Petition — Neilson v. Wyoming

— eos ee ee

| MCHABL ROBAK, JR., CLERK

In The

Supreme Court of the United States

October Term, 1979

Wo. 29°97%

re’

—

ROGER A. NEILSON AND JOHN L. POGLIANO,

Petitioners,

vB.

THE STATE OF WYOMING,

Respondent.

ra’

Vv

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF WYOMING

fy

Ww

Ken McCartney

TRIERWEILER, Bayuess, MocKLER,

Barrett & McCartney

Colonial East Building

721 East 16th Street

Cheyenne, Wyoming 82001

Attorneys for Petitioners

COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102

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TABLE OF CONTENTS

Pages

Opinions Below 1

Jurisdiction 2

Questions Presented 2

Constitutional Provisions and Statutes Involved ....... 2

Statement of the Case 3

The Proceedings in the Courts Below +

Reasons for Granting the Writ 5

Conclusion | 6

Appendix A App. 1

Appendix B App. 25

TABLE OF AUTHORITIES

Casks:

Cady v. Dombrowski, 413 U.S. 433 4)

Chambers v. Maroney, 399 U.S. 42 on. cceccesccsenesesceeeeee eee 6

Coolidge v. New Hampshire, 403 U.S. 433, 462 5

South Dakota v. Opperman, 428 U.S. 364 5

In The

Supreme Court of the United States

October Term, 1979

ra’

Vv

Betts scdiicinaciniin

ray

Vv

ROGER A. NEILSON AND JOHN L. POGLIANO,

Petitioners,

vs.

THE STATE OF WYOMING,

Respondent.

ait*

Vv

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF WYOMING

ray

ae

OPINIONS BELOW

The opinion of the Supreme Court of Wyoming has

been officially reported and appears at 599 P. 2d 1326,

and is printed in Appendix (A). The order denying re-

hearing is not officially reported and is printed in

Appendix (B).

JURISDICTION

The opinion of the Supreme Court of Wyoming

printed in Appendix (A) was filed on August 23, 1979. A

judgment entered in accordance therewith was entered on

September 26, 1979. <A petition for rehearing was filed on

September 7, 1979, and an order denying rehearing printed

in Appendix (B).was entered on September 17, 1979. The

jurisdiction of this Court is invoked under Title 28, United

States Code Section 1257 (3).

o

QUESTIONS PRESENTED

May an automobile be searched by law enforcement

officers without obtaining a warrant where probable cause

exists but no exigent circumstances exist as to preclude the

obtaining of a search warrant and no threat of destruction

of evidence exists?

co)

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

This ease involves the freedom from unreasonable

search and seizure set out in the Constitution’s Fourth

Amendment which provides

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated...

STATEMENT OF THE CASE

The Appellants were stopped while driving an auto-

mobile south from Laramie, Wyoming. At the request of

the arresting officers they exited the autombile, placed

themselves at the rear of their vehicle and next to the

police vehicle and submitted themselves to a pat-down

search. The Supreme Court of Wyoming in its opinion

(p. 8 n. 4) determined that at this time the Appellants

were under arrest.

It is admitted that probable cause to arrest them ex-

isted at this time.

While the Appellants were being held well away from

their automobile, one of the arresting officers conducted a

search of the interior of the Appellants’ vehicle while the

other officer stood guard over Appellants. This search

for evidence was conducted under the pretext of a “weap-

ons search” and included a search of areas of the vehicle

not in “plain view.” At this time the arresting officers

had neither a search warrant nor consent. of the Appel-

lants to this search.

During the ‘‘weapons search’’ the officer discovered

under the front passenger seat, a bank bag containing coins

which was subsequently admitted into evidence at the Ap-

pellants’ trial.

Following the “weapons search”’ and discovery of the

bank bag, the Appellants were then read standard Miranda

warnings and Sergeant Puls, another supervising police

officer, arrived at the scene. After being informed of the

results of the first officer’s search, Officer Puls requested

4

the consent of Appellant Pogliano to search the vehicle.

Mr. Pogliano initially declined to give his consent.

Officer Puls then informed Mr. Pogliano that a valid

search warrant could be obtained and again requested Mr.

Pogliano’s consent to search the vehicle. Pogliano re-

luctantly acquiesced «ad gave his ‘‘consent.” Officer Puls

then proceeded to search the vehicle, discovering other

items of evidence which were admitted at trial over defense

objections.

The officers then radioed a tow truck to take the

Appellants’ vehicle to the Laramie impounding area and

waited at the scene until the tow truck arrived and fol-

lowed the truck with the Appellants’ vehicle in tow to the

impounding area. The Appellants were incarcerated and

the next morning police officers once again searched Ap-

pellants’ vehicle without a warrant or the consent of Ap-

pellants and seized more evidence. At some point in the

second or the third search the bank bag found in Appel-

lants’ automobile was opened and its contents searched

without a warrant.

—

a

THE PROCEEDINGS IN THE COURTS BELOW

The question sought to be reviewed was raised prior

to trial and at trial by motions to suppress. These mo-

tions were overruled without opinion by the trial court.

The question was presented to the Supreme Court of

Wyoming on appeal which in an opinion dated August 23,

1979, printed as Appendix (A) upheld the conviction.

—o

5

REASONS FOR GRANTING THE WRIT

1. The issue is the reasonableness of a warrantless

search of an automobile in a factual context never before

decided.

The searches in question here cannot be fit into the

plain view search or inventory search exceptions to the

requirement of a warrant.

The combination of probable cause and exigent cir-

cumstance which has been held to justify a warrantless

search is only half present here. Although probable cause

for the arrest of Appellants existed exigent circumstances

requiring immediate search of the automobile did not exist.

