State v. Valstad

• Citation: 282 Minn. 301,165 N.W.2d 19
• Decision Date: 24 January 1969
• Docket Number: No. 41181,41181
• Parties: STATE of Minnesota, Respondent, v. Kenneth D. VALSTAD, Appellant.
• Court: Supreme Court of Minnesota (US)

Page 19

165 N.W.2d 19

282 Minn. 301

STATE of Minnesota, Respondent, v. Kenneth D. VALSTAD, Appellant.

No. 41181.

Supreme Court of Minnesota.

Jan. 24, 1969.

Syllabus by the Court

1. The intent required by Minn.St. 609.59, proscribing possession of any instrumentality with intent to use it to commit burglary, is a general intent to use the tools for a criminal purpose, and it is not necessary to allege an intent to break into a particular building.

2. The intent required may be inferred from the circumstances accompanying the possession of such tools.

3. The trial court correctly instructed the jury that a specific criminal intent can never be presumed. However, intent to use burglarious tools in a criminal manner may be inferred from the character and use of such articles.

4. It is not only the right but the duty of police officers to investigate suspicious behavior to prevent crime and to apprehend offenders.

5. Defendant's arrest did not occur when he was first detained by the officers, but the factual circumstances which developed shortly thereafter established probable cause for arrest without a warrant and a legal arrest followed, authorizing the incidental search of the automobile defendant was driving.

6. The proof of intent to commit a crime in connection with proof of burglary must rest on a permissible inference from the facts proved. The same reasoning is applied to the criminal intent accompanying the possession of burglary tools. In the instant case the state clearly proved facts from which that intent was a permissible inference.

C. Paul Jones, Public Defender, Robert E. Oliphant, Asst. Public Defender, Minneapolis, for appellant.

Douglas M. Head, Atty. Gen., St. Paul, George M. Scott, County Atty., Henry W. McCarr, Jr., Asst. County Atty., Minneapolis, for respondent.

Heard before KNUTSON, C.J., and NELSON, MURPHY, OTIS, and FRANK T. GALLAGHER, JJ.

OPINION

NELSON, Justice.

Appeal from a judgment of conviction of possessing burglary tools, proscribed by Minn.St. 609.59, which provides:

'Whoever has in his possession any device, explosive, or other instrumentality with intent to use or permit the use of the same to commit burglary may be sentenced to imprisonment for not more than three years or to payment of a fine of not more than $3,000, or both.'

On March 17, 1967, Patrolman Wallace Cecil, Minneapolis Police Department, talked to Third Precinct Officer Bridgeman, who said that on the previous evening his partner and he had received a call to go to approximately 49th Street and 17th Avenue to check several men in a car. The automobile appeared to them to be a 1955 to 1957 black Cadillac containing a license with a 3 and a 4 in the last digits. The automobile 'took off' when the police approached. When the officers 'lost the automobile in the chase,' they went back to the original point where they started the chase and found numerous checks and receipts from a Masonic lodge on 52nd Street and Bloomington Avenue. Upon investigation the patrolmen found that the lodge had been burglarized.

On March 22, 1967, at about 11:40 p.m., Officer Cecil and his partner, Patrolman Richard Lorenson, reported for duty at the Third Precinct Station in South Minneapolis. Before leaving their squad car the two officers studied a department memorandum of that day which read as follows:

'Subject BURGLARY OF MASONIC LODGE, 5149 Bloomington * * * 'During the nighttime 3--16/17--67 a burglary occurred at the above listed lodge. The safe was peeled.

'Squad 330, Bridgeman & Ahrens saw the car containing the fleeing burglars and gave chase. They lost the car at approx. 12th Ave. So. and 50th St.

'The automobile is described as a 1955 to 1957 Cadillac, black in color, very dirty. The officers believe that of the last three numbers on the license plate there was a '3' and a '4'--the last three numbers may have been '344.'

'The auto contained at least three people in the car. They are certain that one of the three was a Negro but did not get a good look at the others.

'THIS MEMO IS FOR GENERAL INFORMATION ONLY * * * THIS MEMO IS NOT AUTHORITY TO MAKE AN ARREST.'

About 2:30 a.m. the morning of March 23, 1967, Officers Cecil and Lorenson were 'patrolling in the squad' headed north 'in the vicinity of Chicago Avenue and 43rd Street in the City of Minneapolis,' when, as Officer Cecil related--

'* * * a car traveling south was coming at us with its high beams on and we blinked our lights and he turned his lights down, and we observed a dark model Cadillac and we took the license number and the last three digits were three four six. We made a 'U' turn and the defendant--or the car turned right on 44th Street and then north in the alley between 43rd and 44th Street. Turned off his lights at a high rate of speed.' (Italics supplied.)

