State v. Matthews

building found that the completion con- trial court though a date not completed con- substantially and the it was the contract known tained in extent substantially performed tract building was to be used that Tomlinson perform. timely permitted to and that that Tomlinson was farrowing facility as a finding. Since the defects building was We sustain that completion therefore of the and prop- substantially corrected accordingly it was could have been and that essential relatively completed a damages building him within trial to allow for the court er time, certainly his short and before November profits arising from inabili- for loss of period during facility. of hog-farrowing and December ty to use the lost to the ele- pigs which the due he support position, of his states In ments, permitted Engel Tomlinson plaintiff a should general rule is that complete the make the corrections and compensation such conse- receive building, of conse- the doctrine avoidable as would damages follow quences quences applies Engel’s to defeat counter- usual in the normal and breach of contract giving Accordingly, claim. the trial court’s events, citing on course of S Williston findings appreciable weight as to of fact Contracts, Rev.Ed., 1344,p. 3776. § necessary the materi- money correct complete building, the al defects Damages also refers He us to 25 § C.J.S. $1,400 approved, is but allowance 24, pp. 662-668. disap- $9,000 profits of set-off for loss rule, general “As a sometimes ex- judgment modified so that proved. The enactments, pressed statutory $9,000. increased amount of damages party to con- to which one disposition remanded case is of a tract entitled breach opinion. because this inconsistent with such arise thereof the other are as itself, naturally from breach or such VOGEL, ERICKSTAD, TEI- J., and C. supposed may reasonably to have GEN, KNUDSON, JJ., PAULSON contemplation been within the concur.

parties making at the the con- time of probable as a tract result breach or, stated,

thereof, such as sometimes *feasonably foreseeable within contemplation parties at the

time made the contract.”

It is our the instant view case we need not determine whether dam Dakota, of North Plaintiff STATE ages profits loss were within the from Appellee, contemplation parties at the time contract, the execution of for the rea MATTHEWS, David Defendant Engel September son took action Appellant. prevented Tomlinson from Cr. No. 450. correcting the defects' construction completing he building. effect Court North Dakota. mitigate damages. failed to his For Jan. 1974. application more recent doctrine consequences avoidable in North Dakota Rehearing March Denied 1974. Oil, Nicola, than see v. Investors Stetson Inc., page N.W.2d 349 358. See Graham, also So.2d 330 Jenkins

332 (Fla.App.1970). e, Atty., j package) p. Charles State’s Matthews arrived at 9:30 Gil m. James- J. 23d, town, appellee of plaintiff Gaylon for and was addressed Baker, picked and up North Dakota. was Matthews at p. January m. on 7:30 24. Graff, Benny Carrington, for defend- A.

