The facts involved in this case are practically undisputed. At 12:45 a.m. on August 2, 1960, defendant was sitting in his parked automobile on Benjamin Street Northeast, just off 45th Street, in Columbia Heights. At the same time Officers Melvin Land and John Marchiniak of the Columbia Heights Police Department were patrolling the area in an unmarked vehicle. As the officers turned onto Benjamin Street from
Thereafter, an information was filed, charging defendant with the commission of robbery in the first degree on one Edward A. Sloane on April 16, 1960. Sloane at that time had been confronted by two men wearing bandanas over their faces and carrying guns, who forced their way into his St. Paul apartment and compelled him to open a safe, from which they obtained $7,200 in cash, $1,400 in traveler's checks, and jewelry which had belonged to Sloane's wife. The men also took the purse of a friend visiting Sloane. The purse contained the bank books and the hotel-room key found in the defendant's car.
Defendant was tried, found guilty as charged in the information, and sentenced to a mandatory term in the State Prison. On this appeal from the judgment of conviction, defendant seeks reversal on the following grounds: (1) That no probable cause existed either for the search of his automobile or for his arrest; (2) that the rule announced by the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L. ed. (2d) 1081, 84 A.L.R. (2d) 933, rehearing denied, 368 U.S. 871, 82 S.Ct. 23, 7 L. ed. (2d) 72, applies retroactively and prohibited admission of evidence obtained from the search of defendant's
The state contends that the acts of the arresting officers in searching defendant's automobile did not violate a right of privacy because there existed at the time reasonable grounds for arrest, search, and seizure. The state also contends that no timely application was made to suppress and return the evidence thus gained by the state and, unless such application is made at the earliest possible moment, a claim of illegal search or seizure is waived. The state further contends that the Mapp decision has no application to the facts of this case since the arrest was based upon probable cause and therefore the search and seizure were justified.
1-2. Unreasonable searches and seizures are prohibited by U.S. Const. Amend. IV, which provides:
"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." (Italics supplied.)
Minn. Const. art. 1, § 10, contains practically identical language.
The statutory authority of a peace officer to arrest a person without a warrant is found in Minn. St. 629.34, which provides in part:
"A peace officer may, without warrant, arrest a person:
"(1) For a public offense committed or attempted in his presence;
"(2) When the person arrested has committed a felony, although not in his presence;
"(3) When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it."
The constitutional mandate requiring "probable cause" and the statutory
"We have indicated on many occasions that there are few absolutes in the area of the law dealing with what constitutes probable cause for arrest. We have also emphasized from time to time that probable cause is not to be evaluated from a remote vantage point of a library, but rather from the viewpoint of a prudent and cautious police officer on the scene at the time of arrest. The question to be answered is whether such an officer in the particular circumstances, conditioned by his observations and information, and guided by the whole of his police experience, reasonably could have believed that a crime had been committed by the person to be arrested. Bell v. United States, 102 U.S. App. D.C. 383, 254 F.2d 82, cert. denied, 358 U.S. 885, 79 S.Ct. 126, 3 L. ed. 2d 113 (1958)." (Italics supplied.)
To require a high degree of technical competency on the part of the average police officer, i.e., that expected of the prosecutor, would be an unfair and unreasonable standard. The degree which we think correct is well stated in Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L. ed. 1879, 1890, where the court held:
"These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the
3. Constitutional protection extends beyond the home; thus one's automobile is equally protected against unlawful searches and seizures. Dalton v. State, 230 Ind. 626, 105 N.E.2d 509, 31 A.L.R. (2d) 1071; Evans v. State, 34 Okla.Cr. 173, 245 P. 912. Therefore, a search warrant is necessary where obtaining it is reasonably practical. Hart v. United States (10 Cir.) 162 F.2d 74. When an automobile may be searched without a warrant is a particularly important question for Minnesota police officers since they determine at their own risk the reasonableness of such a search. United States v. Kaplan (S.D. Ga.) 286 F. 963, 978; Minn. St. 613.53 and 621.17.
Due to its mobility the rules governing the search of an automobile and of a home are substantially different. In Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L. ed. 543, 551, the United States Supreme Court recognized this distinction by stating:
"* * * the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."
"The fact that the suspects were in an automobile is not enough. Carroll v. United States, supra, liberalized the rule governing searches when a moving vehicle is involved. But that decision merely relaxed the requirement for a warrant on grounds of practicality. It did not dispense with the need for probable cause."
Thus, the principal question in this case is simply whether probable cause existed for Harris' arrest and the search of his auto. We have reviewed numerous decisions in order to establish the broad limits of varying facts and circumstances which have ultimately been held to constitute probable or reasonable cause. The following cases are illustrative of the general principles involved: Williams v. State, 230 Ark. 574, 323 S.W.2d 922; People v. Lewis, 187 Cal.App.2d 373, 9 Cal.Rptr. 659; People v. Wells, 187 Cal.App.2d 324, 9 Cal.Rptr. 384; Joyner v. State, 157 Fla. 874, 27 So.2d 349; State v. Giles, 254 N.C. 499, 119 S.E.2d 394; Patenotte v. United States (5 Cir.) 266 F.2d 647; Pegram v. United States (6 Cir.) 267 F.2d 781; Ray v. United States (10 Cir.) 206 F.2d 796; United States v. Gaither (D. Del.) 209 F.Supp. 223; Silver v. State, 110 Tex. Cr. 512, 8 S.W.2d 144, 60 A.L.R. 290; State v. Taft, 144 W.Va. 704, 110 S.E.2d 727.
