State v. Herrick

1999 ND 1 Dakota, of North Plaintiff

STATE Appellee, HERRICK, Defendant

Curtis V. Appellant.

Criminal Nos. 980082-84.

Supreme Court of North Dakota.

Jan. Assistant Fremgen,

Frederick R. State’s ND, Jamestown, Attorney, plaintiff appellee. Office, appellate for review. suppression Law denial of

Robin L. of Olson Grand Olson Forks, ND, appealed Herrick his convictions. appellant. for defendant reversed the order provisionally [116]We

NEUMANN, Justice. ¶ denying at suppression. Herrick 28. probable was cause for We determined there appeals trial Herrick the [¶ 1] Curtis judge issuing search and the neutral reinstating his criminal con- judgment court’s ¶¶ 11, held, at We detached. affirm, holding on We the victions remand. however, 19-03.1-32(3) required N.D.C.C. exclusionary remedy allows law enforcement entry, no-knoek and a for a good in on a no- officers who acted faith justify- per presence drugs se the per knoek warrant issued on a se search ing of a no-knock warrant was the issuance Herrick, basis, prior to v. 1997 ND State ¶ Id. at 21. We unconstitutional. remanded I], under [Herrick N.W.2d 336 N.D.C.C. for to consider the trial court whether 19-03.1-32(3) validly war- execute the good-faith exception to the rem- rant. ¶ edy apply. Herrick 27. In the should remand, of appeal event after we asked the I parties question of to “brief the whether we February LeRoy [¶ 2] On Officer and, good-faith exception recognize should County Drug Task Gross of the Stutsman so, applied it should be alley in garbage Force the behind searched case.” Id. at 27. paper clip found a Herrick’s home. Gross hearing, [¶ 7] On remand after further residue, marijuana marijuana with sterile illegally trial the court did not exclude the seed, marijuana stem. applied obtained court evidence. The 2,1996, January Gross and 3] On Officer good-faith exception to the Becker, also Officer with the task Corinne Supreme United States formulated force, again garbage Her- searched behind Leon, in Court United States rick’s officers found additional home. The .(1984). S.Ct. 82 L.Ed.2d The seeds, marijuana stems and two bent metal trial court reasoned: residue, marijuana wires with a torn check It significant to note the invita- it, on with Herrick’s name and handwritten good tion to faith issue came in address grow on how to marijuana. notes from a book opinion which the North Dako- same sought a warrant [¶4] Becker Supreme ta was forced to abandon home, relying on information Herrick’s per no-knock rule as it[ ]s se result garbage obtained from the searches. The Wisconsin, [v. Richards U.S. judge a no-knock warrant and a issued (1997) L.Ed.2d 615 ]. Be- home was search of Herrick’s conducted cause this case was remanded back to this home, January 1996. In the the officers court or not to determine whether stems, marijuana marijuana, found seeds and good adopted, faith should be horticulture, equipment indoor and a discussion of the marijuana growing book on indoors. The previous cases and the fact that charged possession with officers Herrick adopted good- U.S. drugs, possession drugs with controlled years ago faith exception [in thirteen manufacture, possession intent Leon], appears Dakota Su- drug paraphernalia. preme adopt Court will faith ex- ception. suppress moved to the evi- 5] Herrick argued dence. He issuance execu-

