State v. Wiberg, 49787.

• Decision Date: 03 July 1980
• Docket Number: No. 49787.,49787.
• Citation: 296 NW 2d 388
• Parties: STATE of Minnesota, Respondent, v. Diane Adele WIBERG, Appellant.
• Court: Minnesota Supreme Court

296 N.W.2d 388 (1980)

STATE of Minnesota, Respondent, v. Diane Adele WIBERG, Appellant.

No. 49787.

Supreme Court of Minnesota.

July 3, 1980.

C. Paul Jones, Public Defender, and Mark F. Anderson, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Chief, App. Division, Asst. County Atty., David W. Larson, Asst. County Atty., Minneapolis, for respondent.

Heard before ROGOSHESKE, KELLY and YETKA, JJ., and considered and decided by the court en banc.

KELLY, Justice.

Defendant, Diane A. Wiberg, was found guilty by a Hennepin County jury of knowingly receiving stolen property in violation of Minn. Stat. § 609.53, subd. 1 (1978),¹ and was sentenced to 5 years imprisonment. The issues raised on appeal are whether a question asked of defendant by one of the arresting officers was improper, whether defendant's statements to a police officer 2 days after her arrest were the product of an unnecessary delay in being brought before a magistrate or of defendant's statement made at the time of arrest, whether the facts set forth in the affidavit supporting the application for a warrant to search defendant's residence were sufficiently reliable to establish probable cause, whether the trial court erred in failing to instruct on a lesser included offense even though defendant waived the instruction, and whether the evidence was sufficient to support defendant's conviction. We conclude that the trial court erred in admitting a statement defendant made at the time of arrest into evidence and that such error is not harmless beyond a reasonable doubt. We thus reverse and remand for a new trial.

Sometime between May 26 and May 30, 1978, a warehouse located in Minneapolis owned by the Paul Bunyan Company was burglarized and approximately 550 firearms were stolen. In the course of investigating the crime, the police obtained a search warrant authorizing them to search a house rented to defendant and her boyfriend. The search warrant was executed at 12:45 a. m. on Tuesday, June 6, 1978. In a padlocked room the police discovered 451 of the guns taken from the Paul Bunyan Company. The police also found two shotguns in a bedroom closet shared by defendant and her boyfriend and, in a handbag on the closet floor, a pistol and some gun literature.

Defendant and her boyfriend were in the kitchen of the home when the police entered. After they were arrested and given Miranda warnings, defendant stated she did not wish to speak to the police. Shortly after the Miranda warnings were given, one of the officers who heard the warnings administered approached defendant with the handbag he found in the closet and asked if it was hers. Defendant replied that it was, and her response was admitted at trial over her objection. Following the 4-hour search, defendant was brought to the Hennepin County Jail. She remained in jail all day Tuesday and Wednesday and was not arraigned until late in the morning of Thursday, June 8, 1978.

Shortly before being arraigned, defendant was interrogated by a police officer. She was given a Miranda warning and agreed to speak with the officer. She admitted that the handbag was hers but stated she had never seen the pistol and did not know how it got into her purse. She denied ever having seen shotguns in the closet she shared with her boyfriend. These statements were also admitted at trial over defendant's objection.

At trial a fingerprint expert testified that a fingerprint found on one of the shotguns in the closet matched defendant's fingerprints. Defendant testified that, while she had not seen the guns in the closet, she had seen two shotguns in the corner of the bedroom and had moved them to the bed. Defendant also testified that she had never seen the pistol or gun literature found in her handbag and did not know how they got there. Defendant stated, without objection, that her boyfriend admitted putting the pistol in her purse.

Defendant first argues that it was improper for one of the arresting officers to ask her if the handbag found in the closet was hers and that her affirmative response to the question should have been suppressed.

One of the fundamental principles of Miranda is that a person who is in custody has the right to remain silent and, if he exercises that right, any interrogation must cease. Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966). In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Supreme Court considered under what circumstances, if any, a resumption of questioning is permissible. Concluding that Miranda cannot be read to create a per se proscription of indefinite duration upon any further questioning once the defendant has indicated a desire to remain silent, the court held that "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his `right to cut off questioning' was scrupulously honored." 423 U.S. at 104, 96 S.Ct. 326. We followed the Mosley holding in State v. Crisler, 285 N.W.2d 679 (Minn. 1979).

