State v. Polson
| Citation | 339 P.2d 510,81 Idaho 147 |
| Decision Date | 22 April 1959 |
| Docket Number | No. 8589,8589 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. James POLSON and Betty Ann Johnson, sometimes known as Betty Nan Lanier, Defendants-Appellants. |
| Court | Idaho Supreme Court |
Vernon K. Smith, Boise, for appellants.
Frank L. Benson, Atty. Gen., and Robert D. Wennergren, Asst. Atty. Gen.; Graydon W. Smith, former Atty. Gen., Alfred C. Hagan, former Asst. Atty. Gen., James M. Cunningham, former Pros. Atty., Twin Falls County, on the brief, for respondent.
The information charges appellants with the crime of second degree burglary committed on or about January 22, 1957, in Twin Falls County by daytime burglarious entry of Wilson-Bates Appliance Company store in Buhl.
Appellants stood trial and the jury found them guilty as charged. They have appealed from the judgment of conviction; also from the order denying their motion to suppress evidence and from the order denying their motion for a new trial.
The evidence fairly reflects the facts hereinafter set forth.
January 22, 1957, the sheriff's office in Twin Falls County received information relative to a movie projector allegedly stolen from a certain dealer in Buhl in said county. This dealer waited upon one of appellants but did not sell them a projector. After they left his store, he followed them out and looked into their automobile. He did not see the projector. The Twin Falls County officers transmitted information relative to this taking, to the King Hill Port of Entry station and the officer there in charge relayed it to the police officers of Glenns Ferry.
Between 7:15 and 7:30 P.M., that evening, Chief of Police Taylor, of Glenns Ferry, and Deputy Sheriff Ross of Elmore County, apprehended appellants riding in a Ford automobile, driven by appellant Polson, on U. S. Highway 30 near Glenns Ferry.
The officers informed appellants that the purpose of stopping them was to ascertain if they had a movie projector. Officer Ross asked permission to look into the car but appellant Polson refused a search without a search warrant. Appellants then consented to return to King Hill Port of Entry some 8 miles easterly from Glenns Ferry.
At King Hill the officers ascertained that the automobile operated by appellants was registered in the name of appellant Johnson in the State of Idaho, though State of Montana license plates were on the car.
The officers, at King Hill, conversed by telephone with the sheriff's office in Twin Falls County and discussed the matter of obtaining a search warrant; thereupon both appellants consented to a search of the automobile. Appellant Polson opened the door of the automobile, took out suitcases and other 'stuff', and aided the officers in looking through the car. They did not find the movie projector. Officer Taylor then testified:
Deputy Sheriff Pryor, of Twin Falls County, returned appellants from King Hill to Twin Falls about 11:00 P.M., the evening of January 22nd, placing them under arrest on suspicion of burglary. Sheriff Benham, of Twin Falls County, stated: 'The officers * * * had been notified they were suspected of stealing a movie projector out of a store at Buhl, and that is what they were picked up on and brought to Twin Falls for.' He told appellants that night, 'I was going to hold them on this deal at Buhl, this stuff taken out of a store down there that they were accused of taking.' He indicated to appellants that night, 'I would have the night man watch the car and the next morning take all the stuff out of the car, and they agreed to that, both of them.'
Appellants continued in the custody of the sheriff.
The next morning the sheriff's office received information from Chief of Police Kendrick of Buhl that a portable Philco radio had been taken the day before from Wilson-Bates Appliance store in Buhl. After receiving that information the officers, upon investigating the contents of appellants' automobile, and the various electrical appliances of some twelve in number, found and identified the referred-to radio. The alleged felonious taking of this radio furnished the basis of the charge against appellants and their conviction.
Appellants assert error of the trial court in refusing their motion to suppress evidence, viz., the electric applicances taken from their automobile. They maintain that they were not legally arrested, therefore no right of search without search warrant attained.
The facts show that the law enforcement officers of Glenns Ferry, based upon information of the alleged burglarious taking of the movie projector, stopped appellants' automobile, and apprehended appellants, which resulted in their being remitted to the custody of the sheriff of Twin Falls County.
I.C. § 19-603 reads in part:
'A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person:
The arresting officers had sufficient facts within their knowledge to make the arrest. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; People v. Duroncelay, 48 Cal.2d 766, 312 P.2d 690. The officers arrested appellants on the charge of the Twin Falls County officers upon reasonable cause, of the commission of a felony by the parties arrested. Draper v. United States, supra.
Generally, an officer may, without a warrant, arrest a person whom he has probable cause to believe guilty of a felony. 6 C.J.S. Arrest § 6 b(2), p. 587. 'Probable cause must, in this connection, mean reasonable ground of presumption that the charge is, or may be, well founded; * * *.' Wood v. United States, 16 Pet. 342, 41 U.S. 342, at page 366, 10 L.Ed. 987, 996.
Reasonable cause to believe that an accused has committed a felony is a test of the arresting officer's right to arrest. I.C. § 19-603; Helgeson v. Powell, 54 Idaho 667, 34 P.2d 957.
The definition of 'reasonable cause' is the possession of such information as would lead a man of ordinary care and prudence to believe or entertain honest and strong suspicion that a felony had been committed by appellant. State v. Autheman, 47 Idaho 328, 274 P. 805, 62 A.L.R. 195; Helgeson v. Powell, supra.
'The officer, * * * need not necessarily have personal knowledge of the facts constituting the offense, in the sence of having seen or witnessed the offense himself, but he may, where there are no circumstances known to him which materially impeach his information, acquire his knowledge from information imparted to him by reliable and credible third persons, or by information together with other suspicious circumstances.' 6 C.J.S. Arrest § 6d(2)(a), p. 599.
We conclude that the arrest was lawful.
The arrest being lawful the rule applicable to the search and seizure is expressed in State v. Conner, 59 Idaho 695, 704, 89 P.2d 197, 201, as follows:
See also State v. Bock, 80 Idaho ----, 328 P.2d 1065; United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.
Consent of both appellants rendered additional validity to the search and seizure. A search warrant is not necessary where the owner of the property gives his consent to the search. State v. West, 42 Idaho 214, 245 P. 85; State v. Hagan, 47 Idaho 315, 274 P. 628; State v. Kaiser, 49 Idaho 351, 288 P. 154; State v. Beach, 51 Idaho 183, 3 P.2d 539; State v. Spencer, 74 Idaho 173, 258 P.2d 1147.
Appellants argue that they were improperly held by the officers since the only complaint had to do with a missing movie projector from a dealer in Buhl; whereas, not until the following day did the officers obtain information that the Philco portable radio allegedly had been taken from Wilson-Bates Applicance store in Buhl and that other articles allegedly had been taken from other stores in Buhl, by parties ostensibly meeting appellants' descriptions. Appellants therefore contend that the articles obtained from the search, including and in addition to the portable radio, cannot be used as a foundation for the prosecution of appellants, since they were arrested for an allegedly different crime, viz., the alleged burglarious taking of a movie projector.
The rule is otherwise in this state and well stated in State v. Proud, 74 Idaho 429, 434, 262 P.2d 1016, 1019, amply supported by authorities, as follows:
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State v. Alger
...information were sufficient to warrant a prudent man in believing that the petitioner had committed . . . an offense"); State v. Polson, 81 Idaho 147, 339 P.2d 510 (1959); State v. Autheman, 47 Idaho 328, 274 P. 805 The adequacy of probable cause is not measured against the high standards r......
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