Gerdes v. StateGerdes v. State
- Reporters:
- ,
- Before:
- Scott
The appellant, Mark Gerdes, was found guilty by a jury of possession of a short-barreled shotgun, in violation of
On this appeal from judgment of conviction and from an order of the district court denying post-conviction relief, appellant contends:
(1)that the conviction was based on insufficient evidence because the gun in question was inoperable and possession of an inоperable short-barreled shotgun is not illegal;
(2) that his rights were prejudiced by the amendment of the complaint, after he testified, to change the date of the alleged illegal pоssession of the gun from “on or about the 25th day of August, 1978” to read “on or about the 15th day of July, 1978”; and
(3) that the gun should have been suppressed as the fruit of a Fourth Amendment violation; namely, a warrantеd search based on stale probable cause.
The charges filed against appellant were the result of investigations conducted by the Pipestone County police and statements made by informants. At all relevant times appellant’s residence, owned by an absentee landlord, was rented as a rooming house to male students at the local vocational school. Steven Perkins and Lon Saulsbury were on appellant’s premises in late July, 1978, at the request of the owner, to conduct a real estate appraisal of thе premises. During the visit, Perkins observed what he believed to be stolen traffic control devices. He described these items to the chief of police in late August, 1978. Law enforcement оfficials had independently been conducting a surveillance of appellant’s rooming house which began in late July, 1978. On August 25, 1978, after obtaining a search warrant based on Perkins’ statements and the information obtained during their own surveillance, police officers went to the residence and executed the warrant. In various rooms of the house, including the room which appellant had rented, they found numerous street signs and similar items which had been stolen in recent months. In appellant’s room they also found several guns, including the short-barreled shotgun appel
1. Thе appellant concedes that the possession of an “operable” short-barreled shotgun would sustain his conviction and that “the .legislative policy behind the prohibition of thе possession of an operable short-barreled shotgun is valid.” The appellant contends, though, that the statute only applies to operable short-barreled shotguns. Upon examination of
Although no Minnesota case has directly addressed this issue, LaMere v. State, 278 N.W.2d 552 (Minn.1979), is instructive. In LaMere, this court dealt with whether an inoperable firearm is a dangerous weapon. In affirmatively answering that question, we observed: “An unloaded firearm has the same capacity to create fear and/or to cause people to comply with criminal demands as a loaded one.” Id. at 556. In Commonwealth v. Ponds, 236 Pa.Super. 107, 113, 345 A.2d 253, 256 (1975), the Pennsylvania court stated:
The fact that a sawed-off shotgun is at a given time inoperable does not discount the danger which the legislаture intended to prevent. The mere possession of an item identifiable as a sawed-off shotgun, even though inoperable is still an ominous presence, and has no place nоr possible use in the community and should be prohibited.
We therefore hold that the operability of the weapon was immaterial.
2. The second contention of the appellant is that his substantial rights were prejudiced by the trial court’s allowance of the amendment of the complaint, as stated above.
3. The third contention of the appellant is that the affidavit supporting the search warrant failed to contain sufficient information from which the magistrate could have conсluded that the stolen property would be found on the premises on August 25. For several reasons, the traffic
A second reason for concluding that the items in question remained wherе they had been seen is the lack of ready market for such items. In United States v. Dauphinee, 538 F.2d 1, 5 (1st Cir. 1976), the Court of Appeals held that a 30-day time lapse was not too long where the contraband (hand grenades) did not lеnd itself to rapid disposition even in the criminal marketplace. Traffic control devices are certainly not the kind of item accepted by pawn shops or other pоtential repositories of stolen goods.
Finally, as the trial judge noted in his memorandum, the appellant would have incurred special risks in attempting to dispose of the propеrty. Traffic control devices are designed to be visible and conspicuous, and the attempt to remove them in a small town like Pipestone would likely have led to detection. See United States v. Rahn, 511 F.2d 290, 293 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975).
For these reasons, we hold that the court was presented with sufficient information from which to conclude that there was probable cause to believe that the items described in the search warrant would be found on the premises 30 days after they were initially observed there.
Affirmed.
Notes
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Subdivision 1. Definition, (a) “Machine gun” means any firearm designed to discharge, or capable of discharging automatically more than once by a single function of the trigger.
(b) “Shotgun” means a weapon designed, redesigned, made or remade which is intended to be fired from the shoulder аnd uses the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shot or a single projectile for each single pull of the trigger.
(c) “Short-barreled shotgun” means a shotgun having one or more barrels less than 18 inches in length and any weapon made from a shotgun if such weapon as modified has an overall length less than 26 inches.
Subd. 2. Acts prohibited. Except as otherwise provided herein, whoever owns, possesses, or operates a machine gun or a short-barreled shotgun may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $5,000, or both.