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BOB POTTER: Today, Minnesota Public Radio presents the third in its series of broadcasts on particular legal problems and on the role of the courts in a changing society. Funds for this series are provided in part by the Minnesota Bar Foundation and the Nash Foundation. Today's program deals with a few aspects of criminal procedure and compares two state Supreme Court decisions, which seem to stand for contradictory principles. While this program does not pretend to be a complete explanation of any particular legal issue, we hope it will make understandable a few important principles and procedures of criminal law.

SPEAKER: 130 the alley behind 856 Sherburne. Complainant states there's a young girl screaming.

SPEAKER: 332, we found the complainant.

THOMAS ALPINE: So he went up there and he told her. He says so-and-so is down the car and drunk. And I can't get her upstairs alone. You come down and help me.

She was already talking on the phone to somebody. And she told the party on the phone, she said, I'll be right back. I'll be with you in a minute. I've got to go help somebody.

She never came back. She was taken down to help bring this drunken mother upstairs and that was a ruse. He took her out and murdered her.

BOB POTTER: Detective Thomas Alpine works in the homicide, sex, and robbery division of the Saint Paul Police Department. In February of 1969, some people searching for the Winter Carnival Medallion found the body of Susan Marek on the East Side of Saint Paul, and Detective Opine was called in on the case.

THOMAS OPINE: The crime occurred at this end of the skating rink, which is a warming house right here. And he pulled his car up here so the warming house would conceal the car being parked there. And it's a recess thing.

And he killed her here and either backed down and then got her under the undercarriage of the car, but dragged her about 150 feet across the ice. You could see the trail where her body went. And then it got dislodged from the undercarriage of the car and stayed there while she was still warm. So the body temperature from her melted the ice and she was frozen at the ice, the bottom part. So we had a hell of a time.

Of course, we had-- well, first of all, we got the public works crew out there with their air compressors to blow away the snow so we wouldn't disturb anything. And we could see these tire tracks, which are rather unusual. One was studded and one wasn't. There were some other unusual things about it.

So we photographed those and we took plaster casts, which is real tough in ice to take a plaster cast of a tire track. But we did this. And then we had to get hot water and try and melt the ice around her so we could lift her body up because it was pretty well mutilated.

BOB POTTER: We won't repeat the very gory details of exactly what happened to this young girl. We can simply say that after being kidnapped from the home where she was babysitting, she was brutally raped, tortured, mutilated, and killed. Soon after finding the body, the police learned who she was.

Their investigation then began to center on one particular individual. We won't use his name in this program to prevent unnecessary embarrassment for members of his family who still live in the area. The police investigation focused on this man because the events surrounding the girl's abduction were similar to other incidents with which he had been involved. And because earlier that evening, he had spoken with the woman for whom the girl had been babysitting.

But all the police had at this point was reasonable suspicion. They needed much more evidence before they could actually charge the man with any crime. One of the first things they focused on was the suspect's car since the girl's body, among other things, appeared to have been dragged along the ice for some distance by a car. And to look at the car, the police needed a search warrant.

SPEAKER: 104 to 134, I will be up there in a minute.

THOMAS OPINE: But we finally knew that we had to have that car because we felt that the way she was dragged, and part of her flesh, and one thing or another was missing that we may find it on that car. So we got a search warrant. You have to drop an affidavit. And in that affidavit, you got to try and explain to the judge what you want specifically and why you want it. You've got to show some correlation between that and the crime.

And you can't-- you try to be as all encompassing as you can, but yet there are a lot of things you find after you've executed your warrant that aren't named in that warrant, which creates a problem. You really never know. But in this case, I think the specifics were for hair and fibers, blood stains.

BOB POTTER: Paul Lindholm is an assistant Ramsey County attorney. Early on, he was involved in the investigation of this case. He explains further the contents of the search warrant, which was obtained at this time.

PAUL LINDHOLME: I assisted the police in drawing up the affidavit for the search warrant to try and include the facts of the case to the extent possible, in which we recited the fact of his previous incident with the other babysitter of a similar character to the one at hand. We recited the fact that he had met with the lady whose babysitter was later determined to be missing. And that although they had made some tentative arrangement to go out later that evening, she did not see him thereafter. And we asked in the search warrant that we be permitted to search for his car, that is to seize his car and search it for material, which might link him to this offense, and to search his home for the jacket that the lady said he was wearing that night.

BOB POTTER: The affidavit in support of the search warrant recited these facts and the warrant itself authorized seizure of just four items-- the car, a knife, surgical tape, a jacket with the letter H, and a tire iron.

PAUL LINDHOLME: The obtaining of a search warrant requires that the matter, first of all, be presented to what is technically termed a neutral and detached magistrate. He must be presented with a material usually in written form, but it must be sworn to more or less in the form of an affidavit by the officer seeking the warrant or by other citizens who are willing to present their oath to the judge, swearing to the matter contained in the affidavit. And the affidavit must show what is called probable cause to believe that a crime has been committed and that evidence relative to that crime will be present at the place, which is being searched.

We must be able to show that the information we have, which if believed, would show what is present at the thing-- at the site that we are searching, and factually why we believe it to be present, and why this has some association with a particular crime that we are seeking to charge.

THOMAS OPINE: There's four forms that the original-- county attorney's copy, an office copy, and one for the defendant or the suspect. And everything is in four copies. There's the affidavit, the petition affidavit, the search warrant, the inventory and receipt. And usually, you leave them with the county attorney. He distributes them or he'll tell you where to distribute them.

And everything goes to the district judge or district clerk, clerk of court except the affidavit petition. And that should be included with the rest of the papers that go to the clerk of court. The affidavit should too. But when you do that, the defense attorney can examine that affidavit and build his case around the reasons why you asked for it in your petition.