ant appellant. Long package and Thus was in the pos- of company the bus

session about 10½ hours before it picked up, was and the VOGEL, Judge. package possession Matthews was in the of company approximately the bus The defendant was convicted up. before it picked hours was possession marijuana, crime of and as- police department promptly Jamestown serts that his conviction was based notified package, arrival each provi- violation of the search-and-seizure officers were sent to conduct a sur- sions of the Fourth Amendment depot. During veillance "bus Constitution, pro- which surveillance, participated vides : police representa- officers Jamestown right people “The to be secure tives of the Identifica- Bureau Criminal houses, persons, papers, in their and ef- tion, department police the Jamestown fects, against unreasonable searches Long package opened to be caused seizures, violated, not be shall no examined, the contents and found that the issue, upon probable Warrants shall but marijuana-, contents included and a Bureau cause, supported by affirmation, Oath or representative Identification Criminal particularly describing the place directed Matthews to be searched, persons things and the opened by agent. company the bus be seized.” marijuana. contents were identified as packages both cases the then resealed were Section of the Constitution of North until the surveillance continued the is substantially Dakota the same. picked arrests packages up were made. dispute There is no as to the material obtained at No warrants were facts, but we set them they forth because time, ample although time to any there was are important disposition to a case. obtain them. January 18, 1973, On special or a Furthermore, representatives of both the agent of the North Dakota Bureau of Bureau of Criminal Identification and the Criminal Identification learned that two company agreed bus testified that packages containing marijuana being were packages not be delivered that would Phoenix, Arizona, sent from Jamestown, to present, so addition- unless officer were Dakota, North persons two to unidentified necessary. al was available if time by Greg a Anderson. He notified the which, packages police department, addresses on The both Jamestown turn, may fictitious, may or January notified him on and the addresses 23 that one persons. In the existing been packages had arrived de- not at the bus have pot telephone a package, day. the Matthews a. of that case of 9 m. Jamestown addressee, Gaylon made to the package call was involved in [This answering the tele- Baker, person and the Long, decided (N.D.1973), 216 N.W.2d 109 would be today. phone package that The will be stated facts both cases it was. do up day, We briefly picked the next opinion.] stated in this The first name, if it (hereinafter, of a fictitious package not deem use Long package) fictitious, the out- to significant Gayle addressed a was was to Johnson picked Williams up Long p. on come these cases. See m. 7:30 State, (Okl.Cr.1972). P.2d 841 (hereinafter, 23d. second defendant, package, (4) Mat- of a sealed not receipt (3) for the signed a Matthews him; (5) the premises on name rather controlled package, using his own thews warrant, al- made without person to search was whom than the name of ample to obtain though there was time (6) He was arrested package was addressed. warrant; made search was possession. (7) the package in his with the prior the de- to the time of the arrest of suppress prior to He made a motion to his al- prior to the date of fendant and motion and trial. The court denied the contra- leged possession or of the evidence court, guilty him after a trial found band. jury having been waived. STANDING out, points true, It is as the dissent argument on transcript of the oral that no challenge standing A discussion of suppress was included the motion to begin v. United best with search can Jones known to us." It record submitted 4 L.Ed. reported by a argument was whether the parties here. cited both 2d 697 matter, 'in our reporter. court Nor does Jones, recognized the ancient the court any indication that evi There is no view. makes a mo- of a defendant who dilemma hearing, that at the or dence was offered standing have tion to in order to from the argument any different evidence; admissibility challenge the us. legal argument made before ownership pos- required claim he is hearing at a by testimony sessory between the interest disagreement no There was realizing suppress, his motion to while facts as to the State and defendant right his testimony his establish and that All issues were briefed the case. unconstitutionality us, the make the claim argued believe that before and we trial if his claim against him at the if we dismissed be used result be the same would irregularity, is denied. subject to correction not ines- dilemma was be Court held the dismissal would following which standing must allowed capable, 29- reargued. case Secs. canceled and the 29-28-26, the facts of 29-28-21, under N.D.C.C. defendant 28-20, us, holding for so alternative bases necessary facts are before case. Two Since all n deal with the merits. will stated: con- questions We are faced with two of prosecu- element in this “(1) The same e., stitutional law: dilemma, tion has a i. which caused possession that both convicts and confers has “stand- 1. Whether the defendant any necessity a standing, eliminates ing” question challenge legality to the preliminary showing of an interest in the package; of the search of the seized, premises property searched or the required is ordinarily which when stand- question 2. If the answer to the first is affirmative, ing challenged. Even this (2) is were whether the search was consti- turning pos- illicit permissible. prosecution not a on tutionally session, requisite in legally interest the going Before question into of stand- the satisfied, for it premises here the was ing, up the we sum fact before us situation in- property a not be as extensive need in impor- that terms have been considered be- required by the courts as was terest tant and in determinative deci- sometimes at 732. U.S., at low.” 362 S.Ct. sions of the of Court the United the in Jones were entire- While facts appellate States and of this and other court considering here ly similar to those we are involving one (1) charge courts: the is made things, search was possession crime; the (2) (among as an other element belonging apartment in presence the the in his search was made the absence of to the here permitted argues had him use State the to a friend that who defendant length question must the from it at be- raise it), quoted illegality have the pretrial to one search the subsequent refer at many cause cases level testifying to ownership a claim of grounds suppression the two alternative at the other of hearing and standing in Jones. that the giving defendant defendant the here did so, not do so has no standing. But this ar- DeForte, Mancusi v. gument fails for two reasons: (1968), L.Ed.2d 1154 First, recognizes Simmons that the Jones, “explic- Jones court stated that rule is grounds, based alternative that to itly away requirement did with charge nonposses- Simmons of a is pos- legal standing one establish must show sory crime is not any intended to make prem- ownership session or of the searched as to new rule the other ground alternative U.S., S.Ct., 2124. at ises.” 392 at Jones, which applies to possessory In Mancusi, although defendant was charges such as we have here. The court personally present when the warrantless “when, Jones, held Simmons that as in made, search at- was we believe the court possession of the seized evidence itself to significance no particular tached an essential element .of the offense with significant fact. What is us which charged, the defendant is the Gov- question (which records in were seized precluded denying ernment from that the oth- from an DeForte shared with office requisite has the possessory defendant in- ers) prior to his arrest seized challenge terest to admission the ev- trial, his against him at the over used U.S., S.Ct., idence.” 974. question objection, just as the It then went the alternative discuss Mat- before here was seized the arrest ground, applied situations such trial. against him at the thews and used Simmons, pos- where charge not a of De- The court held one. sessory Forte’s office unreasonable within was Second, Amendment, argument

meaning of the Fourth disregards procedure permitting here our standing that he to assert unconsti- trial, suppress during motions similar to tutionality of the search. provisions of 41(e), Rule Federal Rules of Simmons v. United Procedure, recognizing right Criminal L.Ed.2d 1247 to hear court motions case, robbery “possessory” bank not a course, trial. during a neither Fed Of crime, but otherwise the men- elements we eral Rules of Criminal nor our Procedure present. tioned all above were In Simmons recently adopted Rules of North Dakota belonging suitcase one Garrett applied to the trial of Criminal Procedure seized from the basement of house in case, prior to ef this which occurred which he did not a con- reside. There was Dakota Rules fective our North date testimony flict of as to con- whether the Procedure, law has al but our Criminal sent of the of owner the make the house to a ways recognized right the of defendant held, given. search was The after court during a suppress a motion to to make specific holding reference to the of Howe, 658 Jones 182 N.W.2d trial. State v. See States, supra, v. one in United that when nom., Howe v. (N.D.1970), cert. denied sub position support the of Garrett testifies in 2261, Dakota, 933, 403 91 S.Ct. North U.S. aof motion to on Amend- Fourth (1971). 712 29 L.Ed.2d grounds testimony ment his be used cannot emphasis against places greatest him at the trial. Thus the dilemma The State v. making in Brown Unit described in Tones recent decision was avoided the 1565, States, 223, 36 testimony suppression hearing the the 411 93 S.Ct. at ed U.S. Brown, a convic- specific holding this 208 (1973). inadmissible. From L.Ed.2d 98 search, challenged element of the offense