tion of no-knock warrant violated his Officer Becker acted when rights against state and federal constitutional she and executed the search war- obtained rant The tri- at the time it was authorized unreasonable searches seizures. because suppress. legal al motion to it was in North Dakota court his Her- executed denied 11(a)(2), pled guilty, rick no-knock search warrants in all under Rule issue N.D.R.Crim.P., conditionally preserving drugs cases are w[h]ere involved. presented providing greater protections Officer Becker affidavit than an- drugs cases, Judge Wright included evidence implicates nounced those a substan- Herrick, drug paraphernalia. tial the Fourth Amendment. This was sufficient Legislative Assembly enacting when per se rule effect at this time 19-03.1-32(3) under the specify any did not Wright Judge for to issue the no-knock remedy for violations of the In this statute. warrant. The affidavit was not so instance, § when a violation of N.D.C.C. 19- lacking probable in of 03.1-32(3) indicia ren- closely is so associated with entirely official in its der belief existence 8, Fourth Amendment and Article of Leon unreasonable. None the other rights, it is appropriate, arguably neces- rendering exception factors faith sary for us to consider similar for remedies applicable not in this case. statutory granted violation as for consti- magistrate There is no indication that the tutional Wayne Lafave, violations. See R. role, judicial was misled or abandoned his 1.5(b), (1996). § Search & Seizure nor is there evidence indicate that the [¶ 11] Professor Lafave notes there is no facially warrant was deficient. The pertinent legislative history, as is the case exception exclusionary to the 19-03.1-32(3), with N.D.C.C. ap- then is applies to the facts in this case. propriate suppression remedy use as a The trial court reinstated Herrick’s convic- when the quality statute “concerns the of tions, appealed. and Herrick evidence needed issuance of the warrant ... without concern for whether the rule or II requirements statute exceeds the Legislative [¶ 8] The North Dakota Fourth Amendment.” Id. at 136. Assembly provided greater protections exclusionary remedy If [¶ 12] is what in the no-knock forum than the Fourth we must look to a implicating when statute 19-03.1-32(3), Amendment. violated, substantive constitutional N.D.C.C., requires a law enforcement officer exclusionary remedy the source of the in suspecting cause in evidence Amendment, this state is Fourth then we may destroyed may or that be the officer be must also consider the of application danger in if he or she knocks and announces good-faith exception delineated United presence entering their before order to Leon, 3405, 897, States v. 468 U.S. S.Ct. justify a no-knock warrant. Herrick (1984). 82 L.Ed.2d 677 See State v. Man- added). 21 (emphasis (N.D.1965) 91, ning, (holding Arkansas, 927, In [¶ 9] Wilson v. 514 U.S. allowing illegally the state rule of obtained 936, (1995), 115 S.Ct. 131 L.Ed.2d 976 by Mapp at trial evidence has been overruled Supreme held Court the common-law Ohio, U.S. 81 S.Ct. part knock and announce rule formed (1961)). L.Ed.2d 1081 the Fourth Amendment reasonableness in quiry. Subsequently, in Richards v. Wiscon Responding request [¶ 13] to our in Her- sin, 520 U.S. 117 S.Ct. parties 137 rick well-developed both submitted (1997), Supreme L.Ed.2d 615 arguments for and briefs the reasons per found the Fourth Amendment does applying good-faith exception mit a blanket to the knock and remedy in this case. The land- cases, drug precedent announce rule recognizing good-faith rather the mark first requires Fourth Amendment reasonable to the federal by suspicion law Leon, enforcement officer was United States v.

