State v. Wiberg

precludes their consideration new Douglas, 255 g., Dunshee v.

appeal. See e. Gruenhagen (Minn.1977);

N.W.2d 454, 457-8,

Larson, 310 Minn. Judg- Digest Dunnell 10A 1971). Since, 5085(1) (3d how- ed.

ments §

ever, opportu- a full State did prior to present post-trial motions

nity ruling, we will remand trial court’s to raise allow

the trial court to mo- to an alternative appropriate issues course, is, a new The State

tion for trial. raising govern- from issue of

precluded governed by which is immunity,

mental

holding in this case.

Both cases reversed and remanded. are

TODD, J., participating. Minnesota, Respondent,

STATE of WIBERG, Appellant.

Diane Adele

No. 49787. of Minnesota. Court 3, 1980.

July arrest,

made at the time of whether the supporting facts set forth affidavit to search de- a warrant application sufficiently relia- fendant’s residence cause, whether ble to establish failing erred in to instruct a trial court though lesser offense even defend- included instruction, whether the ant waived the and to defend- evidence was sufficient We conclude that the trial ant’s conviction. admitting in a statement de- court erred of arrest into fendant made at time is not and that such error harmless evidence re- beyond a doubt. We thus reasonable a new trial. verse and remand for May May 26 and Sometime between Minneapolis a warehouse located Company was by Bunyan owned the Paul 550 firearms burglarized approximately and Defender, Jones, and Mark C. Paul Public investigating In course of were stolen. Defender, Anderson, crime, Public Minne- F. Asst. war- police obtained a search apolis, appellant. authorizing a house rant them to search boyfriend. to rented defendant and her Gen., Paul, Atty. St. Spannaus, Warren The search warrant was executed at 12:45 Johnson, County Atty., L. Vernon Thomas Tuesday, pad- June 1978. In a a. m. Division, Chief, Asst. Bergstrom, App. E. police locked room the discovered 451 of Larson, Atty., W. Asst. Coun- County David Compa- Bunyan taken from the Paul Minneapolis, respondent. ty Atty.,- police shotguns in ny. The also found two a by bedroom shared defendant and her closet ROGOSHESKE, Heard KELLY before and, boyfriend handbag a on the closet JJ., YETKA, and and and considered decid- floor, pistol gun a and some literature. by ed the court en banc. boyfriend Defendant and her were in the KELLY, Justice. police kitchen of the home when the en- Defendant, Wiberg, A. was found Diane given they tered. After were arrested and County jury a of know- guilty by Hennepin warnings, stated did Miranda defendant she ingly in violation receiving property stolen speak police. Shortly not wish to to the 609.53, (1978),1 warnings given, of Minn. Stat. subd. one § after Miranda imprisonment. warnings years to 5 who sentenced of the officers heard the are whether with appeal approached The issues raised on administered defendant question handbag asked of defendant one of found in the closet and replied arresting improper, whether asked if it was hers. Defendant officers was was, police response officer that it and her was admitted defendant’s statements to product objection. Following of an at her days after her arrest were the trial over search, unnecessary delay brought brought 4-hour to being before magistrate Hennepin County Jail. She remained in or of defendant’s (1978) (1) received, provides property If the value of the 1. Minn. Stat. subd. more, part: bought $100 im- or concealed is or years prisonment for than or to not more ten receives, Any person Subdivision who $10,000, payment than fine of not more buys property prop- or or conceals stolen both; or knowing erty robbery, obtained the same by robbery, may be stolen or obtained sentenced as follows: day Tuesday Wednesday and whether jail ‘right all to cut off questioning’ arraigned morning until late in the was not scrupulously honored.” 423 U.S. at 8, 1978. Thursday, June 326. We the Mosley followed Crisler, holding in State v. 285 N.W.2d 679 Shortly being arraigned, defend- (Minn. 1979). interrogated by ant was officer. given warning a Miranda She officer, this case an who agreed with the ad- speak officer. She few minutes earlier had heard defendant handbag mitted that the was hers but stat- indicate that she wished remain silent pistol she had never seen the and did not ed gave after another officer her Miranda got purse. her denied know how it into She warnings, asked defendant whether a hand shotguns in the having ever seen closet she bag containing one of the stolen.guns was boyfriend. shared with her These state- lapse hers. The short coupled of time with at trial over ments were also admitted de- inherently atmosphere generat coercive objection. fendant’s ed the late-night private search of a fingerprint expert At trial a testified persuade home question us that such a fingerprint that a found on one of the shot- inconsistent with obligation the officer’s guns in the closet matched defendant’s fin- “scrupulously honor” defendant’s fifth that, gerprints. Defendant testified while rights. conclude, amendment there closet, she had not seen the she fore, that the question officer’s was a viola shotguns seen two the corner of the tion of rights defendant’s constitutional bedroom and had moved them to the bed. and, result, as a it was error for the trial Defendant that also testified she had never court to admit evidence of re defendant’s pistol gun seen the or literature found in sponse. handbag they her and did not know how Because the stated, questioning officer’s

