State v. Chaussee
| Decision Date | 17 December 1965 |
| Docket Number | No. C,C |
| Citation | 138 N.W.2d 788 |
| Parties | STATE of North Dakota, Plaintiff and Respondent, v. Merle CHAUSSEE, Defendant and Appellant. r. 331. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. A peace officer, without a warrant, may arrest a person when a felony in fact has been committed and he has reasonable cause to believe the arrested person committed it. Section 29-06-15(3), N.D.C.C.
2. There is no fixed formula for the determination of what is or is not a reasonable search. Each case must be decided on its own facts and circumstances.
3. 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 or is being committed.
4. Generally, an arrest may not be used as a pretext to search for evidence.
5. The facts and circumstances having been examined, it is held that the arresting officer had probable cause and reasonable grounds to believe that the defendant was carrying a concealed weapon at the time he arrested him. The arrest was therefore lawful and the subsequent search and seizure, having been made incident to that lawful arrest, were likewise valid.
George E. Duis, Fargo, for appellant.
Helgi Johanneson, Atty. Gen., Bismarck, and Eugene A. Kruger, State's Atty., Fargo, for respondent.
This is an appeal by the defendant, Merle Lyle Chaussee, from a final judgment upon conviction of carrying a concealed weapon in violation of Section 62-03-01 of the North Dakota Century Code.
The facts in this case are not in dispute. The State's first witness, Lloyd Hanson, testified that the was a patron in the Brass Rail Bar on Main Avenue in Fargo, North Dakota, on December 18, 1964, at approximately 4:15 in the afternoon when the defendant, who had on a hat, topcoat, sport coat, and tie, 'staggered' into the bar, sat down by him, and ordered a beer. In the process of paying for this beer, the defendant dropped some change on the floor, which Mr. Hanson helped him recover. Thereafter the defendant played the jukebox and, upon returning to the bar, he dropped something. Mr. Hanson testified that he did not see that the object was at that time; however, he observed the defendant bend over, retrieve it, stick it 'in his pants,' and then retire to the men's room. After his return from the men's room, the defendant stood in front of the bar, opened his coats, and adjusted an object in his belt, which Mr. Hanson then identified as a gun. A short time later Mr. Hanson left the bar and proceeded down the street to a drug store where he telephoned the police, identified himself, and related what he had seen.
Charles Hovden, a detective with the Fargo Police Department, testified that he received a telephone call from Mr. Hanson at approximately 5:15 p. m. on December 18, 1964, and, in response to this call, Policewoman Jennie Nelson and he went to the Brass Rail Bar. Detective Hovden testified:
'Mrs. Nelson and myself entered the bar and as we entered the bar we observed very few patrons in the bar, and to our immediate right as we entered the door we observed the defendant, who had been described to us, and immediately went over and identified myself and told him I weas a police officer and at that time I asked him if he had a gun, and at the same time putting my right arm around his body and feeling of the gun on the left side of his waist.'
The defendant was subsequently disarmed by Officer Wayne Olson who had been summoned by Policewoman Nelson to assist Detective Hovden.
There is but one specification of error advanced by the defendant on this appeal, viz., 'That the Court erred in failing to suppress evidence obtained through unlawful and unreasonable search and seizure.' This contention is predicated upon the fourth amendment to the United States Constitution and Section 18 of the Constitution of North Dakota, both of which are apparently identical in meaning. Section 18 of the North Dakota Constitution reads as follows:
'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 warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.'
In Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 N.Ed.2d 777, Mr. Justice Black, speaking for the Supreme Court of the United States, observed:
The defendant, however, does not argue that a search which is incidental to a lawful arrest is prohibited under the fourth amendment. Rather, he contends that the arrest in this instance was unlawful; and, as such, the search incident to such arrest was also unlawful. Defendant therefore contends the evidence produced by this search should have been suppressed.
Section 62-03-01 of the North Dakota Century Code provides, in part:
'Carrying concealed weapons or firearms prohibited.--No person, other than a police officer, shall carry concealed about his person any of the following weapons or firearms unless they are carried in the prosecution of or to effect a lawful and legitimate purpose:
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2. Any gun or dangerous firearm whether the same is loaded or unloaded.'
Section 62-03-03 of this same chapter makes a violation of this provision a felony.
Detective Hovden did not have a warrant for the defendant's arrest when he entered the Brass Rail Bar. The question thus presented is, could Detective Hovden lawfully arrest the defendant under the circumstances of this case?
Section 29-06-15, N.D.C.C., provides, in part:
'Arrest without warrant.--A peace officer, without a warrant, may arrest a person:
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* * *
2. When the person arrested has committed a felony, although not in his presence;
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; or
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* * *
We have held that the charge referred to in Subsection 4, supra, need not be written but may be made orally and informally, provided that it conveys to the officer information sufficient to constitute a reasonable cause for the charge. State v. Willms, N.D., 117 N.W.2d 84; Haggard v. First National Bank of Mandan, 72 N.D. 434, 8 N.W.2d 5. Furthermore, Section 29-06-24 of this same chapter imposes an affirmative duty upon the arresting officer to 'take from the person arrested all offensive weapons which he may have about his person * * *.'
The telling question for us is whether the information related to Detective Hovden by Mr. Hanson gave him 'probable cause' within the meaning of the fourth amendment, and 'reasonable cause' within the meaning of Section 29-06-15(3), N.D.C.C., to believe that the defendant was carrying a concealed weapon in violation of the law. If it did, the arrest, though without a warrant, was lawful and the subsequent search of the defendant's person and the seizure of the gun were validly made incident to a lawful arrest. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.
We think this question must be answered in the...
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