The inherent mobility of the automobile was effec-

tively negated. In Coolidge v. New Hampshire (403 U.S.

433, 462), the Court noted that police guards on immobil-

ized vehicles until a search warrant could be obtained

might be inconvenient. In this factual situation, however,

there existed no inconvenience to police in following these

procedures since just such a guard was posted while the

tow truck was called and Officer Puls testified that at the

time he felt there would be no difficulty in obtaining a

search warrant. Hence the inherent mobility of the auto-

mobile was negated and in the same manner the possibility

of destruction of evidence was precluded. The interior of

the automobile was beyond the area of control of the Ap-

pellants and the evidence was not perishable.

Unlike Cady v. Dombrowski (413 U. S. 433), the police

suspected no dangerous instrumentality to be secreted in

the automobile nor was this an inventory search as in

South Dakota v. Opperman (428 U. S. 364). The search

was clearly an attempt to gain evidence to be used against

Appellants despite the police officer’s pretext of a weap-

ons search since the areas of the search were beyond the

Appellants’ area of control.

Unlike Chambers v. Maroney (399 U. 8. 42), which

the court below relied upon in its opinion, the choice was

not between an immediate warrantless search on the spot

or a warrantless seizure of the automobile. The seizure

would have been effected had the search taken place or

not. The choice was between only a warrantless seizure

or both such seizure and a warrantless search and since

no greater difficulty was shown or even alleged by the .

State of Wyoming in making only the seizure before a

warrant was obtained, the Appellants contend that such

a warrant should have been required.

CONCLUSION

For the foregoing reasons it is respectfully submitted

that this petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

Ken McCartney

TRIERWEILER, BayLess, MocK.irr,

Barrett & McCartney

Colonial East Building

721 East 16th Street

Cheyenne, Wyoming 82001

Attorneys for Petitioners

App. 1

APPENDIX A

IN THE SUPREME COURT,

STATE OF WYOMING

APRIL TERM, A. D, 1979

8-23-79

No. 5073

ROGER A. NEILSON and JOHN L. POGLIANO,

Appellants (Defendants below),

vs.

THE STATE OF WYOMING,

Appellee (Plaintiff below).

Appeal from the District Court of Albany County, the

Honorable Vernon G. Bentley, Judge.

James H. Barrett, of Trierweiler, Bayless, Barrett & Me-

Cartney, Cheyenne, for appellants.

John D. Troughton, Attorney General; Gerald A. Stack,

Deputy Attorney General; James W. Gusea, Assistant

Attorney General; and Sandra K. Dunn, Legal Intern;

for appellee.

Before RAPER, C.J., and MeCLINTOCK, THOMAS,

ROSE and ROONEY, J.J.

ROONEY, J., delivered the opinion of the court. ROSE,

J., filed a specially coneurring opinion.

ROONEY, Justice.

Appellants-defendants were tried jointly, and both

were found guilty by a jury of the crime of grand larceny

App. 2

in violation of § 6-7-8301, W.S. 1977.! The amount stolen

was $196.30. This appeal is from the judgment entered

upon the verdicts.

Appellants contend that the trial court erred: (1) in

denying appellants’ pretrial motion to suppress as evidence

certain items seized from an automobile and by allowing

the subsequent introduction of these items into evidence

at trial; (2) by instructing the jury relative to aiding

and abetting the commission of a felony when such was

not charged in the information; (3) by failing to instruct

the jury as requested by appellants relative to the lesser

included offense of petit larceny inasmuch as the stolen

$196.30 was insufficient to provide $100.00 value for each

appellant, and thus (according to appellants), at least

one of them could not be guilty of grand larceny, and

(still according to appellants) the jury should have been

given the opportunity to so find or to find that each ap-

pellant stole less than $100.00; and (4) in denying appel-

lants’ motion for acquittal. Appellants also contend that

the verdicts did not conform to the evidence and were not

supported by it. This last contention and the contention

relative to the denial of the motion for acquittal are predi-

cated on the same reasoning as is the contention relative

to failure to instruct on the lesser included offense.

We affirm inasmuch as we do not find reversible

error.

1 Section 6-7-301 provides:

“Whoever feloniously steals, takes and carries, leads or

drives away the personal goods of another of the value of

one hundred dollars ($100.00) or upwards, is guilty of

grand larceny, and shall be imprisoned in the penitentiary

not more than ten (10) years.” (Emphasis supplied.)

App. 3

In the early evening of September 19, 1978, Craig

Robertson, an employee of the Ramada Inn in Laramie,

encountered appellants in the first-floor hallway at the

rear of the Ramada Inn building. They were then in the

vicinity of a stairway and two soda vending machines. A

third vending machine was located on the second floor

near this stairway. A few seconds later, Robertson

noticed appellants standing in the middle of the hall; and

about five to eight minutes later, while walking in the

back parking lot, he observed them leave by a back door

of the building and enter a white over maroon Cadillac.

One of them had one hand in the pocket of his coat with

the other hand draped over the outside of the same pocket.

There was a big bulge in that pocket. Robertson im-

mediately reported his observations to the motel manager,

Edward Agni.

Agni saw the Cadillac drive away from the Ramada

Inn in the direction of the nearby Holiday Inn. He tele-

phoned the Holiday Inn to alert its management that the

drivers of the Cadillac were suspected of having stolen

money from Ramada Inn’s vending machines. He gave

a description of the Cadillac. He then examined the vend-

ing machines on the first floor and found that they had

been emptied of money. He verified the fact that the

machines should have contained money by checking the

motel records and by telephoning the local beverage

dealer. He then called the police.