knocking announcing danger would be L.Ed.2d Leon also Id., added). (emphasis ous or futile. at 1421 categories carved out four when exclusionary remedy. does not override light In Supreme the recent 923,104 Id. at S.Ct. 3405. concerning Court cases the knock and an Leon, nounce rule and no-knock warrants it In suppressed cannot the trial court 19-03.1-32(3), disputed facially be drugs while evidence of found with a valid Id. in Leon. We dis- probable cause. warrant issued without appeals argument. agree Herrick’s 3405. The court with 104 S.Ct. good-faith exception apply a refused Loucks, in State 905, 104 S.Ct. suppression. IcL at affirmed (N.D.1973), this Court deter- concurrence, Blackmun In his Justice any did not contain mined an affidavit which holding of the six- aptly summarized giving notice affirmative statement majority: member would result destruction [Ejvidenee obtained in violation 19-03.1-32(3). We valid under N.D.C.C. acting Amendment officers Fourth held, may judicial court take notice “[t]he objectively on search reasonable reliance knowledge and science as matters common by a and detached warrant issued neutral ordinary may known under- to all men excluded, a mat- not magistrate need be It standing intelligence. and common law, in chief of from case ter of federal the easily knowledge drugs may disposed that prosecutions. state criminal federal and (citations omitted). of.” Id. at Thus, good- the Id. at 104 S.Ct. 3405. Knudson, in N.W.2d 872 became federal doctrine. (N.D.1993), again drugs this discussed that The Leon reasoned stating, [¶ 15] “[a] and no-knock warrants no-knock produced “marginal or nonexistent benefits drug in this warrant cases is available under objec by in suppressing statute, evidence obtained judicial because taken notice we have subsequently tively on a reasonable reliance possession in of sub- those controlled justify cannot invalidated search warrant the destroy ordinarily are on the alert stances of Id. at substantial costs exclusion.” typically easily disposable the noted, As an officer’s reli 104 S.Ct. 3405. quickly sign at the first of a law enforcement probable cause for particular on the the ance presence.” Id. at officer’s 876. objectively warrant must be reasonable. Id. in Herrick 18] As we noted these good-faith inquiry is “Accordingly, our con effectively per a se in cases constituted objectively ques fined to the ascertainable presence suspected that the reasonably officer tion a well trained drugs justified a no-knock warrant under illegal was known the 19-03.1-32(3). Herrick at despite magistrate’s authorization.” Id. the eases, law prior 21. enforce- Under these at n. 104 S.Ct. Leon identified no reason ment officers would have to doubt police aon war four situations when reliance validity of a in a the no-knock warrant issued (1) objectively cannot be reasonable: rant by judge. drug magistrate case a or magistrate by issuing was misled when Rummel, intentionally negligently Agent Special information or false Arnie (2) affiant; given by magistrate Investigation, of Criminal was the when Bureau judicial totally charge her role and in task force in abandoned failed officer Stuts- manner; (3) County. to act in a and man Rummel testified the re- neutral detached hearing was on an affidavit when the warrant based mand that he understood the stan- lacking probable “so in indicia of cause as to obtaining dard for a no-knoek warrant was entirely suspected drugs render official belief its existence the officer were on the (4) unreasonable”; reasoning and premises. when reasonable Rummel also stated the rely thirty-one law officer not no-knoek warrants enforcement could behind the facially had obtained was a previously deficient warrant. task force Furthermore, drugs present. belief were case, this Officer also she Becker testified argues Herrick the affidavit anything pres- not aware more was warrant application and for the noknock marijuana required to get ence proba lacking so in indicia case were obtained from no-knock warrant she had specificity ble and that a cause