State v. Planz, Cr. N

Citation304 N.W.2d 74
Decision Date03 April 1981
Docket NumberCr. N
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Daniel PLANZ, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Rodney E. BAKER, Defendant and Appellant. os. 743, 744.
CourtUnited States State Supreme Court of North Dakota

Charles J. Gilje, State's Atty., Jamestown, for plaintiff and appellee State of North Dakota.

Terence J. Paulson, of Hjellum, Weiss, Nerison, Jukkala & Wright, Jamestown, for defendants and appellants.

VANDE WALLE, Justice.

Daniel Planz and Rodney E. Baker appeal from separate judgments of conviction in the district court of Stutsman County. The appeals were consolidated for presentation to this court. The defendants were convicted of possession of marijuana under N.D.C.C. Section 19-03.1-23(3) and in this appeal assert that certain evidence used in their convictions was obtained by the police illegally. We affirm.

Late in the afternoon of May 29, 1980, Gary Odegaard, an off-duty North Dakota highway patrolman, was leaving the Tastee-Freez in Jamestown. While walking across the Tastee-Freez parking lot toward his car he observed the defendants in the front seat of a grey station wagon bearing Minnesota license plates. Odegaard noticed that the defendants were hunched over in the front seat; that after he entered his car the person occupying the driver's seat in the station wagon turned and waved to him; that the driver appeared to be under the influence of "something"; and that the driver appeared "rather strange." Odegaard wrote down the license number of the station wagon and drove to his home where he called the Jamestown police department to report his observations.

After receiving Odegaard's call, Police Dispatcher Roger Mayhew called Sergeant Jerry Klosterman, who was home for his evening meal, and told him of Odegaard's observations and instructed him to investigate. Klosterman drove to the Tastee-Freez and entered the parking lot. He spotted the grey station wagon in the nearly empty parking lot at a point approximately 20 to 30 feet north of the building, facing southwest. As Klosterman pulled into the parking lot he observed a person exit from the passenger side of the station wagon and walk into the west entrance of the Tastee-Freez. Klosterman parked his patrol car behind and approximately 50 feet away from the station wagon.

After Klosterman parked his patrol car he got out and started walking toward the station wagon, which was positioned at a point directly between Klosterman's patrol car and the west entrance of the Tastee-Freez. Klosterman later testified at a suppression hearing that his intent upon heading toward the station wagon was to see if anyone was inside because the report which he had received was that two persons were in the car and he had seen one person leave it. As Klosterman walked by the passenger side of the station wagon to see if there was another person inside he observed through the open window a marijuana pipe and a small plastic bag containing marijuana lying on the front seat. After seeing these items, Klosterman moved closer to the car and bent down for a closer look. He admitted that a portion of his face may have broken the plane of the window. Upon this closer inspection, Klosterman "smelled the odor of used marijuana."

After making his observation in the station wagon, Klosterman called for a backup policeman and entered the Tastee-Freez where he waited for the defendants to come out of the restroom. After they emerged from the restroom Klosterman asked the defendants if he could talk with them in the parking lot. They agreed and all three stepped outside the west entrance. The defendants were asked which one of them owned the station wagon and Planz admitted ownership. Klosterman then asked the defendants to accompany him to the station wagon, where he pointed to the pipe and the plastic bag on the front seat. He then placed the defendants under arrest. In the meantime, Officer Finck had arrived at the scene and after their arrest the defendants were searched and placed in Finck's patrol car, whereupon they were read their rights.

After placing the defendants in the patrol car, Klosterman returned to and entered the station wagon in order to remove the pipe and the small plastic bag. While inside the vehicle he noticed, in the back seat, two large plastic garbage bags which were partially covered by a coat or blanket or something similar. Sticking out of the exposed portion of one of the garbage bags was a marijuana leaf. Klosterman removed the small plastic bag, the pipe, and the two large plastic bags. The following day a search warrant was obtained for the station wagon and various articles not at issue here were seized.

A hearing on the defendants' motion to suppress evidence was held on July 17, 1980, in the district court of Stutsman County. Following the hearing, that motion was denied. On July 23, 1980, following a trial to the court, the defendants were convicted of possession of a controlled substance and subsequently were sentenced to one year at the North Dakota State Penitentiary. This appeal arises from those convictions.

The primary issue raised by the defendants in this appeal is whether or not the evidence obtained by the police from the defendants' car was obtained in violation of the defendants' Fourth Amendment rights and therefore was inadmissible at their trial.

