State v. Frye

• Decision Date: 29 September 1976
• Docket Number: No. 551,551
• Citation: 245 N.W.2d 878
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. James Edward FRYE, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 878

245 N.W.2d 878

STATE of North Dakota, Plaintiff and Appellee, v. James Edward FRYE, Defendant and Appellant.

Crim. No. 551.

Supreme Court of North Dakota.

Sept. 29, 1976.

Rehearing Denied Oct. 15, 1976.

Syllabus by the Court

1. Probable cause exists where the facts and circumstances within an officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.

2. For the reasons stated in the opinion, it is clear that the arresting officer in the instant case had reasonable cause to believe that a felony had been committed and that the person arrested without a warrant had committed it. Section 29--06--15(3), N.D.C.C., U.S. Const. Amend. IV.

3. A period of three days between arrest and bringing the defendant before a magistrate is not an 'unnecessary delay' under Rule 5(a), N.D.R.Crim.P., when it is not claimed that the delay was used to interrogate or obtain damaging statements from the accused.

4. When defendant is properly arrested without a warrant, a technical defect in the manner of later serving a warrant is not grounds for new trial.

5. Evidence of other acts and offenses may be admissible to show motive, intent, identity, scheme or plan, or absence of mistake or accident if its probative value outweighs the danger of unfair prejudice to the defendant.

6. For reasons stated in the opinion, this court concludes that the probative value of evidence of other acts outweighed the danger of unfair prejudice to the defendant and was properly admitted into evidence.

David L. Drey, State's Atty., and R. James Maxson, Asst. State's Atty., Minot, for plaintiff and appellee; argued by Mr. Drey.

Ella Van Berkom, Minot, for defendant and appellant.

ERICKSTAD, Chief Justice.

James E. Frye appeals from a judgment of the Ward County District Court based upon a jury verdict which found him guilty of theft of property, a violation of Section 12.1--23--02, N.D.C.C. The conviction was of a class C felony under Section 12.1--23--05, N.D.C.C., the value of the property being in excess of one hundred dollars. He was sentenced to serve three years in the North Dakota State Penitentiary.

Ward County Deputy Sheriff Elroy 'Spike' Taylor arrested Frye without a warrant on September 30, 1975, at the Minot Air Force Base. The arrest followed a telephone conversation between Taylor and Jerry Connole, a cashier at the First National Bank of Minot. In this conversation Mr. Connole informed Deputy Taylor that James Frye had, on September 27, deposited a check in the Minot bank drawn on an account in Fairbanks, Alaska, and at the same time withdrew money from his Minot account on the strength of this deposit. Connole related to Taylor that on September 30, Frye attempted a similar transaction which aroused the suspicion of some bank employees. Connole also told Taylor he had contacted the Alaska bank and that he was informed 'there is no money up there in Alaska to take care of any of these checks he has written.'

Frye was taken before a magistrate, Ward County Judge Halvor L. Halvorson, on October 3, 1975.

In this appeal, Frye enumerates three issues in his brief: '1) Did the District Court of Ward County commit error in denying the Motion of Defendant for suppression of evidence and dismissal of the Complaint made prior to commencement of the trial?' '2) Did the District Court of Ward County commit error in overruling Defendant's objection to the State's reference in its opening argument to Defendant's attempt to deposit $8,000.00 and to attempt to withdraw $2,000.00?' '3) Did the District Court of Ward County commit error in denying the Motion of the Defendant to strike the testimony of the witnesses Sharon Klein and Bart Schempp with regard to the alleged attempt by Defendant to deposit a check for $8,000.00 and withdraw $2,000.00?'

Several points are argued with regard to the first stated issue.

In his brief, Frye sets out, in part, Section 29--06--15, N.D.C.C.:

'A peace officer, without a warrant, may arrest a person:

'3. When a felony in fact has been committed, and he has reasonable cause to believe the person arrested to have committed it.

'4. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested.'

The brief then refers to the telephone conversation between Mr. Connole and Deputy Taylor prior to the arrest, the argument apparently being that this information could not constitute 'reasonable cause' under Section 29--06--15, N.D.C.C.