BOB POTTER: That's why you write it out.

THOMAS OPINE: That's right. But that's also why we don't leave it with the clerk of court because the defense attorney can see it. And sometimes it's important that the defense attorney don't know why we ask for these particular items and what the item is.

BOB POTTER: Why is that?

THOMAS OPINE: Well, it's just been a practice that the county attorney's office has never sent the application of the affidavit petition down with the search warrant. But maybe they do now, but they haven't in the past.

BOB POTTER: The rules for obtaining and executing a search warrant can get rather specific and with good reason. The Fourth Amendment to the US Constitution was written by lawbreaking colonists who had been subjected to harassing searches and these authors were determined to design a firm and permanent check on such abuse of power. Ted Collins teaches criminal law and procedure to the cadets at the Saint Paul Police Academy. He was teaching there at the time of this particular murder investigation and was soon to become the defense attorney in the case. He explained some of the reasons why the rules for search warrants are so detailed.

TED COLLINS: The Fourth Amendment's words are that the right of the people to be secure in their persons, houses, papers, and effects shall not be violated. And no warrants-- and here you can read either search warrants or arrest warrants-- shall be issued except upon probable cause particularly describing the place or person to be searched or things to be seized and issued on oath or affirmation. Now, in connection with the execution of search warrants, the preparation of the warrant is always in the hands of the prosecution and it's a one-sided performance from start to finish.

It's not adversary in the sense that the person who's going to be searched or whose papers or house is going to be searched has anything to say about the way that the warrant is drawn or whether or not, in fact, it will be issued. It's issued based on a one-sided presentation by the prosecution. And so the prosecution is charged with the responsibility of showing that they have a reasonable cause or a probable cause to make the search and also of being very specific as to what they want to find and what they want to be authorized to seize.

BOB POTTER: Application of the Fourth Amendment was about to be tested in the search made pursuant to the warrant, which Detective Opine had gotten signed down at the YMCA. It was the evening of February 7, 1969, the day after the body was found. [? Rio ?] [? Beckman ?] at that time had been a patrolman for just one year.

SPEAKER: 2254.

SPEAKER: 130, I'm 10-8. I locked the car, advised.

BOB POTTER: 130 advised, 2254.

[? RIO BECKMAN: ?] It was early in February and I was working alone. And the word came down from the homicide division that they needed one officer take out a plain car and go over on the East Side and sit on a fellow's house. They gave me the license number of the car, his name.

I was supposed to just sit there until he came home. I was supposed to impound his car and put a hold on it for the homicide division. But I was not supposed to arrest him.

So he was big, about 6 foot 2, and he was a mental case. So at that time, I was on the street just about a year. And it got you to thinking a little worried what's going to happen if he flips out on me and stuff. Yeah, so I've been sitting there maybe three or four hours.

THOMAS OPINE: Meanwhile, we found-- somebody had told us that the car was parked on the East Side street. So we went over there with the search warrant and we had a uniform squad standing by back a block or so. And the minute we seen the suspect come out of this nightclub get into his car, we called the uniform squad and had them stop the car with the red light so he would know that they were police officers. If we did in plain clothes and a plain car, of course, he could do a lot of things.

So the uniform squad stopped him. We pulled up behind him. And I walked up to this man and presented him with a search warrant, which spelled out what we wanted.

So fine, he said, no problem. He said, are you going to arrest me? And I said, no, this was just to seize his car and to search his home.

So we went up to his house and I think I had-- yeah, there was another uniform officer [? Reno ?] with me and one other, I think Sergeant Fitzgerald. And I knocked and the suspect's mother answered the door. And I told her who I was.

PAUL LINDHOLME: Then too there is a requirement that the search warrant itself be served upon the occupant of the place being searched, or if there is no occupant at the time be left in a conspicuous place. And it is also required that the officer executing the search warrant make an inventory and give a receipt for the items which he seizes, and once again either leave that with the person or at the premises being searched.

THOMAS OPINE: First, she didn't want to let us in the home. And finally, she said, well, she said, I guess I'll have to sign by a judge so fine. So first thing I asked her if I could look in our suspect's room, which I did and didn't see a great deal. I went into the bathroom looking for tape and I did find the 1-inch surgical tape that we're looking for.

[? RIO BECKMAN: ?] So we started taking different rooms and started doing our search for the certain articles. Usually, you just start in one room and work all the way through the house. And if you think you might have missed something, the other officers are going behind you and do the same thing.

Go in the front closet, there were two jackets with the letter H on it. And one, it appeared to have some blood stains on there and about the same size as the man we were looking for. So that jacket was seized.

And then he found some white surgical tape in the bathroom and that was seized. While I was in the-- call him a defendant-- in the defendant's bedroom, I was looking around. And sticking out underneath a bunch of paperbacks and a bookcase were some papers so I pulled them out. They were all wadded up.

Then I start glancing through them and kind of get the shock of my life. It was like five or six pages on both sides and they were really perverted writings. It was like a letter to somebody or to himself, but there was no beginning or no end. It just like they started in mid-sentence all the way through the thing.

And so at that point, I figured we really had a loony involved here. So I called the sergeants in there discussing what to do with it at the time. So I took my notebook out and I copied down verbatim everything that was on one of the pages. The sergeant, he said, we're going to take one of them with us. So I took one page out of there with me.

Let the mother know that we taking the jacket with the letter H on it and the surgical tape, but nothing was mentioned about the writings at all on the pieces of paper. And I put the writings back underneath a pile of about 50 Playboys. I stuck it in between some Playboys.