tion affirmed after a an essential unconstitutional, charged, possession of seized evi as had been sustained. the at the merchandise taken from the dence the time of contested search Stolen Knuckles, possession allowing The of the of a man named and seizure. vice jail possession part a as petitioners government allege in dif- to while the were transpor- deny charges charged, yet ferent State. The crime conspiracy possession a goods tation of stolen to there was sufficient possession standing purposes, present. is not The transport goods, stolen in which taking of the offenses cannot be government an essential element accused positions.’ charged. ‘advantage contradictory with which Unlike situation U.S., confronted, States, petitioners supra, were ar- v. 362 we are United Jones 263, challenged [725], search and 80 at L.Ed.2d rested before the at S.Ct. 732 [4 Allsenberrie, pretrial suppres- place. took a seizure At See United States v. 697]. 1209, 1970); hearing, petitioners sion not assert 424 F.2d 1212-1214 (CA7 did Cowan, possessory goods v. F.2d 83-86 a interest in States 396 United Knuckles, Niro 388 possession although 1968); under the v. United (CA2 Simmons, 535, supra, they States (CA1 1968); rule could have F.2d United testimony Bozza, (CA2 1966). had their 365 F.2d done so and could have Compare F. subsequent Price, trial. at excluded denied, (CA2 1971), 2d cert. say: on Court went to 30 L.Ed.2d U.S. necessary “But is not now to us (1971).” determine whether our decision Sim 213-214. L.Ed.2d mons, supra, makes ‘automatic’ Jones “at repeated possession references While standing unnecessary. We reserve that and sei- of the contested search the time question possession for a case where at argues, imply, as the seem to State zure” the time search and sei contested case) (as in our either before that seizure zure is ‘an essential element of of (as alleged.criminal possession or after the Simmons, charged.’ fense 390 U. Brown) “automatic stand- removes the L. [967], S. 974 [19 Jones, not believe ing” we do described Jones, Here, unlike Ed.2d 1247]. this To hold in case this is true. government’s against petitioners case warrant, can, seize and without depend petitioners’ posses not does the evidence open packages, and use sealed evidence at time sion of seized person who to convict a thereby obtained and seizure. The the contested search package, offend picks up the would later transported goods stolen seized had been as the as well Amendment the Fourth petitioners ap ‘sold’ Knuckles Constitution, 18. Section Dakota North proximately the chal months before two defendant because deny standing To conspiracy lenged search. interest testify possessory he did transportation alleged by the indictment granted immunity thereby acquire the period carefully be limited for reali- substitute ritual is to Simmons day of the search. fore “at the time words that the ty. believe We seizure,” used therefore, contested search deciding case, this it is

“In Brown, where as cases are dictum stand- sufficient to hold that there no possession precedes the seizure warrantless search and seizure ing to contest is a There offense. where, here, part of the charged (a) the defendants: contradictory “advantage of prosecutorial premises not on the at the time of it can position that seizure; position” State’s (b) search and contested pos- right of to compel Matthews claim possessory proprietary had no interest the warrant- January 23, when premises; (c) session to have in order made, includes, charged less search with an offense

99 standing suppress to in a case 1727, evidence 87 S.Ct. 18 L.Ed.2d 930 (1967), and possession charging him with 22 hours lat- States, Katz 347, v. United 389 U.S. 88 S. Long, 507, er. the case the interval Ct. 19 L.Ed.2d (1967). 576 even hours. less —10½ Two, where a violation of which, general, sup Other decisions provision Fourth Amendment as to search port as to standing our decision include: asserted, and seizure is the burden of States, Niro v. United F.2d CA1 388 535 proof aon motion is on the 1968); Willis, United States v. F.2d 473 Louisiana, 30, 34, State. Vale v. 399 U.S. 908, (CA6 450 1973), denied, cert. 412 U.S. 1969, 90 S.Ct. 26 409 (1970). L.Ed.2d 2290, 93 S.Ct. (1973); 36 L.Ed.2d 974 Fields, United States v. 1194 458 F.2d Three, Ohio, Mapp ever since v. (CA3 denied, 1972), 927, cert. 412 93 U.S. 643, 1684, 367 6 U.S. 81 S.Ct. L.Ed.2d 1081 2755, S.Ct. 37 L.Ed.2d 154 United (1972); evidence obtained search and States Brown, v. 300 F.Supp. (D.C. 1285 seizure violative of the Fourth Amendment N.H.1969); Cobb, 432 United States v. F. is, by virtue of the Clause Due Process (CA4 2d 1970); 716 All United v. Amendment, the Fourteenth inadmissible in senberrie, (CA7 1970), 424 F.2d 1209 courts. Manning, State State v. 134 N.W. 224, see v. States, Combs United 408 U.S. 2d 91 (N.D.1965). 2284, 92 S.Ct. 33 L.Ed.2d 308 (1972). generally There are several rec appel We therefore hold that ognized exceptions requirement lant had standing contest the constitu prior valid search warrant to search and tionality of the search and this seizure One is a search incidental to a seizure. case. Gagnon, lawful arrest supra], v. [State and another search border v. [State States, If supra, Brown v. United Gagnon, Unit Almeida-Sanchez v. interpreted should be to apply to like cases States, 266, 2535, ed 413 U.S. S.Ct. 37 93 one, this expect would to follow our Obviously, 596 (1973)]. L.Ed.2d neither precedents. own power It within the applies exception A third these here. this higher court apply constitutional arises is consented to when the search standards required than are of the States Howe, appropriate person. an v. su by the Federal Constitution.' Two Lego v. pra. However, employee a search mey, 477, 489, 619, 404 U.S. 92 L. 30 po of a a common at the direction carrier Ed.2d (1972); Taylor, State v. search, police not a search is a lice officer 506, Wis.2d 210 N.W.2d 873 (1973). any, em authority, if within the Corngold v. ployee the common carrier. THE CONSTITUTIONALITY OF 1966); (CA9 F.2d SEARCH 1, Dembo, 451 Pa. Commonwealth v. McKinnon, People v. (1973); A.2d 689 We start premises: with three basic 897, Cal.Rptr. 500 P.2d Cal.3d denied, 411 (1972), cert. One, Gagnon, stated State v. (1973); Wil 36 L.Ed.2d 390 207 N.W.2d “All (N.D.1973), State, (Okl.Cr.1972). liams 501 P.2d 841 v. searches made without valid war search exception” the “consent It clear rant are are unreasonable unless apply case. does not in the instant excep shown to come within one of the tions that a must be the rule arises when exception A fourth