The officers followed down the alley at a high rate of speed. Defendant, driving without his lights, made a left turn out of the alley on 43rd Street, heading west, and by the time the officers got to the end of the alley they had lost him. Officer Cecil explained that he and his partner originally followed the Cadillac 'to find out who the driver was, the occupant of the car, because we had previous information that a car of that type and--we had observed the license number and the numbers were in the license, we wanted to find out who was in the car.'

The officers searched the area and a few minutes later saw the Cadillac 'traveling south on Chicago Avenue crossing the intersection of 42nd Street.' The officers then 'turned the Mars light on * * * and followed him to 43rd Street and he turned left or east and stopped half ways--about half way between the next intersection.'

Officer Cecil approached the Cadillac while defendant voluntarily got out of his car and stood by the driver's side. Cecil asked defendant for his driver's license and the latter 'patted his pockets' and said, 'Could I use your flashlight? I believe it's in the glove compartment.' Defendant took the flashlight, leaned in the car, looked in the glove compartment, and then came out and handed Cecil the flashlight with his left hand. As Cecil was putting it in his holder, Lorenson warned him, 'Look out, Buck. He's got a gun.' Defendant then took a .32 caliber pistol from his pocket and threw it into the back seat of the automobile. Officer Cecil thereupon told defendant to 'put his hands on top of the car,' and the officers then searched him.

While Officer Cecil, standing adjacent to the open door on the driver's side, was searching defendant, Officer Lorenson went to the other side of the Cadillac and looked into the car. He then noticed burglary tools in the front seat. The two officers saw, on the passenger side of the front seat, '(t)wo pinch bars, a pair of gloves, one or possibly two flashlights.' Officer Cecil then handcuffed defendant and told him he was under arrest for investigation of burglary.

Other officers had arrived at the scene and a search of the Cadillac was conducted. Other burglary tools found in the car were more particularly described by Officer Ronald Cole, who participated in the search and prepared an inventory. They included two 12- to 14-inch pry bars, flashlights, a pair of gloves, and a longshafted screwdriver. In addition, a search of the trunk yielded an adding machine, corporate seal, coffee can full of change, a rifle, ammunition, and a wide variety of burglary tools including pry bars, cotton gloves, screwdrivers, wire cutters, a sledge hammer, punches, files, wrenches, and nylon rope. In all, 88 items of burglary tools were found in the Cadillac.

While defendant was being transported to the city jail, the arresting officers 'asked him his name but he wouldn't tell us anything.' The officers later learned that the title to the Cadillac was registered to a Wilhelmina Grunow.

Defendant testified in his own behalf and admitted to four prior burglary convictions. He claimed that on the date of the subject crime the real owner of the Cadillac was Richard Grunow. Defendant stated he obtained use of the automobile at 10:30 p.m. on the evening of March 22, 1967, and had the car in his possession until his arrest about 2:30 a.m. on March 23. Defendant denied fleeing from the police on the occasion of the first encounter. He insisted he was then driving 15 miles per hour and that the lights had gone out as he 'was looking for the heater switch and my hand hit the light switch and they were out for approximately three or four seconds.' Defendant insisted that he entered the alley to inspect a car that 'possibly' was for sale. He conceded that when the arresting officer inquired as to what he was doing in the alley with his lights out he made no reply. He stated that he had been on a date until 2 a.m., but he refused to identify the woman because she 'is married and I don't want to have her dragged into court.'

Defendant claimed he first became aware of the squad car when the officers 'turned on their red lights.' Defendant asserted that he threw the revolver into the back seat of his automobile. He denied ownership of any of the burglary tools. He did admit that he had no driver's license in his possession.

Following a Rasmussen hearing the trial court denied defendant's motion to suppress evidence, determining:

'That the police officers had probable cause for stopping the automobile that the defendant was operating on the early morning of March 23, 1967.

'That the arrest of defendant as he stood outside of his automobile after the police discovered in his possession a pistol, two crowbars and two flashlights, all in plain sight, was justified and lawful without a warrant in the light of the knowledge theretofore obtained from informers and investigators that a car of the description of the one defendant was driving was believed to have been involved in a burglary a few nights before.

'That the search and seizure of certain articles and tools in the automobile in question...