BOB POTTER: The writings found by Patrolman [? Beckman ?] described in gory detail gruesome acts, very similar to what had happened to the young babysitter. The papers were not listed in the search warrant since the police had no idea they even existed. Instead of getting another warrant for this unexpected evidence, the officers took one page of the macabre diary and returned to headquarters to look at the car and analyze the evidence. Detective Opine says he later called the defendant's home to request the writings. But by then, he said, they had been destroyed.

THOMAS OPINE: So that was that. Then we got the car up on the hoist and we started looking. And the first thing we looked up, we seen the emergency brake cable. It's woven cable. We found part of her flesh on that or flesh-- I don't know who it was at this point.

And then we found hair. And the victim, when we found her, she had grease over her coat and stuff. So we found we could see where someone had rubbed the transmission undercarriage, like somebody had smudged it with something. So we took a sample of the grease off of that and that was compared with the grease that was on her coat which come out the same.

And the victim was wearing a rabbit hair coat at the time, short hair, and we found numerous hairs in the car. Well, from my previous experience, I'd been out to the home and I knew they had a dog, a short-haired dog. And I felt that this would be their defense that that was dog hair.

So I went back to our crime lab and I talked to Alfultis again. And he did test to determine what kind of hair this was that we found and it was rabbit hair. Not dog hair. It's impossible. It couldn't have been the same, which helped us in our case, of course.

I think Monday, we took the case over to the county attorney and laid it out to him. We had the car and we had the things we found on the car. We shot down his alibi where he was that night, and who he was with, and all this. And he felt that there was enough based on these other things, which there was quite a few to effect his arrest.

So we went out Tuesday morning and arrested him. And he maintained he was innocent. He didn't know anything about it.

BOB POTTER: The evidence against the man was circumstantial, but it was almost overwhelming. Nevertheless, he pled not guilty. Ted Collins became his attorney and the case was placed on the court calendar.

Before a case like this ever goes to trial, however, there are generally a number of hearings. Sometimes they deal only with minor procedural items, but sometimes they deal with pivotal, substantive matters. In all criminal trials in which there may be questions of the admissibility of various types of evidence, there is one very special hearing, which in Minnesota is called a Rasmussen hearing. These hearings are a somewhat recent development in criminal procedure. Paul Lindholm explains some of the history of why these hearings take place.

PAUL LINDHOLME: The Rasmussen hearing was Minnesota's response to federal Supreme Court requirements that states conduct out of court, out of the presence of jury inquiries into evidence to determine whether or not a jury should receive that evidence. In the case State Ex Rel. Rasmussen versus Tahash, which was decided by the Supreme Court of the state of Minnesota and by then associate Justice, now Chief Justice Sheran, it was decided that in order to comply with the requirements of Jackson versus Denno, prosecutors in the state of Minnesota would be required to give a notice to defense counsel of the fact that there was evidence of statements in the nature of a confession, or things obtained as a result of a search and seizure, or things obtained as a result of statements that a defendant may have made to police. And thereafter, the defense attorney would be required to serve upon the county attorney, if he so desired, a demand that a hearing be held outside the presence of the jury to explore the legality of all three of these areas, which was later expanded by the rules of criminal procedure to include as well inquiries into the efficacy of the identification procedures, which were followed. These questions were all to be explored by a judge and ruled upon by a judge outside the presence of a jury and prior to the time of trial.

THOMAS OPINE: To me, it's a miniature trial because, at that point, you have to reveal whatever you got and this gives the defense attorney time before the trial to refute what you said, or disclaim the evidence you've got, or any number of things.

PAUL LINDHOLME: Physically, what happens is at the time of the first appearance in district court or very shortly after the time of the first appearance in district court, the prosecution tenders to the defense counsel the so-called Rasmussen notice in which we detail whether or not we have these types of evidence that we intend to introduce at the time of a trial. The hearing on these so-called Rasmussen issues occurs before the trial judge immediately prior to the time of the selection of a jury. It is the first order of business.

BOB POTTER: In this case, Defense Attorney Ted Collins planned to challenge several of the pieces of evidence, which the prosecution proposed to introduce against his client. So shortly before the scheduled trial date, Judge John Graff, now deceased, held a Rasmussen hearing.

[? RIO BECKMAN: ?] After spending about eight hours one day in the county attorney's office going over-- every one of us went over step by step of what we did. As the first-- then when I got called into court, I just walked in, and I testified, and I walked out. And it's called sequestering you. It's one officer goes in and testifies. And anybody else related to a case waits out in the hall so they can't hear what each one is saying.

So my turn came in. I just related the same things that I've said right here now, exactly what I did from the time I sat there in the house, where we searched, what we found. And first, the prosecutor goes through it.

And then defense attorney goes through it and he tries to knock holes in the testimony as much as he can. And the lawyer, he chewed me up and down one side and the other for taking the writings and stuff. That was the one and only time that I appeared in court.

BOB POTTER: Several items of physical evidence were at issue in this Rasmussen hearing. They included the items already mentioned-- the car, the surgical tape, the writings, and the jacket found in the home. Also at issue were additional writings by the defendant.

While this man was in the county jail, he had continued to compulsively write out his horrible fantasies. During his incarceration, he was moved from one cell to another and he asked the jailer to bring him a magazine left in his former cell. When the jailer got the magazine, he noticed the additional writings and turned them over to the county attorney.

The county attorney proposed to introduce these new writings into evidence at the trial. Almost all these items were challenged by Defense Attorney Collins. For various reasons, he wanted the pieces of evidence suppressed, that is declared inadmissible at trial.