reasonable judge. person warrant was could believe the assertion, Contrary argument on the third to Herrick’s valid. His is based good-faith here had indicia exception rule announced officers right people a no-knock search war- with which to seek be secure in rant, houses, effects, persons, supplied papers Loucks Knud- their indicia gen- unreasonable in North Dakota searches sei- son. Law enforcement violated; case, zures not be operated shall and no war- erally, specifically cause, upon probable shall but rants issue present drugs that if under the were belief affirmation, supported by oath or particu- justifiably no-knock warrant was obtainable. larly describing place to be searched directly prior This belief was traceable to persons things to be seized.1 rulings in cases like Loucks Knudson judicial which we took notice under N.D.C.C. [¶24] sources the declaration 19-03.1-32(3) drugs easily were dis- to be free of unreasonable searches Therefore, prece- posed of. under federal seizures Section 8 have been dent, “Penna., I, identified as good-faith to the exclu- and Constitutions generally.” sionary fact Herbert L. Meschke Law- would in a no- Spears,’ Digging rence D. per knock Roots: The warrant issued on se basis Thayer North Dakota judge magistrate or under N.D.C.C. 19- Correspondence, 65 03.1-32(3). Moore, N.D. L.Rev. 379 n. United States v. See (8th Cir.1992) Spears As Meschke and (finding F.2d explained: important guid- “[I]t is to look for good-faith exception applied in a federal in provisions ance similar in other state con- prosecution judge in which a Nebraska is- constructions, stitutions and in their particu- sued a no-knock warrant under blanket larly provisions when the constitutional are cases). permitting drug in no-knocks all historically.” Spears, linked Meschke & at objective in We find officers acted the rea- 381. on sonable reliance the no-knock warrant by judge. of Pennsylvania issued the The Edmunds, in held Commonwealth v. Pa. 526 argues also [¶ 21] Herrick the Dako- 374, (Pa.1991), A.2d 586 905-06 under greater protec- recognizes ta Constitution I, (nearly their Article Section 8 identical and constitution, tions the federal and there- provision), numbered the same there good-faith fore the not does is good-faith exception exclusionary no the to ato search warrant issued law. remedy for an unconstitutional search. However, independent history the of Penn 22] It is axiomatic our [¶ state con sylvania’s right declared to be from un free greater may provide protections stitution reasonable and an im searches seizures was counterpart. than its federal State v. portant reasoning. factor in the Edmunds (N.D.1988); Ringquist, 212 433 N.W.2d See (recognizing A.2d nu (N.D. Matthews, v. State 216 N.W.2d Pennsylvania merous in cases which the 1974). However, constitution must the be I, explicitly courts state Article Section interpreted light of the and liberties right privacy “tied into to implicit this uphold, philo it was created not the n Commonwealth”). Pennsylvania The Su sophical viewpoints judiciary who hold preme Court asserts this is clear evidence interpretation. responsibility of See Pennsylvania always viewed Article (VandeWalle, Ringquist, N.W.2d I, providing protection Section 8 as more J., concurring specially). Amendment, therefore, than the Fourth adoption repugnant of Leon would be to their I, Article Section 8 of the North [¶23] constitution. Id. at 899. Dakota Constitution is almost identical I, Fourth Amendment. Article Section precedent North Dakota not [¶26] does provides: guidance. such clear While we cer- contain cause, by The upon supported Fourth Amendment the United States oath or affirmation, provides: describing particularly place persons people The be searched and to be secure in their effects, added.) houses, things persons, against (Emphasis papers and to be seized. seizures, language shall Article unreasonable searches not This is identical to Section 8 violated; except conjunction no warrants shall issue but for the “and." trial court is important plies. judgment

