State v. Dallmann

• Decision Date: 06 June 1989
• Docket Number: Cr. N
• Citation: 441 N.W.2d 912
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Rodney DALLMANN, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Ricky PERLEBERG, Defendant and Appellant. os. 880201, 880202.
• Court: North Dakota Supreme Court

Page 912

441 N.W.2d 912

STATE of North Dakota, Plaintiff and Appellee, v. Rodney DALLMANN, Defendant and Appellant.

STATE of North Dakota, Plaintiff and Appellee, v. Ricky PERLEBERG, Defendant and Appellant.

Cr. Nos. 880201, 880202.

Supreme Court of North Dakota.

June 6, 1989.

Ronald G. Splitt (argued), State's Atty., LaMoure, for plaintiff and appellee.

Weiss, Wright & Paulson, Jamestown, for defendants and appellants; argued by Thomas E. Merrick, Jamestown. Appearance by Robert Martin, Jamestown.

LEVINE, Justice.

Rodney Dallmann and Ricky Perleberg appeal from criminal judgments entered upon jury verdicts finding them guilty of theft of property. We affirm.

During 1987, authorities were investigating a series of livestock thefts in LaMoure County, Stutsman County, and surrounding counties. The investigation eventually pointed to the involvement of Dallman and Perleberg. On August 18, 1987, numerous law enforcement officers appeared in the County Court of LaMoure County seeking a search warrant for the farm where Dallmann and Perleberg resided. In lieu of an affidavit, the following officers testified at the hearing on the application for the search warrant: Mark Roberts, Deputy Sheriff of LaMoure County; Detective Jerry Mayer of the Stutsman County Sheriff's Office; Agent Dick Olson of the North Dakota Bureau of Criminal Investigation; and Dickey County Sheriff Walter Raugutt. The officers detailed the numerous livestock thefts and the defendants' alleged involvement therein. The county court determined that there had been a sufficient showing of probable cause to support the issuance of a search warrant. ¹ A warrant issued authorizing the search of the farm for "livestock, ear tags, and other livestock paraphernalia which was stolen."

The warrant was executed the next morning. Roberts, Mayer, Olson, and Raugutt participated in the search, as well as three other law enforcement officers and the State Brand Inspector. Also present was Curtis Hanson, one of the theft victims. During the course of the search two other victims, Wilbert Elhard and Blaine Nitschke, were called to the scene to positively identify their stolen cattle. The search turned up four calves which had been stolen from Hanson, one calf stolen from Elhard, and one calf stolen from Nitschke. The defendants were subsequently charged with theft of property.

The defendants moved to suppress all evidence obtained as a result of the search, asserting that the warrant failed to particularly describe the articles to be seized. ² The trial court denied the motion. The defendants were each found guilty by a jury of theft of property, judgments of conviction were entered, and the defendants appealed. Their appeals have been consolidated by stipulation. See Rule 3(b), N.D.R.App.P.

The defendants assert that the warrant was unconstitutional under the Fourth Amendment to the United States Constitution and Article I, Section 8 of the North Dakota Constitution. Each of these constitutional provisions requires that no warrants shall issue except those "particularly describing the place to be searched" and "things to be seized." ³

The particularity requirement reflects the framers' denunciation of the writs of assistance, general warrants which authorized officers of the Crown to search wherever they pleased for goods imported in violation of British tax laws. See Stanford v. Texas, 379 U.S. 476, 481-482, 85 S.Ct. 506, 509-510, 13 L.Ed.2d 431, 435 (1965). The manifest purpose of the particularity requirement is to prevent the general, exploratory rummaging in a person's belongings which characterizes the general search. See Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72, 80 (1987); Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627, 642 (1976); Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583 (1971). Perhaps the most oft-quoted expression of the particularity requirement's application is from Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231, 237 (1927):

"The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."

As one leading commentator has noted, if Marron's direction that "nothing [be] left to the discretion of the officer" were read literally,

"no description would pass muster unless it was so detailed that there was no chance of there being present upon the premises some other object which the description might encompass. Quite obviously, few warrants could pass such a test...." LaFave, Search and Seizure Sec. 4.6(a), at 235 (2d ed. 1987).