Now, evidence may be excluded from consideration in a trial for many reasons. The evidence may be irrelevant to the matter at issue in the trial, the evidence may be very unreliable as proof of any fact, the evidence may be privileged, such as a husband-wife communication, or the evidence may be excluded from consideration at the trial because it was obtained illegally. This last, the policy forbidding use of illegally-obtained evidence, is called the exclusionary rule. It has arisen out of Supreme Court interpretations of the US Constitution as it concerns things like confessions and searches covered in the Bill of Rights.

However, the rule originally applied only to prosecutions in federal court and only recently has been applied in state criminal proceedings as well. It wasn't until the 1961 case of Mapp versus Ohio that the states were constrained by the US Constitution in matters of search and seizure. Prior to that time, all evidence against a state defendant was admitted into court no matter how egregiously or illegally the evidence had been obtained.

It was in response to the US Supreme Court's decision in Mapp versus Ohio that the Minnesota legislature passed the state's first general search warrant statute. Many other US Supreme Court cases have similarly applied federal constitutional guarantees to state criminal defendants in areas such as the privilege against self-incrimination, the right to assistance of counsel, the right to a speedy trial, the right to confront opposing witnesses, and the right to a jury trial. Although most of these decisions have occurred in the last 17 years, they are based upon an interpretation of the 14th Amendment to the Constitution, which was passed in 1868 and which provides that no state may, quote, "deprive any person of life, liberty, and property without due process of law," unquote. That's the famous due process clause of the 14th Amendment.

In the murder case, which we are discussing, Defense Attorney Ted Collins wanted the writings which he had found in his client's home excluded from consideration in the trial. The claim was that the defendant's property had been unreasonably seized without a search warrant and therefore without due process of law.

TED COLLINS: Generally, the requirement is that the persons executing the search stop their search when they have come upon something that has not been described and re-apply to the judge who issued the original warrant for a broadening of the warrant so as to include that which was fortuitously discovered. That's not always true. And there may be exigencies such as the case where they found a ticking bomb where they could do something about it.

But in the general situation where nothing is to be lost by a reapplication to the court, that would be the favored procedure. Because in addition to favoring judicial control over such searches, the courts favor judicial control over the manner of the search. In addition to whether or not it should be done in the first place, they want some control over how it is done and whether or not it is allowed to be broadened to other things.

And the requirement is not burdensome because searching a house, for example, could take an hour, or a week, or any time in between. Because the places where things, small things can be hidden in a house are in fact limitless. And in the case of the search that we've been describing, it would not have been any burden upon the police to leave one officer there to see that things were not disturbed and to make a reapplication to the issuing magistrate for a broadened warrant.

And that could have been done without even typing it out. It could have been handwritten if that was required. And as a matter of fact, there's some movement in the law to permit broadening of the search by means of a telephone call.

BOB POTTER: This is one of the items, which Ted Collins emphasizes when he teaches criminal law procedure at the Saint Paul Police Academy.

TED COLLINS: Police work was revolutionized in 1960. Prior to that time, the general thing that was happening was that where a prosecution wasn't possible in the federal courts because of these strictures, these limitations, that oftentimes the prosecution would take place on the very same evidence in the state courts that were not similarly fettered and could take illegally-obtained evidence or whatever and use it against someone. So from 1960, the same rules apply state and federal.

Local police officers had to learn what our Constitution said, what the Constitution required. And they had to apply that at the time of the events and not try and patch it up later. Sure, there were those then and those still who perhaps view this as a very great imposition upon them and a bad thing for society. But the effect of it has been to uplift police work and to make it a profession.

BOB POTTER: At the Rasmussen hearing, Ted Collins put forward these arguments in favor of his motion to suppress or exclude the writings taken from his client's home. He also moved that the car should be excluded. He argued that before the car was seized, the police had not shown adequate reasons to justify the seizure and that therefore the evidence gotten from the car was obtained improperly.

THOMAS OPINE: You just don't go out and ask for a search warrant. You've got to have some basis for believing that the property, or merchandise, or whatever it is that you want is going to be where you specify. And you've got to have some basis, some grounds for this belief.

Not only do you have to name a specific item, but you've got to cite the reasons why you believe it's there. And in this particular case, we felt that seeing how this body had been moved that distance, we felt that there would have to be something under that car, flesh, blood, hair, something under that car. And in our mind, there just had to be which later was true.

BOB POTTER: Detective Opine is talking about his reasonable belief that the suspect's car would prove to be important evidence in the case. This prior belief is what the law calls probable cause or sometimes reasonable cause.

TED COLLINS: Reasonable cause is such a set of circumstances as would cause the ordinarily prudent man-- now the difference there is not ordinarily prudent police officer, but ordinarily prudent man-- to either do something or to think something. They apply that test, which they've enunciated time and again, to any given set of facts. The mind that's applying it may differ because of this apperceptive mass that they bring to that set of facts. But the test in each instance is one of reasonableness as applied to this set of facts.

We just got to gather enough information to be able to go to a judge and tell them that we feel that this man is responsible and we need this type of his property or whatever to be able to go seize it. And we feel that we've got enough evidence through our investigation that, say, the tire iron or a jacket with the letter H in this trial was used in that crime. And through investigation, we know this defendant wears a jacket with the letter H on it.

Stuff like that, we need to go up and show the judge before he'll issue a warrant because they've gotten so technical. And it goes back to the old British days where they don't want you just to kick in the door and grab anything inside. It gets tight. We could have just a little more latitude, I think, than we do. But like I said before, it makes us better policemen. We have to dig harder and come up with a whole lot more evidence before we can go to a judge and get these search warrants.

BOB POTTER: Probable cause, control of police behavior, the history of the Fourth Amendment, all these arguments and more were made to the trial judge concerning the evidence at issue.