Officer Herderich was at the police station when the

dispatcher received Agni’s call. While Herderich and

another police officer were proceeding to the Ramada

Inn in response to the call, they received a radio message

that the automobile in question had been at the Holiday

App. 4

Inn and was last seen heading south on Highway 287.

Herderich drove south on Highway 287 and overtook a

white over maroon Cadillac with Colorado license num-

ber SF 280 five miles south of Laramie. Since the vehicle

answered the description of the automobile in question,

he stopped it. Appellant Pogliano was the driver, and

appellant Neilson was a passenger. Herderich displayed

a weapon and ordered appellants to first place their hands

on the windshield and then exit the automobile. Herderich

then conducted a “pat down” search of each appellant,

moved them to the back of the stopped vehicle, and placed

them under the control of his companion officer. Herder-

ich then made a search of the front of the passenger com-

partment for weapons. He found none, but he felt a bank

bag under the front seat, which seemed to be full of coins.

He did not then remove the bag. He separated appellants

and advised each of them of the reason for the stop and

of their “Miranda rights.” He did not then handeuff ap-

pellants or advise them that they were under arrest.

As Herderich completed his search for weapons, Ser-

geant Puls arrived and took charge of the investigation.

Herderich advised him of the bank bag located under the

front seat. Puls then obtained consent from Pogliano to

search the automobile.? Puls searched the front passenger

2 When Puls first requested Pogliano’s permission to search,

he was asked if Pogliano was under arrest. Puls advised that

he was not under arrest, and that the reason for the deten-

tion was to investigate the theft of money from some vend-

ing machines. Puls again sought a consent to search and

Pogliano responded that the registered owner of the auto-

mebiie might object. Puls advised that since Pogliano had

control of the car, he could consent to a search thereof.

(Continued on next page)

App. 5

compartment of the automobile and found and seized a

tubular lockpick from the center of the front seat. Both

appellants were then advised that they were under arrest,

and they were handcuffed. Puls continued the search of

the automobile and seized a blue notebook (containing

some type of numerical code), a paper cup (holding sev-

eral rolls of coins and some loose coins), and the bank bag

with contents from under the seat. It was later deter-

mined that the bank bag and the paper cup contained

$183.80 and $12.50 in coins, respectively.

The Cadillac was towed to the city shops and im-

pounded. It was not searched further until the next

morning when Puls conducted a general search of the

passenger compartment. Puls testified that he had de-

cided not to obtain a search warrant for this search be-

cause he believed it was authorized by Pogliano’s previous

consent. As a result of this search, Puls seized several

items, including a lock tumbler, another bank bag (con-

taining assorted lockpicks and files and three sets of

keys), coin wrappers, a cardboard box (containing a depth

gauge, lock lubricants, and a number of gloves), and four

quarters.

(Continued from previous page)

Puls further advised that Pogliano had a constitutional right

to require him to obtain a search warrant. Pogliano then

stated, ‘‘Go ahead and look.” At the time of this colloquy,

no weapons were displayed by police officers. Pogliano

admitted piving permission to search, but testified that he

teen! a choice because of the cold weather and his poor

ealth.

App. 6

[ILLEGAL SEARCH AND SEIZURE

Before trial, appellants filed a motion under Rule

40 (e), W.R. Cr. P., to suppress all items seized from the

automobile in question as a result of these searches. Fol-

lowing a hearing, the trial court denied the motion. Over

objec‘‘on that they were obtained as a result of an illegal

search and seizure, all of the items seized at the scene of

the car stop were admitted into evidence at the trial. Of

the items seized after the automobile had been impounded,

the lockpicks, files, keys, depth gauge, and the four quar-

ters were received in evidence over the same objection.

Before considering this contention of error, two

aspects of the applicable procedural standards relative to

this issue are noted. First, the trial court did not make

findings on appellants’ motion to suppress. When such

findings are made, they are binding on this court unless

clearly erroneous. United States v. Jobin, Ist Cir., 535

F.2d 154 (1976); MeDonald v. United States, 10th Cir.,

307 F. 2d 272 (1962); See also 3 Wright, Federal Practice

and Procedure: Criminal, § 678, p.143. When such find-

ings are not made, this court u holds the general ruling

of the trial court if it is supportable by any reasonable

view of the evidence. Scarbeck v. United States, 115 U.S.

App. D.C. 185, 317 F. 2d 546, 562 (1963), cert. denied 374

U.S. 856, 83 S. Ct. 1897, 10 L. Ed. 2d 1077 (1963); United

States v. Montos, 5th Cir., 421 F.2d 215, 219, n.1 (1970).

Second, the validity of a search and seizure will be con-

sidered on the basis of evidence presented at both the

hearing on the motions and the trial.

“In determining whether a trial court erred in ad-

mitting evidence claimed to have been illegally seized,

an appellate court will usually not limit itself to the

-App. 7

testimony received on the pretrial motion to suppress,

but will also consider pertinent testimony given at

the trial. * * *” 3 Wright, Federal Practice and

Procedure, supra, § 678, p. 143.

See Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280,

288, 69 L. Ed. 543, 39 A. L. R. 790 (1925); Rent v. United

States, 5th Cir., 209 F. 2d 893, 896 (1954).

The Fourth Amendment to the United States Con-

stitution and Art. 1, §4, of the Wyoming Constitution do

not prohibit all warrantless searches and seizures, but

only those that are unreasonable. Whether a search and

seizure is unreasonable depends upon all the circumstances

of each case. Cooper v. California, 386 U.S. 58, 87 S. Ct.

788, 790, 17 L. Ed. 2d 730 (1967).

Automobiles are “effects” under the Fourth Amend-

ment for the purpose of subjecting searches and seizures

thereof to the constitutional standard of reasonableness.