got there. Defendant without ob- shortly after she had exercised jection, boyfriend putting that her admitted her fifth amendment was a constitu pistol purse. in her violation, prejudicial tional the error is if argues Defendant first that it was im- there possibility is a reasonable proper arresting for one of the officers to erroneously might admitted evidence handbag ask her if the found the closet contributed to defendant’s conviction. response was hers and that her affirmative Crisler, v. question sup- to the should have been 1979). response The statement made in pressed. improper interrogation officer’s at the principles One of the fundamental of Mi- only time of the was the direct evi search person custody randa is that a who is in has purse dence defendant owned the and, right to remain silent if he exercis- pistol which a stolen was found. We there right, es that any interrogation must cease. preju fore conclude that its admission was Arizona, 436,473-74, Miranda v. 384 U.S. dicial, and reversible error. constitutes S.Ct. 16 L.Ed.2d 694 The second issue is whether the defend- Michigan Mosley, v. 96 S.Ct. ant’s statement to the officer two (1975), 46 L.Ed.2d 313 days sup- after her arrest should have been circumstances, Court considered under what court, pressed by the trial either as the any, resumption questioning per- if product “unnecessary delay” of an before Concluding missible. that Miranda cannot 4.02, or under Minn.R.Crim.P. per proscription be read to create a se given as the fruit of the statement at the upon any ques- indefinite duration further time of arrest. Minnesota’s ar- tioning once the defendant has indicated a rule, raignment Minn.R.Crim.P. subd. silent, desire to remain the court held that 5(1) provides: admissibility “the of statements obtained * * * person after the in custody has decided to arrested shall be [A]n remain depends brought silent under Miranda on before the nearest available prompt-arraignment the federal county county of the sions under court