made a valid search warrant. Stoner are California, of evidence or 11 the items contraband effect, legally posi in a “plain of officers L.Ed.2d 856 To the same view” (1964).” Hamp- v. New Municipal Coolidge Camara them. Court, tion see 100

shire, 443, 2022, of a 91 29 L. doctrine to a S.Ct. hands annot., Ed.2d 29 564 L.Ed.2d 1067. common carrier. The referred to (1971), decisions however, “plain exception, The view” does include v. State Carroll 280, appear 132, apply packages 45 L.Ed. sealed 267 69 U.S. S.Ct. 543, (1925); ance of of their v. which not indicative il 39 A.L.R. 790 Chambers Sokolow, Maroney, Hamp supra; Coolidge licit contents. United v. New v. shire, Stanley Dombrowski, 450 (CA5 1971); supra; Cady F.2d 324 v. 413 U. v. 1243, 433, 2523, Georgia, 557, 394 89 S.Ct. 22 L. S. 93 37 L.Ed.2d 706 U.S. S.Ct. McKinnon, supra. opinion People (1969) [concurring (1973), Ed.2d 542 v. Stewart, Brennan, White, People JJ.]; holding is: The in Carroll Marshall, 585, 51, Cal.Rptr. v. 69 Cal.2d 69 442 (1968). “plain P.2d 665 The view” ex a somewhat extended have made “We ception applicable. is not that statutes to show reference to these from unreason- of freedom guaranty by the Fourth searches and seizures able The State seems to claim that a construed, practi- been Amendment has category “exigent circumstances” consti beginning govern- cally since the separate a exception general tutes to the necessary ment, differ- a recognizing rule that search warrants must be obtained store, dwell- of a ence between a search prior to searches and seizures. The lan respect house, ing other structure or decisions, guage of some such as State v. readi- proper a official warrant of which Jackson, 1973), (Iowa 210 N.W.2d 537 can a search of may and a ly be obtained However, sobe read. we that believe boat, wagon, or ship, motor automobile term “exigent originated circumstances” is not goods, contraband where for way describing a shorthand those facts warrant, practicable because secure a give a previously accepted which rise to out quickly be moved can the vehicle exception rule, to the and not as a new ex locality in which jurisdiction or ception in itself. The term has been used sought. must be warrant in, among the shorthand sense other de cisions, Ohio, Terry v. U.S. S.Ct. that contra- “Having established thus 1868, 20 L.Ed.2d 889 Chambers (1968); illegally trans- goods concealed band Maroney, L. other ve- or ported in automobile denied, Ed.2d (1970), rehearing a without may searched for hicle U.S. L.Ed.2d warrant, under now to consider come Kentucky, Roaden v. be search circumstances such what (1973). 37 L.Ed.2d 757 lawfully with- . . . made. [T]hose public use the country, We conclude entitled to “exigent that circum- right passage to free exception require- highways, stances” is not an to the have warrant, interruption unless handy ment of a without or only but official, competent way describing known to which there circumstances search, give probable cause to one or authorized to generally rise another of the carry- believing their vehicles are recognized exceptions mentioned earlier. illegal or merchandise. ing contraband upon here relies primarily State holding line of decisions that searches

without a are warrant “reasonable” where exigent legality of there are circumstances. . The measure of “. . therefore, is, candidly admits all of the Feder- a seizure such al cases it relies reasonable seizing relate to searches of shall have officer automobiles, believing that points probable but one California cause case, McKinnon, stops seizes People which, by he automobile which analogy liquor cases, contraband therein automobile extended has 1Q1 transported. Although argues . . the illegally State the being court, McKinnon, U.S., 155-156, in 45 S. held that the at 153-154 and officer who examined Ct., package the after it at 285. was opened by employee the the carrier had quoted This in Cham language exact probable package, cause to examine the 48-49, U.S., Maroney, 399 S. bers v. reading our the decision that it was Ct. 1975. constitutional for the common carrier to open package inspection, and, McKinnon, People supra, majori a In v. visible, when the contents were the officer ty argument of the court makes the probable to examine the con- cause package makes here: that a in State decision, tents. As we understand the Cal- placed hands of a common carrier can be ifornia would hold in that the search our automobile, in category an in same case was unconstitutional because moved, readily that both can and there package opened was the connivance with fore a warrantless search of a in police. possession of a common carrier can be justified under circumstances which would In Coolidge Hampshire, supra, v. New authorize a warrantless of an auto search of an automobile at station house However, exception mobile. with the made, after an arrest had been and while Peyton, (CA4 Parish 1969), 408 F.2d 60 custody, vehicle was in close was held denied, cert. unconstitutional, but in Harris v. United (1969), L.Ed.2d 772 this case seems to States, 19 L. Further, point. stand alone on this we (1968), Cooper Ed.2d in v. Cali exigencies note that of the situation fornia, 58, 87 L.Ed. McKinnon, were different as the fol 2d warrantless searches of ve lowing excerpt opinion from the shows: upheld. police hicles the control of Dombrowski, Cady upon “Here, contrast, sharp law enforce heavily, which the relies Su-

