State v. Hall

• Decision Date: 03 April 1970
• Docket Number: No. 41461,41461
• Citation: 286 Minn. 424,176 N.W.2d 254
• Parties: STATE of Minnesota, Respondent, v. Robert Norman HALL, Appellant.
• Court: Minnesota Supreme Court

Page 254

176 N.W.2d 254

286 Minn. 424

STATE of Minnesota, Respondent, v. Robert Norman HALL, Appellant.

No. 41461.

Supreme Court of Minnesota.

April 3, 1970.

Syllabus by the Court

1. Where defendant requested a pretrial hearing to determine whether the 'taking' of his shoes constituted an illegal search and seizure, such hearing was required pursuant to State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3, to determine whether the accused's constitutional rights were violated. Where evidence is obtained as a result of a search and seizure and the state fails to give notice of its intent to use such evidence, the court may infer that the evidence was obtained in violation of defendant's constitutional rights. Whenever there is doubt concerning the nature of the 'taking,' a hearing should be held.

2. A careful review of the record reveals that the refusal to hold a requested Rasmussen hearing and the consequently erroneous reception into evidence of the shoes and the other evidence dependent on them; the exhibition of the defendant without Wade-Gilbert protections on two occasions before the only trial identification witness; and the paucity of evidence on 'intent to steal' and other aspects of the case constitute a totality of infirmities requiring an appropriate Rasmussen hearing and a new trial.

3. Footprints which are used to identify or connect an accused with the scene of the crime are admissible if the tracings have sufficient individual characteristics so that a comparison is reliable. Assuming the district court finds that defendant's shoes were not taken in violation of any of his constitutional rights, the shoes, the photographs of the print found on the paint can, the impressions of defendant's right shoe, and the expert's opinion that defendant's right shoe made the print found on the paint can are admissible.

4. An information alleging burglary which fails to set out the type of building C. Paul Jones, Public Defender, Rosalie E. Wahl, Asst. Public Defender, Robert F. Collins, Minneapolis, for appellant.

involved, its ownership, or its location is fatally defective and will not confer jurisdiction on the district court. Here the ownership (possession) was sufficiently alleged to satisfy Minn.St. 628.28, and the other requisites of the statutes were proved at the trial. Although the information was imperfect, it was not fatally defective.

Douglas M. Head, Atty. Gen., St. Paul, J. Jerome Kluck, County Atty., Jack A. Mitchell, Asst. County Atty., Hastings, for respondent.

Heard before KNUTSON, C.J., and NELSON, MURPHY, OTIS, and THEODORE B. KNUDSON, JJ.

OPINION

THEODORE B. KNUDSON, Justice. ^*

This is an appeal from a judgment of the district court adjudging defendant, Robert Norman Hall, guilty of the crime of burglary in violation of Minn.St. 609.58, subd. 2(3), and from an order denying his motion for judgment n.o.v. or a new trial.

On Sunday, September 17, 1967, Harold Leonard, president and manager of Fury Motors, Inc., South St. Paul, went to the office to do some last-minute preparation for the showing of new model cars the next day. At approximately 9:30 p.m., he left his office in the showroom area and went into the service area to get a bottle of soda pop from the vending machine. Leonard testified that an overhead fluorescent light is left on in the service area and was on at the time he entered the area. As he passed in front of the door which leads to the basement stairway, he saw a man about 4 to 6 feet away looking in at him. He stared at the man for 3 to 5 seconds and then 'hollered.' The man turned and ran down the stairs. Leonard returned to his office and telephoned the police. While he was on the phone, he heard one of the overhead basement doors being opened or closed.

Police Officers Clifford Traxler and Kenneth Roberts arrived within a few minutes and Leonard gave them a description of the intruder. He described the man as about 25 years old, dark-haired, tall, and thin, and said he was wearing a light shirt or jacket and dark pants. While searching the building, the officers discovered one of the overhead basement doors open and several paint cans in the vicinity of the door. The officers found nothing to indicate that the intruder had broken or forced his way into the building. Officers Traxler and Roberts returned to their patrol car and began a search of the surrounding area. As they were traveling south on Concord Street, they saw defendant walking Toward Fury Motors. Defendant looked at his watch several times and appeared to be in a hurry. Because he fit the general description given by Leonard, especially as to the clothes he was wearing, the officers called him over to the patrol car. In answer to their questions, defendant stated that his name was Robert Hall and that he was going to a bingo game in West St. Paul. Officer Traxler asked if he would get into the car. When he did, they drove to Fury Motors where Leonard identified defendant as the man he saw. Defendant was immediately placed under arrest and given a Miranda warning.

