State v. Sorenson

• Decision Date: 29 January 1965
• Docket Number: No. 38998,38998
• Citation: 270 Minn. 186,134 N.W.2d 115
• Parties: STATE of Minnesota, Respondent, v. Harley M. SORENSON, Appellant.
• Court: Minnesota Supreme Court

Page 115

134 N.W.2d 115

270 Minn. 186

STATE of Minnesota, Respondent, v. Harley M. SORENSON, Appellant.

No. 38998.

Supreme Court of Minnesota.

Jan. 29, 1965.

Rehearing Denied April 21, 1965.

Syllabus by the Court

1. It is clear that Minn.St. 629.34(3) allows a police officer to arrest a suspect without an arrest warrant when a felony has occurred and he has reasonable cause for believing that the suspect committed it. 'Reasonable cause' and the 'probable cause' required by the Fourth Amendment to the United States Constitution are synonymus.

2. 'Probable cause' for an arrest has been defined as a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.

3. While it is clear that citizens are entitled to uniform protection from unreasonable searches and seizures under both state and Federal procedures, there is no requirement under our decisions that state police officers must follow precise procedures in making arrests, searches, and seizures. The Fourth Amendment to the United States Constitution protects the individual only from 'unreasonable' searches and seizures; and whether a search and seizure is 'unreasonable' must depend upon the particular facts of each case.

4. The arresting officer need not have in hand evidence which would suffice to convict, since the rule of probable cause, tempered by reason and a spirit of fair play, when applied to the facts at hand, furnishes the only practical working basis upon which the police officer can operate in evaluating the situations which confront him in the law-enforcement field.

5. Whether a search is reasonable is to be determined by the trial court in the first instance.

6. A reasonable man, experienced as a detective and police officer, acting on the information at hand, could sensibly conclude that defendant in all probability committed the burglary and made the indecent proposals to the victim in the case at bar.

7. The suspect, having been lawfully arrested, the right to reasonable search and seizure extends to things under the arrested person's control and depending upon the circumstances, to the place where he was arrested.

Police officers have the right to search an automobile under the immediate control of the accused at the time of his arrest when the search is incident to a lawful arrest based upon probable cause.

8. Introduction of illegally seized evidence which was merely cummulative was not reversible error.

9. If evidence of the commission of other crimes tends to show defendant was involved in a plan or scheme, his guilt of a crime according to that scheme may well be inferred.

10. Where the identity of the accused is not definitely connected with the offense for which he is on trial, evidence of other offenses may be introduced to connect and identify him with that one, and where the sole issue in a case is as to identity of defendant, the evidence on that issue may be properly permitted to take a wide range to the extent that, in a measure, the rigid rules of evidence will be relaxed.

11. In general, evidence of an independent offense by the accused is admissible to prove his identity as the perpetrator of the crime charged; and proper evidence so to identify him is not inadmissible because it tends to prove him guilty of another crime.

Lewis E. Lohmann, Public Defender, Paul W. Lohmann, Asst. Public Defender, Minneapolis, for appellant.

Walter F. Mondale, Atty. Gen., St. Paul, George M. Scott, County Atty., Stephen F. Varichak and Philip J. Bloedel, Asst. County Attys., Minneapolis, for respondent.

NELSON, Justice.

A jury found defendant guilty of burglary in the second degree and he appeals from the order of the trial court denying his motion for a new trial.

The state, by information duly filed, accused defendant of breaking and entering Roberta Mowrey's apartment at 2639 Colfax Avenue South, Minneapolis, Minnesota, on or about April 28, 1962, during the nighttime and while Mrs. Mowrey was in the apartment.

Defendant, who had been arrested without a warrant, entered a plea of not guilty and moved for an order suppressing as evidence property seized as a result of a search of his person and automobile at the time of his arrest, and any evidence derived as a direct result of such search and seizure. Defendant also requested that the state be directed to return such property to him. He assigns the denial of his motion as error.

The salient facts as disclosed by the record are as follows: The Minneapolis Police Department received a telephone call about 5:30 a.m., April 28, 1962, by which they were informed that Mrs. Mowrey's apartment had been burglarized and that she had been assaulted by the burglar. She described the burglar at the time as a white male, about 30 years of age, more than 6 feet tall, weighing 200 to 220 pounds, with light-colored hair, worn in a crew cut, and said that he was wearing a scarf over his face.