In arguing this first issue, counsel for Mr. Frye stresses that Deputy Taylor, when he arrested Frye, said he was being arrested on 'suspicion of a felony'. A peace officer may not arrest a person without a warrant on a mere 'suspicion' that a felony has been committed, but the language used is not the important factor. What is important is that the arresting officer have the requisite reasonable cause to believe that a felony was committed by the person arrested.

The term 'reasonable cause', as used in Section 29--06--15, N.D.C.C., is synonymous with the more widely used term 'probable cause'. State v. Kolb, 239 N.W.2d 815 (N.D.1976); Witte v. Hjelle, 234 N.W.2d 16 (N.D.1975); State v. Salhus, 220 N.W.2d 852 (N.D.1974). Cf. Colling v. Hjelle, 125 N.W.2d 453 (dissent) at 467 (N.D.1964).

The determination of whether probable cause exists is by no means an exact science. However, State v. Chaussee, 138 N.W.2d 788 (N.D.1965) sets forth a useful explication of the meaning of the term. Chaussee, at 138 N.W.2d 792, relies upon language of the United States Supreme Court emphasizing that the question of the existence of probable cause is one of practical application rather than legal abstraction:

'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.' Brinegar v. United States, 388 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879.

The test in North Dakota is as stated in Chaussee in paragraph 3 of its syllabus:

'3. Probable cause exists where the facts and circumstances within an officer's knowledge and of which he has reasoanbly trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.' 138 N.W.2d at 789.

State v. Kolb, supra; Witte v. Hjelle, supra.

Much of the preceding case law is concerned with requirements of the Fourth Amendment and focuses on the information available to the arresting officer.

It appears that neither Mr. Connole nor Deputy Taylor acted with undue haste or lack of caution, especially considering the complexity of the situation as it presented itself.

On September 30, 1975, at about 3:45 p.m., Connole received a telephone call from a teller at the bank's drive-in facility, informing him that James Frye had attempted to deposit a personal check for $8,000, drawn on a bank account in Fairbanks, Alaska, and to cash a $2,000 personal check drawn on his account in the Minot bank. Connole was told that Frye drove off when the teller would not handle the transaction.

Connole then contacted the Minot Police Department and Deputy Taylor at the Ward County Sheriff's office, both of whom informed him that Frye had a record of being a 'check artist'. He also discovered that Frye had, on September 27, 1975 (a Saturday), deposited in the First National Bank of Minot, a check for $2,640 drawn on the Alaska bank account, and had immediately thereafter written a check for $1,800 against the Minot account, and that Frye had come into the bank the next Monday, September 29, and had written a check for $700 on the Minot account after showing a receipt from the Minot bank for $2,640 which he had been given on September 27.

Connole contacted the First National Bank of Fairbanks and was told that James Frye had an account there, but it had been closed after he 'took' them for 'several hundred dollars'.

Thereafter, Connole called Deputy Taylor and conveyed this information to him, whereupon Taylor went to the Air Base and arrested Frye.

While the particular facts and circumstances of each case must determine the existence of probable cause, State v. Kolb, supra, 239 N.W.2d at 818; Witte v. Hjelle, supra, 234 N.W.2d at 20; Brinegar v. United States, supra, 338 U.S. at 176, 69 S.Ct. 1302, it is beneficial to refer to State v. Willms, 117 N.W.2d 84 (N.D.1962), which is quite similar to the instant case, at least with regard to facts relevant to probable cause. In Willms the issue was decided summarily:

'Therefore, the arrest on the oral charge of the owner of the place of business which had accepted a check drawn on a bank in which the defendant had no account, was proper since such arrest was made on a charge, based upon reasonable cause, of the commission of a felony by the defendant.' State v. Willms, supra, 117 N.W.2d at 87.

In the case of an arrest under a warrant, the issuing magistrate must be provided particular facts upon which to make a determination of probable cause. State v. Erdman, 170 N.W.2d 872, 877 (N.D.1969); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). Although the present case involves a warrantless arrest, the Fourth Amendment demands that requirements of reliability of informants and particularity of information be at least as stringent as where an arrest warrant is obtained. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

A state standard for determining probable cause for arrest must at least measure up to the Federal Constitutional standard. State v. Erdman, supra, 170 N.W.2d at 877; United...