PAUL LINDHOLME: In the Rasmussen hearing, the trial court judge, who was not, of course, the same judge who issued the search warrant, determined that the search warrant was defective in that there was nothing in it, which would authorize the seizure of the defendant's car. And he also determined that it was defective in that while we asked for what we called surgical tape in the search warrant, when we took the tape into custody, we called it adhesive tape. And he found this to be a fatal variance or defect in the description of the article which we seized, and he therefore excluded us from introducing the tape.

However, he did find that the search warrant was valid to the extent of permitting us to take the jacket, which we seized from the defendant's home into custody. We were at something of a loss to understand his ruling. We felt that if the circumstances justified taking the jacket, which the defendant had worn that night, it would further justify taking the car which he had used since it was quite obvious that a car had driven over the victim and which fact was set forth and articulated in the search warrant itself.

Nonetheless, he found that there was insufficient evidence to-- or insufficient probable cause to allow the seizure of the car. And we felt that the judge's ruling in this case was erroneous in many respects. I might say also the judge excluded the writings of which I speak on the ground that they had not been set forth as things to be seized in the search warrant. And he said that since we had not designated the thought that we were seeking for these writings and following an old case, a United States Supreme Court case decided in about 1923 or 1924 named United States versus Marron, he determined that only those things which are set forth in the search warrant as articles to be seized can be seized. The agent or officer has no discretion to seize any other items other than those articulated in the search warrant.

BOB POTTER: For similar reasons, the writings which had been found in the jail cell had been suppressed. So right before the trial was about to begin, the prosecution was forbidden the use of some of its most important evidence. Assistant County Attorney Lindholm thought that Judge Graff had made some bad decisions and he wanted those decisions corrected before any trial took place.

A state law permits the prosecution to immediately appeal adverse rulings in a Rasmussen hearing. Paul Lindholm did appeal in this case and he was successful on several points. The Supreme Court agreed with him that the police had shown adequate probable cause to justify seizure of the car. It also agreed that the adhesive tape should not be excluded simply because it had been called adhesive tape in one place and surgical tape in another.

The Supreme Court said that lower-court judges should not be too hyper technical in interpreting search warrants, that common sense should rule. The court also said that the writings found in the defendant's jail cell had not been seized illegally. The justices ruled that a prisoner has very little expectation of privacy in a jail cell and that the jailers could conduct searches and seize evidence without the need for a search warrant. However, the most significant part of the decision concerned the writings which had been seized from the defendant's bedroom.

PAUL LINDHOLME: They reiterated the trial court's finding that a officer searching for items set forth in a search warrant ought not to seize items other than those which are listed. And again, they cited the old case of Marron versus the United States. They left a little bit of an opening in their opinion where they said, and I quote, "While it is sometimes permissible to seize things other than those described in the search warrant, the state when challenged as here must demonstrate a reasonable relationship between the search authorized by the search warrant and the seizure of the thing which was not described, but nonetheless seized, of course.

Well, we thought we did have a reasonable relationship in a sense because what we had was papers in which this defendant set forth explicitly means of kidnapping, raping, torturing, and killing women, which is what had occurred in the particular case at hand. Nonetheless, this evidence was excluded in the case that I tried. I guess we're older and wiser now because we often do ask in the search warrant for papers, which would tend to show evidence of the commission of a crime.

BOB POTTER: The morbid writings which have been seized from the defendant's home were thrown out of court. The jury would not be permitted to hear about them. The principle was upheld that no matter if you're a bishop or a bum, your possessions, especially your writings, are protected from unwarranted scrutiny. A landmark search and seizure case was declared in Minnesota.

However, in a moment, we'll look at another case, which came along two years later in which an apparently opposite decision was made by the state Supreme Court. In this case, even without the writings, there was plenty of other evidence proving beyond a reasonable doubt that the defendant had committed the brutal slaying. The defendant had his day in court. He helped write important law of criminal procedure in the state of Minnesota and he's now doing life at the state hospital in Saint Peter.

SPEAKER: 135 received at 014.

SPEAKER: 233 10-23.

SPEAKER: 233 015. 230.

BOB POTTER: It was just two years later that the Minnesota Supreme Court was presented with another case in which writings not listed on a search warrant were seized from a suspect's home. This time, the court made a decision which seems to contradict what it had done in the murder case. This was the case of State versus Taylor.

Again, at issue was a heinous crime. The defendant and his wife were charged with kidnapping a 22-year-old woman, assaulting and raping her, forcing her to pose for unorthodox photographs and to engage in prostitution. The woman escaped from her captors and directed the police to the defendant's apartment. The police were armed with a search warrant authorizing the seizure of several incriminating items.

In addition to those items, they found a letter from the defendant to his wife, Little Mama. The letter described a method for forcing a woman into prostitution and it included several things which had been done to the kidnapped woman. As in the murder case, the prosecution proffered the evidence. But this time, the trial court admitted the writings.

And it was the defense, which appealed the ruling after the defendant had been convicted. Although the other evidence was itself sufficient to gain a conviction, the defense hoped to win a new trial because it was certain that the admission of the writings had been improper based on the decision made two years earlier in the murder case. Normally, courts are constrained to decide similar cases in a similar fashion unless circumstances have changed drastically in the interim.

Between 1969 and '71, the circumstances of criminal law hadn't really changed much at all in Minnesota. Therefore, Minnesota has two cases on the books in which writings describing criminal activity, but which were not described in the search warrant were seized by the prosecution. In one case, the murder case, the Supreme Court said the writings could not be used at trial.

In the second case, the forced prostitution case, the Supreme Court said it was all right for the evidence to be admitted. We asked three of the lawyers involved in these cases to explain the apparent inconsistency. First, Assistant Ramsey County Attorney Paul Lindholm.

