State v. Torkelsen, 752 N.W.2d 640

State v. Torkelsen

752 N.W.2d 640

N.D.

2008

Check Treatment

*1 apartment “apparent- Lunde’s “searched” 2008 ND 141 states, The affidavit ly” his consent. Dakota, STATE of North Plaintiff officers to allowed check [Lunde] “Marcus Appellee for ‘CJ’ and Lunde also told apartment Sunday had not seen ‘CJ’ since officers he illogical think July 16th.” It seems TORKELSEN, Steven Arthur Lunde would have allowed law enforce- Defendant and apartment ment to look to see Appellant. if present drugs,

whether “CJ” was No. 20070140. drug paraphernalia, incriminating or other plain sight. evidence was Supreme Court of North Dakota. Law enforcement acted reason- [¶ 38] July 21, 2008. I ably good and in faith. would affirm. Dale V. Sandstrom

[¶ 39]

CROTHERS, Justice, dissenting. I respectfully dissent. good-faith exception I believe a exclusionary

to the rule exists under the

North Dakota for the Constitution reason by

articulated Justice Sandstrom in State ¶¶ Herrick, 32-37, (Sandstrom, J., concurring). I

N.W.2d 847 judgment

would affirm the district court’s analysis that court’s

based on and determi- probable lacking

nation that cause was good-faith exception applied.

that the See ¶ However,

Majority Opinion at 8. I do not

join today Justice Sandstrom’s dissent be- disagree

cause I the search this case supported probable cause. See

Sandstrom, J., dissenting at 32. Daniel J. Crothers *4 (argued),

Lonnie Olson Ramsey County Lake, ND, Attorney, State’s Devils Lisa Beckstrom (appeared), Gibbens County Cando, Towner Attоrney, State’s ND, *5 plaintiff appellee. for Daniel Eric (argued) Gast and Ross (on brief), Brandborg ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ND, Wheeler Fargo, for appellant. defendant and CROTHERS, Justice. appeals