The Fourth Amendment to the United States Constitution provides:

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Section 8 of the North Dakota Constitution is essentially the same. The constitutional rights guaranteed by the Fourth Amendment may be enforced by excluding from trial the evidence searched for and seized in violation of that Amendment. This exclusionary rule was first announced by the United States Supreme Court in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the application of this exclusionary rule was extended to the State courts. The rationale supporting the rule is that it will serve as a safeguard for personal privacy and dignity by preventing unwarranted intrusions by the State. State v. Phelps, 297 N.W.2d 769 (N.D.1980).

It is clear from the language of the Fourth Amendment that before the protection afforded therein may be asserted by the accused two conditions must be present: first, a search, or a seizure, or the two in combination, must have been directed against the accused by the State; and the search and seizure must have been of a nature contemplated by the Fourth Amendment. That Amendment expressly identifies the nature of the search and seizure which it is designed to protect against as "unreasonable." This court has adopted the position that what is or is not a reasonable search cannot be defined in definite terms and each case must be decided on its own facts. State v. Gagnon, 207 N.W.2d 260 (N.D.1973).

We believe that before determination of the issue regarding reasonableness can be made in any case where a defendant seeks the protection of the Fourth Amendment, at least one, and possibly two, threshold questions must be considered. The first question is: Did the police conduct complained of constitute a search and seizure directed against the accused? If the answer to that question is in the negative, no further discussion of Fourth Amendment protection is required. On the other hand, if the answer to that question is in the affirmative, the next, and most critical, question must be asked and answered. That question is: Were the search and seizure of a nature which trigger Fourth Amendment protection? Again, if the answer is in the negative, consideration of the protection found in the Fourth Amendment is not necessary. However, if the answer to the question is in the affirmative, a full examination of the Fourth Amendment issue may be required.

In considering these two questions, we begin with an examination of the term "seizure." We believe that term carries with it the same general meaning whether it is used in the everyday sense of the word or used within the context of the Fourth Amendment. Indeed, the word "seizures," as used in the Fourth Amendment, generally has not been the source of confusion. 1 LaFave, Search and Seizure, § 2.1(a) at 221 (1978). The "act of physically taking and removing tangible property is generally a 'seizure,' ..." 68 Am.Jur.2d, Searches and Seizures, § 8 (1973). 1 There is no dispute in the present case that the removal by Klosterman of the small and the large plastic bags and the marijuana pipe from the defendants' car constituted a seizure in the general sense and a seizure within the meaning of that term as used in the Fourth Amendment. However, in the context of a criminal case such as the one now before this court, the constitutional significance of a seizure turns upon the nature of the events which led to the seizure (i. e., the search), and the ultimate role of the item or items seized in regard to the conviction of the defendant.

Unlike the term "seizure," the term "search," within the meaning of the Fourth Amendment, is not so clearly reduced to a verbal equation. Webster's Third New International Dictionary, Unabridged, 1971, defines "search" as: "1: to look into or over carefully or thoroughly in an effort to find or discover: ..." However, it would be absurd to attach constitutional restrictions to that type of conduct as carried out by police officers. The type of search defined above is precisely the kind of vigilance we expect of every law-enforcement officer who, in an effort to keep a community safe from crime, goes out on routine...

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10 cases
  • State v. Gardner
    • United States
    • United States State Supreme Court of North Dakota
    • 16 Mayo 2019
    ...(4) the search or seizure unreasonably violated the claimant’s right to be secure in the object searched or seized. See State v. Planz , 304 N.W.2d 74, 77 (N.D. 1981). [¶9] First, was there a "search" or a "seizure" by the State? State v. Garrett , 1998 ND 173, ¶ 13, 584 N.W.2d 502 ("It is ......
  • State v. Garrett, s. 970326-970328
    • United States
    • United States State Supreme Court of North Dakota
    • 18 Septiembre 1998
    ...of privacy" test. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); State v. Planz, 304 N.W.2d 74, 79 (N.D.1981). ¶14 We stated in Planz, however, "searches of vehicles may be made under circumstances where searches of buildings would no......
  • State v. Klevgaard, 760
    • United States
    • United States State Supreme Court of North Dakota
    • 12 Mayo 1981
    ...reasonable under the Fourth Amendment." Be that as it may, in this instance a search in the technical sense did not occur. State v. Planz, 304 N.W.2d 74 (N.D.1981). There is no evidence that the officers opened the trunk, looked in the glove compartment, or moved anything in the car so as t......
  • People v. Caserta, 82-959
    • United States
    • United States Appellate Court of Illinois
    • 24 Abril 1984
    ...to a commercial establishment which is open to the public. (See United States v. Finch (4th Cir.1982), 679 F.2d 1083, 1085; State v. Planz (N.D.1981), 304 N.W.2d 74; Albo v. State (Fla.1980), 379 So.2d 648, 650; Milner v. State (1981), 159 Ga.App. 887, 285 S.E.2d 602; see also, United State......
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