State v. Dove
182 N.W.2d 297
N.D.
1970
Check Treatment

*1 Furthermore, Mrs. by foreign decree. di- of minor children for the ing support both residents Hertz were and Mr. Craft Desertion parents. Am.Jur.2d, vorced di- 1000-1017; they obtained their Arizona when of Nonsupport pp. §§ that Mr. provided The decree vorce. also Lambrou v. In 768-795. A.L.R.2d pay- monthly support Hertz was to make Berna, A.2d 154 Me. and that Mrs. their children for ments (1959), the court stated: custody In her have of them. Craft was to and is is remedial in nature “The law Hertz, support Mr. to from endeavor obtain liberally with reference to construed filed, among papers, other Mrs. Craft obtained, every object decree, un- copy of their divorce certified by should made the courts endeavor Act, District with the der the Uniform operable.” the act render County, Dakota. Burleigh of North Court support order This constitutes decree rights as a The denial visitation 14-12.1-02(14), N.D. purview within the support payments suspension ground though partici- has Even Mrs. Craft C.C. been, date, ques an to this undecided pated proceeding Dakota North with reference to tion North Dakota court, N.D.C.C., 14-12.1-32, prohibits § Reciprocal North Dakota Revised Uniform state, an action under court of The Support Act Enforcement of 14-12.1, Chapter securing jurisdiction from 14-12.1-23, N.D. concluding sentence of § Therefore, North Da- over Mrs. Craft. C.C., Revised Uni the North Dakota kota, acting responding as Support Reciprocal Enforcement of form proceedings, jurisdiction these has no (1968), Act states: modify Arizona divorce decree. For “ * * * The or enforce- reasons determination order of support Burleigh County to one duty ment owed District Court is af- obligee is firmed. unaffected interference by

by custody obligee another granted by a court.” visitation TEIGEN, J., STRUTZ, ERICK- Thus, case, KNUDSON, instant Hertz is JJ., Mr. STAD and concur. clearly prohibited asserting a de- from as duty support

fense his to his children

by marriage, his first of visita- the denial is, obligee,

tion another that Mrs. Craft. holding

The trial err in court did not

the defense of denial visitation was not

available the case at bar. only question remaining is Dakota, The The STATE North Plaintiff Respondent, monthly pay whether the amount of the ment set the District Burleigh Court of County, Dakota, North was excessive. Appellant. DOVE, Jay Defendant Mark case, re instant North Dakota Cr. No. 400. sponding state, and, such, the Civil Chap provisions of Enforcement Part 3 of Dakota. of North Court 14-12.1, N.D.C.C., ter Dakota North 23, 1970. Dec. Reciprocal Revised Uniform Enforcement Support require Act (1968), that North give foreign Dakota full credit no responding

