State v. Kinderman

136 N.W.2d 577, 271 Minn. 405, 1965 Minn. LEXIS 741

• Court: Supreme Court of Minnesota
• Decided: June 25, 1965
• Docket: 38954
• Status: Published

Opinions

Murphy, Justice.

Defendant appeals from a conviction based on an information alleging that on April 11, 1962, he robbed a bar in Ramsey County of a sum in excess of $100 while aided by an accomplice and armed with a loaded pistol. Defendant assigns as error (1) the court’s ruling that the record might show defendant was identified by a witness; (2) the insufficiency of evidence to support a finding of guilt; and (3) the receipt in evidence of a gun and items of. clothing obtained by a search and seizure without a warrant.

Witnesses for the state testified that on April 11, 1962, at about 11a. m., two men entered Obb’s Tavern at 1347 Bums Avenue and while one held a nickel-plated gun on the employees and patrons the other jumped over the bar and took the contents of the cash drawer. A witness living in the vicinity had previously noticed two young men heading toward the bar and afterward saw them running back to their parked car. Because of their suspicious behavior, the witness wrote down the license number of the automobile while it was parked. She reported her observations to the police shortly after the hour of noon when news of the holdup was broadcast on the radio. With the aid of this description, the police determined that the car was owned by defendant and proceeded to his home at 1316 Margaret Street, where he was arrested at about 12:30 p. m. while still in the automobile. There were found on his person 33 one-dollar bills and 21 ten-dollar bills.

Having been notified by the police of his son’s arrest defendant’s father returned from his place of employment to his home where he met Officer John Splinter at about 3 o’clock in the afternoon. At the hearing on a motion to suppress evidence, the officer testified that he explained to Mr. Kinderman, Sr., that he was under instructions to search the premises for evidence in connection with the holdup of the tavern. He stated:

“A. Generally I explained to him why I was there, what I came there to look for I might find, I explained it isn’t necessary that he give me permission.¹ He told me that anything that didn’t belong there wasn’t supposed to be in the house, he wanted it out of the house, words to that effect.

“Q. When you said you explained to him why you were there, what did you tell him the reason you were there? ,-

“A. To my knowledge I told him that we had reason to believe his son was involved in a robbery of the Obb’s Tavern and I had come there to look and search the boy’s room for any possible evidence that could connect him with it.

“Q. What did Mr. Kinderman say to that?

“A. He offered to let me search the room and the house itself. ‡ ‡ ‡

“Q. What part of the home did you search, sir?

“A. Mr. Kinderman and myself went to the Gregory room which is on the second floor and we started our search in his bedroom.

“Q. And did you remove anything from the bedroom?

“A. From the closet in the bedroom, yes, located a small nickel plated revolver underneath some clothes in the closet in the room.

“Q. Did you remove it from the bedroom?

“A. This closet was connected with the bedroom, yes.

“Q. Did you take the gun into your possession?

“A. Yes, I did.

“Q. At the time you found this gun was Mr. Kinderman present?

“A. Yes, he was standing just a few feet away from me, he watched what I had done and where I found it.

*****

“A. I and Mr. Kinderman found two green jackets and a gray hat and a pair of blue jeans and two pair of sunglasses in the basement.

“Q. At that time did Mr. Kinderman allow you to take these into your possession?

“A. Yes, he did.”

Because the gun, sunglasses, and items of clothing were secured from his home without a search warrant, defendant moved to suppress them as evidence on the ground the search and seizure were unreasonable. The motion was denied, and a similar objection to the introduction of the evidence at the trial was overruled.