[¶ 1] Steven Torkelsen from a criminal judgment jury after a found him guilty of murdering Rebecca Flaa. We affirm, concluding the district court did not err in denying sup- Torkelsen’s motion to press seized, and Torkelsen was right denied the represent to himself. I At approximately a.m., 9:00 on Belzer, June farmer, Tom a local discovered a body human burning ditch east of Cando. Belzer told one of his employees to call emergency personnel. Before law arrived, enforcement officers Torkelsen drove up to the scene in his pickup, stepped road, out onto the asked if any Belzer help. needed Tor- kelsen was smoking cigarette time, cigarette and a containing butt Tor- kelsen’s DNA was grav- later found on the el road body. abоve the Belzer told Tor- area, kelsen to leave the and Torkelsen complied request. with the to a camper search of his twice and law officers search When enforcement [¶ arrived, them about .Torkelsen. of his three re- pickup told times. Zachmeier Belzer bulletin was issued A “be on the lookout” quested permission photo- en route to pickup. hands, arms, While for Torkelsen’s graph Torkelsen’s back and scene, Dakota Bureau of crime North legs, Torkelsen Zachmeier consented. Craig Za- Investigations Agent Criminal noticed an odor alcohol on Torkelsen’s jack- Marlins green saw a Florida chmeier breath, had and tests showed he a blood road, proceeded in the middle of et percent. alcohol concentration of .003 At jacket to the crime scene. on approximately p.m., 3:00 read Zachmeier from crime on a direct rоute located consent to Torkelsen written search arrived at the Cando. Zachmeier scene form, language which included about a.m., but around 10:30 later crime scene right to the to refuse consent search. jacket. He no- to collect the went back for signed consent forms jacket, was later on the which ticed blood pickup. searches of the as blood. and confirmed Flaa’s tested p.m., approximately 6] At 3:30 Tor- p.m., 1:26 Tor- approximately At kelsen and law enforcement officers ar- miles west stopped kelsen’s vehicle was camper, rived located on Abra- at the informed that he of Cando. Torkelsen was hamson farm. Torkelsen consented to questioning and would be was wanted officers again showed how safety. for his own handcuffed camper. unlock and enter the Law en- Cando, pickup and his transported incriminating forcement officers found evi- *6 stop. left at the scene of the was camper, including in the tissue con- dence were re- Torkelsen’s handcuffs [¶ 5] blood; taining appeared what to be human upon his arrival at the Towner moved marijuana rolling cigarette packs; papers; County began Zachmeier Sheriffs Office. them; Flaa’s on a video papers with name approximately Torkelsen at interviewing appeared case with what to be cassette was p.m., and the interview video- 2:15 it; human on a cupboard, blood on blood his Mi- read taped. Zachmeier Torkelsen doors, a molding, ceiling; cabinet and randa rights, acknowledged and Torkelsen name bag containing makeup with the them. Zachmeier informed he understood Becky; tip knife with a broken in the a arrest, Torkelsen he was under but sink; marijuana cigarette and cigarette be- being questioning was detained for butts; name papers and with Tоrkelsen’s scene; however, he at the crime cause was p.m., 5:00 approximately on them. At be- not tell Torkelsen Zachmeier did search, camper leaving fore the site of the asked free leave. Zachmeier Torkelsen to a again consented Torkelsen hap- to him what if he could talk about to Torkelseris pickup. going Before morning, Torkelsen con- pened that gave something pickup, officers Torkelsen Torkelsen sented. Zachmeier asked what drink, request eat denied he ran Belzer. earlier he saw when into stop house. parents’ at his day, staying, he was where what Tor- p.m., At 6:20 the officers and [¶ 7] doing. he had been Torkelsen said he at the for the search. pickup kelsen arrived in stayed parents’ house Cando a consented to search of Torkelsen night, but went to his previous The pickup officers searched again. then a morning, watched movie hair; burnt fab- found human pickup and slept. requested Zachmeier Torkel- ric; sheet, later bloody bed which was pickup to search his sen’s consent blood; Flaa’s tested and confirmed as camper, and Torkelsen consented to a knife; case; pillow blanket with hairs back county to Cando on a rural road out it; .270 caliber rifle cartridges; way, on three of his when he saw Belzer and asked nylon rope; plastic bags. and black any if he help. needed He said that after completed p.m., search was around 7:45 Belzer, he talked to he returned to his transported and Torkelsen was back to house, parents’ showered, changed his Cando for a second interview. clothes, left, then after which law enforce- ment stopped his vehicle and took him into p.m., Highway At 6:30 [¶ 8] Patrol custody. Torkelsen also pair said he left a Trooper Kennedy Robert learned from an- of work boots and a pair of tennis shoes at other law enforcement officer that Torkel- house. gave description He sen and Flaa had staying together been Flaa, which the body matched found in farm, the Abrahamson owned J.R. Gib- ditch, green and identified the Florida Kennedy bens. visited with Gibbens and jacket Marlins as Flaa’s. padlocked learned Gibbens had the farm- lip claimed Flaa cut her bloody and had a house a prevent week earlier to explain nose to the blood found in the and Flaa from it. At using p.m., 7:40 camper. p.m., At 10:05 Torkelsen consent- signed Gibbens a consent form allowing ed give a saliva sample for DNA. Tor- officers to search the farmhouse located on formally kelsen was arrested