State v. Fischer

Decision Date29 September 1978
Docket NumberCr. N
Citation270 N.W.2d 345
PartiesSTATE of North Dakota, Plaintiff-Appellant, v. Jeanne FISCHER, Defendant-Appellee. STATE of North Dakota, Plaintiff-Appellant and Cross-Appellee, v. Susan FISCHER, Defendant-Appellee and Cross-Appellant. os. 646, 647.
CourtNorth Dakota Supreme Court

Thomas M. Tuntland, Asst. State's Atty., Mandan, for plaintiff-appellant and cross-appellee.

Benjamin C. Pulkrabek, Mandan, for defendant-appellee Jeanne Fischer.

Baer, Asbridge & Robb, Bismarck, for defendant-appellee and cross-appellant Susan Fischer; submitted on brief, Darold A. Asbridge, Bismarck.

PAULSON, Justice.

The State has appealed to this court from the order suppressing evidence in these two related criminal actions by the Morton County District Court. The State contends that the district court erroneously suppressed certain evidence on the ground that it was seized pursuant to an illegally obtained search warrant in violation of the Fourth Amendment to the United States Constitution and § 18 of the North Dakota Constitution. We reverse.

On February 17, 1978, Robert Fischer, husband of the defendant Susan Fischer and brother of the defendant Jeanne Fischer, was incarcerated in the Morton County jail.

The Morton County jail is a two-story building that has a cell block on each floor. Each cell block contains six separate cells. The jail office area is located on the first floor of the jail adjacent to the first floor cell block.

On February 17, 1978, Robert Fischer was the only prisoner being held in the second floor cell block. The jail's telephone switchboard is located in the first floor office. An extension phone for prisoners' use is located outside of each cell block. Each telephone's receiver can be handed through the cell bars to a prisoner.

Rules regarding prisoners' telephone calls in the Morton County jail are promulgated by the district court judges of the Sixth Judicial District. In addition, the Morton County Sheriff has set some rules of his own. Both sets of rules are posted in each cell block. The rules indicate that a prisoner is allowed to have one outgoing and one incoming telephone call each day. These calls are not to exceed five minutes in length according to the jail rules, but Jailer Robert Parsons testified at the suppression hearing that the time limit had been extended to ten minutes.

Prisoners may receive telephone calls between the hours of nine o'clock a. m. and twelve o'clock noon and one o'clock p. m. and five o'clock p. m. Prisoners may not receive telephone calls between noon and one o'clock p. m. because the jailer must feed the prisoners and answer the phone for the Morton County sheriff's office during the noon hour.

Jailer Parsons testified that when a prisoner receives an incoming call the jailer puts the call on "hold", walks to the cell block, hands the extension phone to the inmate, connects the two parties, and then returns to the switchboard. At the end of ten minutes the jailer is supposed to terminate the conversation.

When an inmate using the telephone is in the first floor cell block, Jailer Parsons, usually walks to the cell block door and directly advises the inmate that his time is up.

When the inmate using the telephone is in the second floor cell block, Jailer Parsons occasionally walks to the second floor cell block and directly advises the inmate that his time is up. Usually, however, when the telephone call is to an inmate lodged in the second floor cell block Jailer Parsons picks up the telephone at the switchboard, listens until there is a break in the conversation, and then tells the parties that their time is up.

On the morning of February 17, 1978, a phone call was made to the Morton County jail by a woman who identified herself as Susan Fischer and requested to speak to Robert Fischer. Jailer Parsons answered the telephone and connected the two parties. The conversation was terminated by the parties in less than ten minutes.

Between twelve o'clock noon and one o'clock p. m. on that day another phone call was made to the jail by a woman who requested to speak to Robert Fischer. Although the caller did not identify herself, Jailer Parsons believed the caller to be the same woman who had called earlier and had identified herself as Susan Fischer. Because the call was made during the noon hour, Jailer Parsons advised the caller to call back after one o'clock p. m.

At one-twenty p. m. a party, whose voice Parsons recognized as the voice of the woman who had earlier identified herself as Susan Fischer, called back and requested permission to speak to Robert Fischer. Jailer Parsons put the party on "hold", walked upstairs, and handed Robert Fischer the second floor extension telephone, connected the parties, and returned to the first floor office area.

When the parties' conversation exceeded ten minutes, Jailer Parsons decided to terminate the call. He lifted the receiver, heard an ongoing conversation, and waited for a slight break to tell the parties that their time was up.

While waiting for a break in the conversation, Jailer Parsons heard Robert Fischer ask the other party to bring him a couple of "joints". Because Jailer Parsons was aware that marijuana cigarettes are commonly referred to as "joints", he continued to listen to determine if contraband was going to be brought into the jail.

While Jailer Parsons continued to listen, the two parties talked about selling a few jars of "speed" to raise bond money for Robert Fischer. Jailer Parsons testified that the woman, whom he believed to be Susan Fischer, stated "We will see what we can do on it". Shortly thereafter the parties ended their conversation.