A witness who was in the bar at the time of the holdup, when asked if anyone resembled either of the robbers, answered in the affirmative and pointed to the defendant. Thereupon, the prosecutor secured the consent of the court to have, the record reflect that the witness on the stand identified the defendant. Defendant asserts that as a matter of law there was no identification by any witness of sufficient certainty to permit the court to submit the issue to the jury. The court in his charge advised the jury that no eyewitness was able to make a positive identification. While we agree that it was not entirely accurate to-characterize the resemblance as an identification, no exception was taken at the time, and the court fully covered the matter in his instructions in the manner indicated. In any case, it is not necessary as a matter of law that identification be positive and certain, and where, as here, there was ample circumstantial evidence to connect defendant with the crime, we cannot say the verdict must fall for want of adequate identification.²

Defendant earnestly contends that in the absence of positive identification the circumstantial evidence does not justify a conviction. Without attempting to recite all of the evidence implicating defendant, we find the record is sufficient to sustain the verdict. An eyewitness reported defendant’s license number to the police shortly after noon; the defendant was apprehended within half an hour and was found to have $243 in small bills on his person, the source of which he apparently did not explain until after the trial when at the presentence examination he said he received it from an insurance settlement; a cap, jacket, pants, and sunglasses found in the basement of defendant’s home were identified by witnesses as resembling those worn by one of the robbers; defendant’s alibi that he was in Hudson, Wisconsin, playing pool was substantially impeached by employees of the pool-hall, one of them a North Hudson policeman who testified he habitually kept track of out-of-state licenses; and defendant’s claim that he left his car in front of his home on the morning of April 11 and found it there when he returned was discredited by the testimony of a neighbor who stated that the car was gone as early as 9:30 a. m. that day. Notwithstanding the failure of any witness to identify the defendant positively as one of those taking part in the robbery, we hold there was adequate incriminating evidence to permit a finding of guilt beyond a reasonable doubt.

It is next contended by defendant that the gun, sunglasses, and items of clothing taken from the premises were the product of an illegal search without a warrant and should not have been received in evidence. He claims that his right to be protected from unreasonable searches and seizures under U. S. Const. Amend. IV and Minn. Const, art. 1, § 10,³ could not be waived by the father. Reliance is placed upon Stoner v. California, 376 U. S. 483, 84 S. Ct. 889, 11 L. ed. (2d) 856, rehearing denied, 377 U. S. 940, 84 S. Ct. 1330, 12 L. ed. (2d) 303, where evidence used to convict the defendant was acquired by police officers in a search of his hotel room made without a warrant during his absence and with the consent of the hotel clerk. It was there held that the search was unlawful because it was not an incident to a lawful arrest and because the hotel clerk could not lawfully consent to the search of his room. The court was of the view that a guest in a hotel, like a tenant of a house or occupant of a room in a boarding house, is entitled to constitutional protection against unreasonable searches and seizures and that protection would disappear if it were left to depend upon the unfettered discretion of an employee of a hotel.

But in this case the consent was given by the father who did not wish to have property on his premises which did not belong there, and who joined with law enforcement officers in determining if such a fact were true. We can agree that the father’s “house” may also be that of the child, but if a man’s house is still his castle in which his rights are superior to the state, those rights should also be superior to the rights of children who live in his house. We cannot agree that a child, whether he be dependent or emancipated (defendant was 22 years of age at the time of his arrest), has the same constitutional rights of privacy in the family home which he might have in a rented hotel room. In considering the reasonableness of a search of a home when the search is consented to by the father, the protection afforded to the child must be viewed in light of the father’s right to waive it.

The precise question of the right of the father to waive the protected rights of a child to be secure in his “house” and “effects” and to effectively consent to a search of a room occupied by the child has never been passed upon by the Supreme Court of the United States. The generál subject has been discussed in numerous authorities. From these authorities it would appear that the validity of such searches and seizures rests upon the right of control over the premises by the one who gives the consent. 31 A. L. R. (2d) 1081; United States ex rel. McKenna v. Myers (E. D. Pa.) 232 F. Supp. 65; Gray v. Commonwealth, 198 Ky. 610, 249 S. W. 769; Rees v. Commonwealth, 203 Va. 850, 127 S. E. (2d) 406; Woodard v. United States, 102 App. D. C. 393, 254 F. (2d) 312, certiorari denied, 357 U. S. 930, 78 S. Ct. 1375, 2 L. ed. (2d) 1372; Abel v. United States, 362 U, S. 217, 80 S. Ct. 683, 4 L. ed. (2d) 668; Holzhey v. United States (5 Cir.) 223 F. (2d) 823; Tomlinson v. State, 129 Fla. 658, 176 So. 543; People v. Galle, 153 Cal. App. (2d) 88, 314 P. (2d) 58; Maxwell v. State, 236 Ark. 694, 370 S. W. (2d) 113; Morris v. Commonwealth, 306 Ky. 349, 208 S. W. (2d) 58; 113 U. of Pa. L. Rev. 272.