It is recognized, however, that there are differences be-

tween motor vehicles and other property, which permit

warrantless searches of automobiles in circumstances in

which warrantless searches would not be reasonable in

other contexts. United States v. Chadwick, 433 U.S. 1,

97 S.Ct. 2476, 2484, 53 L. Ed. 2d 538 (1977); Preston v.

United States, 376 U.S. 364, 84 S. Ct. 881, 883, 11 L. Ed.

2d 777 (1964); Carroll v. United States, supra, 45 S. Ct. at

284; Alcala v. State, Wyo., 487 P.2d 448, 453-454 (1971),

cert. denied 405 U.S. 997, 92 S.Ct. 1259, 31 L. Ed. 2d 446

(1972), reh. denied 406 U.S. 911, 92 S. Ct. 1613, 31 L. Ed.

2d 823 (1972). In United States v. Chadwick, supra, 97

S. Ct. at 2484, the United States Supreme Court explained:

“Our treatment of automobiles has been based in part

on their inherent mobility, which often makes obtain-

ing a judicial warrant impracticable. Nevertheless,

“App. 8

we have also sustained ‘warrantless searches of ve-

hicles . . . in cases in which the possibilities of the

vehicle’s being removed or evidence in it destroyed

were remote, if not non-existent.’ Cady v. Dombrow-

ski, 413 U.S. 433, 441-442, 93 S.Ct. 2523, 2528, 37

L. Ed. 2d 706 (1973); accord, South Dakota v. Opper-

man, supra, 428 U.S., at 367, 96 S.Ct., at 3095; see

Texas v. White, 423 U.S. 67, 96 S. Ct. 304, 46 L. Ed.

2d 209 (1975); Chambers v. Maroney, supra; Cooper

v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d

730 (1967).”

The Court concluded that the disparate treatment of auto-

mobiles rests in the diminished expectation of privacy in-

volved in the use and regulation of automobiles.

The facts of Chambers v. Maroney, 399 U.S. 42, 90

S. Ct. 1975, 26 L. Ed. 2d 419 (1970), are similar to those

of this case, and the principles thereof are controlling in

the disposition of the search.and seizure issue of this case.

It is proper therefore to refer to the Chambers case in

detail. In Chambers, two teenagers noticed a blué com-

pact station wagon containing four men circling the block

in the vicinity of a Gulf service station. They saw it

speeding away from a parking lot close to the station.

About the same time, they learned that the station had

been robbed. They reported their observations to the

police, giving a description of the station wagon. Within

an hour, the police stopped a blue compact station wagon

containing four men. The occupants were arrested, and

the automobile was driven to the police station where it

was searched without a warrant. Instrumentalities and

fruits of the crime found during the search were admitted

into evidence. The Court held that there was probable

cause to arrest the occupants of the station wagon and

said:

App. 9

“In terms of the circumstances justifying a warrant-

less search, the Court has long distinguished between

an automobile and a home or office. In Carroll v.

United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed.

453 [543] (1925), the issue was the admissibility in

evidence of contraband liquor seized in a warrantless

search of a car on the highway. After surveying the

law from the time of the adoption of the Fourth

Amendment onward, the Court held that automobiles

and other conveyances may be searched without a

warrant in circumstances that would not justify the

search without a warrant of a house or an office, pro-

vided that there is probable cause to believe that the

car contains articles that the officers are entitled to

seize. The Court expressed its holding as follows:

“We have made a somewhat extended reference

to these statutes to show that 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 struc-

ture 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 war-

rant, because the vehicle can be quickly moved out

of the locality or jurisdiction in which the warrant

must be sought.

‘* ‘Having thus established that contraband goods

concealed and illegally transported in an auto-

mobile or other vehicle may be searched for with-

out a warrant, we come now to consider under

what circumstances such search may be made. * * *

[T]hose lawfully within the country, entitled to

use the public highways, have a right to free pas-

sage without interruption or search unless there is

known to a competent officiai, authorized to

search, probable cause for helieving that their ve-

App. 10

hicles are carrying contraband or illegal merchan-

ane, * *:*

“*The measure of legality of such a seizure is,

therefore, that the seizing officer shall have rea-

sonable or probable cause for believing that the

automobile which he stops and seizes has contra-

band liquor therein which is being illegally trans-

ported.’ 267 U.S., at 153-154, 155-156, 45 S. Ct.

at 285-286.

‘‘The Court also noted that the search of an auto on

probable cause proceeds on a theory wholly different

from that justifying the search incident to an arrest:

“ ‘The right to search and the validity of the seiz-

ure are not dependent on the right to arrest. They

are dependent on the reasonable cause the seizing

officer has for belief that the contents of the auto-

mobile offend against the law.’ 267 U. S., at 158-

159, 45 S. Ct. at 287.

“Finding that there was probable cause for the search

and seizure at issue before it, the Court affirmed the

convictions.

a _ 4

“Neither Carroll, supra, nor other cases in this Court

require or suggest that in every conceivable circum-

stance the search of an auto even with probable cause

may be made without the extra protection for privacy

that a warrant affords. But the circumstances that

furnish probable cause to search a particular auto for

particular articles are most often unforeseeable; more-

over, the opportunity to search is fleeting since a car

is readily movable. Where this is true, as in Carroll

and the case before us now, if an effective search is

to be made at any time, either the search must be

made immediately without a warrant or the car itself

must be seized and held without a warrant for what-

ever period is necessary to obtain a warrant for the

search.

it oe e

App. 11

‘‘Arguably, because of the preference for a magi-

strate’s judgment, only the immobilization of the car

should be permitted until a search warant [sic] is ob-

tained; arguably, only the ‘lesser’ intrusion is permis-

sible until the magistrate authorizes the ‘greater.’

