State v. Willis

269 N.W.2d 355, 1978 Minn. LEXIS 1265

Opinions

OTIS H. GODFREY, Jr., Justice.

Footnotes

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Defendant was convicted in June 1975 by a district court jury of burglary and aggravated rape [Minn.St.1974, § 609.291(2)]. He was thereafter sentenced to serve concurrent terms on the two criminal charges to be served consecutively with prior sentences on burglary and receiving stolen property, for which probation was revoked. Defendant has appealed the convictions on the grounds that there was an unconstitutional search and seizure of his apartment at the time of his arrest, and that certain statements made by defendant were erroneously admitted in evidence during trial. We affirm.

Defendant was arrested by Minneapolis police officers on the evening of February 13, 1975, within minutes of a reported burglary and rape at knifepoint. The victim described her assailant as a short black man, wearing a black leather jacket, dark pants, and “wooly” gloves. He had a nylon pantyhose over his head.

After the rapist left her apartment, the victim found that the cord to her telephone had been cut, so she ran to the caretaker’s apartment to summon the police. The radio dispatcher broadcast that a rape had occurred near 22nd St. and Pillsbury Ave. and the police responded. As Officers Kopplow and Palmer were traveling east on 28th Street, in the vicinity of the incident, they observed a taxi discharge a short black man with bushy hair, wearing a shiny jacket. They waited for the taxi and stopped it a block away. While the officers were talking to the cab driver, a description of the assailant went out over the police radio — A Negro male in his 20’s, about 5 feet 4 inches tall, bushy hair, short mustache, wearing a leather jacket and possibly green pants. This matched the description of the man who had just left the taxi and had entered a nearby apartment. The cab driver told the officers that he had gone into the building in order to collect his fare and that the passenger had had a conversation with someone else in his apartment. He had picked up his fare within 3 blocks of the incident.

The police officers immediately went to the apartment, knocked on the door, and it was opened by defendant. They promptly arrested him, just inside the doorway, where he remained with one of the officers. The two other patrolmen searched the apartment for the purpose of finding the other person said by the taxi driver to have been present.

No other occupant was found, but in the course of their search the officers found in plain sight a pair of pantyhose on a shelf, two nail files (one with a small handle), and a pair of dark colored knit gloves. Meanwhile, the officer who had remained with defendant opened a large closet near the front door and observed two leather jackets.

Much of the evidence presented during the trial was the result of laboratory tests and analysis by the State Bureau of Criminal Apprehension on blood types and groupings of the victim and defendant, hair samples, and semen samples. Some of the matters tested were taken from the jacket, gloves, and pantyhose seized in defendant’s apartment, while others came from the victim herself or from items found in her apartment. All the test results were consistent with the charge that defendant was the assailant. When shown a group of photographs by the police, the victim was unable to make positive identification, although she paused and commented about defendant’s picture. His physical characteristics are similar to the original description given to the police. The jury returned a verdict of guilty on the charges of burglary and aggravated rape, the latter being under the then statute § 609.291(2).

Three issues are presented for our review:

(1) Was there probable cause to arrest defendant?

(2) Were the constitutional rights of defendant violated by the search and seizure of his apartment at the time of his arrest?

(3) Was it error to admit defendant’s statements, made prior to his having been informed of his constitutional rights, when no objection was made at the time of trial?

1. The police officers clearly had probable cause to arrest defendant. Other rapes had occurred in the area, and the suspect had been.described as a short Negro male. Defendant was observed by the officers getting out of a taxi which had picked him up within 2 blocks of the rape and burglary and almost immediately after the event. His physical appearance and clothing furthermore matched the description given by the victim.

This court held in State v. Sorenson, 270 Minn. 186, 196, 134 N.W.2d 115, 122 (1965), that probable cause for an arrest is a “ ‘reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.’ Garske v. United States (8 Cir.) 1 F.2d 620, 623.”

Under Minn.St. 629.34(3), a police officer may arrest a person without a warrant when a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it. We have held that “reasonable cause” and the “probable cause” required by the Fourth Amendment are synonymous. State v. Harris, 265 Minn. 260, 121 N.W.2d 327 (1963).

Each case, of course, must be decided on its own particular facts. The arresting officer must be guided by his experience and observation but he need not have enough evidence to sustain a conviction. Here, the police officers were in fresh pursuit of a man suspected of committing a violent crime and had ample probable cause to arrest defendant without a warrant.

2. A closer question is presented concerning the items seized as a result of the search of the defendant’s apartment at a time when he was already under arrest. Police officers are faced daily with the necessity of making instantaneous decisions while frequently under stress and subject to threats to their personal safety. Here, they had been told by the cab driver that some other individual had been present in the apartment just minutes before the arrest of defendant. The officers were justified in making a protective search of the premises to determine if another person was then present, armed or otherwise. As we held in State v. Houff, Minn., 243 N.W.2d 129, 133, “[t]he test is not whether it would have been reasonable for the police to obtain a search warrant, but whether they acted reasonably in proceeding without one.” See, also State v. Smith, Minn., 261 N.W.2d 349 (1977), where this court found that the plain-view doctrine applies when the initial intrusion is legal.

Under the facts of this case, we hold that the police officers’ entry and search of defendant’s apartment were justified and legal. Any items observed in plain sight or in place where an individual could have been in hiding were therefore admissible in evidence. This ease is clearly distinguished from State v. Mitchell, 285 Minn. 153, 172 N.W.2d 66 (1969), where the search was conducted of an upstairs bedroom, wholly unrelated to the arrest.

3. During the trial, a police officer testified regarding statements made by defendant after his arrest, but before he had been advised of his right to remain silent. In response to questions, the defendant said he had been at a friend’s house earlier that evening and that he had walked home. He denied being in any cab. No objection was made by defense counsel to the introduction of this evidence at either the Rasmussen hearing or at trial. Appellant argues that because objection was made at the preliminary hearing in municipal court, his objection is preserved.

The function of a preliminary hearing is to determine only whether sufficient evidence- has been produced to establish probable cause for holding the defendant on the charge. It is not a trial. State v. Schwartz, 266 Minn. 104, 122 N.W.2d 769 (1963). Any objections to the introduction of evidence would have to be made at the time of trial. Perhaps defendant’s attorney chose not to do so because the statements appear to be exculpatory. In any event, the fundamental rule is that this court will not decide issues which are raised for the first time on appeal. See, State v. LaBarre, 292 Minn. 228, 195 N.W.2d 435 (1972); State v. Bosnich, 273 Minn. 553, 142 N.W.2d 63 (1966).

We have reviewed the other grounds cited in this appeal. The testimony complained of, that of a laboratory analyst with the Bureau of Criminal Apprehension, was brought out on cross-examination by defense counsel. Considering all the evidence as a whole, the error, if any, is harmless and not sufficient to warrant a new trial.

Affirmed.

Acting as Justice of the Supreme Court by appointment pursuant to Minn.Const. art. 6, § 2, and Minn.St. 2.724, subd. 2.