taken to p.m., the Abrahamson farm. At 8:45 offi- Region the Lake Correctional Center at cers searched the farmhouse and outbuild- approximately p.m. 11:30 ings and found a magazine document аnd a farmhouse, name At p.m., around 11:30 Zachmeier clump of auburn hair similar to Flaa’s in parents, interviewed Torkelsen’s Art and garbage bathroom and a spot of blood Leona They Torkelsen. said Torkelsen living room. Flaa, had been with he came to their home on June 24 get candy Flaa, At p.m., 9:45 and food for Torkelsen was inter- but he time, viewed a told them she gone second when he and the interview camper. returned to the Art videotaped. and Leona Zachmeier read Torkel- Miranda sen the Torkelsen consented to a warning again, search of their and Tor- *7 house, kelsen but Art Torkelsen acknowledged he later revoked his understood his house, consent. rights. The officers left the Torkelsen reviewed the but consent to search one officer came forms and back to watch the stated he did not house. have problem applied Zachmeier by with the for a searсh warrant camper searches of his telephone and and in pickup. support testified Zachmeier asked of the Torkelsen about warrant. requested the Zachmeier the during evidence found war- the rant authorize a searches. Torkelsen no-knock search said he was in a sex- nighttime ual service. relationship with Zachmeier Flaa. He said that testified a nighttime stayed she justified with him in warrant was camper his on be- June 23, they that cause were camper investigating he left the the next morn- serious offense, ing to because he go parents’ Cando, to his was concerned house in Torkel- parents may sen’s try get Flaa was at camper not the rid of evi- when he son, p.m. protect returned at 9:00 dence to their night that and because and that he thought parents she left to had go posted back to a substan- her boyfriend. He said tial bond for him stayed at before. A search par- war- 26, a.m., ents’ house on rant June 25 and but he was authorizing left issued 2:28 parents’ house at 6:00 a.m. on search of Art June 27 and Leona Torkelsen’s home returned to the slept where he for controlled substances and items con- until 8:30 a.m. He stated he was traveling nected to the murder. The warrant in- previously Torkelsen had beaten pro- thought nighttime service no-knock eluded Flaa magistrate badly authorized and that had two dark issuing The Flaa visions. said, on the picked “Based search and suitcases when Torkelsen nighttime colored crime, the on based seriousness the received information up. her Officers resi- owners of the unwillingness the 1, July on who re- from another witness night search a help you in the dence to seeing pick- wash out his ported au- warrant is of this search time service Cando, the car wash in at around up at thorized.” on 27. 10:00 a.m. June executed the search The officers 11] [¶ in the body burning found a.m., did at 2:45 and Zаchmeier warrant Authorities was identified as Flaa. ditch They the search. participate not by caused determined Flaa’s death was Art doorbell to wake rang the knocked by to the head and blunt force trauma did use and Leona Torkelsen charged was asphyxiation. Torkelsen The officers seized provision. no-knock murder. her garage were located which boots trial, Before Torkelsen moved 16] [¶ had on the splattered with blood and hair on suppress or dismiss shed, fire- bottom, cans gas from grounds. Amendment The district Fourth arms. motion, and he court denied Torkelsen’s 2004, 28, officers talked On June plea guilty an conditional entered Alford pour gas who saw Torkelsen a witness Alford, 400 U.S. under North Carolina gas a red can on pickup into his from (1970), 160, 27 L.Ed.2d 162 91 S.Ct. alley in the morning of June behind 11(a)(2), reserving the and N.D.R.Crim.P. witness, one of house. A second parents’ right appeal. appealed re- neighbors, Art and Leona Tоrkelsen’s judgment, arguing district criminal place yellow seeing Torkelsen ported sup- denying erred in motion on can woman’s shirt the witness’s trash Torkelsen, ND In press. State Two indi- morning of June 27. other this reversed 718 N.W.2d Court acting reported seeing Torkelsen viduals the ini- concluding judgment, the criminal from his as he unloaded items strangely illegal stop of Torkelsen’s vehicle tial house on truck at his June the officers stop, time of because afternoon, Later a second articulable have a reasonable and did not on a near reported farm burn site in crimi- engaged had suspicion Torkelsen grass leading to coulee bank. The activity. nal tire packed down vehicle burn site *8 remand, moved to On 17] [¶ the tracks, later determined and officers and the videotaped his interviews suppress closely matched the measure- tire tracks camper, pickup, in the found pickup. Officers evidence of Torkelsen’s ments house, buckle, tag, arguing the evidence pants, luggage parents’ found a belt his stop The butt of cigarette cigarette illegal as of the and a butt. a result was seized therefore, A dive and, Torkelsen’s DNA. contained the evidence vehicle his also completed, the was search of coulee poison- suppressed as “fruit of must be appeared to be found what and officers denied The district court ous tree.” a suitcase. The next frames from metal was motion concluded name day, piece paper a of with Flaa’s voluntarily admissible because nearby. found person, of his the searches consented illegal truck; any taint of camper, and officers inter- On June 14] [¶ probable purged; stop that he who stated viewed witness law, cause to issue search warrant for fully Torkel- appeal. Graf, reviewable on home, ¶ sen’s there was not at 7.