PAUL LINDHOLME: I guess it's a little difficult for me to set these two cases side by side and say they stand for the same proposition. But in a way, they do. Because the proposition is that, first and foremost, in any of these so-called Rasmussen hearings, the first one to make the decision is going to be the trial court.

He is going to be the one who examines the evidence he's. Going to be the one who examines the warrant. He's going to hear the witnesses. He's going to make the factual determination as to whether or not, in his opinion, the thing which was seized but not set forth on the face of the warrant does bear a reasonable relationship to the things for which they were searching.

Ordinarily, our Supreme Court is very reluctant then to subsequently overturn that factual determination. Even though it may seem to be inconsistent on its face, they will usually let the trier of the fact, the trial judge be the determining factor as to the weight of the evidence and the credibility to be given to it and will stand on his decision to that extent. If they feel that he has misapplied law, they will correct that. But they recognize that trial judges must be granted wide latitude and discretion in the admissibility of evidence and the conduct of the trial. And they are reluctant to overturn that discretion.

BOB POTTER: Lindholm emphasizes that in both cases, the high court upheld the discretion of the trial court. However, the Supreme Court's brief opinion said nothing specifically about that issue. Defense attorney and police academy instructor Ted Collins added this analysis in comparing the two cases.

TED COLLINS: It's not possible to reconcile them perfectly. One was decided after the other, but there is no reference in it to the other case except to say they find language to support their position. And there's no easy way to say that they are completely consistent decisions.

On balance, in the murder case, it was clearly decided right as far as I'm concerned. Because there was no reason why, given the favoritism shown a search warrant and the inclination in the law for a neutral detached judgment about a search and whether it should be broadened, there was no reason, no exigency why there could not have been contact with the magistrate to get that warrant broadened. And so having failed to do that and having failed to exercise what would seem a reasonable restriction on the right of these officers in a home to take things, then the law should not reward them by saying, even though you did it and did it wrong, we'll look the other way and use what you got. We'll let the end justify the means.

In the end, forced prostitution case, there's a more direct connection between the writings, which are almost a prescription for it and the event. The writings in the murder case are of a general nature and not oriented to this particular event at all. As a matter of fact, they are only, in a general way, related to it in that they evince a disorientation in the area of sexual activity and they do not constitute a plan for the murder in any way.

But in the enforced prostitution case, there was actually a prescription for how this was to be done. And as a matter of fact, it was writing directed at the activity, which was being punished, which ultimately was being punished. So that's a distinction. I think also there's a distinction because of the fact that the Taylor case-- excuse me, the enforced prostitution case came to the Supreme Court after he had been convicted.

And the murder case came up before the trial had been had and at a motion for suppression of the evidence at which the issue at a suppression hearing is a very narrow one. It is, is this evidence which the prosecution has legitimately in their hands. That is, have they gotten it within the protection of the Constitution?

Did they take something illegally or did they make a man confess when he really shouldn't have confessed? Did they warn him properly of his rights? Those are the issues that a suppression hearing, the constitutional issues.

At a hearing that involves the appeal after a conviction, the issues are much broader. And that is whether the suppression of this writing, against the overall evidence presented, would have affected the result to some extent. And if it would have affected it, maybe then it's reversible error. And maybe if it wouldn't have affected it, if the evidence is otherwise compelling and conclusive, then maybe it's what they call harmless error.

BOB POTTER: The Supreme Court opinion did not however talk about the issue of harmless error at all. The opinion did emphasize that the writings in the second case were clearly and directly related to the criminal behavior, which prompted the issuance of the search warrant. But Paul Lindholm argues strongly that this was no less true with the writing seized in the murder case.

We also interviewed State Solicitor General Richard Allen on this issue. Six years ago, Allen helped write the appeal seeking a new trial in the forced prostitution case because of the allegedly improper admission of the writings. He added these thoughts in distinguishing the two Supreme Court opinions.

RICHARD ALLEN: In this case, in the prostitution case, it was a letter addressed to a third party. It was obviously, on its face not meant to be a private and personal paper for which someone doesn't want anybody else to see. It was a communication meant to go to somebody else.

The courts have long held documents such as diaries to be off limits completely. Someone's personal thoughts or personal writings are cloaked with that expectation of privacy, that is the heart of the Fourth Amendment. And another reason why it may have been admitted is that there's a couple of years difference as I recall between these two cases. And in other words, the case permitted the letter. And came a couple of years after, the case had left the letter out.

And I think that reflects the court in analyzing this difficult problem of policemen finding evidence when they're on premises legally, but the evidence is not listed in the warrant. And trying to balance the competing interests, the right to privacy versus the obvious need to solve serious crime. And I think the court is correct in saying that, look, you can't blind the peace officer when he comes upon the scene.

And they've developed a rule for a shorthand term called the plain sight rule. And the heart of the plain sight rule is that if a police officer is lawfully in a place, he's got a right to be wherever he is. And he sees something that's evidence, he can pick it up. And the notion is that if he's already entitled to be there, the person's privacy isn't violated anymore by him picking up something that isn't listed in the warrant.

BOB POTTER: Allen emphasizes this plain sight rule plus a right to privacy perspective insofar as a person should logically expect to have a stronger right to the privacy of a diary-type writing, such as in the murder case, than in writings addressed to a third party as in the second case. However, the Supreme Court mentioned neither of these issues in its opinion. All the Supreme Court did say was that the letter was clearly and directly related to the crime being investigated and it then cited the prior case in support of the letters admissibility at trial.

Yet in spite of the distinctions which the lawyers just reviewed, these cases are clearly inconsistent as all the lawyers admit. But we didn't ask them to try to resolve the inconsistency merely to later point out that it cannot be done. We've done it to point out that many different forces are at play in resolving legal issues, and occasionally courts are not, perhaps cannot be, as consistent as they pretend to be.

