Lead Opinion
[¶ 1] Steven Torkelsen appeals from a criminal judgment after a jury found him guilty of murdering Rebecca Flaa. We affirm, concluding the district court did not err in denying Torkelsen’s motion to suppress evidence seized, and Torkelsen was not denied the right to represent himself.
I
[¶ 2] At approximately 9:00 a.m., on June 27, 2004, Tom Belzer, a local farmer, discovered a human body burning in a ditch east of Cando. Belzer told one of his employees to call emergency personnel. Before law enforcement officers arrived, Torkelsen drove up to the scene in his pickup, stepped out onto the road, and asked Belzer if he needed any help. Tor-kelsen was smoking a cigarette at the time, and a cigarette butt containing Tor-kelsen’s DNA was later found on the gravel road above the body. Belzer told Tor-kelsen to leave the area, and Torkelsen complied with the request.
[¶ 4] At approximately 1:26 p.m., Tor-kelsen’s vehicle was stopped 28 miles west of Cando. Torkelsen was informed that he was wanted for questioning and would be handcuffed for his own safety. Torkelsen was transported to Cando, and his pickup was left at the scene оf the stop.
[¶ 5] Torkelsen’s handcuffs were removed upon his arrival at the Towner County Sheriffs Office. Zachmeier began interviewing Torkelsen at approximately 2:15 p.m., and the interview was videotaped. Zachmeier read Torkelsen his Miranda rights, and Torkelsen acknowledged he understood them. Zachmeier informed Torkelsen he was not under arrest, but was being detained for questioning because he was at the crime scene; however, Zachmeier did not tell Torkelsen he was free to leave. Zachmeier asked Torkelsen if he could talk to him about what happened that morning, and Torkelsen consented. Zachmeier asked Torkelsen what he saw when he ran into Belzer. earlier that day, where he was staying, and what he had been doing. Torkelsen said he stayed at his parents’ house in Cando the previous night, but went to his camper in the morning, and then watched a movie and slept. Zachmeiеr requested Torkel-sen’s consent to search his pickup and camper, and Torkelsen consented to a search of his camper twice and to a search of his pickup three times. Zachmeier requested Torkelsen’s permission to photograph Torkelsen’s hands, arms, back and legs, and Torkelsen consented. Zachmeier noticed an odor of alcohol on Torkelsen’s breath, and tests showed he had a blood alcohol concentration of .003 percent. At approximately 3:00 p.m., Zachmeier read Torkelsen the written consent to search form, which included language about the right to refuse to consent to the search. Torkelsen signed consent forms for searches of the camper and pickup.
[¶ 6] At approximately 3:30 p.m., Tor-kelsen and law enforcement officers arrived at the camper, located on the Abra-hamson farm. Torkelsen consented to the search again and showed officers how to unlock and enter the camper. Law enforcement officers found incriminating evidence in the camper, including tissue containing what appeared to be human blood; marijuana cigarette packs; rolling papers; papers with Flaa’s name on them; a video cassette case with what appeared to be human blood on it; blood on a cupboard, cabinet doors, molding, and the ceiling; a bag containing makeup with the name Becky; a knife with a broken tip in the sink; cigarette and marijuana cigarette butts; and papers with Torkelsen’s name on them. At approximately 5:00 p.m., before leaving the site of the camper search, Torkelsen again consented to a search of his pickup. Before going to Torkelseris pickup, officers gave Torkelsen sоmething to eat and drink, but denied his request to stop at his parents’ house.
[¶ 7] At 6:20 p.m., the officers and Tor-kelsen arrived at the pickup for the search. Torkelsen consented to a search of the pickup again. The officers searched the pickup and found human hair; burnt fabric; a bloody bed sheet, which was later tested and confirmed as Flaa’s blood; a
[¶ 8] At 6:30 p.m., Highway Patrol Trooper Robert Kennedy learned from another law enforcement officer that Torkel-sen and Flaa had been staying together at the Abrahamson farm, owned by J.R. Gib-bens. Kennedy visited with Gibbens and learned Gibbens had padlocked the farmhouse a week earlier to prevent Torkelsen and Flaa from using it. At 7:40 p.m., Gibbens signed a consent form allowing officers to search the farmhouse located on the Abrahamson farm. At 8:45 p.m., officers searched the farmhouse and outbuildings and found a document and a magazine with Torkelsen’s name in the farmhouse, a clump of auburn hair similar to Flaa’s in the bathroom garbage and a spot of blood in the living room.