ment authorities had not ‘known preme recognizes Court the distinction probable some time’ of the existence dwelling “between motor vehicles and presented by contents of the five cartons places” type that “the and concludes shipment; although defendants for de caretaking ‘search’ here of a ve- conducted deliberately fleeing, fendants were not custody hicle that neither in the nor was departing premises both from the owner, premises on that had of its already and one was on board an air placed been virtue of law- where was plane preparing juris fly out of the action, police was not unreasonable ful diction; resting not cartons were not ob- solely a warrant had been because private property, consigned but had been here, And, “Where, as the trunk tained.” transportation to a common carrier for automobile, officer rea- of an which the destination; to a and there remote sonably gun, was vul- believed to contain probable . . . cause to believe vandals, hold nerable to intrusion being the cartons were ‘used for an ille ‘unreasonable’ the search gal purpose’ in that contained not meaning of the Fourth within the ‘mere evidence’ but contraband. Each Fourteenth Amendments.” specifically found these factors was lacking Coolidge; to be measured standards, nothing in the record high there There court’s own show,

fore, much to show the opportunity to search before us of, any justification for a search ‘fleeting’— case at bar more absence was much exception” prompt impera “automobile action was far more based Cal.Rptr., general requirement search war Coolidge 103 tive—than in P.2d, to make right has no at 1105. rant. The State packages ‘plain local officials in of evi “caretaking” searches of bus view’ fruits, dence, procedure jus- or instrumentalities of a depots, police and no routine crime, Cady in packages search of or contraband.” v. Dom tifies a warrantless S.Ct., browski, U.S., 442, depots. 93 at bus 2528, L.Ed.2d, at 715. Our own .cases are consistent with the clearly recognized in principles stated. In v. This distinction we have State Binns, (N.D. Gagnon, a warrantless search v. State N.W.2d it, decline to contemporane- 1972). was made and a adhere to and we automobile We ous arrest of the defendant was made. extend it further.

We held that the arrest was made without exception” the “automobile does Since cause, say that, probable but went principles apply, to basic we return arrest, validity assuming even said, As in the ab- search and seizure. exception, justify recognized

. . in order sence of a all search warrant, presumed exigent without there must be searches warrant are without circumstances, unconstitutional, is on the probable addition to and the burden cause, require constitutionality. which immediate action. State establish exigent What were circumstances long ago As United States justify which would the search of the Jeffers, L.Ed. defendant’s automobile after defend the United States custody? ant He not es could Court condemned a warrantless search of cape destroy any nor could he evidence by occupied the defend- hotel room not his might have been in automobile. contraband, ant but used him to store justification There was no for not se entry by when the officers had obtained curing a warrant before the officers cooperation management, of the hotel Further, search searched it. without in these terms: warrant incidental to a valid arrest must person be confined to the and the area “They renters of the were [the room] might within which the defendant reach present entry, not even when the weapons destroy the evidence. Chi conducted; and seizure were were nor California, 752, 89 mel v. exceptional present jus- circumstances (1969).” 207 N. L.Ed.2d 685 tify There the action of the officers. W.2d, at 264. violence, question was no no movable involved, vehicle was nor there an apparently recognizes State that State destruction, removal, arrest or imminent Gagnon espouses, is contra to the rule it property or concealment of the intended Gagnon and it asks us to overrule State v. fact, to be the officers seized. admit authority Cady on the v. Dombrowski. they easily prevented any could have so, decline to convinced that We do by merely destruction or removal such are not inconsistent. Instead, guarding entering door. making the room the search for the unchanging We adhere to the in respondent’s purpose seizing sole nar- terpretation by the Federal courts of the cotics, only proceeded the officers not Fourth Amendment that: legal or other without warrant author- ity, their intrusion was conducted but “The constitutional difference between surreptitiously means denounced searches of and seizures from houses U.S., S.Ct., criminal.” 342 and similar structures and from vehicles at 95. ambulatory stems both from the charac- ter of the latter as well as from the fact extensive, Although argues

that the and often noncrim- here “exigent bring inal contact with automobiles will there circumstances” search, magazines, pamphlets, printed we find justifying the warrantless and other matter, inspected by postal was under constant none. The police, parte ar- quotes who authorities. The Court Ex surveillance ranged Jackson, carrier to hold it with the common 24 L.Ed. decided nonpublic in a area until time as it 1878: such police was called for while the “Letters and sealed of this packages

