victim had not mentioned them in her statement of what was missing.)
Later that morning, Lieutenant Heimerl gave defendant another Miranda warning and questioned him at the jail. Defendant said that he had been watching television with the landlady and a fellow tenant the entire evening of the 30th until the police came and that no one else had come or gone. He testified that later in the conversation defendant said that this was not the truth and claimed that what really happened was that his friend, John Holmes, who he said looked like him and lived somewhere in north Minneapolis, had come running in. He said that Holmes had removed his clothes, put on others, thrown some stuff and run. Asked about the rings, defendant said that there were not any and that if there were Holmes had taken them with him.
Lieutenant Heimerl then made an appointment to see the landlady. She had entered defendant's room after the police left because she heard defendant's television still on and saw a light coming from under the door. Once inside, she saw the rings on the dresser. When Lieutenant Heimerl mentioned the rings, she told him what she had seen. He told her that he was going to get a search warrant, which he did. While he was getting the search warrant, she got the rings and put them in an envelope for safekeeping. When he returned the following morning with the warrant, she took him to the room, opened the envelope and put the rings where she had found them, and he seized them.
The trial court ruled at the omnibus hearing that the warrantless arrest was clearly proper and that it was proper for the officers to look through the open door into defendant's room. He also ruled that it was proper for the police to enter the apartment to get the shoes but that they should have gotten a search warrant before seizing the cap, jacket, shoes, purse and coin purse. However, before trial, he reversed himself and ruled that the seizure of the items in the room was proper pursuant to the legitimate entry into the room to get the shoes.
At trial the victim positively identified defendant, and the other evidence that we have summarized was admitted. Defendant's landlady testified that she played bingo with a fellow tenant and did not return until after midnight. She testified that by the time the police came over an hour later, the footprints that she and this fellow tenant had made in returning from bingo had been snowed over.
The only issue at the sentencing hearing was whether defendant's criminal history score should be two or three. Defendant conceded that he had two criminal history points, one for attempted robbery in Illinois in 1978 and one for committing the present crime while on parole. He disputed the state's contention that he should also receive one point for an Illinois felony escape conviction. He argued that the state had not provided certified documentation of that conviction and that the conduct underlying the conviction did not constitute the felony crime of escape in Minnesota. It is undisputed that the felony escape conviction in Illinois was based on defendant's failure one weekend to return and spend the weekend in jail, as he was required to do by the terms of his probation. The trial court ruled that defendant's criminal history score was three, rather than two, which meant that defendant's presumptive sentence was 30 months executed rather than 27 months stayed.
1. Defendant's first contention is that the trial court prejudicially erred in refusing to suppress the purse, coin purse, cap, jacket and shoes on Fourth Amendment grounds.
An appropriate starting point for an analysis of this issue is with the fact that the so-called "plain view" exception to the warrant requirement is a rule dealing with the seizure of evidence. It permits a police officer "to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be." Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S.Ct. 812, 816, 70 L.Ed.2d 778 (1982), citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), and Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The "plain view doctrine" is not as broad a rule as some people think and must not be applied carelessly. The following relevant discussion from State v. Yaeger, 277 N.W.2d 405, 407 (Minn.1979), bears repeating:
As Judge Moylan points out in his article on the doctrine, "The hardest conceptual problem attending the plain view doctrine is to grasp that it is not a universal statement of the right of a policeman to seize after seeing something in open view; it is rather a limited statement of that right in one of several instances — following a valid intrusion." Moylan, The Plain View Doctrine, 26 Mercer L.Rev. 1047, 1096. Moylan isolates two types of observations of items in open view which are not covered by the plain-view doctrine. The first is the nonintrusive situation, where the police...
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