State v. Gagnon, Cr. N

• Decision Date: 16 April 1973
• Docket Number: Cr. N
• Citation: 207 N.W.2d 260
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Rejean GAGNON, Defendant and Appellant. o. 428.
• Court: North Dakota Supreme Court

Page 260

207 N.W.2d 260

STATE of North Dakota, Plaintiff and Respondent, v. Rejean GAGNON, Defendant and Appellant.

Cr. No. 428.

Supreme Court of North Dakota.

April 16, 1973.

Rehearing Denied May 11, 1973.

Syllabus by the Court

1. All searches made without a valid search warrant are unreasonable searches unless they are shown to come within one of the exceptions to the rule that a search must be made upon a valid search warrant.

2. A search made upon mere suspicion that the defendant has violated some law is prohibited, and general exploratory searches are forbidden.

3. Where the officer who attempts to make an arrest without a warrant does not inform the defendant of the cause of his arrest, the attempted arrest is unlawful. Sec. 29--06--17, N.D.C.C.

4. Where a search is made incidental to a valid arrest, the search must be confined to the person and to the area from which the defendant might reach a weapon or destroy evidence.

5. Search of an automobile not made until the person who had occupied it had been arrested and taken into custody to a police station, and the car had been towed to a garage, was too remote in time or place to have been a search incidental to the arrest. Such search without warrant fails to meet the test of reasonableness under the Fourth Amendment of the United States Constitution, and evidence obtained as a result of such search is inadmissible.

6. Border searches do not require a finding of probable cause, but a search at a point forty-five miles from the Canadian border of an automobile which had not been under constant surveillance from the time it was driven across the border cannot be sustained as a border search.

7. For reasons stated in the opinion, the judgment of conviction is reversed.

Helgi Johanneson, Atty. Gen., Bismarck, and Rodney S. Webb, State's Atty., Grafton, for plaintiff and respondent State of North Dakota.

Richard B. Bear, Bismarck, for defendant and appellant.

STRUTZ, Chief Justice.

The defendant was charged with possession of a controlled substance, to wit, thirty pounds of marijuana, with intent to deliver the same, contrary to law. He was tried to a jury, was convicted of mere possession of a controlled substance, and was sentenced to serve one year in the State Penitentiary commencing on the fourth day of April 1972.

He filed a timely notice of appeal, but took no further steps to perfect his appeal. After a long delay, his attorney decided that he no longer could represent him, and an application was made to this court for the appointment of another attorney. Since this court has no authority to appoint counsel for indigent defendants, we requested the trial court to appoint other counsel, which was promptly done, and steps were taken for the immediate perfection of the defendant's appeal.

At the time of the appointment of such other counsel, the time had already expired in which the appeal could be placed on the calendar of this court for its November 1972 Term. Since the defendant's term in the State Penitentiary was to expire on December 21, 1972, we determined that this case should be heard forthwith, prior to the December Term. It therefore was set for argument out of Term time and was heard on the 16th day of November 1972 at 10 a.m.

The defendant has served his sentence in the State Penitentiary and has been released. However, since the appeal raised a number of very serious issues involving arrest, and search and seizure, we have deemed it advisable to determine the issues raised on this appeal for the guidance of public officials who may face similar questions in the future.

In order to decide the issues raised, it is necessary for us to review the facts in the case:

--During the day on which the defendant was arrested, his actions had aroused considerable interest and suspicion when he went to Schumacher's Tire Repair Shop in Grafton on several occasions for help in breaking the top bead of tires on his vehicle and for help in inflating the tires. One of the Schumacher employees testified that he had helped the defendant inflate one of his tires and that the tire seemed heavier than normal. His suspicious were aroused when the defendant tried to prevent him from lifting the tire. Employees at the service station felt that it was unusual for the defendant to request their help in breaking only the top bead of a tire without asking them to do any work on the tire. These unusual requests were especially suspicious to one of the employees at the service station who happened to be a reserve member of the Grafton city police force.

--On the evening of the day when the above events had occurred, this reserve member of the Grafton police force was eating his dinner in a downtown cafe with a friend who was a member of the North Dakota Highway Patrol. He related to the highway patrolman what had occurred during the day, and while they were discussing the matter the defendant walked into the cafe. The highway patrolman immediately arranged for a pickup of the defendant and called the assistant chief of police to assist him. As the defendant left the cafe, he was followed by the officers to a point approximately 1 1/2 blocks from the police station. There the officers went to the defendant's car where the highway patrolman identified himself, informed the defendant of his constitutional rights, and stated that he was investigating defendant's activities on that afternoon at Schumacher's Tire Repair Shop. The defendant then was arrested and taken into custody, and he and his vehicle were taken to the police station.

--After the defendant and his vehicle had been taken to the police station, the highway patrolman notified the Border Patrol that a Canadian, Rejean Gagnon, had been detained because he had been acting in a suspicious manner in connection with the changing of his tires, and the border patrolman who took the call requested that the defendant be held for further investigation.

--Less than an hour after this telephone conversation, the border patrolman appeared at the police station and talked with Gagnon. His answers to questions put to him by the patrolman were very unsatisfactory. This officer was aware that a lookout had been posted against the defendant because of his attempt to make an illegal entry into the country on several previous occasions. After conferring with his superior in Grand Forks, the border patrolman arrested the defendant, and his vehicle and its tires were ordered examined. The officers first looked in the glove compartment, where they found Gagnon's passport and the rental agreement for leasing the car.

--The weather was extremely cold, and the vehicle was taken to the service station where it could be thoroughly inspected inside, out of the cold. The search which followed was made without a search warrant. It revealed a box containing a number of packets of cigarette papers. The trunk then was opened and some green material resembling marijuana was found on the floor of the trunk. Next, the spare tire was opened, but this revealed nothing. The car then was put on a hoist and the tires were examined. It was noticed that there were small rubber strands on one of the tires on the right side, indicating that the car had been driven only a short distance after this tire had been placed on the vehicle. That tire, although inflated, sounded very flat when it was tapped. It was removed and opened, and was found to be completely stuffed with plastic bags containing marijuana. Two other tires on the car were found to contain marijuana. A total of thirty pounds of the drug was found in the three tires. The following morning, a search warrant was secured from a local magistrate authorizing the search of the defendant's room at a local motel. This search produced some green material on the bathroom floor, in the bathtub, and on the carpet. Tire marks were found on the carpet of the defendant's room, together with a packet of cigarette papers and two hand-rolled cigarettes. The green material was found by the State Toxicologist to be marijuana.

From these facts, it would appear to be clear that the defendant was illegally in possession of marijuana, the crime of which he was convicted. He strenuously asserts, however, that regardless of these facts, his arrests by the highway patrolman and, later, by the border patrolman were unlawful; that the search of his vehicle was invalid both as a search incidental to a lawful arrest and as a border search; and that the evidence on which he was convicted had been wrongfully admitted into evidence.

The admission of evidence discovered as a result of an unreasonable or unlawful search is prohibited, but what is or is not a reasonable search cannot be defined in definite terms and each case must be decided on its own facts. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947).

All searches made without a...