tainly privacy as recognize 8, see, e.g., Article affirmed. right under (N.D. Sakellson, 379 N.W.2d 779 v. State WALLE, C.J., and VANDE 1985), unequivocally distin- we not SANDSTROM, J., concur. major apply- factor in privacy as the guished ing rule to Meschke, L. 30] The Honorable Herbert Wahl, See, e.g., State this case was member the Court when (N.D.1990) (citing proposi- Leon 1, 1998, heard, resigned effective October acts to deter tion not participate and did this decision. judicial in- police misconduct to bolster Ronning Kaps- The Honorable Carol by allowing tegrity not convictions based not a when this ner was the Court member evidence). unconstitutionally But obtained participate did not ease was heard and Phelps, N.W.2d see decision. (N.D.1979) (stating the Fourth Amendment safeguard for operate as a is intended SANDSTROM, Justice, concurring. privacy dignity preventing personal agree opinion I with the 32] State, intrusions unwarranted separately I Court. write to note exclusionary remedy furthers that dissenting opinion paral- concurring and here intention). However, notwithstanding the Jacobson, lels the dissent in State v. North Dakota and Penn- differences between (N.D.1996) (Levine, S.J., we sylvania constitutional need histories dissenting). For reasons similar those in today question of whether North decide my I concurrence Jacobson at dis- may provide indeed Dakota’s Constitution agree concurring dissenting with the protections than United greater States opinion. us before Constitution. issue statute, is a a N.D.C.C. case violation “The framers North Dakota’s 19-03.1-32(3), § and not a of Article violation pro- more Constitution must have intended tection under North Dakota Constitu- and tion’s unreasonable searches seizures Today, [¶ this Court has found 27] than that of the Fourth Amendment to clause § only that a violation N.D.C.C. 19-03.1- Constitution, because oth- the United States 32(3), based on a no-knock warrant issued on provision meaningless erwise the state is a subject to I is to per prior a se Herrick basis redundancy.” goes argument. What So good-faith as outlined in Leon. perspective. argument lacks is historical common noting While the historical law of adoption, From its the Fourth differing Dakota and the constitutional North Amendment the United Constitu- States relationship Pennsylvania, do to we not de only on tion was a limitation considered provide if fact North Dakota does cide government. It was not until 1961 federal greater protections constitutional than Court, Supreme the United States so, Amendment, Fourth and Ohio, Mapp v. 367 U.S. S.Ct. 6 81 preclude heightened protection would such (1961), L.Ed.2d 1081 “the Fourth extended to good-faith exception North Dakota’s exclu Amendment to be from free unrea- sionary rule. sonable searches seizures any from excluded criminal trials Ill illegally Duncan v. seized” the states. Louisiana, n. 391 U.S. when, to our prior hold decision [¶ 28] We (1968). 1444, S.Ct. L.Ed.2d Herrick, ND warrant was 35] a no-knock search issued When the framers of North Dakota’s § included unreasonable per se basis N.D.C.C. 19.1-03.1- 32(3) clause, drugs alleged pres- they pro- were were searches seizures because searched, hibiting doing place good- in the to be the state from what the feder- ent ap- prohibited doing. al from government was MARING, Justice, concurring part federal constitutional view then current dissenting part. jurisprudence, providing a our framers were protection that real would otherwise have part majority [¶ 39] I concur in the of the lacking. been opinion that concludes N.D.C.C. 19-03.1- 32(3) requires higher for standard issuance proceedings [¶ 36] A review of the entire of of a no-knock warrant than the Fourth our State Constitutional Convention offers requires. Amendment N.D.C.C. 19-03.1- support concept word of one for the (cid:127)32(3) requires “probable cause” to believe anything the framers to do intended other disposed the evidence would be of or the prohibit doing from what the state safety officer’s endangered, would be where- government prohibited federal was from do- the United States Court has ing. Report Proceedings Official concluded Fourth requires Amendment Debates the First Constitutional Conven- suspicion” knocking “reasonable (1889); tion of North Dakota Journal of the announcing would result in destruction of Constitutional for North Convention Dakota placing evidence or danger. the officer in (1889). Wisconsin, Richards 1416, 1421, (1997). 137 L.Ed.2d 615 I concurring dissenting opin- 37] agree legislature also greater can afford Spears, Dig- ion us to refers Mesehke and protections than the United States Constitu- ging Roots: The North Constitu- for tion, legislature clearly which our done Thayer Correspondence, tion and the 65 by this I am of opinion statute. (1989), and Model N.D.L.Rev. 343 Constitu- 19-03.1-32(3) implicates a consti- (Peddrick 1889), tion # ¾ Draft right, tutional to be from un- free N.D.L.Rev. 415 The “Authorities” guaranteed reasonable searches and seizures section of the Draft # 2 Peddrick reflects the by the Fourth and Fourteenth Amendments origin of the unreasonable searches and sei- of the United States Constitution and Arti- “Penna., I, provision zures and Constitu- cle Section Dakota Consti- generally.” tions N.D.L.Rev. majority tution. At 12 the on Pro- relies nothing There is in our constitutional records fessor LaFave reach the conclusion that jurisprudence or support time suppression appropriate remedy is an concurring dissenting opinion’s impu- the violation of a statute when it “concerns rule, an exclusionary tation of let alone an quality of evidence needed for issuance exclusionary without excep- LaFave, rule faith (Citing Wayne of the warrant.” R. tion, (3rd 1.5(b), as the § intent of our Constitutional Con- Search and Seizure at 136 ed.1996)). Although Pennsylvania’s, LaFave, however, vention. in addi- Professor area, tion generally, may to constitutions notes: “But even in this it latter some- have to, happens times that a court been a disenchanted source secret drafters looked there exclusionary with the rule will nothing support is decline the idea our Constitu- respect it with to such violations.” tional delegates Convention it. If knew LaFave, 1.5(b), § supra at 136. Neverthe- law, Pennsylvania had they looked to less, our suppression Court has concluded “exclusionary found no any have rule without appropriate remedy seized is an exception” faith enunciated there. The violation, § of N.D.C.C. 29-29-08 which Pennsylvania Supreme Court first “discover- generally authorizes execution principal ed” this years over one hundred Sakellson, warrants. See State v. after our North Dakota Constitution was (N.D.1985). 779, In Sakell- Edmunds, adopted. Commonwealth v. son, our “[t]he Court stated rule of an- (Pa.1991). Pa. 586 A.2d Cer- statutory nouncement is more than a re- tainly fairly our drafters cannot or reason- quirement. It is a imperative constitutional ably be said to have intended undiscov- implicit prohibition in the fourth amendment interpretation, ered of one undisclosed against unreasonable searches and seizures.” source, used secret drafters. omitted). (citation Consequently, Id. at 784 [¶ 38] Dale V. Sandstrom our Court concluded the officer’s violation of against right violated his of no-knock warrant also a violation 29-29-08 was it was and seizure because North Dako- unlawful search of the

