State v. Kinderman, No. 38954

CourtMinnesota Supreme Court
Writing for the CourtMURPHY; OTIS; KNUTSON; NELSON
Citation136 N.W.2d 577,271 Minn. 405
PartiesSTATE of Minnesota, Respondent, v. Gregory Gene KINDERMAN, Appellant.
Docket NumberNo. 38954
Decision Date25 June 1965

Page 577

136 N.W.2d 577
271 Minn. 405
STATE of Minnesota, Respondent,
v.
Gregory Gene KINDERMAN, Appellant.
No. 38954.
Supreme Court of Minnesota.
June 25, 1965.
Rehearing Denied July 13, 1965.

Page 578

Syllabus by the Court

[271 MINN 405] 1. Where a witness in a robbery prosecution testifies that defendant resembles one of those who participated in the crime, it is not prejudicial error for the court in the presence of the jury to permit the record to show without objection that the witness identified the accused if the court thereafter in his charge states that no positive identification was made.

2. It is not necessary that there be a positive identification of an accused by witnesses to a robbery where the circumstantial evidence is otherwise adequate to support a verdict of guilty.

3. The father's 'house' may also be that of the dependent or emancipated child who resides therein so as to bring him within the protections against unlawful searches and seizures provided by U.S.Const. Amend. IV and Minn.Const. art. 1, § 10; but such protections are subject to the father's superior right as the owner and one in possession of the premises to effectively consent to a search for evidence to be used against the child in a criminal prosecution.

John E. Castor, Minneapolis, for appellant.

Robert W. Mattson, Atty. Gen., William B. Randall, County Atty., Henry W. Pickett, Jr., Asst. County Atty., St. Paul, for respondent.

MURPHY, Justice.

Defendant appeals from a conviction based on an information alleging[271 MINN 406] that on April 11, 1962, he robbed a bar in Ramsey County of a sum in excess of $100 while aided by an accomplice and armed with a loaded pistol. Defendant assigns as error (1) the court's ruling that the record might show defendant was identified by a witness; (2) the insufficiency of evidence to support a finding of guilt; and (3) the receipt in evidence of a gun and items of clothing obtained by a search and seizure without a warrant.

Witnesses for the state testified that on April 11, 1962, at about 11 a.m., two men entered Obb's Tavern at 1347 Burns Avenue and while one held a nickel-plated gun on the employees and patrons the other jumped over the bar and took the contents of the cash drawer. A witness living in the vicinity had previously noticed two young men heading toward the bar and afterward saw them running back to their parked car. Because of their suspicious behavior, the witness wrote down the license number of the automobile while it was parked. She reported her observations to the police shortly after the hour of noon when news of the holdup was broadcast on the radio. With the aid of this description, the police determined that the car was owned by defendant and proceeded to his home at 1316 Margaret Street, where he was arrested at about 12:30 p.m. where still in the automobile. There were found on his person 33 one-dollar bills and 21 ten-dollar bills.

Having been notified by the police of his son's arrest defendant's father returned from his place of employment to his home where he met Officer John Splinter at about 3 o'clock in the afternoon. At the hearing on a motion to suppress evidence, the officer testified that he explained to Mr. Kinderman, Sr., that he was under instructions to search the premises for evidence in connection with the holdup of the tavern. He stated:

'A. Generally I explained to him why I was there, what I came there to look for I might find, I explained it isn't necessary that he give me permission. 1 He told me that anything

Page 579

that didn't belong [271 MINN 407] there wasn't supposed to be in the house, he wanted it out of the house, words to that effect.

'Q. When you said you explained to him why you were there, what did you tell him the reason you were there?

'A. To my knowledge I told him that we had reason to believe his son was involved in a robbery of the Obb's Tavern and I had come there to look and search the boy's room for any possible evidence that could connect him with it.

'Q. What did Mr. Kinderman say to that?

'A. He offered to let me search the room and the house itself.

'Q. What part of the home did you search, sir?

'A. Mr. Kinderman and myself went to the Gregory room which is on the second floor and we started our search in his bedroom.

'Q. And did you remove anything from the bedroom?

'A. From the closet in the bedroom, yes, located a small nickel plated revolver underneath some clothes in the closet in the room.

'Q. Did you remove it from the bedroom?

