Summary
In City of St. Paul v. Page, 285 Minn. 374, 173 N.W.2d 460 (1969), defendant objected to the introduction of photographs because the city failed to furnish a Rasmussen notice.
Summary of this case from State v. NelsonOpinion
No. 41360.
December 26, 1969.
Criminal law — prosecution under ordinance — evidence obtained by search warrant — pretrial notice of intent to use.
1. The rules prescribed by State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3, requiring the state to give defendant notice of its intention to offer evidence obtained by a search warrant, apply to prosecutions under municipal ordinances which permit a sentence of confinement, unless tried to the court without a jury.
Same — conviction of operating disorderly house — sufficiency of evidence.
2. Evidence introduced by the state in a prosecution for operating a disorderly house held sufficient to sustain a conviction.
Appeal by Willie Page from a judgment of the municipal court of the city of St. Paul, Ramsey County, James M. Lynch, Judge, whereby he was convicted of operating a disorderly house. Affirmed.
Andrew P. Engebretson, for appellant.
Joseph P. Summers, Corporation Counsel, Thomas M. Mooney, Assistant Corporation Counsel, and Daniel A. Klas, Special Assistant Corporation Counsel, for respondent.
Heard before Knutson, C. J., and Murphy, Otis, Rogosheske, and Sheran, JJ.
Defendant appeals from a conviction for operating a disorderly house in violation of St. Paul Legislative Code, § 469.01, which provides as follows:
"Any person or persons who shall within the limits of the City of St. Paul, keep a house of ill-fame, or a place resorted to for the purpose of prostitution or lewdness, or who shall keep a disorderly or ill-governed house or place, or a house or place for the practice of fornication, or for the resort of persons of evil name or fame, or dishonest conversation, or who shall permit or suffer to come together, at such houses or place, persons of ill name or fame, or who shall commit or suffer to be committed therein any immoral, immodest, or other improper conduct or behavior, or any tippling, revelling, rioting, or disturbance, and all persons, male or female, who resort to or visit such disorderly houses or house of ill-fame for the purpose of fornication or dishonest conversation or any immoral, immodest or other improper conduct or behavior, or any tippling, revelling, rioting, or disturbance, shall be guilty of a misdemeanor."
Defendant was prosecuted in the municipal court of the city of St. Paul on a tab charge and was tried by the court without a jury.
Two issues are raised. First, whether it was error to receive evidence obtained by a search warrant without giving defendant prior notice as required by State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3; and, second, whether the evidence sustains a finding of guilty.
On January 20, 1968, at 2:30 a. m., members of the St. Paul police morals squad armed with a search warrant, entered the premises at 624 Selby Avenue and arrested defendant. In the process of their search, the police took a number of photographs which were subsequently offered in evidence as the city's exhibits C to N. Their admissibility is challenged on this appeal.
1. The photographs which were received show chairs and tables with glasses on them, a bar and stools, an assortment of bottles of hard liquor and soft drinks, a jukebox, a dice table, and decor typical of a drinking and gambling establishment. In addition, one picture shows an automatic pistol and a revolver on a table littered with glasses. Defendant objected to the introduction of these photographs on the ground that they were the products of a search and seizure and the city had failed to advise defendant of its intention to offer them in evidence as required by State ex rel. Rasmussen v. Tahash, supra.
The city cites State v. Thomas, 279 Minn. 326, 156 N.W.2d 745, as authority for excluding prosecutions for ordinance violations from application of the Rasmussen rule. However, the Thomas case dealt only with the limited question of whether the state had a right to appeal the dismissal of a complaint in an ordinance prosecution, and we held that it did not. We are of the opinion that the decision is here governed by the broad principles we adopted in State v. Paulick, 277 Minn. 140, 151 N.W.2d 591; and State v. Borst, 278 Minn. 388, 154 N.W.2d 888. Consequently, we hold that in a prosecution for an ordinance violation where, as here, the defendant is exposed to a sentence of confinement the Rasmussen rule applies, but only with respect to the trial of jury cases.
There are two reasons why the failure to comply with the Rasmussen rule does not require reversal in the matter before us. First, this case was tried without a jury, and when the evidence was offered there was ample opportunity for defendant to move for its suppression without seriously disrupting the orderly presentation of the case. The considerations affecting a jury trial are quite different since the continuity of such trials should not be interrupted by the presentation of protracted motions and hearings. Those factors are not present where the case is heard only by the court. Defendant made no such motion, merely objecting to the introduction of the exhibits for failure to comply with the notice requirement of the Rasmussen case. Hence he cannot complain that he had no opportunity to conduct a Rasmussen hearing.
Neither at the trial nor on appeal has defendant asserted grounds for suppressing the evidence to which he objects. His objection at the trial was expressly limited to the city's failure to furnish a Rasmussen notice. Under such circumstances we hold the city's failure to give prior notice was, at most, harmless error.
2. Defendant argues that the evidence is as consistent with a finding that defendant's premises were being used for purely social purposes as with a finding they were being operated as a disorderly house. We are not persuaded by this argument. The rooms were on the second floor of a commercial building and were completely equipped for gambling and tippling. There were some 25 persons drinking and gambling on the premises when the police entered. There is no claim that defendant had a liquor license or any other license to operate a place of entertainment. A finding that defendant was operating a disorderly house in violation of the ordinance was not only permitted by the evidence but was virtually compelled. See, State v. Wilson, 221 Minn. 224, 21 N.W.2d 521. The conviction is therefore affirmed.
Affirmed.