both Article warrant a no-knock and Four- to issue Fourth reasonable ta and the Constitution ¶at 16. We Id. States the circumstances.” to the United teenth Amendments sup- “thereby necessitating the Fourth Amendment discussed that the Constitution Dakota obtained.” of the pression of the evidence and sei- require all searches Constitution I, therefore, application of agree the the rule zures be reasonable remedy exclusionary for the rule as requirement. implicit in this announcement is proper, is 19-03.1-32 violation of N.D.C.C. ¶ Clearly because Id. at 17. we remanded implicates is one which the violation because issues. If the issue the constitutional unreason- a basic constitutional statutory interpretation, there only one and seizures. able searches trial no need to remand would be the-issue majority reaches 41] The next court. adopt we should squarely remedy having been we The issue exception to the case, I believe of N.D.C.C. the defendant adopted for a violation raised duty independently interpret our majority that be- our reasons is 19-03.1-32. rel. Linde in our state constitution. State ex state cause the Robinson, doc- constitutional N.D. 160 N.W. genesis its from federal Leon, (1916), follow United States utilized a text-based meth- trine we “must” interpretation. 82 L.Ed.2d 104 S.Ct. Under od of constitutional (1984) exception. method, adopt good purpose are to be this intent proceeds only to determine majority then from first and if ambi- deduced the text exception applies in this case good faith guity do into factors that exists we delve objec- acted at 21 the “officers objective language concludes demonstrate the no-knock war- reliance on adop- reasonable tive and the intention the drafters that we have ironic rant.” It seems rather of the North ters. Id. Article Section 8 statute, actually provides which interpreted a “inherently ambigu- from no- to our citizens greater protection Lynn Boughey, An Introduction ous.” See constitution, than the federal knock warrants Law: to North Dakota Con- Constitutional protec- way arguably weakens in a Interpretation, 63 N.D. tents and Methods of Therefore, consti- by applying federal tion. According to 219 n. 502 L.Rev. alone, majority affirms tutional doctrine Robinson, object look to our Court we apply a adopt decision the trial court’s prior accomplished; exception. good faith law; contemporaneous practical construing ambiguous constructions when point in decision I at this It is language. at 516. 160 N.W. majority opin- agree with the longer can no ¶ 27, notwithstanding It concludes ion. examining object accom- In the to be [¶ 45] North that the argument Herrick the ‘consti- plished, we look to the “intent of the pro- recognizes greater Dakota Constitution maker,’ of of tution the intent the members constitution, the than the federal tections convention, of the constitutional the intent today” question of the not decide court “need people adopting provi- the constitutional the pro- Dakota Constitution North whether the sion, spirit provi- of purpose and the the the federal protections than greater vides being Boughey, supra at sions construed.” inquiry disagree that I constitution. Early history North Dakota reveals the 218. stops here. railroads in North power and influence of the I, suggest- It has Dakota. Id. 242-43. been this court remanded In Herrick [¶43] Territory of Dakota wanted to people “consideration ed the trial court for to the the case independent rights as exception to assert their faith or not of whether applied.” control from outside interests. Id. The histo- exclusionary rule should the 155, 27, constitution shows that Herrick, ry 567 of our state the ND 1997 v. State people and the of North Dakota argued “the framers Herrick noted N.W.2d 336. We