present. danger destruc- There was no fully mail guarded kind are as tion, removal, or concealment. except from inspection, examination and weight, as to their form and as outward question in package The fact that they parties if were retained for- de storage in area in a bus was located warding them in their own domiciles. pot in v. As we said immaterial. guaranty right The constitutional of the Howe, supra, quoting Katz v . United people pa- in to be secure their 507, States, 347, L. 19 389 U.S. 88 S.Ct. pers against unreasonable searches and (1967): Ed.2d 576 papers, seizures extends to their thus inspection, they against closed wherever protects “For the Fourth Amendment mail, may they in be. can people, places. person Whilst What a only opened and examined like be under exposes public, even in knowingly to the warrant, office, issued similar oath or af- subject his own home or is not a firmation, particularly describing the protection. of Fourth Amendment [Ci seized, thing required to be when tations he seeks to But what omitted.] in papers subjected search one’s preserve private, are even in an area ac Congress household. No law may constitu own public, cessible to the be U.S., place can the hands of officials con- tionally in protected.” at 351— 389 any 352, S.Ct., postal au- nected with the service 88 at 511. secrecy of letters thority to invade the protection The constitutional has been mail; packages and such sealed of a (marijuana) extended to the contents to mail regulations adopted as and all package shipped by express opened air be in subordi- matter of this -kind must by police resealed without a warrant who principle embodied great nation recipient [Morgan it and later arrested the fourth amendment Constitu- Kiff, 445 v. 230 196 S.E.2d Ga. U.S., 96 at 733. tion.” State, (1973); supra], Williams v. in a terminal contents of a locker bus distinction between discern no We Durkin, F.Supp. 922 States v. [United post subject letter-rate packages sealed parcels in in a (S.D.N.Y.1971)], a locker ex shipped by air age, packages sealed Small, subway station States v. [United Kiff, supra, and Wil press v. [Morgan F.Supp. to con- (D.C.Mass.1969)], packages State, sealed supra], and liams v. telephone glass-sided versations in a booth company. In by a bus being transported States, supra], to the con- v. United is the cases, expectation privacy [Katz all apartment tents of a suitcase in a friend’s same. Brown, supra], and States v. [United “constitutionally protect shipped through the It is that packages contents of privacy” expectation of ed reasonable United States mails Van [United Katz v. United Leeuwen, is determinative. 25 which DeForte, supra. States, case, Mancusi v. supra; (1970)]. L.Ed.2d 282 the last In a reason had such find that Matthews distinction was made between first-class We in the sealed- privacy packages expectation mail such as letters and sealed able priva expectation of subject pack- and that his postage package to letter kind of (the constitutionally protected. age question newspapers, cy must be there) being judged who trate instead the offi- the officers It pack engaged competitive cer the often en- search made the warrantless depot prob terprise ferreting out crime.” age bus Johnson Jamestown States, 13-14, been crime had cause to able believe n committed, 367, 369, alone, with S.Ct. 92 L.Ed. 436. probable but cause simultaneous, warrant or out police When assume the function circum exigent valid arrest other they beyond magistrate, act law and stances, justify a war- is insufficient they acting so the evidence obtain rantless search. v. United Jones regrettable consequence, excluded. 1253, 2 L.Ed.2d guilty free, may go but the alternative— States, 286 U.S. (1958); Taylor v. United permitting through rummaging warrantless (1931). L.Ed. 951 private .property remedy worse. The —is ample a war to obtain There was time law, police obey both evils effect, was, rant; ignore the not for the courts to Constitu- police, had made custody of the since tion. it autho arrangements to hold until legitimate delivery; no other rized The motion should have to obtaining a warrant for not granted. excuse been Admission of the evidence shown. obtained search vi- the unconstitutional rights. olated defendant’s constitutional pos- involving charge was one Since judgment of conviction is reversed seized, the goods defendant session of the pro- for further and the case remanded made standing object to to the search opinion. ceedings with this consistent absence. his Cady The same court decided PAULSON, ERICKSTAD, J.,C. Dombrowski, at the same J., specially concur. Term, v. United in Almeida-Sanchez Jackson, States, supra, quoted Mr. Justice KNUDSON, JJ., dissent. TEIGEN Nuremberg from the soon after his return Trials: (concur- ERICKSTAD, Chief Justice “ rights], ‘These Amendment [Fourth ring specially). protest, I are not mere second-class opinion; majority how- in the I concur indis rights belong catalog in the of but dissent, ever, of the nature because depriva pensable Among freedoms. compelled respond thereto. I am rights, tions of none is so effective spirit crushing cowing population, upon an based dissent seems putting of the individual and terror parties by the and involves not raised issue every search and heart. Uncontrolled at- dispute. It is an obvious not in facts is one the first and most ef seizure tempt a determination avoid weapons every fective arsenal issue. Amendment Fourth Brinegar arbitrary government.’ contention the dissent’s Notwithstanding 160, 180, 69 338 S. United U.S. because be dismissed appeals must that the 1302, 1313, (Jackson, 1879 93 L.Ed. Ct. provide this Long failed Matthews U.S., 274,

J., dissenting).” S. upon which the records with court L.Ed.2d, Ct., 2540, at 603. determination court’s trial review the issue, the dissent Amendment our Fourth very It is of the essence of dissenting quote from the proceeds rights Amendment under Fourth justices of present opinions past and support the search “be the inferences Supreme who Court magis- by a neutral detached the United drawn PAULSON, exclusionary disapproved J., rule concurs. have by Mapp v. applicable made to the State 1684,

Ohio, 6 L.Ed. TEIGEN, Judge (dissenting). (1961). 2d 84 A.L.R.2d 933 I dissent in both cases. These cases are approach unique This is and no doubt parallel on proce- the salient facts and the belief that be encouraged the dissent’s dures followed in taking appeals. This composition change in the cause dissent, like the majority opinion, is made Supreme Court recent United States applicable in both my opinion cases. It is itself years that court is to reverse about appeals these should be dismissed be- presents proper if vehicle it and when a appellants cause the have failed to include self. If it is so that the Court appeal record on the relevant evi- just waiting appropriate opportuni for the dence rulings which the of the trial ty, surprising it is that it did utilize court, challenged appeal, on this are based. Robinson, States v. reversing, is party It fundamental seeking that the (1973), 38 L.Ed.2d alleged review of an error must see to it U.S.App.D.C, 471 F.2d

15 properly that the presented record is granted, cert. appellate court and that it is sufficient to (1973), a 36 L.Ed.2d 177 error, the alleged show all including last mat- case it on December 11 of decided necessary ters for a consideration of year, scope of a search which involved the question presented for review. 4 incidental to an arrest. Am.Jur. 2d, Appeal Error, 398. § Supreme of the United States Justices appellate procedure rules of Our also privileges justices Court have certain place upon this the appellant. burden Rule appellate of not the courts of the States do 10(b) Appellate the of Rules of Proce- and, indeed, privileges have. of those One Supreme dure of North Da- Court th.e obligations majority is to dissent from the kota, part, provides: opinion major- it is when believed the ity opinion justices is in As error. of a appellant ap- “If the intends urge to on court, however, appellate we must peal is finding that a or conclusion un- adhere to the decisions the of majority of supported by the is contrary evidence or Supreme ques- the States Court on evidence, he shall include the affecting tions the United States Constitu- appeal] transcript record of all [on rights tion and citizens’ thereunder. For finding evidence relevant to such or dissenting that reason we cannot resort to conclusion.” opinions justices of of the United States N.D.R.App.P., part, 10(c), And Rule Supreme opinion as a basis our Court provides: majority opinions when of the United contrary. to Supreme States Court are the pro- report of the or “If no evidence exclusionary applicable rule was made made, hearing ceedings at a or trial was Ohio, Mapp to the States unavailable, ap- transcript if a or by majority until it is reversed of the of the pellant may prepare a statement Supreme of we Court the United the best proceedings from evidence apply obligated are it. In the instant means, including his recollec- available talking case Amend- we are about Fourth tion.” obligation apply rights.