RICHARD ALLEN: You got to cast this against the minds of the people that are deciding the case too, in the sense that judges are creatures of their environment, that they come to their jobs with a certain apperceptive mass of impressions, of learning, of experience. And when they look at the overall case that they're considering, they are focusing in on the entire issue. Is he or is he not guilty by legitimate, believable evidence? True, in that case, they felt the enforced prostitution case was properly broadened and did not offend the constitutional restrictions.

But I think there also you come to another issue and that is each search and seizure case, just like each arrest case, is going to go on its own facts. There is no template that you can set up and then say, if it passes through this form, it's OK. If it fails to get through, it edges catch, it's not OK.

Because it's a factual-- the court it's a factual matter. It's a test that does not admit only of science, but also of art. Law is both art and science.

And it's a judgment call when you come down to it. The differences between the murder case and the enforced prostitution case may be very, very slight, but they were enough to have that court as it was then constituted say yes in one situation and no in the other. And that is not unknown in the law to begin with. Close distinctions have resulted in very great differences in ultimate outcome.

BOB POTTER: And this type of close distinction also makes for grand esoteric discussions in law school courses. However, for the police officer on the street, it can make life somewhat difficult.

PAUL LINDHOLME: Justice Berger has commented several times in dissenting opinions on the exclusionary rule that one of the extraordinary difficulties of the exclusionary rule, and all the exceptions to the exclusionary rule is that the average police officer faced with a situation on the street, with two and a half minutes to think about it at most, is not in a good position to make a well-reasoned interpretation, which a Supreme Court might assign several justices to work upon for several months to figure out what should have been done back then.

[? RIO BECKMAN: ?] Well, I tell you, they restricted us right now to the point, but it's both good and bad. When there's such a restriction on us, it basically makes us better policemen because we've got to dig that much harder to come up with enough evidence to be able to seize the stuff. And that time of my career, it would frost me. That I would take it more or less as a personal insult when I would arrest somebody and it would be let off, even though I know he was guilty, because they observed it on a technicality. It would just be a personal insult to me.

Now I've grown more accustomed to it and it doesn't really bother me as much. I know I've done my job and I turn them over to somebody else. And if he gets off, well, then he got off. At least I know I did my job right.

Well, we try to-- if we think it's relative in any case, then we'll try to-- we'll try to take it. And if it gets thrown out of court, it gets thrown out of court. But at least we give it a good try.

THOMAS OPINE: I think I think most officers today are reluctant to do anything for fear of repercussions.

BOB POTTER: What kind of repercussions?

THOMAS OPINE: Well, either internally or from the courts, losing a case by doing something they shouldn't have done, so they do nothing. I look at it differently. And of course I don't know if anybody agrees with it, but I say this, if you go to a crime scene, there's evidence there, I say take it. Let the courts determine whether it is or not.

But once you leave it, you're never going to get it. And I say, it's like a football game. You get the ball, you run. Because if you stop, you're dead. You're going to lose. And I look at this the same way.

A lot of guys figure, what hell should I? I don't have to. So we lose a case. They just don't want to get involved.

I can cite you one case where we had a woman murdered here so we got a hand up a county warrant. I went over to Judge Durda, had him sign it. Three of us went out. We arrested the people and we searched the house.

We had spelled out what we wanted to find and we didn't find that. But we did find other things. Well, they weren't spelled out in the warrant so we called the county attorney, Saint Paul.

He said, OK, go over to so-and-so. I'll have a complaint drawn up into a county warrant, take it over to Judge Durda. So we'd have a squad take it over and bring it over to me. And I'd take it in to Judge Durda, he'd sign it, and we'd go back out there.

And then we could seize the thing because we had people remain at the scene. We did that three times that day, had to go get other search warrants made up, drawn up because we found additional evidence. In fact, the last time we had to go to Durda's house about 9 o'clock at night and have him sign it.

[CHUCKLES]

But that's what you have to do. As long as you keep a man at that scene, you're still searching. If you turn up other evidence, you can always go petition for another search warrant and specify what you found.

Now, that to me is a witch hunt. But it's legal apparently because we did it in three occasions there. I learned this after Pietraszewski that I'll never leave the scene of a search again. I'll leave an officer there. And if I find other evidence, I'm going to get on the phone and call a county attorney right away and tell them.

BOB POTTER: It may involve extra work, and sometimes it may seem to approach being a witch hunt, but the best and proper way for police to gather evidence while protecting the rights of citizens is to get a search warrant.

SPEAKER: Their department has a search warrant for the vehicle for narcotics listed to a 71 Plymouth four-door purple--

BOB POTTER: Unfortunately, these principles don't square at all with one of the most popular programs on television, Kojak, or with most of the other TV police shows. We asked Detective Opine if such programs reflect reality at all.

THOMAS OPINE: I think that way, believe me. Well, things don't move that fast. Hell, you could shoot this program to hell in so many ways, the way he obtains evidence, seizes evidence. It's ridiculous the way he treats people, everything else about it.

That's why I say, I think, people got to be informed. And the only way they can do it is ride in squad cars, go through the court system, and see how these things are done, then they have a better understanding. It's just not possible for them to go in and televise the program in an hour, have a murder, and solve it. It just isn't realistic unless it's a smoking gun and even then.

[? RIO BECKMAN: ?] But one thing I found out in the last that was almost 10 years now, that you start out a little naive and you end up getting pretty careless.

BOB POTTER: What?

[? RIO BECKMAN: ?] Constant exposure day after day of violence, suffering. It's sad to say, but you do end up getting a little callous.

