*1 m since the defendant was custo- position dy escape in a or was not destroy evidence. opinion,
For reasons set forth in this we search of the
believe warrantless improper
defendant’s automobile was
unlawful, and that the court should have
granted suppress motion to defendant’s re-
the evidence which was discovered
sult of search. the search When made, disclosed evidence was custody police
the defendant was in at the danger
station and there was no Therefore,
car would be moved.
search of the automobile without warrant
failed meet the test of reasonableness
under the Fourth Amendment. stated,
For reasons of con-
viction must be reversed.
ERICKSTAD, PAULSON and KNUD-
SON, JANSONIUS, JJ., and CLIFFORD Judge,
District concur.
TEIGEN, participate; J., did not CLIF- Judge District JANSONIUS,
FORD District, sitting in his
the Fourth Judicial
place.
Ken A. Petitioner and Respondent, COX,
Walter R. HJELLE, Commissioner, Ellingson, and Orlando V. Director, Safety Highway De Responsibility Division, partment, Respondents Appellants.
Civ. No. 8836.
Supreme Court of North Dakota.
April 13, 1973.
Rehearing May 11, Denied 1973.
Dahl, Grafton, Greenagel, Dahl & respondent. Johanneson, Gen., Helgi Atty. and Ver- Pederson, Special Gen., non Atty. R. Asst. Bismarck, respondents appellants. STRUTZ, Chief Justice. herein, petitioner, respondent period
convicted four times within a of two years speeding. In each instance charged with and convicted of driving in of ten miles over the speed Upon receipt limit. of this record of convictions, suspended peti- the driver’s license of days, authority for sixty of tioner 39-06-32, Section Da- subsection North Century Code, kota as amended. When he of was notified re- driving privileges, quested provided for Sec- Century 39-06-33, tion North Dakota Following hearing, the Code. Com- suspension, and affirmed the missioner appeal was taken the Commissioner’s from hearing, after order. fact, its findings made conclusions law, canceling the judgment and order for such license. The order of appeals this court Commissioner now the dis- 'from the order suspen- canceling his trict court order sion. 39-06-32, North of Section
Subsection Code, amended, gives to Century Dakota suspend authority to license, preliminary without appears High- from hearing, when way Department records or other suffi- matter de novo the record which was licensee: cient evidence that the made in the district court. The de novo ascertaining limited to four times of a “7. Has been convicted whether reasonable existed for the misdemeanor, violation or offense determination of the Commissioner. *3 streets, involving the highways, roads or court, At hearing the in the district the pre- a vehicle within the movement of petitioner deny did not that he had been provided ceding two-year period; said driving in excess of per ten miles hour or offenses do not arise out of violations speed over the limit on each of the four the accident or occurrence or same occasions when he was charged with speeding when the offense conviction for speeding and for which he was convicted. per the was less than ten miles hour over sought, He justify his exces- limit.” sive speed in the case of his fourth arrest Code, The next section of the Section ground on the that he had received a call 39-06-33, upon goes provide that sus- on to help for operator from the of a truck haul- per- any pension of the driver’s license of ing beets whose truck had broken down on 39-06-32, son, as authorized in Section highway. He asserted that this situa- immediately notify the shall tion created a highway hazard on the request writing, licensee in “and his justified speed. felt his excessive him an for a hear- shall afford The trial court reversed order of practical ex- ing early as within not to by Highway issued twenty days . ceed . .” Such sioner. From the order of the district herein, by requested court dismissing so the Commissioner’s or- appeared that At that was held. suspension, der of has the Commissioner had that the licensee records disclosed appealed to this court. speeding been convicted four times of two-year period. previous within pointed above, As out oppor- the decision
each case the licensee was of the district determining court record discloses whether tunity to be heard. The grounds reasonable petitioner had existed for in each instance the the action by taken per Highway traveling in of ten miles Commissioner under been appealable the law is speed by In each of the hour over the limit. Commissioner. appeal, On such appeared proceeds this court four cases the licensee had not to hear the matter de novo on charge although pro refute the full the record of him, ceedings had in the and he had forfeited the district was afforded court. We record, have posted examined that bond which was at the time of and it reveals defendant At the conclusion of the had been arrest. convicted four times previous previous within the two-year period affirmed his of speeding, suspension. and that in order of each instance the
petitioner had forfeited bail which had thereupon appealed The posted been at the time of his arrest with by to the district court. review out appearing trial, although opportuni 39-06-39, provided for in Section ty was afforded him in each Code, Century North Dakota is to deter-’ case. Such forfeiture of bail is equiv mine whether there were reasonable alent of conviction charges against grounds under the statutes the decision 39-06-30, him. Sec. Thus the N.D.C.C. which was made the Commissioner. record of proceedings before the district is made The decision of the district court court any discloses without question that subject appeal petitioner or either the the licensee had been convicted four times Commissioner, such and on of speeding and that each of the offenses appeal determines the was for traveling per more than ten miles ap- speed It further of a vehicle limit. movement hour above highway; of the Commissioner do not arise pears that the order convictions occurrence; that, based on such out of the same if suspending his license was speeding, the violations are the convictions record. traveling speed be for aat in excess of ten apparently felt The district court per speed miles hour over limit. Sec. any from that since accident resulted no 39-06-32, subsec. N.D.C.C. petitioner, the Com the violations of In this the record discloses that the not have reasonable missioner did petitioner did travel in excess of ten miles statute to order the per speed hour sepa- over the limit four we petitioner’s license. In this driver’s rate instances and that the four