probable nighttime cause for search war- rant; search nighttime warrant did not A satisfy good-faith exception; the evi- argues [¶ 20] Torkelsen the dis dence found in the camper and Torkelsen’s trict court in failing erred to suppress the parents’ house would have been inevitably statements he made during the interviews discovered; and camper evidence from the with law enforcement and the evidence pickup would have been found in a seized as a result of the statements he by search authorized probation during made the interviews because the officer. testimony evidence and was obtained as a attempted

[¶ 18] Torkelsen play an result illegal stop of the of his vehicle and defense, active role in writing letters to detention, illegal and therefore the court, motions, filing and often inter- statements and evidence must be excluded rupting proceedings if thought some- as “fruit of poisonous tree.” He also thing being correctly. was not done Previ- contends his consents to the interview and ous appointed attorneys court withdrew the searches of and pickup do representation their of Torkelsen. The at- not sufficiently purge the taint of the un torney represented trial, who him at stop. lawful Merrick, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Thomas E. also moved to with- Under Fourth draw as During counsel. fifth day Amendment of the United States Constitu trial, Torkelsen asked the court whether it tion and article section 8 of the North accept would Merrick’s motion to withdraw Constitution, Dakota all searches and sei counsel, as and the court denied his re- zures must be A reasonable. warrantless quest. jury found Torkelsen guilty of person’s search of a home is presumptively Flaa, murdering and he was sentenced to unreasonable, but a warrantless parole. life without may be if reasonable it falls under one of the exceptiоns