At 10 p.m., in the detective room of the South St. Paul police station, Leonard Again identified defendant as the intruder. At 10:15 p.m., after Leonard had returned to his office, he received an anonymous telephone call. The caller asked if that were the place that had been burglarized and if the police were still there. When given affirmative answers, the caller said, 'Tell those coppers they better keep working because I will have that safe cracked within a week.' That same night the police discovered a man asleep in a car parked near Fury Motors. In the trunk of the car were a number of tools.

In a search of Fury Motors, Officer John Gutzman discovered a footprint on the top of one of the paint cans which were stacked in the basement. At the station Officer Gutzman asked to see the soles of defendant's shoes. There was a 3/4-inch cut in the sole of the right shoe. The cut in the shoe seemed to match the footprint found on the paint can. Officer Leonard Bursott 'took' defendant's shoes from him. They were sent to the State Crime Laboratory where an analyst, Milton Flohr, after examination concluded that defendant's right shoe had made the impression found on the paint can.

The building in question is two stories high with a basement. Fury Motors leases the first floor and most of the basement from the owner, Fox Brothers, Inc. The Minnesota Highway Department leases the remainder of the basement. Another tenant and Fox Brothers occupy the second floor. The passageway in which Leonard saw the intruder is common to all tenants and each has a right to use it, at least during business hours.

Defendant was charged by information with burglarizing Fury Motors, Inc., tried by a jury, and convicted. He raises four issues on this appeal. He contends: First, the failure of the state to give notice of its intent to introduce his shoes in evidence renders that evidence inadmissible as well as the photographs of the soles thereof, photographs of the footprint found on the paint can, and the expert's opinion with reference thereto, under State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3. Second, the evidence is insufficient to support his conviction. Third, it was error to admit in evidence the items specified in the first issue because the state failed to show when the print had been made. Fourth, the information was fatally defective.

1. State ex rel. Rasmussen v. Tahash, Supra, provides that a pretrial hearing shall be held to determine whether evidence which was obtained as the result of a search and seizure, evidence which was discovered because of a confession or statements in the nature of a confession obtained from the defendant, and confessions or statements in the nature of confessions, were obtained in violation of defendant's constitutional rights. It is the duty of the state to give notice to the court of its intent to use any of the above-mentioned types of evidence. This the state failed to do in the instant case. Where evidence is obtained as a result of a search and seizure and the state fails to give notice of its intent to use such evidence, the court may infer that the evidence was obtained in violation of defendant's constitutional rights.

The defendant twice requested that the state give notice--once orally and once in writing. At trial defendant objected to the introduction of the shoes on the ground the state had failed to give notice. ¹

The state contends that the taking of defendant's shoes was not a search or seizure Within the meaning of the Rasmussen case. The 'taking' ordinarily is denominated a 'search and seizure' or a 'seizure' whether it is found to have been 'reasonable' or 'unreasonable'; to have been done with consent; or that the article taken was in plain sight. ²

Even if, as the state contends, defendant consented to the search, a fact issue was raised which required determination by the judge in a Rasmussen hearing. This court has recognized that when consent is claimed, the prosecutor has the burden of showing it was free and voluntary and was not given in acquiescence to a claim of lawful authority. Defendant was under arrest and in the police station when he allowed the police to see the soles of his shoes and when the shoes were taken. It is doubtful that, if defendant had refused to comply with the officer's requests, the police would have refrained from acting. State v. Mitchell, 285 Minn. 153, 172 N.W.2d 66. In that event, his consent would not be free and voluntary.

The state contends that the plainsight cases govern: State v. Kotka, 277 Minn. 331, 152 N.W.2d 445, certiorari denied, 389 U.S. 1056, 88 S.Ct. 806, 19 L.Ed.2d 853; State v. Clifford, 273 Minn. 249, 141 N.W.2d 124; and State v. Huffstutler, 269 Minn. 153, 130 N.W.2d 347. These cases relate to whether a search and seizure were reasonable or consented to and do not hold that there was no...