Thus, various courts have held that search warrants are to be read in a commonsense and realistic fashion, and not in a hypertechnical manner. See, e.g., United States v. Hinds, 856 F.2d 438, 441 (1st Cir.1988); United States v. Rome, 809 F.2d 665, 669 (10th Cir.1987); United States v. Bonner, 808 F.2d 864, 868 (1st Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1632, 95 L.Ed.2d 205 (1987); United States v. Truglio, 731 F.2d 1123, 1128 (4th Cir.), cert. denied, 469 U.S. 862, 105 S.Ct. 197, 83 L.Ed.2d 130 (1984); State v. Sapp, 110 Idaho 153, 715 P.2d 366, 368 (Ct.App.1986). See also United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965) (affidavits in support of warrants must be interpreted in a commonsense and realistic fashion). In the same context, we have previously stated that warrants must not be subjected to a rigid and unrealistic reading. State v. Gronlund, 356 N.W.2d 144, 146 (N.D.1984).

It is therefore generally recognized that the degree of particularity required is flexible and will vary depending upon the circumstances presented, including the purpose for which the warrant was issued, the place to be searched, the type of crime involved, and the nature of the items sought. See United States v. Henson, 848 F.2d 1374, 1383 (6th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 784, 102 L.Ed.2d 776 (1989); United States v. Ellison, 793 F.2d 942, 948 (8th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 415, 93 L.Ed.2d 366 (1986); Milliman v. Minnesota, 774 F.2d 247, 250 (8th Cir.1985); United States v. Trugilo, supra, 731 F.2d at 1128. "[W]hether a warrant fails the particularity requirement cannot be decided in a vacuum." Milliman v. Minnesota, supra, 774 F.2d at 250. In this context, we stated in State v. Gronlund, supra, 356 N.W.2d at 146:

"It is essential that the particularity requirement be applied with some degree of flexibility, depending on the type of property to be seized.... What constitutes reasonable particularity must be determined in light of practicality, necessity and common sense."

Thus, for example, the United States Supreme Court suggested in Stanford v. Texas, supra, 379 U.S. at 485, 85 S.Ct. at 511-512, 13 L.Ed.2d at 437, that a higher degree of specificity may be required when First Amendment rights are involved:

"In short, what this history indispensably teaches is that the constitutional requirement that warrants must particularly describe the 'things to be seized' is to be accorded the most scrupulous exactitude when the 'things' are books, and the basis for their seizure is the ideas which they contain."

The Court hinted that a lesser standard might apply if the items sought had been weapons, narcotics, cases of whiskey, or even stolen books. Stanford v. Texas, supra, 379 U.S. at 485 n. 16, 486, 85 S.Ct. at 512 and n. 16, 13 L.Ed.2d at 437 and n. 16. See also United States v. Scharfman, 448 F.2d 1352, 1354 (2d Cir.1971), cert. denied, 405 U.S. 919, 92 S.Ct. 944, 30 L.Ed.2d 789 (1972) ("when first amendment rights are not involved, the specificity requirement is more flexible").

The place to be searched may also affect the degree of particularity required. In United States v. Johnson, 457 U.S. 537, 552 n. 13, 102 S.Ct. 2579, 2588 n. 13, 73 L.Ed.2d 202, 215 n. 13 (1982), the United States Supreme Court noted that the home has historically been afforded special protection under the Fourth Amendment. See also United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116, 1130 (1976) (private dwellings are "ordinarily afforded the most stringent Fourth Amendment protection"). Thus, it seems logical that the relative degree of specificity required in a warrant may vary depending upon the nature of the place to be searched.

It is within the context of the foregoing policy bases of the Fourth Amendment that we must review the facts and circumstances of this case. In their testimony in support of the search warrant, the officers were able to provide somewhat more detail regarding the stolen livestock than was included in the warrant. For example, the Hanson cattle were described as "four black and white holstein calves, approximately four weeks old." The stolen Nitschke calf was described as a holstein calf weighing about 150-200 pounds, with a speckled color on one side, and with ear tags. The descriptions of the other stolen livestock were essentially similar, generally describing a series of thefts of young holstein calves. In addition, an incident regarding theft of hogs was reported where a wallet, traced to Perleberg, was found in the vicinity of the theft.

Rather than detail each animal stolen with whatever limited description was available, the warrant described the property to be seized as "livestock, ear tags, and other livestock paraphernalia which was stolen." ⁴ The same four officers who had testified in support of the warrant served the warrant and conducted the search, with assistance from other officers. They did not engage in a broad-ranging general search. They did not attempt to search the house located on the premises. They...