judge of rule, 5(a), it is occurred or Fed.R.Crim.P. difficult alleged offense where the in- judge specific guidelines. The cases such court or of a ascertain judicial officer of that, although the time factor is a county dicate court in such municipal delay is unneces- unnecessary delay, any key element in whether a without court to important it is also sary, than 36 hours after event not more arrest, arrest, day the time was used. See Unit consider how exclusive Johnson, (2d 467 F.2d holidays, or as soon ed legal States Sundays, denied, 920, 93 judicial 1972) judge or offi- cert. as such Cir. thereafter 3069, 37 L.Ed.2d 1042 Courts have cer is available. delays short as 17 hours and 7½ held that person is for more held this if Under unreasonable. United States hours were hours, delay presump- will than (9th 1969); United Mayes, 417 F.2d 771 Cir. tively have held that defend- illegal. We Binet, (D.C. F.Supp. 1000 N.Y. States illegal delay under the can also show ant 1971). has been substan- Where hours less than 36 but rule if he is held for willing been tially longer, courts have judge brought is nevertheless it not excessive where find unnecessary delay. State Brad- without under the circum- unreasonable (Minn. 1978). The ra- ley, stances or where evidence obtained per- requiring rules arrested tionale of to not related from the defendant was arraigned is that to do so promptly sons be Davis, See, v. delay. g., e. United States coercive nature of custodial sur- avoids the Thus, (7th 1976). where 532 F.2d 22 Cir. roundings by preventing interroga- secret delayed, example for be- arraignment was to pressure and confess. tion the resultant travel, judge of no was avail- cause because addition, prompt arraignment insures In verify to able or wanted because fully be advised an will arrested defendant, explanation given by the or an by judicial officer soon after of his where defendant’s statement made his arrest. so that it was not soon after arrest Tuesday, arrested on June Defendant was ensuing delay, prompted federal 6, arraigned m. at 12:45a. and was not until justified. delay to be courts have found Thursday, a. m. on June approximately 11 While it was 57 hours between defend- 8. present re In the case defendant arraignment, of and her ant’s time arrest jail regular days mained in for 2½ business purposes defendant was for of Rule 4.02 being arraigned, before but record con pro- hours since rule held less than 36 explanation no whatsoever for the tains day of arrest is not con- vides that delay. Surely, place since the arrest took computing sidered in the time a defendant during Hennepin County, the week in there argument Defendant’s has been held.2 any difficulty in could not have been secur therefore, delay this appeal, is that ing judge arraignment. In our unnecessary. opinion, delay length any this without of to opportunity fully explanation compels not had an as to its cause con have and, unnecessary delay unnecessary that it was there consider what constitutes clusion fore, reviewing under 4.02.3 In deci- violation of Rule 4.02. Rule 6, Thus, Tuesday, 2. was arrested on Tues- June would have in since defendant been included 6, day, pur- determining period. of June her time confinement the 36-hour poses began a. of 4.02 at 12 m. on R.Crim.P. Wednesday, June 7. Since defendant was ar- Bradley, In v. State 264 raigned Thursday, 1978), before noon on the 36-hour 1:30 a. m. the defendant was arrested at period yet expired. not As the defendant Saturday arraigned had until and not 4:15 however, out, correctly points the arrest Monday. Saturday (the day p. Excluding m. on earlier, Sunday, occurred 2 hours it would been arrest) we held that the 36-hour Monday ensuing delay evening late and the period had not run and that there was no evi- presumptively would unnecessary have been invalid since delay. dence of

