State v. Stockert

Dakota, of North Plaintiff STATE Appellee, STOCKERT, Defendant

Leon Appellant. No.

Crim. of North Dakota.

Supreme 24, 1976.

Aug. Hardy, Don- Atty.,

Albert J. State’s Asst. L. Jorgensen, Atty., State’s Dic- ald kinson, appellee plaintiff for North Dakota.

Freed, Reichert, Ronald Dynes, Malloy & Dickinson, Reichert, A. defendant appellant.

VOGEL, Justice. in this raised case is whether

The issue the North 18 of Dakota Constitu- Section Fourth Fourteenth tion the United States Constitu- Amendments search, warrant, permit the without a unoccupied snowbank on stuck seizure, a war- property, rant, of the glove compart- of the contents We hold seizure ment. search and unreasonable, and reverse and remand a new trial. midnight, 20, 1975,shortly April after On the A & W Drive-In employees three preparing in Dickinson were restaurant removing one of them While leave. car, partment man the vehicle ... at all of her the windshield snow dark coveralls and wearing being operated a ski-mask vehicle is while times said, rifle, confronted her and holding highway this state. Such money.” me the She said lady, give “Hey, subject inspection by any shall money because the not have did or highway patrolman. she peace said, it with him. The man taken boss away northeasterly ran “Okay,” and immediately The incident direction. I police, Dickinson and an the to