Jailer Parsons, who is aware that "speed" is a common name for a type of controlled substance, then contacted Deputies Michael Stensrud and Lynn White of the Morton County Sheriff's Office to inform them of the telephone call. He advised them that he believed that the woman caller was Susan Fischer, wife of Robert Fischer, and that he believed that there was a probability that she had illegal drugs in her possession.

The two officers obtained a search warrant based mainly upon the information given them by Jailer Parsons and they searched Susan Fischer's house at 228 South Prairie Lane in Mandan. Police officers executed the warrant, searched the premises, and found a substantial quantity of certain illegal drugs. The police also found illegal drugs in a brown purse owned by Jeanne Fischer.

Susan Fischer was arrested and charged with possession of a controlled substance with intent to deliver. Jeanne Fischer was arrested and charged with possession of a controlled substance. Both defendants were arraigned in district court. They jointly moved to suppress the evidence obtained in the search of the premises at 228 South Prairie Lane in Mandan. They claimed that Jailer Parsons had conducted an illegal search when he overheard the telephone conversation between Robert Fischer and Susan Fischer. Because the illegally obtained evidence was used to establish probable cause for issuance of the search warrant, the defendants claimed that the warrant was invalid and that evidence obtained pursuant to it must be suppressed.

The evidence was suppressed by the district court and the State has appealed the suppression order.

The defendant, Susan Fischer, has raised several cross-appeal issues in this case. She contends that these issues provide additional reasons for suppressing the evidence obtained in the search of her trailer house. Her cross-appeal issues include whether or not:

(1) The search warrant was based upon unreliable hearsay;

(2) There was sufficient probable cause for the issuance of the search warrant;

(3) Section 47 U.S.C. § 605 precludes the use of the contents of an overheard telephone conversation for the issuance of a search warrant;

(4) Section 18 U.S.C. §§ 2510-2515 precludes the use of the contents of an overheard telephone conversation for the issuance of a search warrant;

(5) The conversation between Robert and Susan Fischer was a privileged husband-wife communication which precludes the disclosure of its contents by a third party for the issuance of a search warrant; and

(6) The magistrate who issued the search warrant was neutral and detached.

The following issues are raised by the appellant:

(1) Did Jeanne Fischer have standing to bring a motion to suppress the evidence obtained during the February 17 search of Susan Fischer's house?

(2) Do the defendants have the right to cross-appeal in this case in which the State is appealing the district court's order suppressing evidence?

(3) Did the trial court err in ordering the suppression of the evidence obtained during the search of defendant Susan Fischer's house on the basis that the search warrant was invalid because the information establishing probable cause for the warrant had been improperly obtained?

ISSUE OF STANDING

We will first consider the issue of Jeanne Fischer's standing to bring a motion to suppress evidence obtained in violation of her Fourth Amendment rights. Although the record does not show whether or not Jeanne Fischer lived in the trailer house at 228 South Prairie Lane in Mandan, she was on the premises during the February 17 search. In addition, her purse was searched by the police and was found to contain the illegal drugs that constitute the basis of the case against her.

The Fourth Amendment to the United States Constitution provides, in part, that "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated . . .." Section 18 of the North Dakota Constitution is essentially the same. The constitutional rights guaranteed by the Fourth Amendment may be enforced by the exclusion of evidence under the exclusionary rule which was applied to the Federal courts in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and extended...

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8 cases
  • Washington v. Meachum, 15281
    • United States
    • Supreme Court of Connecticut
    • August 6, 1996
    ...jail for prisoner use shares none of the attributes of privacy of a home or automobile or even a public phone booth"); State v. Fischer, 270 N.W.2d 345, 354 (N.Dak.1978) ("parties to a jailhouse conversation usually have no reasonable expectation of privacy due to the security needs of main......
  • State v. Gardner
    • United States
    • United States State Supreme Court of North Dakota
    • May 16, 2019
    ...individual may not claim violation of a third party’s rights. State v. Oien , 2006 ND 138, ¶ 8, 717 N.W.2d 593 ; State v. Fischer , 270 N.W.2d 345, 349 (N.D. 1978) (citing Mancusi v. DeForte , 392 U.S. 364, 366, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) ("Fourth Amendment rights are personal ri......
  • State v. Lind, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • July 30, 1982
    ...rights have in fact been violated." Salvucci, 448 U.S. at 85, 100 S.Ct. at 2549, 65 L.Ed.2d at 623. Our decisions in State v. Fischer, 270 N.W.2d 345 (N.D.1978), and State v. Matthews, 16 N.W.2d 90 (N.D.1974), were based upon Jones. In State v. Klodt, 298 N.W.2d 783, 786 (N.D.1980), we said......
  • State v. Klosterman, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • March 25, 1982
    ...in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960) and followed by this court in State v. Fischer, 270 N.W.2d 345 (N.D.1978). See also, State v. Klodt, 298 N.W.2d 783 (N.D.1980).5 Consent to a search may be given by a third party who possesses commo......
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