[¶ 9] At 9:45 p.m., Torkelsen was interviewed a second time, and the interview was videotaped. Zachmeier read Torkel-sen the Miranda warning again, and Tor-kelsen acknowledged he understood his rights. Torkelsen reviewed the consent to search forms and stated he did not have a problem with the searches of his camper and pickup. Zachmeier asked Torkelsen about the evidence found during the searches. Torkelsen said he was in a sexual relationship with Flaa. He said that she stayed with him in his camper on June 23, that he left the camper the next morning to go to his parents’ house in Cando, but Flaa was not at the camper when he returned at 9:00 p.m. that night and that he thought she left to go back to her boyfriend. He said he stayed at his parents’ house on June 25 and 26, but he left his parents’ house at 6:00 a.m. on June 27 and returned to the camper where he slept until 8:30 a.m. He stated he was traveling back to Cando on a rural county road out of his way, when he saw Belzer and asked if he needed any help. He said that after he talked to Belzer, he returned to his parents’ house, showered, changed his clothes, then left, after which law enforcement stopped his vehicle and took him into custody. Torkelsen also said he left a pair of work boots and a pair of tennis shoes at his parents’ house. He gave a description of Flaa, which matched the body found in the ditch, and identified the green Florida Marlins jacket as Flаa’s. Torkelsen claimed Flaa cut her lip and had a bloody nose to explain the blood found in the camper. At 10:05 p.m., Torkelsen consented to give a saliva sample for DNA. Tor-kelsen was formally arrested and taken to the Lake Region Correctional Center at approximately 11:30 p.m.
[¶ 10] At around 11:30 p.m., Zachmeier interviewed Torkelsen’s parents, Art and Leona Torkelsen. They said Torkelsen had been with Flaa, he came to their home on June 24 to get candy and food for Flaa, but he told them she was gone when he returned to the camper. Art and Leona Torkelsen consented to a search of their house, but Art Torkelsen later revoked his consent. The officers left the house, but one officer came back to watch the house. Zachmeier applied for a search warrant by telephone and testified in support of the warrant. Zachmeier rеquested the warrant authorize a no-knock search and nighttime service. Zachmeier testified a nighttime search warrant was justified because they were investigating a serious offense, because he was concerned Torkel-sen’s parents may try to get rid of evidence to protect their son, and because Torkelsen’s parents had posted a substantial bond for him before. A search warrant was issued at 2:28 a.m., authorizing a search of Art and Leona Torkelsen’s home for controlled substances and items connected to the murder. The warrant in-
[¶ 11] The officers executed the search warrant at 2:45 a.m., and Zachmeier did not participate in the search. They knocked and rang the doorbell to wake Art and Leona Torkelsen and did not use the no-knock provision. The officers seized boots located in the garage which were splattered with blood and had hair on the bottom, gas cans from the shed, and firearms.
[¶ 12] On June 28, 2004, officers talked to a witness who saw Torkelsen pour gas into his pickup from a red gas can on the morning of June 27, in the alley behind his parents’ house. A second witness, one of Art and Leona Torkelsen’s neighbors, reported seeing Torkelsen place a yellow woman’s shirt in the witness’s trash can on the morning of June 27. Two other individuals reported seeing Torkelsen acting strangely as he unloaded items from his truck at his parents’ house on June 27.
[¶ 13] Later that afternoon, a second burn site was reported on a farm near a coulee bank. The grass leading to the burn site wаs packed down by vehicle tire tracks, and officers later determined the tire tracks closely matched the measurements of Torkelsen’s pickup. Officers found a belt buckle, pants, luggage tag, and a cigarette butt. The cigarette butt contained Torkelsen’s DNA. A dive search of the coulee was also completed, and officers found what appeared to be metal frames from a suitcase. The next day, a piece of paper with Flaa’s name was found nearby.