'A. This closet was connected with the bedroom, yes.

'Q. Did you take the gun into your possession?

'A. Yes, I did.

'Q. At the time you found this gun was Mr. Kinderman present?

'A. Yes, he was standing just a few feet away from me, he watched what I had done and where I found it.

'A. I and Mr. Kinderman found two green jackets and a gray hat and a pair of blue jeans and two pair of sunglasses in the basement.

'Q. At that time did Mr. Kinderman allow you to take these into your possession?

'A. Yes, he did.'

Because the gun, sunglasses, and items of clothing were secured from his home without a search warrant, defendant moved to suppress [271 MINN 408] them as evidence on the ground the search and seizure were unreasonable. The motion was denied, and a similar objection to the introduction of the evidence at the trial was overruled.

1. A witness who was in the bar at the time of the holdup, when asked if anyone Resembled either of the robbers, answered in the affirmative and pointed to the defendant. Thereupon, the prosecutor secured the consent of the court to have the record reflect that the witness on the stand Identified the defendant. Defendant asserts that as a matter of law there was no identification by any witness of sufficient certainty to permit the court to submit the issue to the jury. The court in his charge advised the jury that no eyewitness was able to make a positive identification. While we agree that it was not entirely accurate to characterize the resemblance as an identification, no exception was taken at the time, and the court fully covered the matter in his instructions in the manner indicated. In any case, it is not necessary as a matter of law that identification be positive and certain, and where, as here, there was ample circumstantial evidence to connect defendant with the crime, we cannot

Page 580

say the verdict must fall for want of adequate identification. 2

2. Defendant earnestly contends that in the absence of positive identification the circumstantial evidence does not justify a conviction. Without attempting to recite all of the evidence implicating defendant, we find the record is sufficient to sustain the verdict. An eyewitness reported defendant's license number to the police shortly after noon; the defendant was apprehended within half an hour and was found to have $243 in small bills on his person, the source of which he apparently did not explain until after the trial when at the presentence examination he said he received it from an insurance settlement; a cap, jacket, pants, and sunglasses found in the basement of defendant's home were identified by witnesses as resembling those worn by one of the robbers; defendant's alibi that he was in Hudson, Wisconsin, playing pool was substantially impeached by employees of the poolhall, one of them a North Hudson policeman who testified he habitually kept track of out-of-state licenses; and defendant's claim that he [271 MINN 409] left his car in front of his home on the morning of April 11 and found it there when he returned was discredited by the testimony of a neighbor who stated that the car was gone as early as 9:30 a.m. that day. Notwithstanding the failure of any witness to identify the defendant positively as one of those taking part in the robbery, we hold there was adequate incriminating evidence to permit a finding of guilt beyond a reasonable doubt.

3. It is next contended by defendant that the gun, sunglasses, and items of clothing taken from the premises were the product of an illegal search without a warrant and should not have been received in evidence. He claims that his right to be protected from unreasonable searches and seizures under U.S.Const. Amend. IV and Minn.Const. art. 1, § 10, 3 could not be waived by the father. Reliance is placed upon Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, rehearing denied, 377 U.S. 940, 84 S.Ct. 1330, 12 L.Ed.2d 303, where evidence used to convict the defendant was acquired by police officers in a search of his hotel room made without a warrant during his absence and with the consent of the hotel clerk. It was there held that the search was unlawful because it was not an incident to a lawful arrest and because the hotel clerk could not lawfully consent to the search of his room. The court was of the view that a guest in a hotel, like a tenant of a house or occupant of a room in a boarding house, is entitled to constitutional protection against unreasonable searches and seizures and that protection would disappear if it were left to depend upon the unfettered discretion of an employee of a hotel.

But in this case the consent was given by the father who did not wish to have property on his premises which did not belong there, and who joined with law enforcement officers in determining if such a fact were true. We can agree that the father's 'house' may also be that of the child, but if a man's house is still his castle in which his rights are superior to the state, those rights should also be superior to the rights of children who live in his house. We cannot agree that a child, whether he be dependent or emancipated (defendant was 22 years of age at [271 MINN 410] the time of his arrest), has the same constitutional rights of privacy in the family home which he might have in a rented hotel room. In considering the reasonableness of a search of a home when the search is consented to by...

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