II to the requirement. warrant ¶ Graf, 2006 ND 721 N.W.2d 381. [¶ 19] Torkelsen first claims the “Consent is exception one to the warrant district court erred failing suppress requirement,” but the consent must be evidence. When reviewing decision on a voluntary and the State has the burden of motion suppress, we recognize the court ¶¶ proof. Id. at 9-10. Whether an indi has an opportunity to observe the wit vidual voluntarily consented to a nesses and search is to assess their credibility, and question of fact that we must be defer to the court’s determined findings of fact and by looking at totality resolve conflicts in of the circum testimony in favor of “ stances. affirmance. Id. Graf, ‘[B]ecause State v. the [dis ¶ 7, 721 is in superior position trict] N.W.2d 381. We will affirm “ judge court’s credibility decision if weight, ‘there is sufficient com we show *9 petent great fairly capable evidence deference to the support of court’s determi [ ] ” ing the Genre, nation of findings, [district] court’s and voluntariness.’ the State v. ¶77, 30, decision is not contrary to the 2006 ND manifest N.W.2d 624 (quoting ¶ weight of Helmenstein, the evidence.’” Id. State v. (quoting 2000 ND City Fargo 581). v. Thompson, 520 N.W.2d 620 N.W.2d “Consent is voluntary of (N.D.1994)). 578, 581 Whether a when it finding product is the of a free and uncon of fact legal meets a question standard is a strained choice and not product the of coereion[,]” terview was focused on evidence found and to decide wheth- or duress searches, voluntary we consider: during the but Torkelsen re- er consent is and “(1) cooperative mained calm and was not of the and condition characteristics consent, of the time the intimidated. The court also found that the accused at race, level, sex, education including age, any were grounds no claims of condition, prior and physical or mental during the officer misconduct interviews (2) and the de- experience police; with unreasonably that the were co- or officers in which the consent setting tails of the in attempting get ercive Torkelsen to obtained, including the and duration was upon cooperate with them. Based its de- detention, police attitude of conditions analysis, tailed the court found Torkelsen defendant, and the diverse toward the voluntarily agreed to the interviews and sap powers the pressures that accused’s the searches was his consent for volun- control.” of resistance or self tary totality based on the of the circum- ¶ Haibeck, v. (quoting at 31 State Id. is stances. We conclude there sufficient 512). ¶ 163, 21, ND 685 N.W.2d the competent supporting evidence court’s provided court The district [¶ 22] findings decision not and the court’s is analysis of thorough and detailed whether contrary weight manifest of the the of the the evidence from the searches evidence. inter- and Torkelsen’s camper pickup Although Torkelsen vol was with law enforcement admissi-

views untarily the consented to intеrviews found Torkelsen volun- ble. of the pickup, searches on tarily to the searches based consented because, inquiry not end there ac does the circumstances. The totality of decision, cording prior our consent Torkelsen’s characteris- court considered by illegal police preceded was action. condition, including age tics unlawfully Generally, seized evidence education, experience his extensive of Amendment must violation the Fourth enforcement, rights law his Miranda suppressed exclusionary under the rule. be acknowledgment and given and his were ¶ Utvick, 36, 26, 2004 ND State them, very his use of a understanding of “Any 387. evidence obtained as N.W.2d alcohol, lack of intim- small amount of evidence must illegally acquired result of idation, cooperativeness. The and his poison as ‘fruit of the suppressed factors be weighed [also] court concluded these ” The cоurt also consid- Gregg, favor of consent. tree’.... ous State in which the consent setting ered was However, evi 615 N.W.2d obtained, including that Torkelsen dealt poison fruit of the dence characterized as throughout officers with different if “it was may tree be admitted ous still night; no existed law en- produced by exploiting illegally intimidation made forcement exerted or ‘unpoi- Id. “This acquired information.” Torkelsen; Torkelsen promises achieved soning’ may fruit be during under arrest told was not ‘independent- of the through State the use interview, was not told he first but he ‘inevitable-discovery exception,’ source leave; free the first interview exception’ to or the ‘attenuation exception,’ conversational; cooperative Torkelsen was ¶at 40. exclusionary rule.” Id. requests; to the officers’ consented the attenuation Under water; gave food and officers challenged evidence should exception, the for Torkelsen’s consent officers asked product only if it is be excluded times, gave con- multiple *10 activity. Evidence “is illegal government in- request; and the second sent each isted, poisonous simply not the fruit of a tree including: the 20 to 30-minute ride light it would not have come to because interrogation, Cando without the arrival action illegal police; without the of the of a new officer who removed Torkelsen’s rather, inquiry proper the is whether the Torkelsen, cuffs and had not detained the by exploitation evidence was obtained lengthy periods of time spent alone in illegal by the action or sufficiently means room, the interview warnings the Miranda distinguishable purge the evidence of given, his consent to photographs of his primary Gregg, the taint.” 2000 ND body, the testing administration of alcohol ¶ 41, A 615 N.W.2d 515. defendant’s act of by officer, a different and his awareness may purge primаry free will the taint of an that place he must submit his of residence “ however, illegal stop; ‘voluntary consent and vehicle any to search at time search, preceded by illegal police to a an probation officer with or without action, automatically does not purge the warrant. The court concluded these fac- ” taint illegal of an detention.’ State v. tors could be considered intervening cir- Smith, 21, ¶ 26, 691 N.W.2d 203 cumstances breaking the chain of events Becker, (quoting United States v. 333 F.3d leading illegal from the stop to the consent (8th Cir.2003)). The consent must for the The searches. court said the third voluntary, be but we must also consider important and most purpose factor was the following the factors to determine whether flagrancy of the official misconduct. the taint purged from the evidence In this case there was an absence of fla- “ ‘(1) temporal proximity seized: be grant miscоnduct. The court found the illegal tween the search or seizure and the officers’ misconduct in unlawfully stopping (2) consent; presence of intervening Torkelsen’s vehicle was flagrant be- (3) circumstances; purpose cause there was no evidence of officer ” flagrancy of the official misconduct.’ intimidation, abuse or no evidence of phys- ¶ Smith, Becker, (quoting 333 F.3d at harm, ical or mental and no evidence the 862). The evidence seized the search knowing officers acted stop was illegal will still be fruit poisonous of the tree or improper. Although the court stated if the purge consent does not the evidence case, this awas close it concluded the taint of the taint police activity. of the unlawful illegal stop purged and the Smith, at 26. evidence from the searches and evidence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍[¶ 25] The district court applied the collected during Torkelsen’s interviews thrеe factors from Smith and concluded with law enforcement should sup- not be voluntary purged consent the taint of pressed. the illegal stop. The court found that the case, In this ais short temporal proximity was rather short be- period of time illegal between the stop and cause the time the stop between and oral However, the consent. may the consent hour, consent was about one that the time be sufficient purge the taint even with between stop and the written consent only a short time between the consent and half, was about an hour that Torkel- illegal police action if other circum- sen was not free to leave and that he was stances indicate the consent was sufficient- not informed he could refuse the consent ly See, an act of free will. e.g., until United presented. written consent was States v. However, Esquivel, 507 F.3d temporal proximi- court said (8th Cir.2007) (consent ty аlone, must not was an act of be considered free and the other will and sufficiently purged factors favored finding the consent the taint when purged the taint illegal stop. given of the consent was approximately min- nine court found intervening circumstances ex- utes after the defendant’s detention ceased

