State v. Grant, Cr. N
Citation | 361 N.W.2d 243 |
Decision Date | 23 January 1985 |
Docket Number | Cr. N |
Parties | STATE of North Dakota, Plaintiff and Appellant, v. Annette GRANT, Defendant and Appellee. o. 1044. |
Court | North Dakota Supreme Court |
J.E. Rick Brown, Asst. State's Atty., and Paul D. Weisser, Sr. Law Intern, Grand Forks, for plaintiff and appellant.
Robert A. Feidler, Grand Forks, for defendant and appellee.
The State appealed from an order 1 of the County Court of Grand Forks County suppressing evidence. We dismiss the appeal.
On November 29, 1983, agents of the North Dakota Drug Enforcement Unit and officers of the Grand Forks Police Department obtained and executed a search warrant authorizing them to search a home located at 3512 Sixth Avenue North in Grand Forks. At approximately 11:30 a.m., while the officers were conducting the search, Annette Grant entered the home with Colleen Clauthier, who resided there, and Clauthier's two small children. Grant and Clauthier had taken the children skating and were returning after stopping at a grocery store. Grant was carrying two large sacks of groceries at the time she entered the home. Grant was taken to another room of the house and interrogated for approximately three to five minutes. At the conclusion of his questioning, the officer asked Grant if he could look into her purse. She asked if she had a choice, and the officer replied, "No, you don't." She then handed the purse to the officer, who unzipped it and inspected the contents. The purse contained two "baggies" of marijuana and a pill bottle containing drug paraphernalia with marijuana residue.
Grant was arrested and charged with possession of marijuana. The court granted her motion to suppress the evidence seized from her purse and the State has appealed.
Grant challenges the State's authority to take the appeal, alleging that the State has failed to file a statement in compliance with Section 29-28-07(5), N.D.C.C.:
The record on appeal indicates that no separate statement was filed with the court and no copy accompanied the State's original notice of appeal, dated July 27, 1984. On September 4, 1984, more than 60 days after entry of the order appealed from, the State filed an amended notice of appeal which stated:
"NOTICE IS HEREBY GIVEN that the above named Plaintiff, State of North Dakota, hereby appeals to the North Dakota Supreme court from the Judgment entered in this action by Grand Forks County Court on the 29th day of June, 1984, on the grounds that the deprivation of the use of the property ordered to be suppressed has rendered the proof available to the State with respect to the criminal charge filed with the Court insufficient as a matter of law."
The State claims that the statement contained in the amended notice of appeal satisfies the requirements of Section 29-28-07(5), N.D.C.C. We disagree.
The State's attempt to amend its notice of appeal was ineffectual, as it was filed well beyond the 30-day time limit of Rule 4(b), N.D.R.App.P. An amended notice of appeal filed after the time for taking the appeal has run will not be given effect by this court. See State v. Lawson, 321 N.W.2d 514 (N.D.1982); First National Bank of Hettinger v. Dangerud, 316 N.W.2d 102 (N.D.1982). Thus, the State's attempt to include the required statement in an amended notice of appeal filed after the time for taking the appeal had run does not satisfy the requirement of Section 29-28-07(5), N.D.C.C., that a copy of the statement accompany the notice of appeal.
Prior to our decision in State v. Freed, 340 N.W.2d 172 (N.D.1983), we allowed the prosecutor's statement to be filed late where the defendant did not challenge the content of the statement but only the date of its filing. See State v. Perbix, 331 N.W.2d 14 (N.D.1983); State v. Borden, 316 N.W.2d 93 (N.D.1982); State v. Fields, 294 N.W.2d 404 (N.D.1980); State v. Harris, 286 N.W.2d 468 (N.D.1979). In Freed, however, we denied the State's request for leave to file the statement late and dismissed the appeal. In so doing, we stated:
State v. Freed, 340 N.W.2d at 175-76.
In enacting Section 29-28-07(5), N.D.C.C., the Legislature granted only a limited right of appeal from suppression orders. State v. Rambousek, 358 N.W.2d 223 (N.D.1984); State v. Anderson, 353 N.W.2d 324 (N.D.1984); State v. Kisse, 351 N.W.2d 97 (N.D.1984). The State must make a good-faith evaluation of its case before it appeals from a suppression order. State v. Anderson, supra; State v. Frank, 350 N.W.2d 596 (N.D.1984). The purpose of the statutory requirement will be thwarted if we continue to allow the State to ignore it. We will not condone the State's disregard of the statutory requirement, and we therefore dismiss the appeal.
Although we dismiss the appeal, we feel compelled to briefly comment on the important Fourth Amendment issue raised by the State. The State contends that, because Grant entered a home where a valid search warrant for narcotics was being executed, the officers were justified in conducting a "frisk" for weapons, including an examination of the contents of Grant's purse. 2 Other than Grant's mere entry into the home where the search warrant was being executed, there is no evidence to support the State's argument that the search of the purse was in response to the officer's reasonable belief that Grant may have been armed. 3 The State is in effect asking this court to adopt a per se rule: officers may frisk any person who enters upon premises where a valid search for narcotics is being conducted.
The United States Supreme Court rejected such a per se rule under similar circumstances in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). In Ybarra, officers obtained a warrant to search a tavern and its bartender for narcotics. The officers conducted a "patdown" of all persons in the tavern, and found heroin in a cigarette pack in Ybarra's pants pocket. The Supreme Court held that the "frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons." Ybarra, supra, 444 U.S. at 92-93, 100 S.Ct. at 343, 62 L.Ed.2d at 246. The Court concluded:
Ybarra, supra, 444 U.S. at 93-94, 100 S.Ct. at 343, 62 L.Ed.2d at 247 [Footnote omitted].
The State contends that Ybarra has been impliedly overruled by the Supreme Court's decision in Michigan v. Summers, 452 U.S. 692, 702-703, 101 S.Ct. 2587, 2594, 69 L.Ed.2d 340, 349-350 (1981), wherein the Court stated:
[Footnote omitted.]
In Summers, the police detained the defendant, who was attempting to leave his home as officers arrived, while they executed a warrant to search his home for narcotics. The Court specifically distinguished Ybarra:
...
To continue reading
Request your trial-
State v. Tognotti, 20030015.
...that she was involved in criminal activity or an articulable suspicion that she was armed and presently dangerous. See State v. Grant, 361 N.W.2d 243, 247 (N.D.1985). [¶ 17] Other courts have held that an officer cannot order a nonarrested occupant of a vehicle to leave a purse inside the v......
-
State in Interest of L.Q.
...particular person is armed. See Ybarra v. Illinois, 444 U.S. 85, 93-94, 100 S.Ct. 338, 343, 62 L.Ed.2d 238, 246-247 (1979); State v. Grant, 361 N.W.2d 243 (N.D.1985). Another possibility is that probable cause to search a particular person might arise out of his actions or appearance during......
-
State v. Hall
...Cir.1980) (mere presence at site of warrant search, without specific grounds to suspect danger, does not justify frisk) and State v. Grant, 361 N.W.2d 243 (N.D.1985) (defendant who entered apartment during search should not have had purse checked for weapons without reasonable suspicion, ci......
-
State v. Gilberts
...held must form the predicate to a pat down of a person for weapons." Following the Ybarra rationale, this court in State v. Grant, 361 N.W.2d 243 (N.D.1985), held that officers who frisked a woman's purse while conducting a valid warrant search of a home for narcotics violated the woman's F......