393 Powell, (1976); L.Ed.2d 1046 428 appropriate Stone consider We must next 496-97, 465, Rule 4.02. The 49 96 S.Ct. for a violation U.S. sanction remedy delay J., for a (1976); (Burger, C. concur- specify L.Ed.2d 1067 rule does of 36 or in excess is unreasonable on societal in- ring). Against this burden 4.02 states: to Rule however, The comment terests, hours. must be balanced the de- with comply “The effect of failure [the police action that improper terrence * * * evi- on the admission We feel that exclusionary promotes. rule] rule de- case-by-case left to dence rigid exclu- the balance is not struck 4 velopment.” reasonably evidence related sion of reliable every violation Rule 4.02 in case to a split juris- question there is a On this Rather, which such a violation occurs. courts, and some The federal dictions. consider, among other trial court should courts, rule in McNabb v. follow the state is, evidence wheth- 608, things, how reliable the 332, States, 63 87 United intentional, whether the delay er the (1943) Mallory v. United L.Ed. 819 po- 449, 1356, compounded the effects of other States, 1 77 S.Ct. misconduct, delay. (1957), automatically length ex- lice and the 1479 L.Ed.2d exclusionary which have a rea- rule should ruling made that the clude statements unnecessary de- relationship every violation of apply rigidly sonable See, g., e. United arraignment. mean lay before we do not (9th Cir. Sotoj-Lopez, F.2d to com- States the failure of the state to condone 427, State, Md.App. 1979); Meyer v. should not ply with the rule. A defendant Benbo, (1979); 174 Mont. A.2d State unexplained delays be- subject to such However, 570 P.2d 894 judge, and a neutral appearing fore is not one of constitu- McNabb-Mallory rule heavily weigh such should applied need not be tional dimension and suppress. determination whether court Lewis, proceedings. g., e. state See record, we would On Wash.App. 573 P.2d court’s admission probably affirm the trial apply refuses to the (1978). Where a state of if the violation of the second statement violation of exclusionary it considers only the rule were the as one fact in prompt arraignment rule the However, the de sup- suppression. reason for whether an overall determination state argues viola- that the second related to such a fendant also press the evidence Idaho the fruit of g., Wyman, suppressed e. v. 97 be tion. See State ment should 486, (1976), overruled on other of 547 P.2d 531 in violation prior the statement obtained 683, McCurdy, 100 Idaho grounds, v. the doc rights State Miranda under defendant’s (1979); v. Common- States, P.2d 1017 Reeves 603 371 Wong v. United trine Sun wealth, (Ky.1971); v. 462 926 State S.W.2d 471, 407, 441 83 9 L.Ed.2d U.S. S.Ct. 380, 259 843 Reynolds, 298 N.C. S.E.2d a suppression of The rationale Annot., 19 A.L.R.2d (1979); cases cited illegally fruit of an statement as the second 1331, 5 and later ease service. explained in is prior obtained 532, 540, 67 Bayer, v. United States the latter is the more We believe (1947): 1394, 1398, 91 L.Ed. 1654 S.Ct. approach. Application of well-reasoned cat let the [Ajfter an accused has once great a cost on exclusionary rule exacts confessing, no matter bag by out of the proscription, societal interests inducement, he is never there- what the cases, reli concededly relevant and many practi- Janis, psychological after free of the v. g., able evidence. E. United States having confessed. 433, 448-49, disadvantages cal 96 49 S.Ct. unnecessary delay during Larson, was an an obtained appropriate 4. In State 254 N.W.2d 380 pro- resolve 1977), We declined to sanction. 4.02 was case since Rule issue, however, no evi- appropriate there was mulgated remedy because where the issue of arisen, suppressed. dence that would have been has for a violation of rule exclusion of evidence we considered whether 394 compound prompt arraignment rule bag. in the get the cat back

