State v. Calegar

661 P.2d 311, 104 Idaho 526, 1983 Ida. LEXIS 420

• Court: Idaho Supreme Court
• Decided: March 30, 1983
• Docket: 13158
• Status: Published

Opinions

BAKES, Justice.

Appellant appeals from a conviction for armed robbery. On April 7, 1978, in the early evening, an armed robbery occurred at a grocery store in Boise. Mr. Don Swenson, an assistant manager, was at the safe at the front of the store. A multicolored shopping bag was dropped at his feet, and he was ordered to fill it with money. He laughed, thinking it was a joke, but the robber said, “Don’t laugh, I’ve got a gun.” The robber, wearing sunglasses, gloves, a hat, and a blue windbreaker with white lining, then opened his windbreaker to reveal what Mr. Swenson described as a brown-handled black gun tucked into his pants. Swenson gave him approximately $2,500, mostly in ones and fives, with some twenties. The robber then left.

At the same time, a Mr. Heatherington was loading recyclable material onto his flatbed truck in back of the Albertson’s store. He saw a man run around the store, carrying something, hop into a Volkswagen bug, and drive away very fast. Mr. Heatherington thought these actions were suspicious, so he recorded the license plate number on the car. The officers traced a nearly identical license number to Michael Calegar, who lived in Nampa, and obtained a warrant for his arrest. On April 8, 1978, officers set up a stakeout at his residence. Calegar and a friend arrived at the residence. Calegar entered the home, and then emerged carrying a small green suitcase. As the officers made their presence known, Calegar jumped into the vehicle with the suitcase, but he and his friend were placed under arrest and removed from the vehicle. At the time of the arrest, a police officer also removed the suitcase from the car after being informed by the defendant that it belonged to him. At that time defendant was advised of his Miranda rights. Also at that time, the defendant told officers not to open the case without a search warrant.

Defendant was interviewed on tape by a detective.. He was again reminded of his Miranda rights and signed a consent form. After officers questioned defendant for some time, he asked for his attorney. He was then allowed to contact his attorney, who apparently told him to remain silent. The detective continued talking to defendant,¹ although the defendant said nothing incriminating during that time. After several minutes, the detective asked defendant if he would open the suitcase, which he apparently did. The case contained approximately $1,100.00, all in ones and fives.

On April 11, 1978, Swenson, the store manager, was shown a photographic lineup containing defendant’s picture. He chose defendant’s photo, indicating that was the man who robbed him.

Defendant filed a motion to suppress nearly all of the evidence in this case, including the oral statement made to the detective, and the contents of the suitcase. In a memorandum decision, the trial judge denied the motion to suppress those items. He ruled that the oral statement given to officers was freely and voluntarily given, and that search of the suitcase was pursuant to defendant’s consent, freely and voluntarily given. Defendant then stood trial and, after presenting no evidence on his own behalf, was convicted of armed robbery.

Defendant then filed this appeal. He asserts that the trial court erred in allowing admission of the oral tape recording, in not suppressing evidence taken from the suitcase, and in not giving instructions requested by defendant concerning the reliability of eyewitness testimony.

We will first consider the alleged error in not giving defendant’s requested instructions. Defendant’s proposed instructions dealt with the unreliability, in general, of eyewitness testimony. These instructions were requested to support the defendant’s attempt to persuade the jury not to accept the eyewitness testimony presented in the case. The requested instructions would have been tantamount to a comment on the evidence, which is impermissible under our practice. The credibility of the store manager’s eyewitness testimony was adequately covered under the court’s other instructions.

In another context we have recently decided a case where a trial judge refused to allow expert testimony on the same subject, reliability of eyewitness testimony. State v. Hoisington, 104 Idaho 153, 657 P.2d 17 (1983). In ruling that it was within the judge’s discretion to disallow such testimony, we quoted the following from a Rhode Island case:

“We are persuaded that the subject matter of the proffered testimony in this case, the trustworthiness in general of eye witness observations, was not beyond the ken of the jurors, and therefore the trial justice did not abuse his discretion in excluding this evidence. Through cross examination, defense counsel was able to probe into the witness’s capacity and opportunity for observation, her attention, interest and distraction. The jury was perfectly capable of assessing the witness’s credibility by weighing the inconsistencies and deficiencies elicited in cross examination.” State v. Porraro, 404 A.2d 465, 471 (R.I.1979).