BOB POTTER: As a final note to this program, we asked two of the defense attorneys how they feel about defending people such as the defendants in these cases, people who have apparently committed the most heinous of crimes. Richard Allen and Ted Collins.

TED COLLINS: First of all, we all know that everybody, no matter how good, or bad, or whatever, is entitled to a fair trial. They're entitled to have each and every one of their constitutional rights no matter what has been done. And they're entitled to have an attorney. If they can't afford one, they have one appointed for them.

And that attorney is duty bound to give that person the best possible defense. And that doesn't include just the trial, but even an appeal. I was involved in the appellate process and wherein I may not agree with what he did or approve of it. He's just as entitled to have his constitutional rights protected as anybody else is.

I guess from a common sense point of view, I may have thought the evidence was overwhelming that he was guilty and that the fact that the jury found him guilty didn't surprise me. And what he did to this woman offended me greatly. On the other hand, I tell you this in all sincerity, it didn't distract for me at all trying to convince the court that he'd been denied some of his rights. And I guess that's just the way our system works. But that's the way I'd been brought up in it and that's the way I felt about it.

RICHARD ALLEN: Well, I don't feel emotionally involved in the case at all. How do you feel about taking out an appendix if you're a doctor? If you begin to get emotionally involved in the appendix of the person or the person's life, you may be less effective as a person that's got to do something for that person.

A case to a lawyer is the stuff of which his life is made. He's trained to apply certain rules and certain procedures to the problems that result from living, from the friction of having people rubbing shoulders together in a society that is supposedly a rule of law. The rule of law has been described as the grease that makes it possible for the society to move at all. Because there are enough conflicts, that without some way of resolving them, we would have the chaos, the law of the jungle, the strong would take from the weak, or the quick would take from the slow, or whatever.

And in the case of the criminal law, the effectiveness of it depends upon advocacy on both sides of the issue, whatever the issue is. And so it's I think a very wholesome thing if lawyers can, as they do in England, take both sides of the issue. Because our country has spun off some weird ideas with regard to the representation of people that are charged with crime.

Somehow there's something more wholesome about easing the pain of paying taxes than of representing someone who is caught up in the toils of the law and who is defending himself when his liberty is at stake and that's just all out of proportion. Then there is another corollary to that lawyers sometimes and people sometimes tend to look down or disparage people who are representing others charged with crime. But really and truly, starting with John Adams when he defended the British soldiers in the revolution, that's a high part of the profession and it's a high calling. The fact is that if good lawyers refused criminal cases and only bad lawyers took them, that would be a harsh judgment upon people charged with crime. So rather than an inquisitorial system where we put someone on the spot, and put the lights on them, and demand that they tell us what they did and why they did it, we have an accusatorial system whereby we accuse them of it and then we seek to prove them guilty by objective evidence other than what may have come out of their own mouth.

Now, to get back to another point, this system only will work well if there is vigorous representation of both sides to any controversy that arises. If every time someone is accused of a crime, he runs in and pleads guilty, it becomes very, very enervating to the prosecution. And it debilitates the people involved in that kind of work because they become very lazy.

And instead of gathering evidence, and doing the hard work, and preparing their cases, they tend to rely upon the burden that anyone charged with crime is under to defend himself and the likelihood that the weight of the thing will make him plead guilty or that somewhere along the way he will cave in to their charge. And so to keep them alert, to keep them working hard, and to keep the system functioning fairly, both sides have to be very vigorously represented. You get to the cutting point of any lawyer's duty there and his ethical duty to make sure that the law does work for justice and not just to achieve any momentary result.

But there are other remedies. If, in fact, the defendant is, as you said, nuts or committable, there are other statutes, which without the same kinds of procedures, will permit a commitment of anyone who is dangerous to society. And in fact, in this particular case, there was a commitment. And there have been in other cases, but we're not talking of that aspect of it.

Now, we're talking about whether or not the state, within the limits imposed upon it by a Constitution, can convict him of a crime. Now, it's easy to say, well, in this case, it's not important that the constitutional safeguards be enforced, but that's why the axiom is that hard cases make bad law. It's precisely in the difficult case that you can't bend the law and that it has to be enforced. Because everyone will agree in the other case that it's fine to follow the procedures, but it's where the person is poor, or where the crime is notorious, or where there's a lot of public outcry, or where there's a lot of tendency to erode reason and to move into the mob rule that reason must control and that the rules must be followed.

So as a lawyer, when you're contending for the law to govern, in that case, you're really doing what you must do. Because it's that case where if the law is to be overthrown, it will be overthrown. It's that kind of a case where lynchings start.

SPEAKER: 335, was anybody on their way down here? The place is secure. All the doors and stuff are locked.

SPEAKER: Negative. There was no MOW.

SPEAKER: OK, as far as we can tell, it's secure. Maybe they can come back--

BOB POTTER: Funds for this program were provided in part by the Nash Foundation and the Minnesota Bar Foundation. The program was written and produced by Bill Tilton. We'd also like to acknowledge the assistance of University of Minnesota Law professor JJ Cound. This is Bob Potter speaking.

SPEAKER: 236. I was out of the car and away from the radio for a while and failing to close it up. I made it clear?

SPEAKER: Affirmative, 2329.

SPEAKER: 232 put us out at Rice and Wheelock to check on a problem.

SPEAKER: Rice and Wheelock 2345.

SPEAKER: 782 go.

SPEAKER: 782, we have a request for one of your units to meet a party at Oxford in Sherburne in a white 76 Chev.

SPEAKER: 04.

SPEAKER: 2301.

SPEAKER: They're a real mellow group. They were starting to move down to move them. I didn't stick around to make sure they were all moved over. I ended up with another call. And they were real mellow.