decree. Thus the state has duty obligor

alternative but to find a support provided

to furnish in the amount

as a of committing public means offense. The affidavit then the facts tending to establish for the issu- ance of a were: “That the affiant has received reliable *3 information from a reliable source who provided information before.” issued, Two search one warrants were Gen., Dale Atty. and Helgi Johanneson, application. on only each Bismarck, for Atty., Jensen, State’s H. in- search case warrant issue in this plaintiff respondent. and premises volves search at 115 Schauss, Mandan, for defendant Street, Washington only the North and va- J. appellant. and lidity that search con- warrant will be opinion. sidered STRUTZ, reassignment. Judge, on executing the In warrant for search premises Washington at 115- North questions regarding presents This case Street, police the Bismarck found officers requirements obtain- the constitutional five pipes, empty and confiscated three Hoirup, a ing search warrant. Jerold bottles, holders, plastic cigarette-type two sergeant in Bismarck Police detective inside, bag plastic one with a item brown W. applied to the Honorable Department, item, containing a one bottle white one bot- Austin, to for a warrant magistrate, J. Anacin, containing tle of one a red bottle premises narcotics on certain search for pill, pills, containing one bottle nine blue Street, Washington as “115 North known containing pills, one can white and one- apartment and base- main floor North pill half which was white in color. application, the support of his ment.” submitted affidavit which marijuana No was found at the defend- that on had reason believe that he residence, ant’s but a scraping pipes of the concealed premises described there was cigarette and holders which were found LSD, drugs. He marijuana, narcotic showed traces of a substance labora- such affidavit stated in further tory marijuana. tests disclosed to be foregoing tending to establish the facts The defendant charged thereafter was grounds for a search issuance possession with marijuana the basis as follows: were Washing- items found at 115 North reliable given by trial, ton Prior to “That information Street. the defendant Hoirup suppress given to the moved to discovered source was Jerold Marijuana, Dept. Washington Police and seized at 115 That North Bismarck Street, concealed had Drugs Narcotic are on the that the search L.S.D. place.” of the con- in the named been unlawful violation rights of and that the defendant presented A second affidavit was search of the search warrant issued for a prem- officer for warrant to search same Washington premises at 115 North N.D. “A Bus ises known as Green V.W. sup- Street was invalid. The motion County 261-778,” located number lie. denied, press and the defendant was Dakota, on Burleigh North State illegal possession of tried and convicted of said had reason ground that affiant court, He marijuana. appeals now to this being concealed on that there was believe specifications of error. urging a number of namely, premises property, certain said LSD, trial drugs, in the first will consider and narcotic marijuana, mo- denying the defendant’s possession intent use erred court tending to suppress tion to the evidence which It stated that the facts further grounds for occu- establish issuance of a search defendant, pied by pursuant to the warrant were: the affidavit of warrant based given by a reliable “That Information police officer. Hoirup source Jerold Marijuana, Dept. Bismarck Police That validity involving the On matters Drugs are Narcotic concealed L.S.D. dwelling private under the of a search of a place.” in the named Amendment to the United Fourth Constitution, the United States reveal, nor does the The record does not war held where the search Court has contend, any information other affida an insufficient rant based brought than as set forth above was *4 vit, of the result evidence obtained as magistrate. now attention of the must Aguilar v. search is inadmissible. such this en- decide whether was sufficient to 108, Texas, 84 S.Ct. State of 378 U.S. magistrate whether able the to determine 1509, We there (1964). 12 L.Ed.2d 723 of probable for cause existed the issuance the whether affidavit fore must determine warrant. search support applica given which in was facing in situation us this matter is The this in case tion for a search warrant to that which faced the almost identical appellant. insufficient, contended the Aguilar Supreme v. United States Court Texas, case, supra. In that the af- State Supreme Court The United States fidavit stated: determining rules for laid down .certain warrant, which validity of search the reliable infor- “Affiants have received The bound to observe. are State courts person and do mation from a credible to the United States Amendment Fourth heroin, marijuana, believe barbitu- that Constitution, that no war provides which and and narcotic rates other narcotics cause, probable shall issue but rant being kept are the paraphernalia affirmation, par by oath or supported purpose for the above described place to be the ticularly describing provi- contrary to the of sale and use things to be persons or searched sions of the law.” arrest seized, applies to both warrants Unit Giordenello and search warrants. v. Court United The 480, 1245, States, 2 L. 78 S.Ct. ed U.S. 357 only affidavit insufficient not held this af purpose of the The Ed.2d 1503 magistrate to determine whether enable the tois search warrant support of a fidavit probable to believe that there cause the war issues magistrate who enable the violated, it laid had but down the law been “probable determine rant for in deter guidelines us to follow certain warrant, in cause,” support the required sup an affidavit mining whether ac magistrate should The exists. fact a search warrant port application an who conclusion the cept mere probable cause. to show was sufficient warrant, ef for a application makes The court said: issuance for the that fect warrant exist. may be “Although affidavit based magistrate upon which affidavit The re- need not hearsay information this case stat- issued personal observations the direct flect to believe had reason affiant ed that the States, 362 affiant, v. United Jones premises, that, described on the 697, 725, 257, L.Ed.2d 80 4 S.Ct. U.S. “ of some * * * informed magistrate must being concealed now there is from which underlying circumstances namely, Marijuana, property, certain L. narcot- that the concluded the informant Drugs.” and Narcotic S.D. case, were, unimportant insignifi- is so lar he claimed ics were where it may cant that be deemed harmless. underlying circumstanc- some of federal before a constitutional concluded that from es which harmless, reviewing informant, error can be held identity need not whose that disclosed, court must be able to declare its Rugendorf see v. United 825, opinion beyond such harmless States, 528, error was 84 S.Ct. 376 U.S. [11 infor- reasonable doubt. v. State Con- 887,] was ‘credible’ his L.Ed.2d ” necticut, L. 375 U.S. 84 S.Ct. mation ‘reliable.’ California, Chapman Ed.2d 171 (1963); magistrate must Thus we see L.Ed.2d 705. un- only some be informed of the in- from which derlying circumstances case, only sub this the contraband formant concluded re mitted was the evidence he being sought was where which sulting from the unlawful was, be advised but he must also claimed premises. No other evidence was received underlying some circumstances could be sus which conviction that the the officer concluded from Accordingly, it cannot be said tained. informant, identity need not dis- whose beyond a rea this evidence was harmless closed, that his information credible or Black doubt. As said sonable Justice this information None of was reliable. California, Chapman v. *5 the the case be- given magistrate was “ * * * harmless- All have 50 States he told that in- fore us. All that rules, and the error statutes or United marijuana that was concealed at formation Congress long ago through es- its place given to the the searched was that its courts the rule tablished “by a reliable source.” ‘er- not be reversed for judgments shall not affect the or defects which do rors were from What circumstances parties.’ 28 U.S. substantial the infor which the officer that concluded its rules on 2111. of these None § reliable not mant was federal con- distinguishes between face which magistrate. He had no information of state errors and errors law probable cause. enabled him determine All of these or federal statutes rules. that the inform Where affidavit states rules, federal, a very or serve use- reliable, it must give er further informa is they setting block purpose ful insofar as as to which the tion circumstances or de- aside convictions for small errors informant based his and the conclusions little, any, if likelihood of that fects have the officer con circumstances from which having changed the result of trial. cluded that the informant was credible or may be there some conclude that Spinelli that his information was reliable. setting which in the constitutional errors States, v. United 89 S.Ct. unimportant particular case are so a 21 L.Ed.2d 637 may, insignificant that consist- obvious, above, is that evi- It from the Constitution, be ent the Federal produced by dence harmless, requiring auto- deemed Washington 115 North under the at Street reversal of the conviction. matic sup- should have been pressed. determine We now must “HI. the conviction of the defendant should be fashioning harmless-constitution- “In reversed because the admission of this rule, recognize must al-error we evidence. very un- rules can work harmless-error when, for fair results may