reported to going pause Before farther, about 1 a. m. Due to dark- arrived motion of the to dis the State of dispose was discontinued un- ness, investigation the alleges State appeal. following morning at about 6 a. m. the miss the til ap be dismissed because the footprints then followed should Two officers appeal does not state the attempted robbery to a brief issues to be of the the scene pellant’s rifle, they a on the by appeal, where found a court and of trees the grove considered coveralls, and ski-mask thrust into appeal is denominated on the pair of title evergreen an tree. of Two of as “appeal the branches brief from order page followed another set of tracks suppress.” officers to These con motion denying large to an automobile stuck in a led ap The notice of are insufficient. tentions of snow. driver’s door was locked bank from the judgment. is specifies peal doors were passenger blocked notice, here, timely, Such examining exterior, the car’s After snow. raising ques of all permit to sufficient entered the vehicle the officers one the trial on which court has lawof tions an unlocked rear door on the driv- through case. See in a criminal State ruled opened He side. er’s Haakenson, (N.D.1973). 213 N.W.2d 394 billfold, money, some removed Furthermore, defendant’s statement in his card, license, registration driver’s by appeal raised the issue brief bag containing green plant “plastic and a have a to conduct (“whether question in this case The critical material.” im search of an automobile admissibility at the trial of concerns upon property”) suffi mobilized in the billfold taken found license driver’s the issue before A mere raise us. cient compartment. It was of- misdescription appeal of the kind of on the in evidence at the trial and received fered brief is not of a fatal to the page title person the defendant as the identify appeal. A committing robbery. mo- prior was made to trial and suppress II A motion to sever the two was denied. attempted robbery posses- charges Matthews, 90, 99 216 N.W.2d In State granted, but a mo- marijuana sion three premises we stated basic (N.D.1974), mistrial, made when one of the tion "for cases. The first was in search-and-seizure at testified the trial as to the find- officers made without a valid searches “all bag green material, ing of the are unreasonable unless warrant search denied. to come within one of the are shown they the rule that a search must be exceptions alternative either argues The State [quoting a valid search warrant” entry into the 260, (N.D. 207 N.W.2d 263 Gagnon, of the contents were not a removal and the seizure, justi- is that where a violation they 1973)]. or that The second search 39-04-55, provisions provision of Section Amendment as to by the Fourth fied of the Code, Century asserted, which re- Dakota seizure is the burden of North search part: suppress is on the quires, on a motion proof Mapp is that “ever since The third issued for ve- “The State. 643, 1684, 81 6 Ohio, in the driver’s S.Ct. be carried com- 367 U.S. shall hicle White, (1961), S.Ct. evidence obtained 423 U.S. of the seizure violative Fourth (1975). is, by Due virtue Process Amendment recog generally cited cases Amendment, Fourteenth in Clause of vehicles some that searches nize in State courts. State v. Man admissible under circumstances where times (N.D.1965).” 134 N.W.2d ning, would buildings not be allowed Matthews was a case where a ambulatory character of au because marijuana, package containing sealed tomobiles, expectation privacy the lesser bus, transported by opened by had been automobiles, and the fact that auto toas request officers and then brought plain are often within mobiles held by the bus company resealed until Dombrowski, Cady of officers. view for. The were then it was called 2523, 93 706 S.Ct. 37 L.Ed.2d U.S. The arrested the person notified. Binns, supra; State v. v. Mat (1973); package for the after called he had it who thews, Dakota supra; Opperman, South v. We held that the possession. search in his searches of automo supra. Warrantless violative of the were constitu- and seizure authorized when the are sometimes biles defendant, rights pointing out tional lawfully custody are within the automobiles things, that, among had have a police, duty protect who within which to obtain a ample time search damage or from theft and the vehicle magistrate. an impartial warrant themselves the use of protect pointed out in v. We also State Matthews be found within the weapons probable cause the existence to be- v. Opperman, supra; Dakota vehicle. South committed, had been a crime lieve that Dombrowski, supra. However, Cady v. alone, a search warrant or a simul- in the apply considerations none of these taneous, exigent arrest or other valid cir- The before us. automobile in cumstances, was to justify insufficient custody. not It was located was Iverson, search. In warrantless a highway. It property, (N.D.1974), 191 N.W.2d held 219 snow, so it was not immediate stuck in was belief, founded, well however that contra- movable. ly concealed within a dwellinghouse band ample was time within And there justification for a no search with- furnishes a warrant. There was a to obtain warrant, and that a search unlawfully aout delay between officers' arrival five-hour made valid evidence of undertaken scene and commencement of in at the brings light. it prin- These crime vestigation at the scene. After the automo applicable equally to the case are ciples license was discovered driver’s bile us. before obtained, a delay was of at least there was urges that strenuously searches The State was con eight hours before defendant are treated differently of automobiles from tacted, 3:30 afternoon. about dwellinghouses and other build searches reason to There was no 194 citing State N.W.2d 756 ings, contained contraband. automobile States, Carroll United 267 (N.D.1972); weapon clothing allegedly and the used as a 280, 132, 45 69 S.Ct. L.Ed.2d 543 U.S. disguise robbery were dis- 42, Maroney, 399 (1925); Chambers U.S. discover- automobile was covered 1975, 26 (1970); L.Ed.2d 419 90 Cool S.Ct. ed. Hampshire, 443, v. New 403 idge U.S. 91 2022, 29 (1971); L.Ed.2d 564 Specifically, S.Ct. and Chi California, 752, 395 permissible U.S. 89 would be compartment mel v. glove S.Ct. 2034, (1969). 