In this case an officer, who only a few minutes earlier had heard defendant indicate that she wished to remain silent after another officer gave her Miranda warnings, asked defendant whether a handbag containing one of the stolen guns was hers. The short lapse of time coupled with the inherently coercive atmosphere generated by the late-night search of a private home persuade us that such a question was inconsistent with the officer's obligation to "scrupulously honor" defendant's fifth amendment rights. We conclude, therefore, that the officer's question was a violation of defendant's constitutional rights and, as a result, it was error for the trial court to admit evidence of defendant's response.

Because the officer's questioning of defendant shortly after she had exercised her fifth amendment rights was a constitutional violation, the error is prejudicial if there is a reasonable possibility that the erroneously admitted evidence might have contributed to defendant's conviction. State v. Crisler, 285 N.W.2d 679 (Minn. 1979). The statement made in response to the officer's improper interrogation at the time of the search was the only direct evidence that defendant owned the purse in which a stolen pistol was found. We therefore conclude that its admission was prejudicial, and constitutes reversible error.

The second issue is whether the defendant's statement to the police officer two days after her arrest should have been suppressed by the trial court, either as the product of an "unnecessary delay" before arraignment under Minn.R.Crim.P. 4.02, or as the fruit of the statement given at the time of arrest. Minnesota's prompt arraignment rule, Minn.R.Crim.P. 4.02, subd. 5(1) provides:

An arrested person * * * shall be brought before the nearest available judge of the county court of the county where the alleged offense occurred or judicial officer of such court or judge of a municipal court in such county * * * without unnecessary delay, and in any event not more than 36 hours after the arrest, exclusive of the day of arrest, Sundays, and legal holidays, or as soon thereafter as such judge or judicial officer is available.

Under this rule, if a person is held for more than 36 hours, the delay will be presumptively illegal. We have held that a defendant can also show illegal delay under the rule if he is held for less than 36 hours but is nevertheless not brought before a judge without unnecessary delay. State v. Bradley, 264 N.W.2d 387 (Minn. 1978). The rationale of rules requiring that arrested persons be promptly arraigned is that to do so avoids the coercive nature of custodial surroundings by preventing secret interrogation and the resultant pressure to confess. In addition, prompt arraignment insures that an arrested person will be fully advised of his rights by a judicial officer soon after his arrest.

Defendant was arrested on Tuesday, June 6, at 12:45 a. m. and was not arraigned until approximately 11 a. m. on Thursday, June 8. While it was 57 hours between defendant's time of arrest and her arraignment, for purposes of Rule 4.02 defendant was held less than 36 hours since the rule provides that the day of arrest is not considered in computing the time a defendant has been held.² Defendant's argument on appeal, therefore, is that this delay was unnecessary.

We have not had an opportunity to fully consider what constitutes unnecessary delay under Rule 4.02.³ In reviewing the decisions under the federal prompt-arraignment rule, Fed.R.Crim.P. 5(a), it is difficult to ascertain specific guidelines. The cases indicate that, although the time factor is a key element in whether a delay is unnecessary, it is also important for a court to consider how the time was used. See United States v. Johnson, 467 F.2d 630, 636 (2d Cir. 1972) cert. denied, 413 U.S. 920, 93 S.Ct. 3069, 37 L.Ed.2d 1042 (1973). Courts have held that delays as short as 17 hours and 7½ hours were unreasonable. United States v. Mayes, 417 F.2d 771 (9th Cir. 1969); United States v. Binet, 335 F.Supp. 1000 (D.C. N.Y. 1971). Where the delay has been substantially longer, courts have been willing to find the delay not excessive only where it was not unreasonable under the circumstances or where any evidence obtained from the defendant was not related to the delay. See, e. g., United States v. Davis, 532 F.2d 22 (7th Cir. 1976). Thus, where arraignment was delayed, for example because of travel, because no judge was available or because the police wanted to verify an explanation given by the defendant, or where a defendant's statement was made soon after his arrest so that it was not prompted by the ensuing delay, federal courts have found the delay to be justified.

In the present case defendant remained in jail for 2½ regular business days before being arraigned, but the...