State v. Van Wert
| Decision Date | 07 July 1972 |
| Docket Number | 42827,Nos. 42696,s. 42696 |
| Parties | STATE of Minnesota, Respondent, v. Fenton Virgil VAN WERT, Appellant. |
| Court | Minnesota Supreme Court |
Warren Spannaus, Atty. Gen., William B. Randall, County Atty., Steven C. DeCoster, Asst. County Atty., St. Paul, for respondent.
Heard before MURPHY, PETERSON, KELLY, and NELSON, JJ.
In Appeal No. 42827, defendant appeals from a conviction for uttering a forged instrument. Minn.St. § 609.625, subds. 1(1) and 3. In Appeal No. 42696 he appeals from a conviction for possession of a forged instrument, § 609.625, subds. 1 and 3, and from an order denying his motion for a new trial. Both convictions were after a trial by jury. In No. 42827, defendant presents eight issues which are set forth and discussed in paragraphs 1 to 8 herein. In No. 42696, he raises six issues which are identical to issues 1 to 6 in No. 42827 and which are discussed in paragraphs 1 to 6. Both convictions and the order denying the motion for a new trial are affirmed.
Instrumental to both convictions was the introduction into evidence of a vast array of check blanks, drivers' licenses, identification, and forging apparatus. The items were seized pursuant to a search warrant issued on the basis of a lengthy affidavit and petition for the warrant. The affidavit recites a long history of surveillance over defendant and the check-forging ring which he headed.
1. Defendant's first argument on appeal is that the affidavit does not justify a nighttime search. The affidavit states 'that to prevent the loss, destruction or removal of such property the search may necessarily have to be made in the nighttime.' The lengthy affidavit presents a defailed account of the complex nature of defendant's check-forging activities. To prevent destruction of the easily disposable items, the police had to move quickly and in a coordinated manner. We believe that the factors described in the affidavit justified a warrant for a search 'during either the daytime or nighttime.'
2. Defendant contends that the search warrant was not sufficiently particular in its description. Search was authorized for '(c)heck protectors and typewriters used in the preparation of forged checks; stolen printed blank checks of business firms; and identification, particularly Minnesota drivers' licenses, in names other than Fenton Van Wert, Pauline Van Wert or Pauline Graves.' Defendant urges that the description should have included the names of persons whose identification and business checks were the subject of the search and should have specified the make and model of the typewriter and check protectors. Such particularity was not needed in this case where defendant was under investigation for forgery rather than theft of a certain item.
3. Defendant's third argument is that items were seized which did not come within the search warrant, such as filled-in checks, an attorney's blank checks, and check stubs and registers. Such items come within the authorization of the warrant to seize 'printed blank checks of business firms.' Absolute exactness is not required if a strong relationship between the described and seized items exists. State v. Taylor, 290 Minn. 515, 187 N.W.2d 129 (1971); State v. Bagley, 286 Minn. 180, 175 N.W.2d 448 (1970).
4. Defendant also argues that certain check stubs and registers were inadmissible because they were not named in the inventory of seized items or at the Rasmussen hearing. This argument is of little merit since both in the inventory and at the Rasmussen hearing reference was made to 'checks,' which would include the check stubs and registers.
5. The final contention relating to the search warrant is that the evidence is inadmissible because the search did not take place until 27 hours after the issuance of the warrant, which authorized a search 'forthwith.' Such a delay in a case requiring skillful and coordinated police action is not unreasonable.
6. Defendant also questions the admissibility at his trials of certain statements made by him at his bail hearing. During defendant's bail hearing, he admitted that he lived at the house which was searched. When, at the two trials, defendant attempted to prove that he lived elsewhere, his statement made at the bail hearing was admitted. Defendant relies on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1...
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... ... The state contends that cases concerned with the "staleness" of warrants ought to control in the present case. Minn.St. 626.15 provides that a warrant must be executed and returned within 10 days or it is void. In State v. Van Wert, 294 Minn. 464, 199 N.W.2d 514 (1972), this court held that a delay of 27 hours between issuance of the warrant and search was not unreasonable because coordinated police activity was necessary for its execution ... Federal courts have upheld the validity of searches after ... ...
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