23 685 To these might constitutionally reasonable if it recent cases of very tak operating policy added South part standard Opperman, - U.S. -, of automo inventory 96 S.Ct. contents ing Dakota L.Ed.2d - (1976), po- and Texas v. or otherwise in lawful impounded biles policy any parked is intended in rantless custody where vehicle in lice protect secure the car or its good neighborhood faith to of any crime. We hold ensure safety or to of its custo- contents the search was unreasonable under Dakota v. Opperman, supra. dians. South 18, North Dakota Constitution. Section Penning- a case was United States v. Such (5th Cir. 1971), where a ton, 441 Ill F.2d was compartment pistol entered glove The excuse for (that the search during inventory taken search of an permissible to search the com automobile. Another such case impounded partment to discover California, Cooper U.S. 39-04-55, the terms of under Section N.D. 730 (1967), where a S.Ct. C.C.) By plain is insufficient. its terms paper found piece inapplicable. statute inventory during an search made of “being operated” at the searched proceed- forfeiture impounded search, operated nor had been time to convict the defendant. was used ings was it many “upon hours. Nor a high inventory for the was the justification private property way.” It was on property. owner’s safeguarding hours. many there for Section 39-04- been Dombrowski, supra. Cady v. authority to search it. gave no Even if us, the case before the vehicle was But in unoccupied covered its terms automobiles property Coolidge v. New private on [see property, a statute private requiring supra], was no danger to traffic Hampshire, registration cards does carrying give of not Dombrowski, v. Cady supra], was [compare to blanche make carte officers custody South police in Dakota v. not [see It does not generally. authorize and cases supra, cited], was not Opperman, stop single to search or an officer automo containing of contraband suspected [State suspicion absence any biles of and was supra], not immediately v. of violation of law or indication ordinance. suspected not (or of being and mobile a mere used as subterfuge be It cannot to anything) containing dangerous to the or evidence not information related obtain Dombrowski, In [Cady supra]. public requirement. licensing People v. to the by admitted the officers that fact, Harr, Ill.App.2d 1 (1968), 235 N.E.2d the car and the glove compart- entered they The result would be cases cited. differ and ownership find evidence to ment a good-faith road check of multiple ent they believed which to have been car being made for the purpose vehicles were attempted robbery thereby and used enforcing registration statutes, license or suspect. identify to a subterfuge for a uncovering and crimes. other evidence of Sever circumstances, such the fact that Under ance, (1968), 237 A.2d 683 and N.H. they searching an automobile it was cited. These cases involved appli cases unimportant. No reason for the becomes similar to 39-04r-55 cation statutes to the exception existed —no so-called stopping moving They vehicles. are not no danger, impounding, no no mobility, question, directly point on our in no inventory, public and custody— to need stationary to the searches of relates unoccu search was incident to arrest. and they But we think provide vehicles. pied any indication is there there was Nor they tend in the and direction of a guidance time to obtain a warrant. insufficient On 39-04-55 holding jus does that Section were at contrary, there least five to six single of a warrantless search vehicle tify working intervening hours daytime normal evidence of a crime unrelated any for discovery of the driver’s license between licensing registration or violations. possible contact with the first the defendant —a hold. We so of a lack of urgency. clear indication People Valoppi, in this were to the search be cites If (1975), be difficult in prevent it would war- 233 N.W.2d upheld, Mich.App. We to the argument “green references its intru- support of aby witness into the material” should have bill- sion objected However, when to. Valoppi was not a search. been stricken other fold appears in limine to have been as United no motion such States John- cases similar trial forbid reference to (5th 1970), son, Cir. and United 431 F.2d material, subject was the a sepa- Polk, (5th 1970), 433 F.2d 644 Cir. States severed from charge rate inspections of with vehicles deal In view of the charge. state of the robbery the vehicle identification num- determine record, do not reverse remand on ber, customarily found on metal ground. this pillar stamped on a door on the plate ordinarily location not or other with- frame remanded for new trial. Reversed in view. not believe that these We do cases ERICKSTAD, PEDERSON, J., J.,C. support the State’s contention the po- concur. glove search a compart- lice for certificate and seize SAND, (special concurrence). Justice within property case, par- record this state Johnson, and Polk hold that Valoppi, ment. as to whether or not the snow- ticularly possessors of vehicles can