ment con- Our Appellate Procedure for majority stitutional as the of the law Unit- The Rules of ap- it Dakota were Supreme ed has stated Court of North States Court Ap- plies patterned is- Rules to all constitutional after the Federal United States pellate sues. for the United Procedure objection Ex- the introduction this above-quoted Appeal Courts of previous of our only the basis hibit on rule identi- portion North Dakota of the suppress.” In motion comparable rule. federal cal with the Federal speaking 10(b), Moore’s of Rule Long And in the case: Practice, Edition, Vol. Second places the burden of rule states that this object grounds on the we “We this necessary- ordering furnishing the previously have stated our motion [to upon transcript parts squarely of the suppress].” appellant, follows: again: And familiar rule “This so because objection, Honor, your “Same on the burden appellate practice that grounds was obtained without to matters reference showing error search warrant.” Unless upon appellant. of record brings he before the record In objections case the each were over- affirmatively shows the appeals court of ruled and contraband was admitted upon which occurrence of the matters evidence. relief, urge he he relies for appeal.” on those matters It transcripts, from is clear made a part appeals, of the record in these two cases under consideration two objections, and from the nature of the parties, separately, no- here each of rulings court, colloquy of the trial and the pretrial suppress the ticed a motion to con-f attorneys objec- the trial that the appeal in record on each of traband. The tions entirely upon based what tran- motion, notice these cases contains spired hearings respective at the on the denying order the motion. motion motions to and not evidence However, transcript hearing on no adduced at the trials. The records respective motions was certified these these proceedings are not us and before proofs ad- the evidence or this court and judge cannot this review the correct- part not of the duced thereat were made ness or of the incorrectness trial court’s appeal. During the trial each record on rulings on these motions. days cases, held after the of these several denied, to the contra- suppress motion gleaned Some of the facts from as and offered was marked exhibits band the transcripts of the records at the made Objections made there- were evidence. They two clearly complete. trials. are not cases, to, follows : respective in the as at the trials evidenced adduced two obviously the does set forth facts re- In the Matthews case: lied upon by by the or the appellants on suppress. the motions to The evidence object, going to not on "We are the ba- cases, presented each these at the re- foundation, sis but on the basis of trials, Hilde, spective that indicates Mr. previous motion our the evi- superintendent the acting of the State case, it dence in’ this and on the basis Bureau, telephoned Crime the each of illegal result of search and an two officers law enforcement involved keep seizure that and to maintain arrests, advising packages, these that two objection into the record.” containing marijua- which he described as na, Grey- had been sent from Arizona via again: And Dakota, Jamestown, hound Bus to North right, any. “That is require- packages waive addressed which to certain ment of regarding persons given foundation those two named with addresses items are again retaining designated and we As a our showed a return address.