[¶ 14] On June 30, 2004, officers interviewed a witness who stated that he thought Torkelsen had previously beaten Flaa badly and that Flaa had two dark colored suitcases when Torkelsen picked her up. Officers received information from another witness on July 1, who reported seeing Torkelsen wash out his pickup at the car wash in Cando, at around 10:00 a.m. on June 27.
[¶ 15] The body found burning in the ditch was identified as Flaa. Authorities dеtermined Flaa’s death was caused by blunt force trauma to the head and by asphyxiation. Torkelsen was charged with her murder.
[¶ 16] Before trial, Torkelsen moved to dismiss or suppress the evidence on Fourth Amendment grounds. The district court denied Torkelsen’s motion, and he entered an Alford conditional guilty plea under North Carolina v. Alford,
[¶ 17] On remand, Torkelsen moved to suppress his videotaped interviews and the evidence found in the camper, pickup, and his parents’ house, arguing the evidence was seized as a result of the illegal stop of his vehicle and, therefore, the evidence must be suppressed as “fruit of the poisonous tree.” The district court denied his motion and concluded the evidence was admissible because Torkelsen voluntarily consented to the searches of his person, camper, and truck; any taint of the illegal stop was purged; there was probable
[¶ 18] Torkelsen attempted to play an active role in his defense, writing letters to the court, filing motions, and often interrupting proceedings if he thought something was not being done correctly. Previous court appointed attorneys withdrew their representation of Torkelsen. The attorney who represented him at trial, Thomas E. Merrick, also moved to withdraw as counsel. During the fifth day of trial, Torkelsen asked the court whether it would accept Merrick’s motion to withdraw as counsel, and the court denied his request. The jury found Torkelsen guilty of murdering Flaa, and he was sentenced to life without parole.
II
[¶ 19] Torkelsen first claims the district court erred by failing to suppress evidence. When reviewing a decision on a motion to suppress, we recognize the court has an opportunity to observe the witnesses and to assess their credibility, and we defer to the court’s findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Graf,
A
[¶ 20] Torkelsen argues the district court erred in failing to suppress the statements he made during the interviews with law enforcement and the evidence seized as a result of the statements he made during the interviews because the evidence and testimony was obtained as a result of the illegal stop of his vehicle and his illegal detention, and therefore the statements and evidence must be excluded as “fruit of the poisonous tree.” He also contends his consents to the interview and the searches of his camper and pickup do not sufficiently purge the taint of the unlawful stop.
[¶ 21] Under the Fourth Amendment of the United States Constitution and article 1, seсtion 8 of the North Dakota Constitution, all searches and seizures must be reasonable. A warrantless search of a person’s home is presumptively unreasonable, but a warrantless search may be reasonable if it falls under one of the exceptions to the warrant requirement. Graf,
“(1) the characteristics and condition of the accused at the time of the consent, including age, sex, race, education level, physical or mental condition, and prior experience with police; and (2) the details of the setting in which the consent was obtained, including the duration and conditions of detention, police attitude toward the defendant, and the diverse pressures that sap the accused’s powers of resistance or self control.”
Id. at ¶ 31 (quoting State v. Haibeck,
[¶ 22] The district court provided a thorough and detailed analysis of whether the evidence from the searches of the camper and pickup and Torkelsen’s interviews with law enforcement was admissible. The court found Torkelsen voluntarily consented to the searches based on the totality of the circumstances. The court considered Torkelsen’s characteristics and his condition, including his age and education, his extensive experience with law enforcement, his Miranda rights were given and his acknowledgment and understanding of them, his use of a very small amount of alcohol, his lack of intimidation, and his cooperativeness. The court concluded these factors weighed in favor of consent. The court also considered the setting in which the consent was obtained, including that Torkelsen dealt with different officers throughout the night; no evidence existed that law enforcement exerted intimidation or made promises to Torkelsen; Torkelsen was told he was not under arrest during the first interview, but he was not told he was free to leave; the first interview was conversational; Torkelsen was cooperative and consented to the officers’ requests; officers gave Torkelsen food and water; officers asked for Torkelsen’s consent multiple times, and Torkelsen gave consent at еach request; and the second interview was focused on evidence found during the searches, but Torkelsen remained calm and cooperative and was not intimidated. The court also found that there were no grounds for any claims of officer misconduct during the interviews or that the officers were unreasonably coercive in attempting to get Torkelsen to cooperate with them. Based upon its detailed analysis, the court found Torkelsen voluntarily agreed to the interviews and his consent for the searches was voluntary based on the totality of the circumstances. We conclude there is sufficient competent evidence supporting the court’s findings and the court’s decision is not contrary to the manifest weight of the evidence.