But which is the ‘greater’ and which the ‘lesser’ intru-

sion is itself a debatable question and the answer may

depend on a variety of circumstances. For consti-

tutional purposes, we see no difference between on

the one hand seizing and holding a car before present-

ing the probable cause issue to a magistrate and on

the other hand carrying out an immediate search with-

out a warrant. Given probable cause to search, either

course is reasonable under the Fourth Amendment.

“On the facts before us, the blue station wagon could

have been searched on the spot when it was stopped

since there was probable cause to search and it was a

fleeting target for a search. The probable-cause factor

still obtained at the station house and so did the mo-

bility of the car unless the Fourth Amendment per-

mits a warrantless seizure of the car and the denial

of its use to anyone until a warrant is secured. In

that event there is little to choose in terms of practi-

cal consequences between an immediate search without

a warrant and the car’s immobilization until a warrant

is obtained. * * *’? 90S. Ct. at 1979-1981.

In a footnote to the Chambers case, the Court noted

that in many cases the circumstances justifying an arrest

are also those furnishing probable cause for the search.

90 S. Ct. at 1979, n. 6.

As indicated, the case before us is similar in facts to

those of the Chambers case, and the principles of the

Chambers case are dispositive of the legality of the

searches made at the scene of the automobile stop in this

App. 12

eases Although a warrantless search of an automobile

may be legal without an arrest, the basis for the probable

cause for such search may be the same as that for prob-

able cause for an arrest without a warrant. Such is true

in this case.*

3 The search made in the Chambers case at the police station

was made in late night hours, it was made immediately after

the automobile was secured (see reference to “immediate

search” in each of last two quoted paragraphs from Cham-

bers case, supra), and a prior search had not been conduct-

ed at the place it was stopped. None of these circumstanc-

es exist in this case. Since we will dispose of the effect of

the search after impoundment of this automobile on other

grounds, we will not determine the applicability of the prin-

ciples of the Chambers case to it.

4 Although Officer Herderich testified at the pretrial hearing

that he did not consider appellants to have been arrested at

the time he read them their “Miranda rights” or prior there-

to, and that he so informed them, and although Officer Puls

testified that he told Pogliano he was not under arrest at the

time permission to search was requested, the fact of arrest is

not controlled by the subjective judgment of the police of-

ficers involved. Rodarte v. City of Riverton, Wyo., 552 P. 2d

1245 (1976). Arrest was defined in the Rodarte case as fol-

lows at p. 1250:

“ ‘An arrest is the taking, seizing, or detaining of the per-

son of another, (1) by touching or putting hands on him;

(2) or by any act that indicates an intention to take him

into custody and that subjects him to the actual control

and will of the person making the arrest; or (3) by the

consent of the person to be arrested.

“ ‘To effect an arrest, there must be actual or constructive

seizure or detention of the person arrested, or his volun-

tary submission to custody, and the restraint must be un-

der real or pretended legal authority....’ 5 Am. Jur. 2d,

Arrest § 1, p. 695.”

Appellants were arrested when Herderich ordered them

from the vehicle and moved them to the back of it. Weap-

ons were there displayed, and both Herderich and Puls

testified that appellants would have been physically re-

strained if they had attempted to leave or to enter the auto- .

mobile. Such restraint under legal authority is an arrest.

App. 13

A peace officer may arrest a person without a warrant

if, at the moment the arrest is made, he has probable cause

to believe that a crime had been committed by the person

to be arrested, or he has reasonable grounds to believe that

a crime is being committed in his presence by the person

to be arrested. DeHerrera v. State, Wyo., 589 P. 2d 845,

847 (1979); and Rodarte v. City of Riverton, supra at

1252.5 Stated another way, the determination of probable

cause to arrest without a warrant depends upon whether

the facts and circumstances within the peace officer’s

knowledge and of which he has reasonably trustworthy in-

formation were sufficient to warrant a reasonably cautious

or prudent man to believe that the person arrested has

committed or is committing an offense. Brinegar v. United

States, 338 U. S. 160, 69 S. Ct. 1302, 1310-1311, 93 L. Ed.

1879 (1949); and Beck v. State of Ohio, 379 U. S. 89, 85

S. Ct. 223, 225, 13 L. Ed. 2d 142 (1964). The constitutional

standard governing probable cause is grounded upon rea-

sonableness. Thus, an appellate court’s inquiry into

whether or not an arrest is legal in a given case is re-

stricted to an objective consideration of the evidence in

the record,

Based upon the information communicated by the po-

lice dispatcher, Officer Herderich had sufficient know]l-

edge—from reasonably trustworthy sources—to believe

that the occupants of a white over maroon Cadillac were

participants in the theft from the vending machines at

Ramada Inn. This knowledge was well beyond mere sus-

picion. He knew that money had been stolen from ma-

5 The constitutional test of probable cause is essentially stated

in § 7-2-103, W. S. 1977, which authorizes warrantless arrests

in certain circumstances.

App. 14

chines; that the occupants of a white over maroon Cadillac

were probably involved in the theft; that an automobile

fitting this description had been seen leaving the Holiday

Inn and heading south on Highway 287; that the automo-

bile he stopped was a white over maroon Cadillac heading

south on Highway 287; and that the time and place of the

theft correlated with the time and place at which the Cad-

illac was stopped. The origin of this knowledge was trust-

worthy. It resulted from the observations and prompt

investigations made by the two employees of the Ramada

Inn, the further observations of the employees of the Holi-

day Inn, and his own observations. These facts support

the reasonable conclusion that a crime had been committed

and that the occupants of the white over maroon Cadillac

had committed it. When Herderich stopped the automo-

bile and took control of appellants, he had the requisite

probable cause to make a warrantless arrest.

