State v. Carlson

Decision Date21 April 1982
Docket NumberCr. N
Citation318 N.W.2d 308
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Jeffrey Clay CARLSON, Defendant and Appellant. o. 803.
CourtNorth Dakota Supreme Court

John P. Van Grinsven III, Asst. State's Atty., Minot, for plaintiff and appellee State of North Dakota.

Bruce R. Montgomery, of Teevens, Johnson & Montgomery, Minot, for defendant and appellant.


Jeffrey Clay Carlson appealed from the judgment of conviction for arson [Section 12.1-21-01, N.D.C.C.] entered after a bench trial by the district court, Ward County. We affirm.

Carlson's conviction was based upon a confession he made to Minot police officers on March 5, 1981. Carlson's attorney sought to suppress the statements Carlson made to police on March 4, 1981, and the March 5 confession. The trial judge suppressed the March 4 statements but admitted the March 5 confession. The sole issue is whether or not the trial judge erred when he refused to suppress the confession Carlson made on March 5, 1981.

In the early morning hours of March 4, 1981, a fire destroyed a detached residential garage in Minot. The owner told Norman Nevland, of the Minot Police Department, that she suspected Jeffrey Carlson of starting the fire. Nevland contacted the police station at approximately 8 a. m. and requested that another officer go to Carlson's home and "ask Mr. Carlson to come down and talk to me about the fire." An officer went to Carlson's home, where he was living with his parents. Carlson's parents awakened him, Carlson dressed, and the officer took him to the police station. The officer was not in uniform nor was the police car marked. They arrived at the police station shortly after 8 a. m. and Carlson was given the Miranda warnings. 1 He was not told that he was under arrest nor that he was free to leave if he wished. Carlson had been at a party the night of the garage fire and had consumed 9 to 25 glasses of beer. Carlson arrived home at 4 a. m. and had four hours of sleep before he was taken to the police station.

At the police station Carlson was questioned about the fire and he denied any involvement. When asked if he would consent to a polygraph test, Carlson agreed. The polygraph test was administered between 11 and 12 o'clock that morning. When confronted with the results of the polygraph test, Carlson confessed to setting the fire in the garage. Officer Nevland took Carlson home sometime between 12:30 and 1 p. m. Although the reason is disputed, Carlson returned to the police station on March 5, 1981, at 10 a. m., and executed a formal written confession admitting that he had started the garage fire.

After a suppression hearing, the trial judge suppressed all statements made by Carlson on March 4, 1981:

"In spite of the contention of the State that the Defendant's presence [at the police station on March 4] was a result of an invitation, the Court finds that the facts in this case come squarely within the principles set forth in the case of Dunaway v. State of New York, supra [442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824]. The Defendant was aroused from what was obviously a deep sleep (heavily supported by a prior evening of drinking) early in the morning. The presence of the officers, although not in uniform, was not consistent with a voluntary invitation. The following of the Defendant on at least two occasions to the restroom by a police officer is incompatible with a voluntary presence. The interrogation was lengthy, although as set forth by the State's brief it had several interruptions for periods of waiting, testing, etc. The Court, therefore, suppresses any statements made by the Defendant to the police on March 4, 1981."

The trial judge's decision to suppress the statements Carlson made on March 4 has not been appealed. We need not consider the trial judge's decision to suppress those statements. We accept it as only one of the facts in the record before us. We assume, without so deciding, that the statements made on March 4 are inadmissible.