[¶ 23] Although Torkelsen voluntarily consented to the interviews and searches of his camper and pickup, the inquiry does not end there beсause, according to our prior decision, the consent was preceded by illegal police action. Generally, evidence unlawfully seized in violation of the Fourth Amendment must be suppressed under the exclusionary rule. State v. Utvick,
[¶ 24] Under the attenuation exception, the challenged evidence should only be excluded if it is the product of illegal government activity. Evidence “is
[¶ 25] The district court applied the three factors from Smith and concluded the voluntary consent purged the taint of the illegal stop. The court found that the temporal proximity was rather short because the time between the stop and oral consent was about one hour, that the time between the stop and the written consent was about an hour and a half, that Torkel-sen was not free to leave and that he was not informed he could refuse the consent until the written consent was presented. However, the court said temporal proximity must not be considered alone, and the other factors favored finding the consent purged the taint of the illegal stop. The court found intervening circumstances existed, including: the 20 to 30-minute ride tо Cando without interrogation, the arrival of a new officer who removed Torkelsen’s cuffs and had not detained Torkelsen, the lengthy periods of time he spent alone in the interview room, the Miranda warnings given, his consent to photographs of his body, the administration of alcohol testing by a different officer, and his awareness that he must submit his place of residence and vehicle to search at any time by his probation officer with or without a search warrant. The court concluded these factors could be considered intervening circumstances breaking the chain of events leading from the illegal stop to the consent for the searches. The court said the third and most important factor was the purpose and flagrancy of the official misconduct. In this case there was an absence of flagrant misconduct. The court found the officers’ misconduct in unlawfully stopping Torkelsеn’s vehicle was not flagrant because there was no evidence of officer abuse or intimidation, no evidence of physical or mental harm, and no evidence the officers acted knowing the stop was illegal or improper. Although the court stated this was a close case, it concluded the taint of the illegal stop was purged and the evidence from the searches and evidence collected during Torkelsen’s interviews with law enforcement should not be suppressed.
[¶ 26] In this case, there is a short period of time between the illegal stop and the consent. However, the consent may be sufficient to purge the taint even with only a short time between the consent and the illegal police action if other circumstances indicate the consent was sufficiently an act of free will. See, e.g., United States v. Esquivel,
[¶ 27] Intervening circumstances can include telling a suspect he may refuse to consent to a search, advising the suspect of his Miranda rights, or changing the location with a new officer questioning the defendant when he is relaxed and composed. See Brown v. Illinois,
[¶ 28] Some courts have concluded the purpose and flagrancy of the official misconduct is the most important factor “ ‘because it is tied directly to the rationale underlying the exclusionary rule, detеrrence of police misconduct.’ ” See Stark,
[¶ 29] The evidence supports the district court’s findings that Torkelsen voluntarily consented to the interview and searches, and we conclude Torkelsen’s voluntary consent was an independent cause of the discovery of the challenged evidence and purged the taint of the illegal stop. The district court did not err in admitting the evidence seized during the searchеs and Torkelsen’s statements to law enforcement.
B
[¶ 30] Torkelsen contends the district court erred in admitting the evidence seized during the nighttime search of his parents’ house. He claims the evidence should have been suppressed because there was not separate probable cause to justify authorizing a nighttime search and the court erred in applying the inevitable discovery doctrine after concluding there was not probable cause for the nighttime search and the good-faith exception did not apply.