The same facts and logic reflect the existence of prob-

able cause to search the automobile. The police had prob-

able cause to believe not only that the occupants of the

Cadillae were involved in the commission of the erime, but

that the automobile was carrying the fruits of the crime

and the instruments used to accomplish it. The latter con-

clusion is made even more credible by the close proximity

in time between the commission of the crime and the ar-

rest. Under these circumstances the search of the auto-

mobile at the place it was stopped was constitutionally

valid under the Chambers-Carroll doctrine. See e.z.,

United States v. Vento, 3rd Cir., 533 F, 2d 838 (1976) ; and

United States v. Miller, 10 Cir., 460 F’. 2d 582 (1972).

Arguably, the logic of Chambers could also be applied

to the search and seizure conducted the morning following

App. 15

the impoundment of the Cadillac. However, the cireum-

stances are distinguishable.© Chambers apparently re-

quires some justification for the removal of the automobile

from the scene of the stop:

“Tt was not unreasonable in this case to take the car

to the station house. All occupants in the car were

arrested in a dark parking lot in the middle of the

night. A careful search at that point was impractical

and perhaps not safe for the officers, and it would

serve the owner’s convenience and the safety of his

car to have the vehicle and the keys together at the

station house.’’ 90 S. Ct. at 1981, n. 10.

The fact that appellants were apprehended in the early

evening hours may have rendered a careful search im-

practical and unsafe for the Laramie police officers. But

in any event, the search was not promptly made after the

automobile was taken to the city shops. It was delayed

until the next morning.

Assuming the search the next morning at the city

shops without first obtaining a search warrant was im-

proper and that the items obtained therefrom were im-

properly admitted into evidence, the error was harmless

beyond a reasonable doubt. Campbell v. State, Wyo., 589

P, 2d 358, 367 (1979), citing Chapman v. California, 386

U.S. 18, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). Such

items were merely cumulative to the other evidence. In

the case before us, the evidence seized at the time the

automobile was stopped and which was properly admitted

into evidence consisted of the proceeds of the theft, a

tubular lockpick, and a notebook. At the trial, the State,

6 See footnote 3, supra.

App. 16

through an expert witness demonstrated to the jury how

this lockpick could open a replica of the locking mechan-

ism on the vending machines in question. He opined that

the numbers entered in the notebook were coded numbers

for a tubular type lock. The items obtained through the

later search at the city shops were of a similar nature and

were cumulative.

Earlier we noted the procedural standard for con-

sideration of issues on appeal relative to motions to sup-

press when findings are not made by the trial court. With

this standard in mind and from the record before us, we

can say that appellants would have been convicted absent

the evidence seized during the search of the automobile

at «the city shops. Harvey v. State, Wyo, — P.2d —

(1979), Case No. 5053 decided July 2, 1979; and Pack v.

State, Wyo., 571 P. 2d 241 (1977),’

AIDING AND ABETTING INSTRUCTIONS

At the trial, defense counsel objected to the giving

of two instructions on aiding and abetting on the ground

that since aiding and abetting is a statutory crime dis-

tinct from grand larceny, the instructions inserted a new

element in the defense, against which they were not given

an opportunity to defend. Appellants now argue that the

giving of the instructions violated their right to due proc-

ess of law.

7 Our holding makes it unnecessary to further address the

issue of the validity of the searches as incident to arrest or

the issue of the validity of the searches as pursuant to con-

sent of Pogliano and whether or not the consent was volun- -

tary.

App. 17

Section 6-1-114, W.S. 1977, provides, inter alia, that

any person who aids or abets in the commission of any

felony shall be deemed an accessory before the fact, and

may be informed against, tried, and convicted in the same

manner as if he were a principal.’ One convicted as an

accessory before the fact shall suffer the punishment and

penalties prescribed by law for a person convicted of the

crime involved. Linn v. State, Wyo., 505 P. 2d 1270 (1973),

cert. denied 411 U.S. 983, 93 S. Ct. 2277, 36 L. Ed. 2d 959

(1973). Rule 11 (b), W.R.Cr. P., authorizes the joinder

of two or more defendants in the same information if

they are alleged to have participated in the same act or

transaction, or in the same series of acts or transactions,

constituting an offense.

The record clearly demonstrates that appellants were

jointly charged in the same information of committing

grand larceny. The allegations in the information were

sufficient to reasonably apprise them of the theory that

they were being charged with having participated in a

series of acts constituting an offense, and that they aided

and abetted one another in the accomplishment and suc-

cess of the venture. In addition, the information alleged

that the coins found in “their” car were later counted and

8 Section 6-1-114 provides:

“Every person who shall aid or abet in the commission of

any felony, or who shall counsel, encourage, hire, com-

mand, or otherwise procure such felony to be committed,

shall be deemed an accessory before the fact, and may be

indicted, informed against, tried and convicted in the

same manner as if he were a principal, and either before

or after the principal offender is convicted or indicted or

informed against; and upon such conviction he shall suffer

the same punishment and penalties as are prescribed by

law for the punishment of the principal.”

App. 18

totaled $196.30. Appellants neither sought relief from

prejudicial joinder nor filed a request to be furnished with

a bill of particulars, setting forth the precise theory under

which the State would prosecute the charge against them.

In these circumstances, appellants were sufficiently ap-

prised to permit a defense on all aspects of the crime

charged, including that of aiding and abetting. Cf. Bor-

rego v. State, Wyo., 423 P. 2d 393 (1967).