He never can a good. prior In such state misconduct. is out for ed effects The secret may always sense, confession a later of the defendant’s the introduction Since of the first. upon as fruit looked prejudicial er- prior statement constituted However, Bayer court also added: ror, at this time wheth- need not decide we “ * ** But this Court has never of the statement made er the admission making a

gone so far as to hold custody would alone have been while in which under circumstances confession However, since the case cause to reverse. use, disables preclude perpetually its trial, we a new must be remanded for making after those one confessor from the trial latter issue because addressed this removed.” conditions have been on remand.5 court must consider it 540-1, In the at at 1398. Id. that the facts in contends Defendant next ease, given full defendant application supporting the affidavit waived them clearly Miranda were not to search her residence a warrant It is making the statement. second sufficiently reliable establish question that elic unlikely that the offhand authorizing the search cause. The warrant so overcame ited the first statement issued on the residence was of defendant’s subsequent warn that the defendant’s will affidavit which basis officer’s Dakota, ing impact. no made See State had, in the course of that the officer stated 12, 20, 217 N.W.2d 300 Minn. crime, gun purchased investigating case, it (1974). Thus, the facts of this under undisclosed, unwitting informant from an poisonous unlikely that the “fruits dealings. no previous with whom he had had standing is a sufficient tree” rationale alone The the informant told officer stated that suppress require the trial court to reason to gun purchased him at the time id. See also the second statement. See it was several hundred stolen in one of 305 Minn. Raymond, State he knew who burglary. The informant said Hoskins, 292 (1975); State burglary and had observed committed the (1972); ex Minn. private residence. After firearms at Tahash, Minn. rel. Pittman v. information, the officer told receiving this However, we cannot N.W.2d that he would like to order the informant deny prior statement the fact that the rifle, weapons three additional shot- —a second, or, in the some influence on the pistol. gun, .45 The officer Colt words, Bayer court’s because he knew that asked for Colt .45 get the cat back knew she could been stolen from the only two Colt .45’shad the bag. In view of the fact that Company. de- Bunyan Paul The informant she given by defendant to an officer before weapons the and the officer ob- livered by sepa arraigned was was influenced two the box the Colt .45 served vio rate incidents of state misconduct —the Bunyan bore a stock number from the Paul regard to the lation of Miranda with Company. engaged The officer then fur- at the time of arrest and statement made informant, after ther conversation with the of the violation agreed which the to show him informant the trial rule —we feel that on retrial court guns were the residence where stolen should, acceptable absent a reasonable and he had obtained located and from which delay arraignment, explanation for the purchased. The informant guns the officer suppress the well as the ad statement as top showed the officer a house located the time of ar mission defendant made at 2340 Lancaster hill home north of one Suppression required, in the ab rest. is Lane, during were found where showing evidence sence of unreasonable, because the violation the search. present Only applies why not unnec- to the to show reasons 5. This conclusion essary presented for the under the the second statement record where no reason was delay. remand, however, might is If the state able admissible. and Minne either the credibility Both United States inherent of the in- that a search provide sota Constitutions reliability formant or the of his informa- showing warrant shall not issue absent particular is, tion on this occasion. That proba probable cause. When bases “veracity” prong Aguilar second or hearsay po of a ble cause are declarations may “credibility be said to have a spur” informant, containing lice the affidavit “reliability spur.” and a hearsay following must conform to the LaFave, W. and Seizure Search standard: 501-2 correctly Defendant concedes Although may an affidavit be based on knowledge” prong the “basis of hearsay information and need not reflect satisfied in this case when the informant personal the direct observations of the police personal- told the officer that he had affiant, magistrate must ly of guns including observed “hundreds” underlying be informed of some of the by the Colt .45 verified the officer to be circumstances from which the informant issue, therefore, stolen. The sole is whether concluded that were he [facts] [as] affidavit in of the warrant sat- were, they claimed some the un- isfied the “veracity” prong of Aguilar derlying circumstances from which the test. * * officer concluded that the informant prosecution attempt The was “credible” or his information “relia- did establish the credibility ble.” inherent of the in formant on the past perform basis of his Texas, 108, 114, Aguilar v. 84 S.Ct. Accordingly, ance. the issue can be further 12 L.Ed.2d 723 See narrowed to whether the state satisfied the Rosenthal, veracity portion Aguilar by test 1978). “Aguilar This is the well known two showing the informant’s information was pronged explained test” and has been shown to particular be reliable on this occas follows: ion.6 The United States Court usually designed Under what as the has held that an informant’s reliability on a prong first of Aguilar, or what might particular occasion can be established precisely more be called the “basis of declaration against informant that is knowledge” prong, facts must be revealed Harris, penal his interest. United States permit judicial which officer making 91 S.Ct. 29 L.Ed.2d 723 cause determination to reach (1971).7 In the case the informant judgment as to whether the informant police offered to sell to the officer —whom allegations had a basis for his that a been, informant did not know was a certain was or would be property; officer —stolen because this obvi involved in criminal conduct or that evi- crime, ously dence of crime is a the informant’s statements would be found at a cer- contrast, place. By against penal tain under the second interest. Defendant however, prong Aguilar, properly argues, characterized that because the infor “veracity” prong, may determine speaking mant was not aware that he was distinguished Moylan, Hearsay 6. A commentator has the two and Probable An Cause: establishing “veracity” part Primer, Aguilar Spinelli methods of the of and 25 Mercer L.Rev. Aguilar 741, (1974). the test: 757-8 phraseology Agui- Unless the alternative of Harris, 573, In United States v. 91 meaningless, lar is the informant’s “credibili- 2075, (1971), 29 L.Ed.2d 723 the infor- ty” would seem to involve his inherent and investigator mant admitted to a federal tax that ongoing person reputa- character as a —his personally whiskey purchased untaxed history honesty tion and demonstrated of support holding, the In from defendant. of its integrity. “reliability,” Informational as lightly “People the court reasoned: do not ad- something separate from its source’s credibil- ity, would seem to involve some circumstanc- place mit a in crime and critical evidence police hands of the in the form of their own assuring particular es trustworthiness on the being admissions.” 403 U.S. at 91 S.Ct. at 2083. occasion of the information’s fur- nished. 396 Thus, prong Aguilar even officer, are not of the test. police his statements