X07 upon the placed Greyhound rulings the sence of record which the result the officers of the trial Depot Bus under surveil court were made. Ventresca Jamestown Draper packages were called for have not been overruled the lance. When respective appel eroded subsequent these decisions received times, lants, Supreme appellants United States Court. at different warrant, arrested, without my opinion appeals It that these possession of each was should be of the appel- dismissed because Hilde, supplied the who had Mr. seized. duty failure provide lants’ in their this arresting enforce to the law information upon court with records which we may officers, testify at was not called to ment properly review the decisions of the trial However, appears from either trial. court. arresting testimony officers Ventresca, under 380 U.S. States United respect appellants’ challenge (1965), 13 L.Ed.2d 684 the search packages of the at the bus de- rely upon infor were entitled to pot, agree I holding with Wis- by a mation fellow law en furnished them Supreme consin very Court in the recent Hilde, acting forcement officer—Mr. Christel, reported decision of State v. Bureau; superintendent of the State Crime 61 Wis.2d 211 N.W.2d 801 (1973), that, therefore, probable they had cause and, reasoning on the basis of the Draper under v. United decision, appellants that these conclude did 329, L.Ed.2d (1959), challenge alleged- not have standing to appellants, respective arrest the without illegal packages at search of the the bus ly warrant, they were found to be when depot prior delivery ap- thereof to these possession packages containing pellants. packages the marijuana. These had been opinion It is also my the Fourth by Mr. described to them Hilde with Amendment Constitu- enough particularity to allow identification exclusionary tion does not support the rule Therefore, when observation. of evidence law and that the common rule recognized in the packages were seen and statehood, in effect in state since this possession appellants, who were exclusionary until rule was forced away, exigent carrying them circumstances Ohio, us Mapp v. probable cause developed constituted should L.Ed.2d to make the arrest without a warrant and appropriate be restored in an decision of search and seize contraband Court, freeing the United States to the arrest. incident United States the of that case. states the mandate 218, 467, 414 U.S. 94 Robinson, S.Ct. 38 agreement in that connection I am with Florida, L.Ed.2d Gustafson (1973); 427 jus- of the the statements several made 260, 488, 38 L.Ed.2d U.S. 94 S.Ct. opinions Coolidge in separate tices in their (1973). 443, Hampshire. v. New U.S. S.Ct. 2022, quote (1971). I ex- 29 L.Ed.2d 564 circumstances, Under these seem which separate cerpts opin- from these some of plausible from the evidence adduced at the agree. ions in which I Coolidge with trials, investigation the and search of the respective packages depot, at the bus while Harlan, concurring, Mr. stated: Justice possession personnel the bus company, unnecessary the under opinions “From the that several have therefore, and, law surplus acts apparent filed been in this case part the of these officers and should not the law of is due for seizure a basis constitute which to set these an overhauling. and federal law aside, particularly convictions prosecutorial in the ab- enforcement officers nothing at trial. But in the admissible quite intolerable find must authorities provides that evi- Fourth Amendment uncertainty, which present state of that Amend- seized in violation ques- dence everyday to such extends even be ment must excluded. under circumstances tion to ar- property a man’s police enter * “* * majority treats exclu- The believed a vehicle seize rest him and sionary rule of ev- judge-made as a rule commission during- the used have been designed and to enforce idence utilized aof crime. majority’s proper po- own notions of ' ** * of reeval- lice conduct. process begin this “I would Ohio, Mapp v. by overruling uation readily there much “I concede that 6 L.Ed.2d S.Ct. U.S. majority’s precedent recent California, (1961), and Ker v. yet another present announcement (1963). 10 L.Ed.2d 726 police procedures. operating new set of fed- made the these cases former of rule-making By invoking power this ‘exclusionary applicable rule’ eral the words but somewhere found forced latter States. Amendment, ‘spirit’ the Fourth this outs ins and all follow expanded Amend- has the Court decisions, Amendment Fourth Court’s recognition. And each beyond ment in federal cases. handed down merely logical justified step new Mapp have and Ker step “In combination before. extension bringing responsible for primarily been “It for me believe is difficult incongrui-1 distortions about serious intended Rights of the Bill of Framers law.” of constitutional ties in this field prove a police required separate, dissenting-in-part and In a guilt in ‘little trial’ before defendant’s concurring-in-part opinion, Mr. Chief But of a search warrant. the issuance Jus- Burger tice states: Texas, Aguilar see Spi (1964); 12 L.Ed.2d 723 graphically illustrates case “Thi§ States, 393 nelli v. United price pay for the exclu- monstrous 584, 21 No (1969). L.Ed.2d 637 sionary rule in which we seem have required before proceeding was such imprisoned ourselves.” adoption the Fourth after Amendment, decided until this Court concurring And in Black’s Justice Spinelli." Aguilar opinion, states, part: dissenting he statements, I concur in these Although prohibits “The Amendment Fourth help do not these cases. searches and seizures. unreasonable says nothing The Amendment about opinion cases that be- my It these pro- consequences. certainly It nowhere appellants have failed their cause the vides for the of evidence as exclusion duty provide the records on which we remedy for violation.” may properly the decisions of review court, appeals be dis- trial should Amendment, quotes then He from the and missed. comments: By majority additament allude “* * * No examination of that text speculate no evi- above dissent and exclusionary can find an rule a mere hearings on the dence was offered * * *

process of construction. suppress They in these cases. motions to if be the same the result would conclude >{c n n n n n “* * * subject correction properly seized “we dismissed Evidence un- course, Amendment, der irregularity.” the Fourth at the trials court rulings The respective its based specifically Dakota, STATE of North Plaintiff pre respective denying pretrial orders Appellee, and not on the

trial motions v. The orders the trials. evidence adduced LONG, Daniel Defendant inter suppress are denying the motions Appellant. appeals orders, on the reviewable mediate Cr. No. 451. Sec of conviction. judgments from the majority The 29-28-27, N.D.C.C. tion Supreme Court North Dakota. denying the orders have not reviewed Jan. 1974. opin majority suppress. motions Rehearing Denied March 1974. ad entirely on the evidence ion is based intended trials, was not which duced at the grounds to constitute party either the defense relied which resisting the introduction offering e, Charles j Atty., Gil State’s as exhibits. in evidence of the contraband J. plaintiff James- town, appellee State of being not desirous majority, I feel North Dakota. appeals for the reasons dismissing dissent, new grant should my set forth Jorgenson, Lake, Lewis C. Devils for de- granted by Section power trials under fendant appellant. N.D.C.C., respec

29-28-28, remand the or. evidentiary hearings con tive cases by the as was done Cir search

cerning the VOGEL, Judge. v. in United Appeals States cuit Court of This is companion case to State v. Mat F.2d Robinson, U.S.App.D.C. thews, N.D., 216 N.W.2d decided to remand the convic 1215. After day. It is controlled the decision in in a tion This resulted was reaffirmed. that case. Ap Court appeal new to the Circuit Robinson, 153 U. peals v. (United States judgment of conviction is reversed re 1082), S.App.D.C. 114, F.2d pro- and the further case is remanded for The United States versed the conviction. ceedings opinion consistent with the re certiorari and granted Court State v. Matthews. It held versed the Circuit Court. a full case custodial arrest of a lawful ERICKSTAD, J., and PAULSON, J., C. only excep person concur. requirement tion the warrant is also a “reason but Fourth Amendment

able” that amendment. Unit search under KNUDSON, Judges TEIGEN and (dis- S. 218, 94 Robinson, 414 U.S. ed senting). Ct. 38 L.Ed.2d 427.

See State Matthews. in dis-

KNUDSON, Judge (concurring ERICKSTAD, Justice, Chief sent). PAULSON, Judge (concurring specially). Judge TEI- in the dissent I concur See State v. Matthews. GEN.

Case Details

Case Name: State v. Matthews

Court Name: North Dakota Supreme Court

Date Published: Jan 31, 1974

Citation: 216 N.W.2d 90

Docket Number: Cr. 450

Court Abbreviation: N.D.