State v. Stockert

245 N.W.2d 266, 1976 N.D. LEXIS 133
CourtNorth Dakota Supreme Court
DecidedAugust 24, 1976
DocketCrim. 547
StatusPublished
Cited by26 cases

This text of 245 N.W.2d 266 (State v. Stockert) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Stockert, 245 N.W.2d 266, 1976 N.D. LEXIS 133 (N.D. 1976).

Opinions

VOGEL, Justice.

The issue raised in this case is whether Section 18 of the North Dakota Constitution and the Fourth and Fourteenth Amendments to the United States Constitution permit the search, without a warrant, of the glove compartment of an unoccupied automobile stuck in a snowbank on private property, and the seizure, without a warrant, of the contents of the glove compartment. We hold that the search and seizure were unreasonable, and reverse and remand for a new trial.

On April 20, 1975, shortly after midnight, three employees of the A & W Drive-In restaurant in Dickinson were preparing to leave. While one of them was removing [268]*268snow from the windshield of her car, a man wearing a ski-mask and dark coveralls and holding a rifle, confronted her and said, “Hey, lady, give me the money.” She said she did not have the money because the boss had taken it with him. The man said, “Okay,” and ran away in a northeasterly direction. The incident was immediately reported to the Dickinson police, and an officer arrived about 1 a. m. Due to darkness, the investigation was discontinued until the following morning at about 6 a. m. Two officers then followed footprints from the scene of the attempted robbery to a grove of trees where they found a rifle, a pair of coveralls, and a ski-mask thrust into the branches of an evergreen tree. Two of the officers followed another set of tracks which led to an automobile stuck in a large bank of snow. The driver’s door was locked and the passenger doors were blocked with snow. After examining the car’s exterior, one of the officers entered the vehicle through an unlocked rear door on the driver’s side. He opened the glove compartment and removed a billfold, some money, a driver’s license, a vehicle registration card, and a “plastic bag containing green plant material.” The critical question in this case concerns the admissibility at the trial of the driver’s license found in the billfold taken from the glove compartment. It was offered and received in evidence at the trial to identify the defendant as the person committing the attempted robbery. A motion to suppress was made prior to trial and was denied. A motion to sever the two charges of attempted robbery and possession of marijuana was granted, but a motion "for mistrial, made when one of the officers testified at the trial as to the finding of the bag of green plant material, was denied.

The State argues in the alternative either that the entry into the glove compartment and the removal of the contents were not a search and seizure, or that they were justified by the provisions of Section 39-04-55, North Dakota Century Code, which requires, in part:

“The registration card issued for a vehicle shall be carried in the driver’s compartment of the vehicle ... at all times while the vehicle is being operated upon a highway in this state. Such card shall be subject to inspection by any peace officer or highway patrolman.

I

Before going farther, we pause to dispose of the motion of the State to dismiss the appeal. The State alleges that the appeal should be dismissed because the appellant’s brief does not state the issues to be considered by the court on the appeal, and that the appeal is denominated on the title page of the brief as an “appeal from order denying motion to suppress.” These contentions are insufficient. The notice of appeal specifies that it is from the judgment. Such a notice, if timely, as it is here, is sufficient to permit the raising of all questions of law on which the trial court has ruled in a criminal case. See State v. Haakenson, 213 N.W.2d 394 (N.D.1973). Furthermore, defendant’s statement in his brief of the issue raised by the appeal (“whether the police have a right to conduct a warrantless search of an automobile immobilized upon private property”) is sufficient to raise the issue before us. A mere misdescription of the kind of appeal on the title page of a brief is not fatal to the appeal.

II

In State v. Matthews, 216 N.W.2d 90, 99 (N.D.1974), we stated three basic premises in search-and-seizure cases. The first was that “all searches made without a valid search warrant are unreasonable unless they are shown to come within one of the exceptions to the rule that a search must be made upon a valid search warrant” [quoting State v. Gagnon, 207 N.W.2d 260, 263 (N.D.1973)]. The second is that where a violation of the Fourth Amendment provision as to search and seizure is asserted, the burden of proof on a motion to suppress is on the State. The third is that “ever since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 [269]*269L.Ed.2d 1081 (1961), evidence obtained by search and seizure violative of the Fourth Amendment is, by virtue of the Due Process Clause of the Fourteenth Amendment, inadmissible in State courts. State v. Manning, 134 N.W.2d 91 (N.D.1965).”

State v. Matthews was a case where a sealed package containing marijuana, which had been transported by bus, was opened by or at the request of police officers and then resealed and held by the bus company until it was called for. The police were then notified. The police arrested the person who called for the package after he had it in his possession. We held that the search and seizure were violative of the constitutional rights of the defendant, pointing out that, among other things, the police had ample time within which to obtain a search warrant from an impartial magistrate.

We also pointed out in State v. Matthews that the existence of probable cause to believe that a crime had been committed, alone, without a search warrant or a simultaneous, valid arrest or other exigent circumstances, was insufficient to justify a warrantless search. In State v. Iverson, 219 N.W.2d 191 (N.D.1974), we held that a belief, however well founded, that contraband is concealed within a dwellinghouse furnishes no justification for a search without a warrant, and that a search unlawfully undertaken is not made valid by evidence of crime which it brings to light. These principles are equally applicable to the case before us.

The State strenuously urges that searches of automobiles are treated differently from searches of dwellinghouses and other buildings, citing State v. Binns, 194 N.W.2d 756 (N.D.1972); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). To these might be added the very recent cases of South Dakota v. Opperman, - U.S. -, 96 S.Ct. 3092, 49 L.Ed.2d - (1976), and Texas v. White,

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State v. Meadows
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State v. Opperman
247 N.W.2d 673 (South Dakota Supreme Court, 1976)
State v. Stockert
245 N.W.2d 266 (North Dakota Supreme Court, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
245 N.W.2d 266, 1976 N.D. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stockert-nd-1976.