STATE of Minnesota, Respondent, v. Glenn Arnold EARNEST, Appellant.
No. 48128.
Supreme Court of Minnesota.
April 11, 1980.
The majority indicates that an estoppel defense should be adopted “to ease the sometimes harsh effects of the blue sky laws in situations where no actual fraud is present.” This argument should not prevail. As mentioned previously, Minnesota‘s Blue Sky Law is not only intended to protect the public against fraudulent money-making schemes, but also to shield an investor against unsound plans of investment. See, e. g., State v. Gopher Tire and Rubber Co., supra. Indeed, for a purchaser to recover under
Based on the foregoing, I believe that estoppel should not be recognized as a defense to an action brought under our securities legislation. Even assuming, arguendo, that such a defense were proper as a matter of law, it is difficult to see how the facts of the instant cases support invocation of the doctrine. Panuska can by no means be considered as having “clean hands.” He was actively involved in the solicitation and sale of the stock to the investors in question. At the time, the company was experiencing financial difficulties of which he was undoubtedly aware. The record discloses that at least some of the investors were not informed of these financial problems prior to the time they invested. Panuska retained complete control over the operation of the restaurant and any input from the other partners was, according to Panuska, merely “advisory.” The evidence also indicates that any participation by the investors in the management of the restaurant was undertaken out of a desire to safeguard their investments. Consequently, on balance the equities weigh in favor of the investors and thus, as a factual matter, no basis seems to exist for an estoppel defense in these cases.
For the above reasons, and since there is no merit to the other issues raised by Panuska, I would affirm Logan v. Panuska and reverse Krueger v. Panuska.
SHERAN, Chief Justice (dissenting).
I agree with the view that equitable estoppel should not be applied.
WAHL, Justice (dissenting).
I join the dissent of Mr. Justice Scott.
Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., and Gary S. Hansen, Sp. Asst. Atty. Gen., St. Paul, David C. Johnson, County Atty., International Falls, for respondent.
Heard, considered, and decided by the court en banc.
KELLY, Justice.
Defendant appeals from an order revoking a stay of execution of his prison sentence for theft which was based upon findings that he violated the terms of his probation. The critical issue presented is whether the trial court erred in admitting evidence seized in a warrantless search of defendant‘s dwelling by his probation officer over objection that the search violated defendant‘s Fourth Amendment rights. We hold that the evidence was admissible on the issue of whether defendant violated the conditions of probation and that the trial court properly exercised its discretion in ordering defendant‘s imprisonment.
Testimony at the revocation hearing established the following facts. Early in December 1976 defendant was released from the corrections center because of good progress. Although he subsequently reported to his probation officer only intermittently, the probation officer was satisfied with his progress for 3 or 4 months. In late April or early May 1977 defendant, with the probation officer‘s assistance, obtained employment. Approximately 2 weeks later he called his employer and told her that he had a sore back and would not be able to work that day. The following workday, a Monday, his mother called with a similar message. Defendant, displeased with her handling of the conversation, swore and threw his breakfast at her. His father testified that on other occasions defendant swore and swung at him as if to start a fight. Defendant remained absent from work for a week but made no further explanation to his employer nor did he contact his probation officer. A doctor‘s statement was introduced to substantiate defendant‘s having a back problem. During this time, however, defendant was able to travel to Bemidji and Minneapolis.
In early May 1977 the probation officer received information from another probationer and from local law enforcement authorities that defendant was using and selling drugs. The officer also saw a small notebook containing a list of names and figures, with notations such as “149 caps” and “made $155,” which the county sheriff had found in the glove compartment of a vehicle, later identified as defendant‘s, while attempting to ascertain the vehicle‘s owner in response to a night complaint that it was parked in a private driveway.1 On the morning of May 13 the probation officer went to defendant‘s apartment to inquire about his involvement with drugs and to discuss the employment and family problems which had come to his attention. He knocked and was admitted. The officer testified that defendant appeared very nervous when asked if he had any drugs in his possession. Two young persons were asleep in the living room. Upon defendant‘s refusal of his request to search the apartment, the probation officer searched without consent. He did not have a warrant. In a bureau in defendant‘s bedroom the officer found and seized capsules con
The trial court found that the defendant had violated the terms of probation in three respects: (1) by terminating employment without permission, (2) by committing assaults upon his parents, and (3) by illegally possessing a controlled substance. It concluded that the first two violations were insufficient to require revocation, but that the third violation “alone and in combination with the other two” required it. On June 3, 1977, the court issued an order vacating the stay of sentence and ordering defendant‘s imprisonment. The order was “premised upon the proposition that a court may properly consider in * * * * [revocation] proceedings evidence obtained as a result of a warrantless search by the probation officer of the residence of a probationer * * * at least * * * where the probation officer has, as here, acted upon a reasonable ground for suspecting the probationer to be concealing contraband.”
Defendant seeks reversal of the order, claiming (1) erroneous admission of evidence seized in the warrantless search of his apartment in alleged violation of his Fourth Amendment rights; (2) insufficient evidence to support the findings of violation of the terms and provisions of his probation; and (3) improper comment by the prosecutor upon his failure to testify at the revocation hearing.
1. Although the search and seizure of the amphetamines in this case was conceded to have been based on probable cause, it is clear that no warrant was obtained and that the search did not fall under any of the well known warrant requirement exceptions. The defendant thus contends that the search and seizure was unlawful, and that the evidence should have been excluded at the probation revocation proceeding.