The trial judge concluded that the March 4, 1981, statements should be suppressed because the circumstances surrounding the statements were within the decision of Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). In Dunaway, the Court considered the legality of custodial questioning on less than probable cause for a full-fledged arrest. 442 U.S. at 202, 99 S.Ct. at 2251, 60 L.Ed.2d at 829. The issue arose when Dunaway made inculpatory statements after receiving Miranda warnings during custodial interrogation following seizure on less than probable cause. In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), a case involving facts similar to Dunaway 's, the Court held that Miranda warnings are not a per se cure for Fourth Amendment violations. In order to use inculpatory statements made by a defendant during custodial interrogation after being seized on less than probable cause the prosecution has two hurdles to clear: "the prosecution must show not only that the statements meet the Fifth Amendment voluntariness standard, but also that the causal connection between the statements and the illegal arrest is broken sufficiently to purge the primary taint of the illegal arrest in light of the distinct policies and interests of the Fourth Amendment." Dunaway, 442 U.S. at 204, 99 S.Ct. at 2252, 60 L.Ed.2d at 830. The Court found that the detention of Dunaway was in important respects indistinguishable from a traditional arrest, i.e., he was not questioned briefly where he was found, he was taken to a police car and transported to a police station, he was placed in an interrogation room, and he never was informed that he was free to go. 442 U.S. at 212, 99 S.Ct. at 2256, 60 L.Ed.2d at 835-836. The Court concluded that the treatment of Dunaway, whether or not technically characterized as an arrest, must be supported by probable cause. 442 U.S. at 214, 99 S.Ct. at 2257, 60 L.Ed.2d at 837. Detention without probable cause in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 679 (1969), when the defendant was subjected to interrogation, was found to violate the Fourth Amendment. "Brown v. Illinois [citation omitted], similarly disapproved arrests made for 'investigatory' purposes on less than probable cause." Dunaway, 442 U.S. at 215, 99 S.Ct. at 2258, 60 L.Ed.2d at 838. Both Brown and Davis reflect the conclusion that detention for custodial interrogation, whether for questioning, investigation, or for some other reason, "intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest." Dunaway, 442 U.S. at 216, 99 S.Ct. at 2258, 60 L.Ed.2d at 838.

The trial judge concluded that the circumstances and the questioning on March 4 were "coercive influences" upon Carlson. The trial judge also concluded that the circumstances surrounding Carlson's presence at the police station and the several hours of intermittent questioning fell within the custodial interrogation condemned in Dunaway. As stated above, we are not reviewing the suppression of the March 4 statements nor do we intend any of our remarks here to be read as approving or disapproving the trial judge's decision to suppress the statements. For the purposes of this opinion only, we assume that the March 4 statements are inadmissible.

The trial judge did permit the use of Carlson's March 5 confession. The reason the confession was not suppressed is that the trial judge concluded that the coercive influences no longer were present and Carlson had sufficient time free of police conduct to appreciate the situation:

"The efforts to distinguish between inadmissible confessions [of March 4] and their fruits are sometimes less than clear. The second statement [March 5] presents a special problem that arises frequently in confession cases when considering the effect of an inadmissible statement upon other statements taken from the accused at later times during the investigation.

"One of the things that is considered is the purpose and flagrancy of official misconduct. In this case the Court does not find that the officers were guilty of flagrant and malicious misconduct. Their zeal to solve a serious crime ran them afoul of certain technical requirements; however, the Court does not find the second statement given by the Defendant was an exploitation of the coercive influences of March 4th. Prior to obtaining the second statement there was an overnight break and a period of nearly 24 hours lapsed. The Court finds there was a significant break in the stream of events to permit the accused to 'revitalize his capacity for self-determination.' McCormick on Evidence, 2nd Ed. (1972) 345. Further, the Court finds that any coercive influences that existed on March 4th were no longer operative. The record is devoid of any evidence that on March 5th the accused was other than rested, clear-headed, and that his actions were totally voluntary."

Carlson's argument is that the trial court erred by not ruling that the March 5 confession was a product of the illegal search and seizure of his person by the police, i.e., a result of his statements on the previous day, and therefore inadmissible.

Because the trial judge ruled that the statements made on March 4, 1981, were not admissible due to the Dunaway decision, we must determine whether or not the connection between this "unconstitutional police conduct and the incriminating statements ... was nevertheless sufficiently attenuated to permit the use [of the statements] at trial ..." Dunaway, 442 U.S. at 216, 99 S.Ct. at 2258, 60 L.Ed.2d at 838. Even if Carlson's statement on March 5 were voluntary, our analysis is not completed: "although a confession after proper Miranda warnings may be found 'voluntary' for purposes of the Fifth Amendment [footnote omitted], this type of 'voluntariness' is merely a 'threshold requirement' for Fourth...

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