[¶31] “An individual is only entitled to the protection of the exclusionary rule [and to challenge a search] if the individual’s own Fourth Amendment rights were violated and not the rights of a third party.” State v. Oien,
[¶ 32] Torkelsen concedes there was probable cause to issue a search warrant for his parents’ house, but argues there was not separate probable cause to issue a warrant for a nighttime search. Under N.D.R.Crim.P. 41(c)(1)(E), a warrant must be served in the daytime, “unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime.” This Court has said reasonable cause for a nighttime search requires a separate showing of probable cause. State v. Fields,
[¶ 33] In this case, Zachmeier applied for a search warrant and requested authorization for a nighttime search because “what we are investigating here is a serious crime — a justification can get rid of evidence. That parents can protect their kids and that might happen, and then the Torkelsens have on occasion posted substantial bonds for Steve Torkelsen to get him out of jail in the past. So, I would request a nighttime search warrant.” The issuing magistrate authorized a nighttime search and concluded probable cause existed because of the seriousness of the crime, because of the information that Torkel-sen’s parents might destroy evidence, and because of the homeowners’ withdrawal of their earlier consent to a search.
[¶ 34] Acting on Torkelsen’s motion to suppress, the district court concluded there was not probable cause to authorize a nighttime search:
“While the crime is serious, this court can find no case law which permits a nighttime search based upon seriousness of the crime. The officer also stated that a parent may destroy evidence to protect a child. There are no facts presented in this case to suggest that the Tor-kelsens had done so or would do so for their son. How could they destroy firearms, clothing, boots, and gas cans. The officer testified that he had no idea how the evidence would be destroyed and there was no mention that the items*653 would be washed or cleaned by the parents.
“The vague history of posting a bond for then son does not justify a nighttime warrant. The parents were law abiding, elderly citizens and it is absurd to conclude that they would remove or destroy evidence based upon the death investigation. While they were aware that the Defendant had been charged with two drug offenses, he had not been charged with the death of the unidentified body. Based upon the hearing transcript, Agent Zachmeier did not meet the burden necessary to demonstrate the need for a nighttime warrant. On this record, there is no evidence to support the finding of probable cause for a nighttime warrant.”
[¶ 35] After concluding probable cause did not exist to issue a nighttime warrant, the district court considered whether the evidence must be suppressed or whether one of the exceptions to the exclusionary rule applied. The court considered both the good-faith exception and the inevitable discovery doctrine. The court concluded the good-faith exception did not apply because a reasonably well-trained officer would have known the nighttime warrant was dеficient because it was based on clearly insufficient and inadequate reasons and would not have relied on it in executing the nighttime search. However, the court also concluded the evidence seized in the search of the parents’ residence was admissible under the inevitable discovery doctrine because the officers did not act in bad faith to accelerate the discovery of evidence and because the evidence would have inevitably been discovered based on the information law enforcement had about Torkelsen’s activities at his parents’ house, including the statements from witnesses about Torkelsen’s activities in the garage and alley areas of his parents’ residence.
[¶ 36] We agree with the district court that the evidence seized during the search of the parents’ house should not be suppressed; however, we conclude the сourt reached the correct result for the incorrect reason. See Roth,
[¶ 37] In United States v. Searp,
[¶ 38] In this case, there was reasonable cause for a nighttime search because there was a reasonable probability that the evidence sought would no longer be at the
[¶ 39] We conclude there was reasonable cause for a nighttime search and the district court did not err in allowing the admission of the evidence seized during the search of Torkelsen’s parents’ home. Because we conclude there was reasonable cause for the nighttime search, we do not need to consider whether the inevitable discovery doctrine would apply.
Ill
[¶ 40] Torkelsen argues the district court denied his constitutional right to represent himself. He contends that his request for the court to accept his attorney’s motion to withdraw as counsel and to allow him to ask the witnesses questions was a request to represent himself and that the court was required to inquire about his request and make findings about the basis of its denial.