Mrs. Mowrey lived alone in her basement apartment at 2639 Colfax Avenue South. On April 26, 1962, she spent the evening with friends at the Dyckman Hotel in Minneapolis. When she left the hotel about 1:15 a.m. to take a taxi, a man in a passing car stopped and asked her if she would like a ride home. She accepted the offer and upon arriving at her apartment she expressed her appreciation to the driver and went into her apartment alone. She discovered the following day that $50 which she had carried in her purse the evening before was missing, as were her apartment keys. Mrs. Mowrey does not know whether she locked the apartment door on the morning of the 27th before going to bed. It appears, however, that shortly after midnight the following day, April 28, a Mr. Kennedy, whom she had been dating, arrived at her apartment and invited her to accompany him to a tavern for refreshments. She accepted but they arrived too late to be served and returned to the apartment. About 3 a.m. both heard a noise and immediately looked about the apartment but did not discover anyone. About 4:45 a.m., after Mrs. Mowrey had gone to bed, she awoke to find a man pulling down the bed covers. Her next recollection is seeing the man standing in the living room, staring into her bedroom. She got up, put on a robe, and ran into the living room where the intruder stood, with gloves in his right hand, his left hand holding a maroon scarf around his face and head. As she came into the living room the intruder grabbed her by the arms and said, 'Don't make trouble because I have pictures of you.' She next saw her purse lying open on the floor and said, 'You are the man that took my money and keys.' The intruder replied, 'Yes, I did, they are out in the car.' He then pushed her toward the couch and said, 'I am going to have you.' She immediately screamed and said, 'You stole my money again,' and at this time grabbed the upper part of his arms. The two grappled and she called to Mr. Kennedy, who had remained at the apartment. By this time the intruder was going out the front door, Mrs. Mowrey holding onto his back. It appears that they fell momentarily on the steps and then the intruder ran toward the parking lot with Mrs. Mowrey still clinging to his back. Upon reaching the parking lot he struck her in the jaw, hard enough to crack a back tooth, and then ran from the lot. Mr. Kennedy who had entered the parking lot to aid Mrs. Mowrey saw the intruder as he ran from the lot down an alley.

The record indicates that the stairway to the parking lot was lighted and that it was light enough out-of-doors to see clearly. Mrs. Mowrey, whose height is about 5 feet 11 inches, described the intruder as being about 6 feet 1 inch tall. She testified that he wore the maroon scarf about his face at all times, which interfered with her ability to clearly observe his features. She thought he wore a brown topcoat and a short brown jacket.

Mrs. Mowrey was unable to identify the driver who took her home but she did remember that his automobile was two-tone red and white, and appeared somewhat newer than her 1951 Ford. Defendant testified he owned a 1953 two-tone cream over red Lincoln. On the morning of April 28 when the intruder appeared in her apartment Mrs. Mowrey had $54 in her purse in cash from her recent paycheck. She discovered after the burglary that the intruder had taken all of it.

Mr. Kennedy's description of the burglar parallelled Mrs. Mowrey's as to physical appearance and dress. Mr. Kennedy identified defendant at the police lineup, at the preliminary hearing, and at the trial as the burglar. It appears that in Mr. Kennedy's identification he placed special reliance upon on 'two protruding bumps' in the back of defendant's head and the very short, crew-cut appearance of his hair.

The record indicates that considerable information relative to defendant's past was in the possession of the Minneapolis Police Department. Detective Captain William Mahnke, in charge of the burglary division, received the details of the burglary about 5:30 a.m. on April 28, from Sergeant Robert E. Madryga of the Minneapolis Police Department. Captain Mahnke also knew at the time that on February 4, 1962, in the early morning, a burglary occurred at 2427 Blaisdell, Apartment 12, Minneapolis, wherein a man entered the apartment by using keys which had been stolen from the same apartment the night before, took money from the victim's purse, and spent about an hour attempting to fondle the victim and making indecent proposals to her. He was also aware that on the same day, in the same building, but in a different apartment a burglary occurred wherein a man entered, either by using a key or opening the door with a case knife, took money from the victim's purse, and told her that he had taken pictures of her in indecent poses while she was in bed. After these burglaries occurred, Captain Mahnke had searched police department files and discovered that d...