State v. Gasal, 20140147.

• Decision Date: 12 February 2015
• Docket Number: No. 20140147.,20140147.
• Citation: 859 N.W.2d 914
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Gayne Alan GASAL, Defendant and Appellant.
• Court: North Dakota Supreme Court

859 N.W.2d 914

STATE of North Dakota, Plaintiff and Appellee

v.Gayne Alan GASAL, Defendant and Appellant.

No. 20140147.

Supreme Court of North Dakota.

Feb. 12, 2015.

Katherine Marilyn Naumann, Assistant State's Attorney, Jamestown, ND, for plaintiff and appellee.

John Tainter Goff, Fargo, ND, for defendant and appellant.

Opinion

CROTHERS, Justice.

[¶ 1] Gayne Alan Gasal appeals from a district court criminal judgment entered upon a jury conviction of hunting without a license and from a district court order denying his motions to suppress evidence obtained after the issuance of a search warrant on his farmstead for two hunting rifles and from statements he made during conversations with the game warden. Gasal argues the district court erred by denying the motion to suppress evidence obtained by an invalid search warrant and by denying the motion to suppress statements obtained in violation of the Miranda requirements. We affirm.

I

[¶ 2] In November 2012, Game Warden Mark Pollert received information Gayne Gasal shot a deer outside the area authorized by his gratis deer tag. After observing two vehicles coming from the described area, the game warden stopped the white pickup truck driven by Gasal and inquired about the deer. Gasal told the game warden the deer was in the truck driven by his son. The game warden asked if he could follow Gasal to his farmstead to look at the deer. Gasal agreed.

[¶ 3] The game warden followed Gasal to his farm where he met with Gasal's son, Jarred Gasal, and a minor grandson. The deer was tagged with the grandson's gratis deer tag. The game warden interviewed all three of the Gasal family members, together and separately. The game warden recorded the interviews without the Gasals' knowledge. The game warden claimed he witnessed the alleged violation and did not tell the Gasals about receiving information from another source. The Gasals told the game warden the grandson shot the deer using his Ruger rifle. The other rifle used by the hunting party was a Browning. The game warden seized the deer carcass, recovered the bullet and had the bullet analyzed by the State Crime Lab. The analyst informed the game warden that it is unlikely the bullet was fired from a Ruger rifle. Based upon the Gasals' incongruent story and the lab report, the game warden applied for search warrants for the Ruger and Browning rifles.

[¶ 4] Search warrants were issued for the residences of Gayne Gasal and Jarred Gasal on December 10, 2012 at 4:15 p.m., but the record includes only the search warrant for the “Ruger M77” at Jarred Gasal's residence. Both rifles were retrieved from Gayne Gasal's residence after Jarred Gasal voluntarily surrendered the Ruger rifle and Gayne Gasal surrendered the Browning rifle. A subsequent crime lab report indicated that the Ruger rifle did not fire the bullet lodged in the deer carcass and that the Browning rifle could not be identified or eliminated as firing the bullet lodged in the deer carcass.

[¶ 5] Gasal was charged with hunting without a license. Gasal moved to suppress evidence, alleging his Fourth Amendment rights were violated because the warrant was not dated. Gasal also moved to suppress statements he made to the game warden, arguing the game warden violated his right against self-incrimination, a violation of the Miranda requirements. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court denied Gasal's motions to suppress, and the jury found him guilty of hunting without a license. Gasal appeals.

II

[¶ 6] When reviewing a district court's decision on a motion to suppress:

“We will defer to a trial court's findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court's decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court's findings, and if its decision is not contrary to the manifest weight of the evidence.”

State v. Genre, 2006 ND 77, ¶ 12, 712 N.W.2d 624 (citations omitted). “Questions of law are reviewed under the de novo standard of review.” Id. “Whether a suspect is ‘in custody’ and entitled to a Miranda warning is a mixed question of law and fact and, therefore, is fully reviewable on appeal.” Genre, at ¶ 23.

III

[¶ 7] Gasal argues the search warrants are facially invalid because they were not dated, nor were the supporting applications and affidavit dated, requiring the evidence seized as a result of the search to be suppressed. Gasal argues the absence of a date violates Rule 41(c)(1)(D), N.D.R.Crim.P., which provides, “The warrant must be directed to a peace officer authorized to enforce or assist in enforcing any law of this state. It must command the officer to search, within a specified period of time not to exceed ten days, the person or place named for the property or person specified.” Gasal argues the absence of a date renders the warrant facially invalid because he could not determine whether the warrant was valid when executed or if it was executed within the ten-day period. The district court found:

“In State v. Bollingberg, 2004 ND 30, ¶ 19, 674 N.W.2d 281 it was held that technical errors do not invalidate a warrant. In this instance, however, omission of the date is not a technical error, or any sort of error, since placing the issuance date on a search warrant is not required by Rule 41 N.D.R.Crim.P. or N.D.C.C. Chapter 29–29. There is no Fourth Amendment violation.”