the owners in a private was on bound expectation no of privacy have reasonable road weak and leaves much to public or a to the identification respect numbers desired, opinion, yet, my this is a there expecta- That can be an vehicles. fact. crucial glove compartment privacy tion of testimony road, refers to as a recognized in United States specifically adjectives, and in one instance Polk, where it supra, pointed out that prosecutor, “ was asked the officer there . . .no road, Lynch, is this a n public “Patrolman automobile, areas in- V?”, patrolman to which the point road compartment, identifi- stance say wouldn’t for sure if it is a “I replied, ” cation; . 433 F.2d . . private or a road. I road couldn’t public However, the presenta- in

say for sure.” argument before the trial court IV tion prosecutor hearing, the suppression the foregoing discussion is intended to stated, “The car —the defendant was not on show, the in present in the part, highway. private It was on prop- public permissible was not under current Fed- operable.” was erty. It standards. But regard- eral constitutional Court, argument oral this During before it failed to conform to Fed- less whether expressed reservations prosecutor the standards, we are constitutional satis- eral question the in or not road was whether it failed conform to fied North leaves me private, or which public standards, constitutional Dakota State as impression that prosecutor might have Matthews, supra; in expressed State possibly thought some portion of the Iverson, supra; and State that at a certain private, point the was road supra. private, as considered distin- road was It raises the public. further impose States are free to guished Individual prosecutor or is than whether higher question standards the Federal stan distinguish between California, attempting public supra; Cooper dards. public road, public lane, or Matthews, supra. highway is think material. The crucial I don’t which road, fact whether or not the material or V nature, or private public, was of whatever point other lane, One arise whether it is called regardless road, street, retrial concerns us. thoroughfare, a a highway, purpose The collective stated the offi- interstate, by any comparable or of the car was the “search” “to find name. cer registered to,” vehicle was or who out testimony indicates that there were it was” out “whose without find try to question. in along the road This houses under reasons these circum- valid further suggestion that road leave could “search,” justify in my does stances road, or at least was a road public awas view. number of residents. Unfortu- by a shared alone, fact without further nately, this obtain- have been This information could use, road or its description tag or the license license number ed from a firm conclusion can sufficient Motor Vehicle through Registrar’s of- of fact question whether or microfilmed information on this sub- or fice public. was An not the road police depart- available in ject diagram and in- examination person Once whose name the ments. trial at the as Exhibit I does not troduced registered known, was it would question. resolve relatively simple been a process to have here, circumstances as have Under and, person out if such was the owner find in the meager, evidence record is where so, give permission he to anyone did if prosecutor represented to where the car; and, so, whom; or if it use the issue which on a material could be court stolen; been or if he had sold the car admission, that the as an road considered did, and, testimony to whom. The if he I am inclined to rea- private, question justifiable not disclose that a does a whole justifica- sufficient constitutes that this son “search” of the car existed need road in to conclude a warrant. private. therefore, agree majority I, with the conclusion, reached this the case Having conclusion, Having reached this I opinion. developed by the United States Su- law as nec- any further comment is do not on United States constitution- preme “green sub- as to essary, particularly fully and as set out questions, al stance, material.” If the “search” plant applies to opinion, State courts majority not, valid I would without a otherwise the United time as States Su- such until reasons, showing compelling con- further differently.1 rules preme Court objectionable the evidence as to what sider presentation prosecutor, found, including substance, the “green argument the trial court on oral material,” merely because it was iden- hearing, stated, also “The testi- suppression plant material. green tified the officer uncontroverted. mony of into the car go looking for the did not They PAULSON, J., concurs. They went into the car look- contraband. identification of its for the owner.” ing no indication that the officers

There a stolen vehicle. The looking for

were suggest that the police

record does (Vehicle

looking for a VIN Identification

Number), was reported by and none the car. who “searched” Stone, Powell, process change law and The recent cases of Warden v. that a be in the - -, -, 96 S.Ct. U.S. developing, this occurs we must abide but until States, Supreme United decisions, decided Court though even a sub- current - 1976; Janis, July and United States v. legal scholars and writers number stantial -, -, U.S. preme 96 S.Ct. Su- doubting questioning exclusion- are ary States, July of the United decided accomplishing purpose its stated rule footnotes, 6, 1976, together with their indicate the societal cost is worth the rule. and whether is a need for revision of that there some case

Case Details

Case Name: State v. Stockert

Court Name: North Dakota Supreme Court

Date Published: Aug 24, 1976

Citation: 245 N.W.2d 266

Docket Number: Crim. 547

Court Abbreviation: N.D.