LESSER INCLUDED OFFENSE INSTRUCTIONS

Appellants contend that they were entitled to two

instructions covering the lesser offense of petit larceny,

as defined in § 6-7-302, W.S. 1977. Specifically, they argue

that since the total amount of money taken in and re-

covered from the theft was less than $200.00, the jury

should have been instructed that either or both of them

could have stolen less than $100.00 and thus could have

been guilty of the lesser offense of petit larceny. Appel-

lants do not cite any authority that compels such a result.

It has long been the law that:

“Where several persons accused participated in a

larceny, if the aggregate value of the goods taken by

them at the same time and place exceeds the statutory

amount, the crime is grand larceny, although the part

taken by each accused or the share which each, after

a division, would have received, is less than that

amount. * * *” 52A C.J.S. Larceny § 60 (3) ¢, pp.

493-494,

In any event, appellants’ contention is based upon the

assumption that the jury could not have been instructed

that, as an aider and abettor, an accomplice is chargeable

as a principal. Our disposal of that question also controls

this issue.

App. 19

When the evidence shows that the accused is either

guilty or not guilty of the higher grade of the offense, the

trial court is not required to instruct on the lesser offense.

Jones v. State, Wyo., 580 P.2d 1150, 1152 (1978); Rich-

mond v. State, Wyo., 554 P.2d 1217, 1232 (1976), reh.

denied 558 P. 2d 509 (1977). This rule applies to larceny

eases. Oldham v. State, Wyo., 534 P.2d 107, 109 (1975).

Appellants also assign errors to the trial court’s

denial of their motion for judgment of acquittal at the

close of the State’s case and to the sufficiency of the evi-

dence to support the jury’s verdicts. These arguments

essentially restate the proposition that both of them can-

not be convicted of grand larceny when the evidence and

the verdict forms indicated that the amount stolen was

less than $200.00. For reasons previously stated, these

arguments are specious.? In reviewing the sufficiency of

the evidence to support a verdict of guilty, this court ad-

heres to the time-honored rule that we will not weigh con-

flicting evidence nor give consideration to the credibility

of the witnesses. We must view the evidence in a light

most favorable to the prosecution and determine the ques-

tion of law as to whether there is direct or circumstantial

9 The record reveals that after the close of the State’s case,

appellants introduced evidence without renewing their mo-

tion for ago of acquittal at the close of ail the evi-

dence. Since the introduction of evidence by a defendant

after his motion was denied has been held to be a waiver

of that motion, an appellate court cannot review the suffi-

ciency of the evidence except for plain error. 2 Wright,

Federal Practice and Procedure: riminal, § 463, p. 246.

Appellants, however, did make a motion for judgment of

acquittal within ten days after the jury was discharged. See

Rule 30 (c), W.R. Cr. P. Thus, for purposes of our review,

only the question of the sufficiency of the evidence to sus-

tain the jury verdicts is properly before this court.

App. 20

evidence, together with the reasonable inferences that may

be drawn therefrom, which will sustain the verdict. Col-

lins v. State, Wyo., 589 P. 2d 1283, 1291-1292 (1979); and

Repkie v. State, Wyo., 583 P.2d 1272, 1273-1274 (1978).

We hold that the evidence here was sufficient as a matter

of law to support the jury’s verdicts .

Affirmed.

ROSE, Justice, specially concurring.

Search Next Day Justified by Carroll-Chambers'

The author of the court’s opinion, adverts to but does

not resolve the issue of whether the search of the car the

following morning was within the Carroll-Chambers doc-

trine. The opinion avoids this issue by holding that even

if the search the following morning was unjustified, intro-

duction of the fruits of the morning search was harmless

error because the evidence was merely cumulative. I will

consider this contention, but before doing so will discuss

the issue of whether the morning search was within the

Carroll-Chambers doctrine.

The relevant United States Supreme Court cases are:

(1) Chambers, supra footnote 1—police stopped auto,

arrested occupants and took auto to police station where

it was searched without a warrant “some time after the

arrest.”* 399 U.S. at 47, 90 S. Ct. at 1979. Search upheld.

1 Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed.

543 (1925); and Chambers v. Maroney, 399 U. S. 42, 90 S. Ct.

1975, 26 L.Ed. 2d 419 (1970), reh. den. 400 U.S. 856, 91

S. Ct. 23, 27 L. Ed. 2d 94.

2 | am unable to find support in the Chambers opinion for

the majority’s statement in footnote 3 that the search in

poirasines eg was made “immediately after the automobile was

secured.”

App. 21

(2) Coolidge v. New Hampshire, 403 U. S. 443, 91A

S. Ct. 2022, 29 L. Ed. 2d 564 (1971), reh. den. 92 S. Ct.

26, 404 U. S. 874, 30 L. Ed. 2d 120—police first questioned

defendant on January 28, 1964, about a murder; on Febru-

ary 19, defendant was arrested and defendant’s car towed

from his driveway to the police station without a valid

warrant (403 U. S. at 453, 91 S. Ct. at 2032); and “on

February 21, two days after it was seized, again a year

later, in January 1965, and a third time in April 1965,”

it was searched. 403 U.S. at 448, 91S. Ct. at 2028. Search

held invalid. In Coolidge, there was no majority opinion

with respect to the validity of the warrantless auto search.

Four Justices distinguished Chambers from the Coolidge

ease because (a) in Chambers ‘‘ ‘exigent circumstances’ ”

justify the warrantless search of ‘‘ ‘an automobile stopped

on the highway.’ ’’ (Court’s emphasis) 403 U.S. at 460, 91

S. Ct. at 2035. (b) The Coolidge defendant had been co-

operating with the police for some time and thus the op-

portunity to search his car was not “fleeting.” 403 U. 8.