[¶ 8] Rule 41, N.D.R.Crim.P., “is designed to implement the provisions of Article I, Section 8, of the North Dakota Constitution and the Fourth Amendment to the United States Constitution.” N.D.R.Crim.P. 41, Explanatory Note. Suppression is the appropriate remedy for violations of the provisions of N.D.R.Crim.P. 41 under some circumstances. See, e.g., Roth v. State, 2007 ND 112, ¶ 31, 735 N.W.2d 882; State v. Fields, 2005 ND 15, ¶ 14, 691 N.W.2d 233. “However, not every violation of N.D.R.Crim.P. 41 results in suppression of evidence.” State v. Scholes, 2008 ND 146, ¶ 12, 753 N.W.2d 377.

[¶ 9] “Rule 41, N.D.R.Crim.P., was drawn from Rule 41, F.R.Crim.P., and therefore, we give great weight to the construction placed on it by the federal courts.” State v. Runck, 534 N.W.2d 829, 831 (N.D.1995) (citing State v. Rueb, 249 N.W.2d 506 (N.D.1976) ). “Federal courts have construed Rule 41, F.R.Crim.P., so that a violation of the ministerial aspects of the rule very seldom results in the suppression of evidence.” Runck, at 832. “But a violation of Rule 41(d) can lead to exclusion ‘when there is a showing of prejudice, or an intentional and deliberate disregard of the rule.’ ” Id. (quoting United States v. Kelly, 14 F.3d 1169, 1173 (7th Cir.1994) ). Gasal argues the absence of a date violates Rule 41, rendering the warrant invalid. The district court found the date was not a requirement under Rule 41.

[¶ 10] In Runck, this Court concluded that “leaving an unsigned and undated copy of the search warrant at a farmstead was a ministerial violation of Rule 41, N.D.R.Crim.P., that does not warrant suppression of the evidence seized upon execution of the warrant.” 534 N.W.2d at 832; see also United States v. Smith, 720 F.3d 1017, 1020 (8th Cir.2013) (finding a warrant with an incorrect date a mere technicality that did not invalidate the search warrant). Even if the omission of the date is a ministerial error, there must be “a showing of prejudice, or an intentional and deliberate disregard of the rule.” Runck, at 832 (quoting Kelly, 14 F.3d at 1173). Runck acknowledges that while the unintentional absence of a date would not invalidate a warrant under the prejudicial test, continued noncompliance or common practice of executing warrants without a date may warrant suppression. 534 N.W.2d at 832.

[¶ 11] Gasal argues he was prejudiced because he could not determine the validity of the warrant in terms of staleness, noting the incident and initial interviews took place over a month before officers executed the warrant. Gasal offers no evidence of prejudice or how he would have acted differently. Moreover, Gasal, after speaking with his lawyer, voluntarily showed law enforcement where the rifle was located. Jarred Gasal also voluntarily gave law enforcement his son's rifle. Gasal did not argue either “an intentional [or] deliberate disregard of the rule.” Runck, 534 N.W.2d at 832 (quoting Kelly, 14 F.3d at 1173). The game warden testified he did not intentionally omit the date on the warrant. He testified the State's Attorneys usually prepare a warrant for him, but in this case, he prepared the warrant himself, using a template faxed over from a police department. The error was not deliberate or an intentional disregard of the rule.

[¶ 12] Alternatively, Gasal argues the absence of a date on the warrant is clerical error. Gasal relies on Rule 36, N.D.R.Crim.P., to explain and define “clerical errors.” Gasal notes under Rule 36, “if the error or omission is indeed a judicial error, rather than a clerical mistake, it is not within the purview of the rule.” United States v. Kaye, 739 F.2d 488, 491 (9th Cir.1984). However, the Eighth Circuit explained Rule 36 is inapplicable in search warrant cases because Rule 36 analyzes “the ability of a district court to correct its own mistake in an order, judgment, or other parts of the record under Federal Rule of Criminal Procedure 36.” Smith, 720 F.3d at 1020 (finding Rule 36 cases irrelevant to determination of whether a clerical error invalidates a search warrant). We agree with these federal courts and conclude Rule 36, N.D.R.Crim.P., does not apply to search warrants and does not render these warrants invalid.

[¶ 13] Omission of the date on the warrant does not itself require suppression of the evidence seized upon execution. Nor is suppression...