It has been recognized that the relationship between a probation officer and his probationer is a special one. Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir.), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975).2 The efficient functioning of the probation system requires the probation officer to work toward rehabilitation of one convicted of a crime while at the same time, protecting the public interest. State v. Tarrell, 74 Wis.2d 647, 652, 247 N.W.2d 696, 700 (1976). In order to accomplish these ends, the probation officer must have thorough up-to-date knowledge of the probationer‘s personal habits, relationships, and activities. See Latta v. Fitzharris, 521 F.2d at 249. Although we agree that probation searches fall within the ambit of the Fourth Amendment, and must therefore comport with a standard of reasonableness, see Latta v. Fitzharris, 521 F.2d at 248-9; People v. Anderson, 189 Colo. 34, 37, 536 P.2d 302, 304-05 (1975), we also recognize that, because of this special relationship between the probation officer and probationer, the law relating to probation searches cannot be strictly governed by automatic reference to ordinary search and seizure law. Latta v. Fitzharris, 521 F.2d at 251; People v. Anderson, 189 Colo. at 37-38, 536 P.2d at 304-05; State v. Tarrell, 74 Wis.2d at 652-56, 247 N.W.2d at 700-01; Annot., 32 A.L.R.Fed. 155, 162-64 (1977).3
Because of these considerations, we hold that the warrantless search under the circumstances of this case was reasonable for the purposes of the Fourth Amendment.5 We therefore do not reach the question whether the exclusionary rule is applicable in a probation revocation proceeding. Since the search was lawful, the admission of evidence in the probation revocation proceeding was proper.6
2-3. The other issues raised by defendant on appeal relate to the sufficiency of the evidence and to the fact that in his closing statement to the court the prosecutor commented upon defendant‘s failure to take the stand. There is no merit to defendant‘s contention that the evidence was insufficient to warrant revocation. We agree that the prosecutor‘s comment was improper—see,
Affirmed.
ROGOSHESKE, Justice (concurring specially).
While I agree with the disposition of this appeal, I feel compelled to express two concerns with the approach taken by the majority. First, since the majority holds the search constitutionally permissible, the evidence seized as a result of the search is by implication admissible not only in a probation revocation proceeding but in a prosecution for a new offense. Second, Latta v. Fitzharris, 521 F.2d 246 (9th Cir.), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975), relied upon by the majority, adopts a reasonableness standard which authorizes a search of a parolee‘s dwelling by his parole officer on facts insufficient to support a finding of probable cause.
In constitutional law it is fundamental that “searches conducted outside the judicial process, * * * are per se unreasonable under the Fourth Amendment—subject only to a few specifically established * * * exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967).1 This protection has been extended to probationers where the search was conducted by a person other than a probation officer. United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975). The majority agrees that the fourth amendment applies but concludes that the pervasiveness of probation regulation, the demands of the probation relationship, the probationer‘s lowered expectation of privacy, and protection of the public interest render a warrantless search reasonable when based upon probable cause. I am persuaded, however, that rehabilitation, the goal of the probation system, is not advanced by adopting a rule that allows probation officers by reason of their special status to make warrantless searches of a probationer‘s dwelling which the police could not make when the effect is to gather evidence of crime rather than to corroborate information that a probationer was violating the terms of his probation. By holding such searches of a probationer‘s dwelling constitutional, the majority has enabled probation officers to assume a prosecutorial role unintended by the probation system, since once evidence is lawfully seized it cannot be excluded in a subsequent criminal prosecution. Latta v. Fitzharris, 521 F.2d 246 (9th Cir.), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975), the principal case relied upon by the majority, presents those facts. Although the majority apparently assumes that its holding is restricted to probation revocation proceedings and that the rule might be different if the proceeding were a criminal prosecution, in fact both questions are decided in that there is no legal basis for holding evidence constitutionally obtained admissible in one proceeding and not another. The possible use of evidence is not an aspect of the reasonableness of a search. I would, therefore, hold the search in violation of the fourth amendment.
Inquiry does not stop, however, with the determination that a search is unconstitutional, since the fruits of an illegal search may be used for purposes that do not contravene the policies underlying the exclusionary rule. The exclusionary rule requires that evidence obtained by an illegal search cannot be used in a criminal prosecution, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Although there is a split of authority on whether the
Probation revocation proceedings are governed by statute, and the inquiry assigned to the trial court is a narrow one.
In Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972), the United States Supreme Court held that parolees are not without minimum due-process protection but underscored the fact that parole revocation is not equivalent to criminal prosecution:
We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.
See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In my opinion, this distinction, acknowledged by the United States Supreme Court and embodied in our statutes, supports the conclusion that the exclusionary rule does not apply to probation revocation proceedings.
Moreover, the United States Supreme Court has refused to apply the exclusionary rule where it does not serve the dual purposes of deterring future unlawful police misconduct and preserving the integrity of the courts.3 A probation officer has unannounced access to his client‘s environment to enable him to assess and guide his proba
I am also concerned that the majority‘s reliance on Latta v. Fitzharris, 521 F.2d 246 (9th Cir.), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975), may be read too broadly. Latta upheld against a fourth amendment challenge a parole officer‘s search of a parolee‘s residence based upon a reasonable belief that the search was necessary in the performance of his duties. The court stated that the facts supporting the search need not be sufficient to sustain a finding of probable cause. Since probable cause for the search was admitted in the present case, I would hope that our disposition is not interpreted as authorizing a warrantless search of a probationer‘s dwelling when the facts are insufficient to support a finding of probable cause.
OTIS, Justice (concurring specially).
I agree with the opinion of Mr. Justice Rogosheske.
YETKA, Justice (concurring specially).
I agree with the opinion of Mr. Justice Rogosheske.
WAHL, Justice (concurring specially).
I agree with the opinion of Mr. Justice Rogosheske.
STATE of Minnesota, Appellant, v. Nate Baxter COMPTON, Respondent. STATE of Minnesota, Plaintiff, v. Eugene Elmer COMPTON, Defendant.
Nos. 50950, 51067.
Supreme Court of Minnesota.
May 20, 1980.