651 ” Stark, See police inter- of misconduct.’ other rence being were valid because States United v. mis- at 77 (quoting and no official 499 F.3d vening circumstances (7th Cir.2003)). stopped Reed, conduct). 457, vehicle was F.3d 464-65 interview po- Torkelsen’s first consider the p.m. [ ] at 1:26 courts “whether Some 2:15 began approximately police threatening with or abusive tactics lice used of his to the searches p.m., consented he of impropriety [] the the [and whether] interview, camper during the Stark, and pickup initial misconduct was obvious.” approxi- consent gave and he written Here, at 77. law enforcement did 499 F.3d consent p.m. gave mately 3:00 tactics, or and not use coercive abusive the an forty-five minutes to for the searches not an stop of Torkelsen’s vehicle was stop, the and illegal half after hour and a legal error. The district court obvious Al- during this time. he detained was flagrant was an of found there absence short, temporal proximity is though the and misconduct there was no evidence the was indicate the consent the other factors stop illegal. knew the was officers act of free sufficiently an will. supports findings. evidence the court’s can Intervening circumstances [¶ 27] supports The evidence the dis- [¶ 29] to may refuse telling suspect a he include findings that Torkelsen volun- trict court’s search, of suspect the advising consent to interview tarily consented the loca- or the his Miranda rights, changing searches, we Torkelsen’s vol- conclude the officer questioning tion a nеw independent was cause untary consent an and com- he is relaxed defendant when discovery challenged of of the the Illinois, v. Brown 422 U.S. See posed. illegal stop. the taint purged of 45 L.Ed.2d 95 S.Ct. admitting court did not err in The district (1975) (Miranda may not warning alone during evidence seized the searches factor); United taint, it is break the to law enforce- and Torkelsen’s statements (1st Stark, Cir. States F.3d ment. 2007) in a new officer (interrogation relaxed new when defendant is location B significant intervening is composed Torkelsen contends the Becker, event); (informing 333 F.3d at 862 admitting the evi court erred in district to consent is right refuse defendant during nighttime search seized dence event). had intervening an He claims evi of his house. his Miranda told he rights, been read suppressed have be should been dence arrest, informed was not under probable separate there was not cause searches, could to consent to the refusе authorizing nighttime justify cause transported to loca- had a different been applying court erred con- police tion the unlawful from where discovery after conclud inevitable doctrine occurred, questioned by a differ- duct probable not cause ing there was officer, relaxed, cooperative ent and was good-faith excep nighttime search and the requests. with the officer’s complied apply. did not tion facts suffi- We these constitute conclude intervening cient circumstances. only is “An individual [¶31] the exclusion protection to the entitled courts concluded the Some have if ary challenge search] rule [and flagrancy of official mis- purpose and “ rights Fourth Amendment individual’s own important most factor ‘be- conduct is the of a third rights violated directly the rationale were cause it is tied Oien, State rule, deter- underlying exclusionary party.” *12 652 An individual is 593. entitled the warrant at a time other than day-