ato of According though support to the affidavit credible. necessarily more than the LaFave, position gave no basis other is search warrant Professor defendant’s that believing informant’s assertion incorrect: were in fact in defendant’s guns stolen It assumed should not be house, magistrate for the proper it was against penal interest admission that an all of issuing warrant to consider the search reliability only to establish can be used statements in his determi- the informant’s directly is to a made when that admission the infor- nation of cause. Given officer, is for that law enforcement think the affidavit reliability, mant’s we hearsay-upon-hearsay the case. finding prob- of sufficient situation, where an informant es- cause, accordingly, conclude we able police reliability tells what tablished is position this issue defendant’s that him, there is need someone else has told without merit. respect to veracity with each to establish hearsay chain. This can be that the tri next asserts Defendant showing that these other links by done jury failing erred in to instruct al court in- against penal their made admissions receiving offense of the lesser included Indeed, general proposition aas terest. stolen, believing it to be property stolen rely upon such there is reason more expressly waived though even defendant directly than admissions made admissions recently We have the instruction at trial. there police, for in the latter situation Wybierala, this issue in State considered is always the chance that the informer is (Minn. 1980). We held that 290 N.W.2d 603 perceives he can admit to a stoolie who explicitly waives his where a defendant significant criminality without risk. right instructions on a lesser included LaFave, 3.3 at Seizure § W. Search to raise the right he forfeits his offense State, (1978). Md.App. See Comi Wybi- we hold that appeal. issue on While Thus, A.2d the reliabil case, controlling we erala is was en ity of informant’s statements by encourage the use of such tactics do a crime. hanced his admission of Given that defendant de defense counsel. having any knowledge nied reliability par on a informant’s An the lesser included stolen and that if ticular can also be established occasion offense is misdemeanor rather than informant can be at the statements felony, the in we feel that the waiver of partially independently. least corroborated particularly ill-advised this struction LaFave, 1 and Seizure W. Search holding in State case. We also reaffirm our recognized We have 551-70 Leinweber, 303 Minn. key of an police detail corroboration (1975), if at that even a defendant credence to the informant’s statement lends tempts to waive an instruction on lesser portions remaining statement. State offense, judge has the included the trial 398, 401, 205 N.W.2d Lindquist, 295 Minn. ignoring the waiver and in prerogative of case, purchase by (1973). In this structing jury on all offenses warranted weap police officer of one the stolen that, when a facts. We hold important an detail of the ons corroborated requests the trial court not to it story informant’s and made reasonable included of jury instruct on a lesser reliability to credit judge defendant’s fense and honors informant. is request, precluded the defendant from conclude, therefore, that when the raising appeal. the issue on penal against informant’s declaration independent The coupled interest with the final issue raised is that de part story, evidence is insufficient to show corroboration of of informant’s stolen. De reliability was suffi- fendant knew the of the informant argues no evidence ciently satisfy the fendant veracity established to she was aware showed that presented which dwelling or guns in the than three

of more Minnesota, Respondent, STATE of room or padlocked her in the placed which in the what was awareness of showed her MORGAN, Appellant. William Albert conclude, however, it was room. jury for the draw not unreasonable No. 49004. property knew the that defendant inference States, Husten v. United Minnesota. stolen. See Court of 1938) (unexplained (8th Cir. 95 F.2d 168 July after property shortly of stolen possession justify conclusion the theft is sufficient by possessor jury knowledge Bagley, cf. stolen);

property 180, 175 (1970) (unex Minn. within possession property of stolen

plained a theft is sufficient reasonable time after conviction). sum, that defendant our conclusion of two by the admission prejudiced warrants

improperly obtained statements and a new trial.

reversal remanded.

Reversed and

ROGOSHESKE, (Concurring spe- Justice

cially). case that defendant’s

I would hold in this suppressed. should be

second any justification

This record devoid of 57 explanation for a

much less arraigning defendant before

hours in County during mid-week

judge Hennepin all of the several presumably

when agree that operating. While I

courts were ap- not be of exclusion should

the sanction Rule rigidly every violation of

plied opportunity on re-

affording the state an not seem fair justify

mand to does importance may

to defendant and dilute this court should attach to

I believe

arraignment.

WAHL, (Concurring specially). Justice Mr. join concurring opinion in the

I Rogosheske.

Justice

YETKA, (Concurring specially). Justice of Mr. join concurring opinion

I Rogosheske.

Justice

Case Details

Case Name: State v. Wiberg

Court Name: Supreme Court of Minnesota

Date Published: Jul 3, 1980

Citation: 296 N.W.2d 388

Docket Number: 49787

Court Abbreviation: Minn.