460, 91 S. Ct. at 203. (ce) Coolidge was arrested in his

house and his wife also went with the police, leaving no

other adult occupants of the house who could tamper with

the car. (d) And the police, in Coolidge, were already

guarding the house; therefore, there would have been no

extra inconvenience to the police in guarding the vehicle

while awaiting a warrant. The four-man opinion contains

this language:

“Since Carroll would not have justified a warrant-

less search of the Pontiac at the time Coolidge was

arrested, the later search at the station house was

plainly illegal, at least so far as the automobile excep-

tion is concerned. Chambers, supra, is of no help to

the State, since that case held only that, where the

App. 22

police may stop and search an automobile under Car-

roll, they may also seize it and search it later at the

police station. ...’? 403 U. S. at 463, 91 S. Ct. at 2036.

“... The rationale of Chambers is that given a

justified initial intrusion, there is little difference be-

tween a search on the open highway and a later search

at the station. Here, we deal with the prior question

of whether the intial intrusion is justified... .”

(Court’s emphasis) 403 U. S. at 463, 91 S. Ct. at 2036,

fn. 20.

(3) Cardwell v. Lewis, 417 U.S. 583, 94A S. Ct. 2464,

41 L. Ed. 2d 325 (1974)—Several weeks after defendant

had first become a suspect, he accepted an invitation to ap-

pear at the police station, where he was arrested with an

arrest warrant. Upon the arrest, Lewis’ car keys and the

parking lot claim check were released to the police. A tow

truck was dispatched to remove the car from the parking

lot to the police impoundment lot, where a warrantless

search was conducted the next day. Search upheld. The

search consisted of removing foreign paint from the car

and taking tire impressions. The four-man Cardwell court

opinion upheld the search because of (a) the Carroll-

Chambers line of decisions based on exigent circumstances,

(b) the lesser intrusion of searching an auto rather than

a house, and (c) the lesser expectation of privacy of paint

scrapings and tire impressions.

The Cardwell Court distinguished Coolidge:

“... Since the Coolidge car was parked on the de-

fendant’s driveway, the seizure of that automobile re-

quired an entry upon private property. Here, as in

Chambers [citation omitted], the automobile was

seized from a public place where access was not mean-

ingfully restricted. This is, in fact, the ground upon

App. 23

which the Coolidge plurality opinion distinguished

Chambers [citation omitted]... .’’? 417 U.S. at 593, 94

S. Ct. at 2471.

The Cardwell Court also said:

“Respondent contends that here, unlike Cham-

bers, probable cause to search the car existed for some

time prior to arrest and that, therefore, there were

no exigent circumstances. Assuming that probable

cause previously existed, we know of no case or prin-

ciple that suggests that the right to search on probable

cause and the reasonableness of seizing a car under

exigent circumstances aré foreclosed if a warrant

was not obtained at the first practicable moment.

Exigent circumstances with regard to vehicles are not

limited to situations where probable cause is unfore-

seeable and arises only at the time of arrest... .”

417 U.S. at 595, 94S. Ct. at 2472.

(4) Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46

L. Ed. 2d 209 (1975), reh. den. 423 U.S. 1081, 96 S. Ct.

869, 47 L. Ed. 2d 91—Upheld search (per curiam) of car

at police station within an hour after it was seized in

broad daylight, despite claim that the car could have been

safely searched on the spot.

The author of this court’s opinion in the instant case,

in footnote 3, distinguishes the Chambers search from the

search the next day in our case. In light of the above

four cases, I do not consider the distinctions controlling.

See, also, my footnote 2, supra. I think the search the

next day falls on the Chambers rather than the Coolidge

side of the line, and would have disposed of the morning-

search question by holding it valid under Chambers,

rather than the cumulative-evidence, harmless-error rule

—as does the court’s opinion.

App. 24

The Harmless-Error Argument

As mentioned previously, the court’s opinion assumes,

arguendo, that the search the next day was improper but

that the introduction at the trial of the fruits of that

search was harmless error, citing Campbell v. State, Wyo.,

589 P.2d 358 (1979). As United States Supreme Court

authority for the harmless-error rule, Chapman v. Cali-

fornia, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967),

is cited—a case in which the error was not found to be

harmless.

The rule that a defendant has a right to be tried by a

jury under a guilty-beyond-a-reasonable-doubt standard

occupies a paramount place in my heirarchy of values. I

feel that supreme court justices are on firmer ground

interpreting caselaw than trying to ascertain whether

the jury would have convicted the defendant under differ-

ent evidence. To say that it is harmless error to intro-

duce incriminating evidence not properly before the jury

is a dangerous threat to the right to jury trial and to the

guilty-beyond-a-reasonable-doubt standard.

The harmless-error rule should be invoked sparingly

and under carefully defined circumstances. It should not

be used to avoid analyzing the relevant caselaw.

In this case, I am of the opinion that the next-day

search of the auto falls pretty clearly within the Carroll-

Chambers doctrine and I contend that the issue should

have been resolved on that ground. I do not consider it

too risky to extend the Carroll-Chambers doctrine to

searches which occur more than a few hours after the

seizure of the automobile because this danger is suffi-

ciently protected by the “exigent-circumstances” test at .

the time of the vehicle stop—not at the time of the search.

App. 25

APPENDIX B

IN THE SUPREME COURT,

STATE OF WYOMING

APRIL TERM, A.D. 1979

(Filed September 17, 1979)

No. 5073

ROGER A. NEILSON and JOHN L. POGLIANO,

Appellants (De fendants),

Vs.

THE STATE OF WYOMING,

Appellee (Plaintiff ).

ORDER DENYING REHEARING

After full consideration, it is

ORDERED that appellants’ Petition and Application

for Rehearing be, and is, denied.

September 17, 1979.

For the Court

/s/ John F. Raper

JOHN F. RAPER

Chief Justice