717 N.W.2d ¶ exclusionary of the protections Roth, to claim the time. at 22. many There are expectation a reasonable rule if he has of circumstances under which there would be privacy place in the searched. Id. “A probable search, nighttime cause for a in- a guest generally expecta- has reasonable cluding showing when there is a that evi- in privacy tion of Id. [host’s home].” may sought quickly easily dence be ¶ 9. at least a guest at Torkelsen was ¶ Fields, disposed However, of. parents’ slept house. He often at his there believing must be some basis for parents’ kept house and some of his be- destroyed evidence will be night- without a longings there. Torkelsen had a reason- time search than other the fact the evi- expectation privacy parents’ able of dence exists. Id. and, therefore, may challenge house case, In this applied [¶ 33] Zachmeier search. for a search warrant requested au- concedes [¶ 32] nighttime thorization for a search because probable there was cause to issue a search “what we are investigating here is a seri- house, parents’ argues warrant for his justification ous crime—a can get rid of separate probable there was not cause parents evidence. That protect can their nighttime issue a warrant for a search. might kids and that happen, and then the 41(c)(1)(E), Under N.D.R.Crim.P. a war Torkelsens have on posted occasion sub- rant daytime, must be served in the “un stantial bonds Steve Torkelsen get authority, by issuing appropriate less the jail So, him out past. of I would warrant, provision in the and for reason request a nighttime search warrant.” The shown, able cause authorizes its execution issuing magistrate nighttime authorized a daytime.” than times other This Court search and probable concluded cause exist- nighttime has said cause for a reasonable ed crime, because of the seriousness of the search requires separate showing of because of the information that Torkel- Fields, probable cause. State 2005 ND ¶ parents evidence, sen’s 15, might destroy 691 purpose N.W.2d 233. The “ because of the protect being rule ‘is to citizens from homeowners’ withdrawal of subjected to the trauma of unwarranted their earlier consent ato search. nighttime long searches. Courts have rec Acting on Torkelsen’s motion to ognized nighttime searches constitute suppress, the district court concluded greater privacy day intrusions on than do probable was not cause to authorize ” time searches.’ (quoting Id. State v. nighttime search: Schmeets, (N.D. 278 N.W.2d serious, “While the crime is this court 1979)). “Necessity nighttime for a search can permits find no case law which exists ‘where possi there is a reasonable nighttime search upon based seriousness bility fruits, that the instrumentalities or of the crime. The officer also stated that sought of crime would not be parent may destroy evidence pro- expected to premises be at the searched tect a present- child. There are no facts during day or might be removed or ” ined this case to suggest that the Tor- if dissipated delayed.’ the search is See had kelsens done so or would do so for State, Roth v. their son. How they destroy could fire- Richardson, (quoting N.W.2d 882 State arms, boots, clothing, gas (1995)). cans. 80 Hawai'i 904 P.2d The officer testified that he had no The focus of a court’s idea decision whether to grant request how nighttime destroyed for a the evidence would be must upon necessity be for executing and there was no mention that the items par- agree We district or cleaned be washed would during that the evidence seized the search ents. sup- of the house should not be vague history posting bond *13 “The however, pressed; we the court conclude justify nighttime not a then son does for reached the correct result for the incorrect abiding, were parents The law warrant. ¶ Roth, See reason. it is to con elderly absurd citizens reviewing probable In cause N.W.2d 882. destroy would remove or they clude determinations, or marginal doubtful cases investiga the death upon based evidence magistrate’s are resolved in favor of the that the they While were aware tion. Id. at 18. this is a Although decision. charged two with Defendant had been case, we the court close conclude district offenses, charged had not been drug concluding in there was not reason- erred body. the death of the unidentified a cause for search. nighttime able hearing transcript, upon the Based not did meet the bur Agent Zachmeier In v. Searp, United Statеs need (6th demonstrate the necessary Cir.1978), den to F.2d 1117 the defendant record, On this nighttime a warrant. robbery for suspect a in a and officers support no to the find house, there is evidence where he fre- searched mother’s nighttime cause for a ing probable of stayed. The officers aware quently were warrant.” defendant was not at the house be- the state, he had the and the defen- cause fled concluding probable After cause the mother refused to consent to dant’s warrant, nighttime a not exist issue did police applied Id. at 1119. The search. the district court considered whether the warrant, a the warrant was issued for suppressed must be or whether evidence p.m. promptly 11:27 and was executed. exclusionary the the exceptions one of the Although request did not Id. officers both applied. The court considered rule search, nighttime allow a warrant good-faith exсeption the inevitable any judicial officer have court said would discovery The court concluded doctrine. a the cir- night authorized search under apply did be- good-faith exception not be- requested if one had been cumstances reasonably well-trained officer cause mother knew the cause the defendant’s- nighttime warrant have known would her to find wanted to search home police it on deficient because was based by her son of crime committed evidence inadequate reasons clearly insufficient and only pre- an search could immediate relied on it in execut- and would have evi- destruction of the possible vent the However, the nighttime search. ing the court sought. Id. at dence in also concluded the evidence seized have reason- concluded there would been parents’ the search residence nighttime warrant able сause issue discovery the inevitable admissible under factual there was “some basis because officers not act because the did doctrine in- greater that the prudent conclusion discovery faith accelerate bad justi- search is nighttime of a trusiveness the evidence would evidence because of the situation.” exigencies fied inevitably based on have been discovered at 1121-22. Id. information enforcement had about law case, house, reason- In this there was parents’ at his activities Torkelsen’s because nighttime for a from witnesses able cause including the statements probability that the garage in the there was reasonable Torkelsen’s activities about sought longer no be at would alley residence. evidence areas of house if the search possible Torkelsens’ was de- be their house con- layed. pick- After Torkelsen’s necting murder, they their son to the knew up had been searched and he was taken what type of evidence law enforcement law enforcement custody, into interviewed sought, and Arthur Torkelsen revoked his During the parents. Torkelsen’s inter- consent to search the house after a search view, informed law enforcement Torkel- had Although commenced. the house was arrested, body sen’s he had been parents placed surveillance, under an immediate description Flaa’s matching was found search was only way prevent near burning camp- a ditch possible destruction of evidence. Under *14 er, staying Torkelsen, Flaa had been with circumstances, these awas reason- a witness saw near the crime possibility able that the sought arrived, scene law enforcement before law would not be in the Torkelsen’s residence investigating enforcement was whether destroyed or would be if the search was Torkelsen was connected to the homicide delayed, and therefore there was reason- although he had not been arrested for the nighttime able cause for a search. yet, murder consented to [¶ 39] We conclude there reason- searches of his and pickup, blood able nighttime cause for a search and the camper, was found in the Torkelsen said district court did not err in allowing the parents he had been his house earlier in admission of the evidence seized during day, and he said he had changed the search of parents’ Torkelsen’s home. parents’ clothes at pair his house and left a Because we conclude there was reasonable of shoes there. Law enforcement request- nighttime search, cause for the we do not ed Torkelsen’s consent to search need to consider whether the inevitable residence, their and pаr- told Torkelsen’s discovery apply. doctrine would they ents would like to search the resi- shoes, dence clothing, for Torkelsen’s his Ill may items Torkelsen' have thrown in the Torkelsen argues the dis garbage, anything may else that con- trict court denied his constitutional right nect Torkelsen to the homicide. Torkel- represent to himself. He contends that parents sen’s consented a to search of request his for the accept court to house, their and law began enforcement attorney’s motion to withdraw as counsel search, Arthur Torkelsen later re- and to allow him to ask the witnesses voked his consent before officers had fin- questions request was a represent to him ished the search. requested Zachmeier self and that the court required to nighttime warrant because he was con- inquire about request and make find cerned parents might Torkelsen’s try to ings about the basis of its denial. destroy protect evidence to their son. As the court concluded in Searp, 586 F.2d at We review claims that 1122, it is defendant’s par- rights reasonable to believe that constitutional were vi Ochoa, ents who know law olated de enforcement want novo. State v. to 2004 ND ¶43, 15, search their home for evidence 675 of a crime N.W.2d 161. A defendant has may right their child have to committed could de- counsel under the Sixth Amend stroy possible evidence ment of nighttime Constitution, and a the United States may I, necessary prevent be to article 12 section of the North Da destruction of that evidence. kota Constitution. Id. A defendant also parents were aware being their son was has an implied right to represent himself investigated murder, for committing a they Id.) under the Sixth Amendment. Faretta knew law enforcement believed California, there could v. 422 U.S. 95 S.Ct.