The principle expressed in the above quotation applies to the appellant’s requested instructions on the subject of reliability of eyewitness testimony. We ruled in State v. Radabaugh, 93 Idaho 727, 471 P.2d 582 (1970), that a trial court did not err in refusing an instruction directing the jury to the weakness of particular evidence. A trial judge should similarly refuse an instruction on a subject which is more properly dealt with through the observations of the jurors themselves, of both witnesses in the courtroom and through their everyday experiences. The unreliability of eyewitness testimony can be amply and adequately demonstrated to the jury through cross examination of the eyewitnesses themselves and through argument to the jury.²

We next consider the alleged error in allowing the contents of the suitcase to be presented in evidence. Defendant alleges that coercive statements made by the detective immediately prior to the opening of the suitcase precludes a finding that defendant voluntarily consented to the search. The defendant argues that since the detective did not have a search warrant, and no other exception to the warrant requirement has been shown, the contents of the suitcase should not have been admitted at trial.

Under the facts of the present case, we must reject the defendant’s arguments and uphold the search of the suitcase. While the trial court based its denial of the motion to suppress on the appellant’s consent, there is another exception to the warrant requirement present here. Police are allowed to search all areas within an arrestee’s immediate control, and such a search will be upheld as “incident to a valid arrest.” Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Warrantless searches conducted incident to a lawful arrest have long been recognized by the United States Supreme Court as reasonable under the fourth amendment. Such searches were approved, in dicta, in cases such as Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); and Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). Since that time the court has struggled to determine how extensive such a search should be. Clearly, the person of the arrestee can be searched “to discover and seize the fruits or evidences of crime.” Weeks v. United States, supra 232 U.S. at 392, 34 S.Ct. at 344. The allowable perimeter of such a search gradually expanded to include the area within the arrestee’s control. Carroll v. United States, supra 267 U.S. at 158, 45 S.Ct. at 287. The right to search the place where the arrest was made was expressly recognized in Agnello.

“The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted.” Agnello v. United States, 269 U.S. at 30, 46 S.Ct. at 5.

The common reasons cited by way of justification for allowing such a search are (1) police officers when making a valid arrest need to secure their own safety by searching out and removing any weapons on the person of the arrestee, or within an area under his control, and (2) there is a need to search for and seize evidence that is located on the person of the arrestee or within his immediate control to prevent the destruction of that evidence. See Chimel v. California, supra.

Since recognition of the “incident to a lawful arrest” exception to the warrant requirement, the United States Supreme Court has been wrestling with the question of how far such a search can extend. Before Chimel, some cases upheld searches of the room where a suspect is arrested. Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). Other pre-Chimel cases invalidated searches of the room or house where a suspect is arrested, especially where officers discovered the evidence in a closed container, such as a desk drawer. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948).

The court, in Chimel v. California, supra, was thus faced with numerous conflicting cases, with no clearcut definition of the scope such a search could take. The search in Chimel was a detailed search of the entire house where an arrest was made. The court attempted to more clearly define the scope of such a search by ruling that the search of the entire house was unreasonable and thus illegal, noting:

“Application of sound Fourth Amendment principles to the facts of this case produces a clear result. The search here went far beyond the petitioner’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was, therefore ‘unreasonable’ under the Fourth and Fourteenth Amendments and the petitioner’s conviction cannot stand.” 395 U.S. at 770, 89 S.Ct. at 2043.

Still, even after Chimel, the lower courts have had difficulty in defining the area within an arrestee’s control for purposes of applying this exception. No clearcut rule emerged that could apply to a search such as the one we are concerned with here until New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In Belton the court was confronted with “the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants.” Id. 101 S.Ct. at 2863. The search challenged in Belton was that of the pocket of a jacket belonging to an occupant of the vehicle, where the occupants were all under arrest and positioned outside, away from the vehicle, and the jacket was located inside the passenger compartment of the vehicle. The Belton court noted that the “courts have found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile and the arrestee is its recent occupant.” Id. 101 S.Ct. at 2864.

The court then concluded that articles inside the passenger compartment of a vehicle “are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a weapon or evidentiary item.’” 101 S.Ct. at 2864. The court held that a police officer can validly search, as a contemporaneous incident to arrest, the passenger compartment of an automobile. The court then went on to note that:

“[Pjolice may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. United States v. Robinson, supra [414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1974)]; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.” 101 S.Ct. at 2864.

