State v. Siirila

• Decision Date: 10 December 1971
• Docket Number: No. 42054,42054
• Citation: 193 N.W.2d 467,292 Minn. 1
• Parties: STATE of Minnesota, Respondent, v. Robert SIIRILA, Appellant.
• Court: Minnesota Supreme Court

Page 467

193 N.W.2d 467

292 Minn. 1

STATE of Minnesota, Respondent, v. Robert SIIRILA, Appellant.

No. 42054.

Supreme Court of Minnesota.

Dec. 10, 1971.

Syllabus by the Court

1. Possession of any quantity of marijuana constitutes a crime.

2. Knowledge of possession of a narcotic drug may be established by circumstantial evidence.

3. The search warrant issued in this case was based on sufficient probable cause.

C. Paul Jones, Public Defender, Roberta K. Levy, Asst. Public Defender, Minneapolis, and Earl P. Gray, Asst. Public Defender, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, George M. Scott, County Atty., Henry W. McCarr, Jr., and David G. Roston, Asst. County Attys., Minneapolis, for respondent.

Jon Tuttle, Minneapolis, Amicus Curiae.

On rehearing, heard and decided en banc.

OPINION

KNUTSON, Chief Justice.

Defendant, after waiving jury trial in open court, was convicted of possession of a narcotic drug, Cannabis Sativa L., commonly known as marijuana, in violation of Minn.St.1969, §§ 618.01, 618.02, and 618.21, subd. 1.

Section 618.02 reads:

'Except as authorized by this chapter it shall be unlawful for any person to sell, prescribe, administer, dispense or furnish to a minor, or manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug.'

Cannabis Sativa L., which will be referred to hereinafter as marijuana, is defined by § 618.01, subd. 23, and included as a narcotic drug by § 618.01, subd. 14. Section 618.21 provides penalties for violation of these statutes. ¹

A warrant was obtained by the Minneapolis Police Department on October 25, 1968, to search one 'Bob Jones, described as WM, 5 10 , 170#, long black hair, mustache and beard,' for drugs and narcotic paraphernalia. Probable cause for the search warrant was based upon information received from a reliable informant. 'Bob Jones' had been identified several days before as having in his possession marijuana and LSD. One of the police officers had suggested that 'Bob Jones' was merely an alias for a man known to the police for narcotics violations as Robert Reed, Jr.

On the night the warrant was issued, the police received a call from their informant stating that 'Jones' would be near or at the corner of 5th Street and Cedar Avenue in Minneapolis that evening, in front of Richter's Drug Store; that he would be wearing a black leather jacket; and that he would be in the company of a person who would be wearing a green-and-gold plaid shirt.

Armed with the search warrant, four officers left the police station in two teams. One team arrived at 5th and Cedar between 8 and 8:30 p.m. and observed an individual, who turned out to be defendant, standing on the corner in front of Richter's Drug Store. They recognized him from the description of his person and attire as the person described in the warrant although neither officer had any independent knowledge of his identity. Officer Veryl Burchett testified that defendant looked into the officers' car and immediately turned around and walked rapidly away and into the drugstore. The officers drove their car around the corner and shortly thereafter walked into the drugstore. The other two officers arrived at 5th and Cedar about the same time but they did not observe defendant or the other person who had been described to them. One of the officers entered the drugstore and observed defendant, wearing a black leather jacket, and another person, wearing the clothing the informant had described, sitting together at the counter. The officer left the drugstore, returned to the car, and, with his companion officer, returned to the drugstore. When they arrived there, defendant was in a phone booth. An off-duty officer who happened to be present stated that he knew 'Bob Jones' and pointed defendant out to the other officers.

Two of the officers approached defendant at the telephone booth, identified themselves, and inquired whether he was 'Bob Jones.' He answered that he used that name but that his real name was Bob Siirila. He was taken into a back room of the drugstore and searched, but nothing was found. The officers then took him to their car, where they searched him once more and found nothing. Defendant was then taken to the police station, where his coat was removed and examined, and the officers found what appeared to be traces of a green, plant-like substance, similar to marijuana. Defendant was then placed under arrest for possession of marijuana.