There some and mischievous constitutional which, persua- particu- important example, highly in a error conviction There evidence, erroneously judgment. argument, though legal- sive little, any, difference between our forbidden, is if way into a trial ly finds its Fahy guilt statement Connecti- or innocence question there a reasonable cut about ‘whether is harmless-error one. What is a close complained possibility that the evidence at is rule that will save all aim rules might to the convic- practices have contributed good in harmless-error beneficiary of a requiring tion’ and bad, possi- so far as avoiding the while beyond a prove constitutional error ble. error reasonable doubt com- emphasizes ‘substan- federal rule “The to the ver- plained of did contribute do most The Cali- rights’ tial others. We, therefore, do no dict obtained. emphasizes ‘a fornia constitutional rule meaning of our more than adhere to the miscarriage justice,’ but Califor- do, hold, as we now case when we Fahy neutralized this to some nia courts have error that before a federal constitutional perhaps emphasis, and overem- extent harmless, must be can held the court phasis, upon the court’s view ‘over- that it was harm- able to declare a belief prefer ap- whelming evidence.’ We beyond less a reasonable doubt.” proach deciding what of this Court in our recent case of was harmless error attempt is made in this case to show No Connecticut, 375 U.S. evidence, received, v. State wrongfully to be 171. There fact, 11 L.Ed.2d 84 S.Ct. only evidence harmless. it is the question we ‘The is whether there said: against received th'e defendant and the evi- possibility reasonable only evidence which the conviction complained might have contrib- dence was had. Id., uted the conviction.’ For reasons stated Although prior our cases at 230. *6 conviction is reversed. that there are some con- have indicated basic to a fair trial so infraction can never be treated that their ERICKSTAD, JJ., PAULSON and con- error, this as harmless statement cur. er- itself belies belief that all trial auto- rors which violate Constitution TEIGEN, spe- (concurring Chief At Justice matically call for reversal. the same cially). however, time, like the federal harm- statute, emphasizes it an inten- less-error I concur in the I do result. harmless tion not to treat as those con- agree language para- with the broad stitutional errors that ‘affect substantial graph syllabus. number 3 of the hold- Our rights’ party. An error in admit- ing, limited set forth is ting plainly pos- relevant evidence which principle of law that where a search adversely sibly jury influenced warrant was based an affidavit which cannot, litigant Fahy, under be conceived requirements does not meet error, Certainly of as consti- harmless. Fourth Amendment to the Federal Consti- error, admitting in illegally tutional tution, any evidence obtained as result comments, highly prejudicial evidence or opinion is inadmissible. The other casts on someone than the applies require- the federal constitutional prejudiced by it a burden to show that it interpreted by ments as deci- the federal It is that reason that harmless. agree I in this sions. the affidavit original common-law harmless-error case does not meet the federal standards put beneficiary rule burden and, Ohio, therefore, Mapp under v. 367 prove error either to that there was 1684, 1081 81 6 L.Ed.2d admis- injury no or to suffer a of his obtained (1961), reversal

303 Mapp also, state forced sible See 50 A.L.R.2d court. exclusionary rule of admissi- and later case service. the states such evidence was bility of evidence where paragraph I cannot concur number 3 consti- of the federal obtained violation syllabus of the as written. I think that Mapp, however, require does not tution. paragraph should be limited to our exclusionary rule of application holding in this case. If is the intent of admissibility the evi- to the states where the majority to reverse common-law dence is in violation of the state admissibility rule of adopt of evidence and state, or its This his- constitution statutes. exclusionary state, rule where torically, the common-law followed requirements the federal are met but the Fahn, admissibility. rule of State v. 53 met, requirements are not should (1925); N.D. 205 67 N.W. say opinion. so Pauley, (1922); N.D. N.W. Lacy, KNUDSON, J„ State v. 55 N.D. N.W. concurs.