The court concluded that a “container” should be defined as “any object capable of holding another object,” including “closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment as well as luggage, boxes, bags, clothing, and the like.” 101 S.Ct. at 2864, n. 4 (emphasis added).

It is clear that the search in the present case falls squarely within the scope of a valid search, as defined in Belton.³ The suitcase was recovered from the inside of the automobile that Calegar was in when he was arrested pursuant to a valid warrant. Thus, it was fully within constitutional limitations to conduct a search of the suitcase at that time. Since the police would have been justified in conducting the search at the time that defendant was arrested in the car, the justification was still present when the search was conducted at the station.⁴ As noted by the United States Supreme Court in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974):

“It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention. If need be, Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), settled this question. There the defendant was arrested at his hotel, but the belongings taken with him to the place of detention were searched there. In sustaining the search, the Court noted that a valid search of the property could have been made at the place of arrest and perceived little difference

‘when the accused decides to take the property with, him, for the search of it to occur instead at the first place of detention when the accused arrives there, ....’” 94 S.Ct. at 1237.

See also Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975).

We also agree with the considered opinion of the trial court, which held that the defendant voluntarily consented to the search of the suitcase. We agree with the statement of the trial court that, “Except for the fact that the defendant was in custody there is nothing to indicate that the act of the defendant in opening the case was anything but a voluntary, uncoerced act.”

Finally, defendant alleges error in the failure of the trial court to suppress the tape recorded interrogation. He claims that, under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and State v. Monroe, 103 Idaho 129, 645 P.2d 363 (1982), there should have been no interrogation of the defendant at all after he invoked his right to counsel; thus, any statement made to officers after invocation of the right to counsel is inadmissible.⁵ He also claims the coercive nature of the conversation tainted any statements he made, making them involuntary.

Defendant argues strenuously that he was prejudiced by the admission of these statements. However, it is clear in listening to the tape recorded portion of the interrogation occurring after invocation of the right to counsel, that the defendant did not make any incriminating statements at all. Indeed, he emphatically stated that he was not guilty. The only thing that happened in the final minutes of the conversation was the act of defendant opening the suitcase, which we have already ruled constituted a valid search. Clearly, the admission of defendant’s statement on the part of the tape after he invoked his right to counsel, if it was error, could only constitute harmless error, because nothing that the defendant said in those final minutes was in any way incriminating. See State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981). The defendant’s conviction is affirmed.

DONALDSON, C.J., and SHEPARD, J., concur.

1 . The bulk of this conversation does not amount to interrogation. It consisted only of an attempt by the officer to clarify the defendant’s wishes, and an explanation by the officer of the consequences of defendant’s decision. Only seven minutes, including pauses in the conversation, elapsed between defendant’s call to his attorney and the opening of the suitcase.

2 . In addition, we were unable to find copies of the defendant’s proposed instructions in the record. It is well settled that an appellate court cannot review claimed error in not giving instructions where the instructions themselves do not appear in the record. See Abercrombie v. Stoddard, 39 Idaho 146, 228 P. 232 (1924); Barton v. Woodward, 32 Idaho 375, 182 P. 916 (1919).

3 . Another line of United States Supreme Court cases allows a search where the search is justified because the police have probable cause to believe contraband is contained in an automobile. Our holding makes it unnecessary to discuss that line of cases. See United States v. Ross, --- U.S. ---, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

4 . Another exception applicable in the present case is the inventory search exception. When suspects are arrested, police officers normally take them and their belongings to the police station. At the station, most employ a routine procedure that involves inventorying and cataloging the various personal items taken from the suspect. An inventory search of this type is said to be a “reasonable” search, and thus falls outside the scope of the fourth amendment. Under the facts of the present case, such an inventory search could have been conducted. See South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 3093, 49 L.Ed.2d 1000 (1976).

5 . It is unnecessary for us to reach the question of whether Edwards and Monroe would invalidate a confession or admission, under the facts of this case, if the defendant had made an incriminating statement. However, we do note that the United States Supreme Court has recently limited the scope of Edwards in a per curiam opinion released November 29, 1982. See Wyrick v. Fields, --- U.S. ---, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). In that case the Eighth Circuit had interpreted Edwards to be a “per se” rule. The United States Supreme Court reversed the Eighth Circuit decision, stating that a “per se" rule “certainly finds no support in Edwards, which emphasizes that the totality of circumstances, including the fact that the suspect initiated the questioning, is controlling.”