855 Edmunds, Pennsylvania In array of basic individual Id. 897 the grant an to intended Supreme carefully thoughtfully guaranteed the rights broader 1, Id. at The examined and construed Article Section 8 constitution. 253-59. federal of its occupies position of state constitution to determine whether Rights of the Declaration exclusionary North Dakota Consti- in the first article Unfortunately, applies. the constitutional tution. do not journal report and official convention’s First, although it noted the text of any specifically constru- assistance provide provision its search and is similar to seizure provision. ing search and seizure the Fourth Amendment the United States however, established, It can be Constitution, “not interpret it is bound to framers did North Dakota Constitutional provisions they two mirror im- were constitution as a model not use the federal ages[.]” Similarity of language at 896. formulating constitution. See Hon- our state may between federal state constitutions Vogel, Sources 1889 orable Robert similarity purpose, of show but does not of Constitution, Dakota 65 N.D. L.Rev.

North that a court interpreting follow state a state 332, 331, of The sources 342 provision constitutional cannot do so inde- to be free unrea- declaration pendently interpre- from the federal courts’ and seizures in Article sonable searches tation of the federal constitution. See State “Penna., I, 8, identified as Section have been Jacobson, 152, (N.D.1996) v. 545 N.W.2d 157 generally.” Constitutions Honorable (Levine, J., dissenting). As one scholar ob- “ Spears, L. D. Meschke & Lawrence Herbert may employ served: ‘different men identi- Digging Consti- Roots: the vastly language yet cal intend different ” Thayer Correspondence, 65 tution meanings consequences.’ Inter- (ex- (1989) 343, 251, n. N.D. L.Rev. 481 pretation Rights, State Constitutional history ploring the of the “Williams Constitu- (1982) 1324, L.Rev., (quot- Harv. 1497 n. 12 tion”). Falk, ing Supreme Jerome Court Cal- ifornia, 1971-1972: Foreword —the State origin of 47] The Article Section “Adequate” A More Than Constitution: clearly our state constitution is linked Ground, 273, 61 Cal. L.Rev. Constitution, Pennsylvania Article Section Nonfederal (1973)). interpretation of our constitu- state important guidance tion it is to look for pointed court also out The Edmunds provi- construction of a like constitutional states, many Pennsyl “[l]ike its sister upon provision which sion our constitutional adopt vania did not rule until historically is based and linked. Meschke & Supreme the United States Court’s decision supra Spears, at 381. Mapp required it to do so.” 586 A.2d at Pennsylvania Supreme applied 48] The North Dakota likewise ex clusionary remedy only its construed Article after Edmunds, Mapp constitution in v. the Fourth Commonwealth Court’s decision held (Pa.1991) exclusionary remedy ap 526 Pa. A.2d Amendment’s reject adoption through plicable to the states the Due Pro rule. The text of Article Clause of the Fourteenth Amendment. cess Ohio, Pennsylvania Mapp 8 of the (1961); see; in language similar Section 8 L.Ed.2d (N.D.1965) Manning, North Dakota Constitution and Govan, (citing Fourth to Amendment the United States State v. 123 N.W.2d 115 Edmunds, (N.D. 1963), “clearly indicating at that Constitution. 586 A.2d as it Constitution, however, Pennsylvania’s Mapp was follow decision and when court”). 28, 1776, “adopted September question on a full ten were raised The years prior Pennsylvania at to ratification of the court noted that the time U.S. rule, Pennsylvania’s at Constitution.” embraced the part of both constitution was revised 1790 viewed an essential Amendments, i.e., and Fourteenth a provision seizure was reworded. Fourth 856 Scdcellson, mandate,” Also stated purpose “[t]he and its in our Court