[¶ 41] We review claims that a defendant’s constitutional rights were violated de novo. State v. Ochoa,
[¶42] The request for self-representation must be clear and unequivocal. See United States v. Edelmann,
[¶ 43] Furthermore, the request must bе timely, the defendant cannot use self-representation to disrupt and delay the proceedings, and the defendant must be able to knowingly and intelligently forgo the benefits associated with the right to counsel. Edelmann,
[¶ 44] In this case, Torkelsen’s attorney moved to withdraw as counsel prior to trial, but Torkelsen • did not request to represent himself prior to trial. Torkelsen claims he requested the right to represent himself on the fifth day of trial, during a discussion about Torkelsen’s defense strategy:
“THE COURT: Okay. Is there — Mr. Merrick, are thеre any other additional questions at this time that you wish to ask Mr. Causer or Mr. Steen or Mr. Keeney.
MR. MERRICK: No, Your Honor.
*656 THE COURT: Okay.
THE DEFENDANT: Excuse me, Your Honor. If they don’t, I — I believe you haven’t ruled on his motion to withdraw as counsel. That’s still under advisement for the last six months.
THE COURT: Right.
THE DEFENDANT: I ask that now you do accept his motion to withdraw as counsel.
THE COURT: You’re really asking me to let your attorneys go—
THE DEFENDANT: These questions — he’s trying to tell you, he asks— he just asked you now when you asked him again, he said I don’t — he admits that Steen in one statement says in the law library and in another statement says in the cafeteria.
Well, in fact it wasn’t in the law library. It was in the — he says — Mr. Merrick says what is the significance of that. Well, the significance is he’s changing his story repeatedly. You’d think they’d have gotten one story and stuck with it, Your Honor. And I — I insist that either I alone sit here and be allowed to ask these questions so I’m not tugging on his sleeve and being ignored.
He said he wonders what the significance of asking Causer what this — if there’s any significance between Causer one story one or two or three miles, six or eight or ten minutes and — or 12 or— 12 miles — odd miles back to Cando to wash his pickup.
Now, either he’s going to ask him or I — or I’ll sit here and ask him. It will take me longer in between questions, but at least I’ll — there will be some thought put into each question.
THE COURT: Your request for counsel to be dismissed based on the motion— THE DEFENDANT: I—
THE COURT: — is denied. Counsel will continue to address the witnesses in the court in representing the defendant. And, Mr. Torkelsen, you — the same behavioral rules that I set forth yesterday will apply.”
[¶ 45] Torkelsen claims the district court erred in denying his request without inquiring whether he was waiving his right to counsel and without making any findings of fact about the basis of the denial. Torkelsen’s alleged waiver of his right to counsel and request to represent himself was equivocal. Torkelsen’s request must be viewed within the context of the situation. Torkelsen disagreed with how his attorney was questioning certain witnesses and his attornеy’s trial strategy. Torkel-sen’s 'request was an impulsive, emotional response to his frustration with his attorney, rather than a clear and unequivocal invocation of the right to self-representation. See Reese,
IV
[¶ 46] We conclude the district court did not err in denying Torkelsen’s motion to suppress the evidence seized during the searches of his camper, pickup, and parents’ house. We also conclude Torkelsen’s constitutional right to represent himself was not violated. We therefore affirm Torkelsen’s conviction.
Concurrence Opinion
concurring m the result.
[¶ 48] This trial should never have been held. Steven Torkelsen’s original judgment of conviction should have been affirmed.
[¶ 49] The majority ruled that there was no reasonable suspicion to justify the stop of Torkelsen’s vehicle. Reasonable suspicion is a minimal burden easily satisfied in the record. See State v. Robertsdahl,
Torkelsen was seen at the crime scene shortly after an apparent homicide. He did not seem surprised by the sight of a burning body. He had a known history of violence and threatened violence. He failed to yield to approaching emergency vehicles. He was leaving the community where the crime had apparently been committed under circumstances that suggested flight. These factors taken together provided the officers with a reasonable suspicion to stop Torkelsen for questioning about an apparent homicide.
Id. at ¶ 37 (Sandstrom, J., dissenting).
[¶ 50] Dale V. Sandstrom