The substance found in defendant's jacket was examined by a chemist of the Minneapolis Public Health Service, who testified that it was marijuana. There was less than 20 milligrams altogether. The chemist testified that she could determine that the substance was marijuana by a comparative microscopic test.

Defendant had been previously arrested on October 16, 1968. He testified that the leather jacket he was wearing on the night of his present arrest had been vacuumed and cut open to search the lining for narcotics, sometime between his arrest of October 16 and his release and the return of his jacket to him on October 18, but that nothing was found.

After conviction, defendant was sentenced to the Youth Conservation Commission for an indeterminate term on December 20, 1968.

The main thrust of defendant's argument on this appeal is that possession of an unusable quantity of marijuana does not constitute a crime. He relies mainly on our decision in State v. Resnick, 287 Minn. 168, 177 N.W.2d 418 (1970) and State v. Morgan, 287 Minn. 406, 178 N.W.2d 697 (1970).

Our decision in Resnick is based for the most part on a determination that the evidence of Possession of a narcotic was insufficient to sustain the conviction. We said (287 Minn. 169, 177 N.W.2d 419):

'There is no evidence whatever that defendant was in actual possession of any narcotic drug on August 29, 1968, the date specified in the information. A leather briefcase was discovered inside a suitcase found in the trunk of a Corvair automobile owned by one Patricia Simon, and there was evidence from which the trial court could have concluded that defendant was in possession of a key which afforded access to this car. There were identifying materials in the suitcase and the briefcase which could have justified the inference that these objects were owned by defendant. The investigating authorities were able to extract from the interstices of the briefcase a small quantity of a material which they identified as 'marijuana.' The state acknowledges that this material was so minimal in quantity as to be unusable for any purpose having a narcotic effect.

'In this situation, we believe, a verdict of guilty which exposes the defendant to a possible sentence of 'imprisonment in a state penal institution for not less than five nor more than 20 years' (§ 618.21) cannot be sustained. It is possible, perhaps, to argue that defendant was in possession of the briefcase from which the 'marijuana' was extracted because he had a key to the car trunk in which the briefcase was found and the car was owned by a girl with whom defendant was living at the time. But we do not believe that a marginal finding of constructive possession of the briefcase is adequate to support the additional conclusion that defendant was in possession or control of a reprehensible narcotic drug merely because an unusable quantity of a plant which grows in the state was found, upon meticulous examination, to be lodged in the crevices of this receptacle. There are drugs which are in Minnesota so exotic in character as to justify, perhaps, the inference that a tenuous possession of the substance in any amount bespeaks illegal possession or control. But we do not believe this to be the case with respect to marijuana, and we cannot sustain this conviction on the basis of the record before us.' (Italics supplied.)

Apparently, we did couple the conclusion that insufficiency of proof of possession would not sustain a conviction with the fact of possession of the minimal quantity of narcotics found by the state in Resnick. Had there not been a lack of sufficient proof of possession, the decision would have been more in point with the case now before us.

Apparently, Morgan was based on the quoted portion of the statement from Resnick which indicates that possession of an unusable quantity of marijuana would not sustain a conviction. We did not try to distinguish the two cases. Our decision in Morgan does not discuss the facts upon which it is based, but an examination of the records and briefs filed here leads us to the conclusion that the facts in Morgan and those in the present case are indistinguishable.

In both Resnick and Morgan we were searching for legislative intent. It is a legislative function to say what acts shall constitute a crime. That is as true of narcotics laws as of any other. In Morgan, we came to the conclusion that the legislature did not intend possession of a minimal unusable quantity of marijuana to be a felony punishable by 20 years' imprisonment.

Since our decision in Resnick and Morgan and the hearing on the case now before us, the legislature has again been in session. It had the opportunity to follow our decisions and to eliminate possession of an unusable quantity of marijuana as a crime. It did not do so. Instead, it enacted L.1971, c. 937, as a new, comprehensive chapter on narcotics, repealing the old laws under which Resnick, Morgan, and the present case were decided. The significant parts of c. 937 are:

Section 4, amending Minn.St.1969, § 152.01, by adding subd. 9, defining marijuana as follows:

"Marijuana' means all parts of the plant Cannabis sativa L., including all agronomical varieties, whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin, but shall not include the mature...