“constitutional underlying protection privacy rights, primary policies individual the knoek-and- cluded of police privacy of the protection deference unlawful conduct announce rule are of integrity. of preservation prevention institutional Ed the home violent munds, The cited (empha- 586 A.2d 897-98. court confrontations.” 379 N.W.2d 782 history added). interpreting emphasis case law its search sis Our Court’s provision in its very and seizure state’s constitu important policy underlying right to right “unshakably priva tion as to linked be from unreasonable searches sei- free cy[.]” Id. at 898. summarily cannot dismissed in an zures be analysis underlying purposes ex- Our Court has stated North “[t]he clusionary remedy in Dakota. North It is may Dakota Constitution afford broader indi also to our important Court has note rights granted vidual than those under the specifically construed the search seizure Ryd United States Constitution.” State v. provision of our state constitution con- (N.D.1994); berg, 519 N.W.2d 310 see protection against a granted cluded it war- 109, 113 v. Nordquist, also State 309 N.W.2d regardless of rantless search Stockert, (N.D.1981); v. State 245 N.W.2d search conformed to constitution. the federal (N.D.1976); Matthews, 271 v. 216 State Stockert, v. See State 245 N.W.2d 271 (N.D.1974). 99 N.W.2d Our has (N.D.1976) (holding search violated state con- greater also found individual recognizing can impose stitution and states our state constitution. Grand Forks- See standards); higher than standards the federal Hjelle, Traill Water Users v. 413 N.W.2d 344 Matthews, see v. 216 N.W.2d (N.D.1987) also State 98 [protection takings pub from for (N.D.1974) (recognizing standing a broader use]; Orr, (N.D. v. lic State 375 N.W.2d 171 right illegal may to contest search than 1985) counsel]; [right City to v. Bismarck standards). required by federal (N.D.1984) Altevogt, [jury 353 N.W.2d 760 rights]; Nordquist, trial State v. 309 N.W.2d history statutory of our law 53] The also (N.D.1981) jury protections]; [grand legislature implemented shows our Lewis, (N.D.1980) v. 291 N.W.2d 735 State by enacting Section 8 N.D.C.C. 19-03.1-32 Stockert, appeal]; [right to v. State thereby manifesting guard to an intent (N.D.1976) [protection N.W.2d from ille the issuance of no-knock warrants searches]; Hassett, gal v. Johnson our without and afford citi- (N.D.1974) [right ap N.W.2d uniform greater protection against zens unreasonable Matthews, laws]; plication of v. see also State searches and seizures the federal consti- (N.D.1974) [broader 216 N.W.2d stand Orr, tution. In State ing challenge illegal (N.D.1985), searches]. Court, our analyzing 177-78 has stated: (formerly privacy intrusions tution these the United States Constitution and Article seizures. The [¶ 52] With fourth prohibitions prohibit ^[8] and fourteenth regard dignity against the State. unreasonable guiding 18) tois to Article specifically safeguard ‘principle Amendments To Dakota Consti- searches unwarranted realize this our Court Section personal behind pretation consistent with that intent. tence law since the enactment of the Uniform Con- trolled seven N.D. cial recognized constitution, defendant’s “zealously” guard regard Sess. of this years supports Substances Act Laws ch. 19-03.1-32 has right to statutory protection counsel under 235, § right a constitutional inter- in 1971. been 32(3). illustrates legislative in our state. for twenty- part See 1971 our a spe- action exis- all principle, obtained in searches Finally, other 54] states confronted transgress and seizures which the com- issue whether to mandments of fourth amendment rule enunciated the federal constitution been made in- See, in Leon under their own constitutions. admissible state courts the United (discuss- Edmunds, e.g., A.2d. at States Court. ing rejecting the decisions states (N.D. Phelps, adopting exception); see also 1979) (citations added.) Hall, Seizure, 5:32, emphasis at nn. 72 omitted Search & (for (2d ed.1993) compilation states exception). adopting the rejecting and carefully ratio-

Edmunds court reviewed the upon which these other state courts

nale analysis. A2d at 900-01. their

relied court concluded: strong right privacy which

[GJiven as

inheres Article Section well prohibition against

the clear the issuance cause, or

of warrants without warrants, upon

based defective exception to the directly rights clash with those developed

citizens as Common- past ... years, From

wealth over perspective the citizen whose stake, privacy,

are an invasion of bad, equally

faith or as intrusive. at 901. therefore, dissent, respectfully 55] be- I believe our Court should address the reject adopt

issue whether or rule under 8 of

Constitution, thorough based and con- analysis history, of North Dakota

sidered

origin right, precedent, our own relat- jurisdictions, law from

ed case other subse-

quent legislation, purposes of Article recognized. 8 our Mary Maring 56] Muehlen

1999 ND 6 VRAA, Appellant

Paul Claimant and

The NORTH DAKOTA WORKERS BUREAU,

COMPENSATION

Appellee Elevator,

North Dakota Mill &

Respondent No.

Civil of North Dakota.

Jan.

Case Details

Case Name: State v. Herrick

Court Name: North Dakota Supreme Court

Date Published: Jan 25, 1999

Citation: 588 N.W.2d 847

Docket Number: Criminal 980082-84

Court Abbreviation: N.D.