If we are to anticipate the determination the United States Supreme Court might . make of the right of the father to consent to the search of a room occupied by a member of his family, we should be influenced by the decision of the United States Circuit Court of Appeals for this circuit, Roberts v. United States (8 Cir.) 332 F. (2d) 892, in which it was held that a wife could effectively consent to the search of premises owned jointly by herself and her husband, and that the product of the search was admissible in evidence in a criminal prosecution against the husband. While recognizing that courts have expressed divergent views on the question of whether the constitutional protection may be waived by the consent of one’s spouse to enter and search premises jointly occupied and controlled by them, the court came to the conclusion that the search was not unreasonable and under the circumstances in that case the evidence was admissible. The court said (332 F. [2d] 896):

“* * * We hold * * *. that the right of the wife here to enter the home which was in her possession and control cannot be seriously questioned and that her invitation to and authorization to the officers to enter and search was an outgrowth thereof. It is not a question of agency, for a wife should not be held to have authority to waive her husband’s constitutional rights. This is a question of the wife’s own rights to authorize entry into premises where she lives and of which she had control.” (Italics supplied.)

Nor do we feel that the failure of the police officers to secure a search warrant affects the validity of the search. Had one been issued, it may be assumed that in executing it the police would have followed the accepted practice of serving a copy upon the person in possession, who was defendant’s father.⁴ It seems to us that under the circumstances the conduct of the police was not unreasonable. Rather than confront the father with a legal writ which would describe his home as a place where unlawful property was kept and advise him that the officers would have the right to force his doors to execute their business, commendably they informed the father of their problem, which was of greater concern to him than it was to society generally.

In the final analysis the test is reasonableness. We said in State ex rel. Beltowski v. Tahash, 266 Minn. 182, 123 N. W. (2d) 207, certiorari denied, 375 U. S. 947, 84 S. Ct. 358, 11 L. ed. (2d) 278, that the issue of reasonableness of a search and seizure is one of fact and depends upon the particular circumstances of each case. In Roberts v. United States (8 Cir.) 332 F. (2d) 892, 897, the court said (quoting United States v. Rabinowitz, 339 U. S. 56, 63, 70 S. Ct. 430, 434, 94 L. ed. 653, 659):

“What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are ‘unreasonable’ searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case. Go-Bart Importing Co. v. United States, 282 U. S. 344, 357 [51 S. Ct. 153, 158, 75 L. Ed. 374], Reasonableness is in the first instance for the District Court to determine.” (Italics omitted.)

We conclude under the circumstances that it was reasonable for the police officers to seek the consent and cooperation of the father, who was in control of the property, and for him to consent to a search by them in the proper exercise of their duties.

Affirmed.

1 We construe Officer Splinter’s statement, “I explained it isn’t necessary that he give me permission,” to mean that the elder Kinderman had a right to deny him admittance. We do not infer the officer was asserting a right to enter with or without permission since Kinderman, Sr., did not take the stand to suggest he was in any way misled, and no point is made of the ambiguity by defendant.

2 State v. Walters, 262 Minn. 26, 29, 113 N. W. (2d) 468, 470.

3 See, also, Minn. St. 626.01 to 626.04.

4 Minn. St. 626.16 provides: “When the officer conducts the search he must give a copy of the warrant and, when property or things are taken, a receipt therefor (specifying it in detail) to the person in whose possession the premises or the property or things taken were found; or, in the absence of any person, he must leave such copy of the warrant and receipt in the place where the property or things were found. Such delivery of a copy of the warrant shall constitute service.”