convictions court is error. believe *4 separate were for occurrences within the helpless in situation of this is not a period. two-year Thus there were reason- injured or seriously is kind until someone grounds able the statute for the that the order The discloses killed. record suspension Commissioner to order a of the showing suspension of was based petitioner’s driving privileges, on de- four petitioner had been convicted court, termination de novo in this we so a two-year period of viola times within a find. his motor involving the movement of tion of highways, and that each vehicle on the appeal final raised on this is The issue speeding, for and that such convictions was authorizing suspension whether the law the in speeding for each conviction was of invalid uncon- a driver’s license is speed limit. per ten over of miles hour and in violation of Due stitutional that, or resulted The fact that no accident of the Fourteenth Amend- Process Clause vio some of the mind in the of be- ment to the United States Constitution facts under the lations were not excessive hearing provide for a be- cause does not is presented immaterial. suspension. fore such petitioner cites the case of Morrell The (N.D.1964), question proce- 128 728 A of Hjelle, v. N.W.2d case process, at be involved facts similar to case dural due which must afforded which question in reversed his fault or bar and which this court a licensee on the of his li- suspension liability suspension driving of of before order 535, cense, Burson, not shown 91 State had is 402 U.S. sioner because the Bell petitioner 1586, 90, had in 1971. of the decided the convictions 29 L.Ed.2d that S.Ct. nature. been involved a serious the licensee had been for offenses of In that Morrell, 1964, five-year-old girl a this court decided in an accident when when must of his auto- provided bicycle her into the side law that rode show, a li- suspension girl filed parents a of of of the as condition The mobile. cense, convicted of the report had been with the Director that the licensee accident offenses”; Safety, Department the Commis- of Public Georgia that of “serious $5,000. in at sioner, force of claiming damages law as it was in the under the sum cir- time, thereupon informed required to consider was that was The licensee he covered surrounding each violation that unless was the Director cumstances a viola- in time of liability it was serious effect at the whether insurance determine accident, a required in had to file that case would be tion. The he However, file a re- $5,000 after the decision in cash or deposit not done so. bond or claimants, Morrell, he fur- amended and that Legislature from the in lease proof now law, to furnish required and all that the Commissioner would be ther suspension suffer responsibility or financial must show future The four license. has been convicted licensee asserting that two-year period requested of offenses times within a licensee 270 at fault for given opportunity being
he was not the accident heard. He question deliberately and that he therefore appear should not chose not to and avail required responsi- However, establish financial opportunity. be himself of such scheduled, bility. hearing at having A but had the cases, the licensee was informed each of not denied four liability process guaranteed to his would not be al- due evidence as under the Four- liability was of- lowed. evidence of teenth When Amendment. fered, rejected by the Director and it was also have in We mind the four-to-three thirty days in the licensee was Supreme decision of the United States security comply requirement with Shevin, 67, Court in Fuentes v. 407 U.S. Act, Responsibility and was ad- Safety 1983, 556, S.Ct. decided in L.Ed.2d suffer the vised that he would where the goods had been if not furnished. of his license this were replevin seized in a action without her Appeals upheld this Georgia Court being afforded an ruling of the Director. before such majority seizure. The Supreme replevin Court held that laws held States United which denied the right to be liability that, inquiry although the as to goods heard her before were seized violat required in order to afford which would be *5 ed the Due Process Clause of the Four process be a full due need not licensee teenth Amendment. Thus in Fuentes the proc- liability, adjudication of and that due petitioner might paid have debt entire inquiry by be satisfied a limited ess would goods, due on the but she was not a whether there was reason- to determine any opportunity present any to defense liability, hearing as possibility of some able might she In have had. our liability of the licensee was re- to fault or out, pointed has been the licensee had an Georgia made lia- quired since the statute opportunity being in heard each important an factor in the de- bility State’s cases in which he charged with a trav license; suspend the and to termination Therefore, eling violation. there was no not, with could consistent State violation of the Due Process Clause of a process, suspend license without due Fourteenth Amendment. that issue. on The record in the case us before estab clearly support position does not Bell lishes that there were reasonable in the case before us. of the licensee under the statute for the decision which Bell, post required a the licensee was The licensee Commissioner rendered. $5,000 being af- deposit bond or without times, had been convicted four after full show a or an forded in each case. responsible way in no that he was driving Where record of the further had occurred. He accident that discloses four convictions move proof fi- required furnish of future ment public highways of a vehicle any responsibility without nancial preceding two-year period, within the such privi- driving of his or suffer driving emergency record constitutes an This, says Su-
leges.
the United States
necessity
situation which obviates the
for a
Court,
process
denial of due
preme
was a
presuspension
Suspension
hearing.
in such
Clause
in
of the Due Process
violation
case does not contravene the Due Process
Fourteenth Amendment.
of the
Clause of the Fourteenth Amendment of
the United States
v.
Constitution. State
In the
under consideration on
case
Harm, 200
(N.D.1972);
N.W.2d 387
appeal, however,
the licensee was not
Sinner,
1973).
(N.D.
v.
271
suspension order issued
sioned
States
United
reversing
reversed,
Burson,
535,
in Bell
402
91
Highway Commissioner
U.S.
S.Ct.
(1971).
29
90
of the
L.Ed.2d
and the order
peti-
suspending the license
sioner
Harm,
For reasons set forth in State v.
is affirmed.
tioner
(N.D.1972),
my
stitutes an situation”