In People v. Mickelson (Cal. App.) 26 Cal.Rptr. 152, a police
"* * * Because of (1) the similarity between the description of the robber of the market which the officer had previously obtained and the appearance of the driver of the vehicle as observed by the officer; (2) the possibility that the driver of the vehicle was attempting to evade the officer; (3) the furtive act of defendant in bending over and appearing to place something under the seat, as the officer was overtaking the suspect vehicle; and (4) the lateness of the hour (approximately 2:00 a.m.), Officer Matheson was reasonably justified in stopping the vehicle and interrogating the occupants. * * *
"In the course of such investigation, it was certainly reasonable and proper for the officer to determine what, if anything, the defendant had placed under the seat of the automobile, * * *. To that end the officer was entitled to investigate the contents of the overnight bag that was partially under the seat that defendant occupied."
In People v. One 1955 Ford Victoria, 193 Cal.App.2d 213, 13 Cal.Rptr. 910, it appears that an officer was on duty in a felony car detail in an area having a high crime rate early in the evening. He noticed a car parked at an angle on the wrong side of the street and stopped to investigate. The passenger in the car moved over, under the
"It may well be that a number of circumstances combine to create a strong suspicion, each of which, if operating alone, would justify no more than a mild suspicion. Here, the officer was aware that the driver of the car had not taken time to park it either parallel with the curb or to make a turn to park it on the right side of the street. He was told that the owner would be back in a minute. The passenger, who had hurriedly slid across the car's seat, and alighted, was jittery. So was the owner when he came out. Nervousness may be explained away, of course, but it has been noted among circumstances being taken into consideration."
4. Police officers may not ordinarily make searches upon apprehending motorists for simple traffic violations or upon the slightest hint of illegality. We agree with the rule enunciated by the Oklahoma Criminal Court of Appeals in Brinegar v. State, 97 Okla.Cr. 299, 315, 262 P.2d 464, 480:
"We would make it clear that not every arrest of a motorist for a traffic violation would justify a search of the seats and glove compartment for weapons. There must be facts and circumstances observed by the officers to cause them in good faith to believe that the motorist is armed, is dangerous, or apparently intends to escape."
5. Searches which are "exploratory and general and made solely to find evidence of * * * guilt," United States v. Lefkowitz, 285 U.S. 452, 465, 52 S.Ct. 420, 423, 76 L. ed. 877, 883, are invalid. However, as stated in Hargus v. State, 58 Okla.Cr. 301, 302, 54 P.2d 211, 212,
"For the purpose of preserving the peace and to prevent crime, a peace officer or private citizen may make reasonable inquiry of persons coming under his observation or brought to his knowledge under circumstances which reasonably suggest that a crime has been or is about to be committed."
6-7. We think that the circumstances under which Officers Land and Marchiniak approached Harris' car meet the above test. The fact that it was late in the evening; that Harris' car was parked at an odd angle; that it was backed up quite close to the boat and trailer parked in the driveway; that Harris offered an improbable reason for being in the area, all combined to raise a reasonable inference that the situation should be given careful investigation. The arrest took place when the policemen ordered Harris from the car, i.e., when the officers interrupted him and restricted his liberty of movement. Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L. ed. (2d) 134, 139. The arrest being based upon probable cause, we can conclude only that the search made incident to it was also lawful.
8. Further, we find no evidence that defendant objected to the search. Failure to object to a search is evidence of consent, Castaneda v. Superior Court (Cal. App.) 26 Cal.Rptr. 364; and consent itself constitutes a waiver of defendant's right to object later that the search was unreasonable. City of St. Paul v. Stovall, 225 Minn. 309, 312, 30 N.W.2d 638, 641; cf. Honig v. United States (8 Cir.) 208 F.2d 916.
The burden of proving lack of consent, i.e., unlawful search and seizure, is upon the defendant, Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L. ed. 307; White v. United States (5 Cir.) 194 F.2d 215, since the officers are presumed to have acted properly. United States v. Warrington (N.D. Cal.) 17 F.R.D. 25, 29; People v. Du Bois, 31 Misc.2d 157, 221 N.Y.S.2d 21, 27; People v. Koebel, 35 Misc.2d 169, 228 N.Y.S.2d 586, 587. The testimony indicates that while defendant was in effect under arrest
Defendant relies upon Henry v. United States, supra. There it was held that the actions of two officers in stopping and searching defendant's auto, which contained stolen radios, were not based upon probable cause and the search and seizure were therefore illegal. That case is distinguishable because it involved a substantially different factual situation and there was no consent to the search and seizure, as there was here.
9. Defendant's final contentions (1) that the Mapp decision applies retroactively, and (2) that counsel's failure to act to suppress the evidence obtained in the search should not prejudice his cause, will not be considered since we have determined, as a matter of law, that probable cause existed for Harris' arrest. The existence of probable cause is ordinarily a judicial question. Jenkins v. State, 116 Tex. Cr. 374, 32 S.W.2d 848; cf. State v. Pluth, 157 Minn. 145, 148, 195 N.W. 789, 790. But see, Cochran v. Toher, 14 Minn. 293 (385), where the court held, in an action for false imprisonment, that the nature of the circumstances of the case dictates whether probable cause is a question for the court or the jury.
The reason for holding the existence of probable cause to be a question for the court was stated in People v. Gorg, 45 Cal.2d 776, 781, 291 P.2d 469, 472, as follows:
"* * * The probative value of evidence obtained by a search or seizure, however, does not depend on whether the search or seizure was legal or illegal, and no purpose would be served by having the jury make a second determination of that issue. Moreover, the legality of a search or seizure will frequently depend on whether the officer had reasonable cause to make an arrest, and since such cause is not limited to evidence that would be admissible at the trial of the issue of guilt, [citation omitted] evidence that was otherwise inadmissible and
Defendant's conviction is affirmed.
MR. JUSTICE OTIS took no part in the consideration or decision of this case.
MR. JUSTICE SHERAN, not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.