655 (1975). “Generally, conclusion that the defendant waived his 45 L.Ed.2d ‘knowing, to right right make a intel- counsеl invoked ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to must the defendant Ochoa, request self-representation. voluntary, unequivocal ligent, ¶ 18, has waived may (quoting conclude he 675 N.W.2d 161 State before (N.D.1984)). Kranz, his right and invoked right to counsel 353 N.W.2d ” ¶ Ochoa, at represent right himself.’ to Whether defendant has waived his Groose, 28 F.3d (quoting right repre- Hamilton and asserted the counsel Cir.1994)). (8th represent In order “depends upon sent himself facts and himself, “knowingly must case, defendant of each in- particular circumstances forgo the benefits associated intelligently” background, experience, cluding the counsel and “should be right Ochoa, accused.” the conduct dangers and disadvan- made aware of Faretta, at self-representation.”

tages Furthermore, the re 835, 95 S.Ct. 2525. timely, the defendant can quest must be request self- [¶42] self-representation disrupt not use *15 unequiv and must be clear representation delay and the defendant proceedings, Edelmann, States v. 458 ocal. See United to knowingly intеlligently must be able (8th Nix, 791, Cir.2006); v. Reese F.3d 808 forgo right associated with the the benefits (8th Cir.1991). 1276, 1280 Assert 942 F.2d Edelmann, to 458 F.3d at counsel. 808. to is a ing right self-representation right self-representation unquali to is counsel; of to therefore right waiver only fied if it is demanded before trial. unequivo clearly must the defendant v. 287 Young, See United States F.3d right knowingly and must cally assert the (11th Cir.2002); 1354 United States self-representa intelligently choose (8th Cir.1986). Wesley, F.2d If 798 1155 Reese, at A defendant’s tion. See 1280. self-representation for is not request represent he rather statement that would timely it is made after the trial because if it is made in may equivocal himself be begins, it is within the court’s discretion to request of a response a court’s denial to however, grant request; the court counsel, may it change in because be must the defendant’s interests balance response rather impulsive, an emotional delay, potential disruption and and the unequivocal invocation оf than clear and on court’s will not be reversed decision self-representation. right to Id. its unless the court abused discre appeal request has does 1281. This Court said Wesley, tion. unequivocal, to necessarily have be but case, attor- In this Torkelsen’s conduct rises to only when the defendant’s ney counsel to prior moved to withdraw as equivalent a functional of the level of (cid:127) trial, request to Torkelsen did not Fischer, voluntary See State v. waiver. prior trial. Torkelsen represent himself ¶¶ 21-23, 760; ND 744 N.W.2d 2008 requested right represent claims he Holbach, 2007 ND 735 State v. trial, fifth day during himself on the of Dvorak, 862; N.W.2d State defense strat- discussion about Torkelsen’s ¶ 15, (pattern of obstruct N.W.2d egy: Harmon, ing process); State v. legal Okay. Is there —Mr. “THE COURT: ¶¶ 20-21, ND 575 N.W.2d 635 Merrick, any other additional are (continued requests for substitute counsel you at this time that wish questions denied). requests having previous after “ Mr. Steen or Mr. ask Mr. Causer or indulge every reasonable ‘Courts should ” Kеeney. waiver[,]’ any against presumption No, Your Honor. against be MERRICK: ambiguity should resolved MR. Okay. in representing THE COURT: court the defendant. And, Torkelsen, you Mr. same be- me, THE DEFENDANT: Excuse Your —the havioral I yesterday rules that set forth don’t, I—I they you If believe Honor. apply.” will on his motion to withdraw haven’t ruled That’s still as counsel. under advise- [¶ 45] Torkelsen claims the district ment for last six months. in denying request erred without Right. THE COURT: inquiring whether he waiving right THE DEFENDANT: I that ask now to counsel and making any without find you accept ings do his motion to withdraw as fact about the basis of the denial. counsel. alleged Torkelsen’s right waiver counsel and request represent THE himself really asking COURT: You’re me equivocal. request must your attorneys go— to let be viewed within the context of the situa THE ques- DEFENDANT: These tion. Torkelsen disagreed with how his trying you, to tell tions—he’s he asks— attorney questioning certain witnesses just you you asked now when asked attorney’s strategy. trial Torkel- him I again, he said don’t—he admits 'request sen’s impulsive, was an emotional says Steen one statement in the response to his frustration with his attor library law another statement ney, rather than a unequivocal clear and says in the cafeteria. invocation of right to self-representa Well, in it fact wasn’t the law li- Reese, tion. See 942 F.2d at 1281. brary. says It was in the—he —Mr. *16 than an equivocal request “[M]ore for self- Merrick says significance what is the representation required] [is before [a Well, significance that. is he’s obligated engage is in to] a full-blown Far changing story repeatedly. You’d Ochoa, inquiry.” 43, ¶ 30, etta they’d story think gotten have one 675 N.W.2d 161. We conclude Torkelsen’s it, stuck with Your Honor. And I—I request was not unequivocal request an to insist that I either alone sit here and be himself, represent and therefore the court allowed to ask so I’m questions these required was not inquire into Torkel- not tugging being ig- on his sleeve and sen’s wishés and did not abuse its discre nored. denying tion in request. Torkelsen’s He said signifi- he wоnders what the right self-representation was not violat cance of asking Causer what this —if ed. any significance there’s between Causer story miles, one one or two or three six IV or eight or ten minutes and —or 12 or— [¶ We 46] conclude the district court 12 miles—odd miles back to Cando to did not err in denying Torkelsen’s motion wash pickup. suppress the evidence seized during the Now, going either he’s him or to ask camper, searches pickup, par- I—or I’ll sit here and ask him. It will ents’ house. We also conclude Torkelsen’s take longer me questions, between right constitutional to represent himself but at least I’ll—there will be some was not violated. We therefore affirm thought put question. into each Torkelsen’s conviction. THE request COURT: Your for counsel to be dismissed based on the motion— WALLE, GERALD [¶ 47] W. VANDE THE DEFENDANT: I— C.J., MARY MUEHLEN MARING and THE COURT:—is will KAPSNER, JJ„ denied. Counsel CAROL RONNING continue to address the witnesses in the concur.

657 at the crime scene was seen Justice, concurring m SANDSTROM, apparent an homicide. He shortly after the result. sight of a surprised did not seem have never trial should This history He had a known burning body. original held. Steven been threatened violence. He of violence have been should of conviction judgment emergency yield approaching failed affirmed. community leaving He was vehicles. apparently had been where the crime majority ruled that circumstances under committed justify the suspicion to no reasonable These factors taken suggested ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍flight. Reasonable vehicle. stop of Torkelsen’s officers with a provided together easily satis minimal burden is a suspicion stop suspicion to reasonable State v. Roberts record. See fied in the apparent about an homi- questioning (The (N.D.1994) 427, dahl, 428 512 N.W.2d cide. mini requires “some Amendment Fourth (Sandstrom, J., dissenting). Id. at 37 justification” for objective mal level of Dale V. Sandstrom 466 Delgado, stop. INS v. making the 1758, L.Ed.2d 104 S.Ct. U.S. (1984)). ful suspicion The reasonable my dissenting opinion

ly explained ¶¶ 20-37, Torkelsen, ND

State v. here: is summarized N.W.2d