State v. Gronlund, Cr. N

• Decision Date: 23 October 1984
• Docket Number: Cr. N
• Citation: 356 N.W.2d 144
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Jerrold G. GRONLUND, Defendant and Appellee. o. 1022.
• Court: North Dakota Supreme Court

Page 144

356 N.W.2d 144

STATE of North Dakota, Plaintiff and Appellant, v. Jerrold G. GRONLUND, Defendant and Appellee.

Cr. No. 1022.

Supreme Court of North Dakota.

Oct. 23, 1984.

Owen K. Mehrer, States Atty., Tom Henning, Asst. States Atty., Dickinson, for plaintiff and appellant; argued by Tom Henning, Dickinson.

Freed, Dynes, Reichert & Buresh, Dickinson, for defendant and appellee; argued by Eugene F. Buresh, Dickinson.

PEDERSON, Justice.

The State appeals, pursuant to Sec. 29-28-07, NDCC, from an order suppressing all the controlled substances and contraband discovered in a search of the trunk of Gronlund's car. The prosecuting attorney filed the required statement asserting that without the suppressed evidence there was no longer any possibility of successfully prosecuting the criminal charges. We reverse and remand for further proceedings in accordance with this opinion.

The case arises from events surrounding the abduction and beating of John B. Anton (Anton) on September 3, 1983. Anton alleged that he had been taken from Dickinson by several individuals including Jerrold Gronlund (Gronlund) and Clarence Jacobs (Jacobs) and driven to a nearby rural area where his assailants beat him with fists and struck him with a wooden walking cane. At one point Anton heard a sound that might have been the cane breaking as it hit his knees.

Based on Anton's statements, law enforcement officials arrested Gronlund and Jacobs and sealed Gronlund's vehicle before taking it to the Dickinson Law Enforcement Center. Anton's statements also indicated that controlled substances might be found at the Jacobs and Gronlund residences and that Jacobs often kept his stash in a green Tupperware-like container.

Three search warrants were issued on September 4, 1983. One was for the Jacobs residence to search for marijuana, one was for the Gronlund residence to search for the walking cane, and one was for the Gronlund vehicle to search for the walking cane. The walking cane was believed to have been used in the alleged assault on Anton.

During the execution of the search warrant on the car, Officer Chapman discovered a five-gallon green plastic pail in the trunk. The pail was opaque and the lid was securely fastened. He opened the container and observed an orange bong lying on top. Recognizing the bong as drug paraphernalia, the officer removed it and discovered several other containers under the bong, including tin boxes and a grocery bag. The contents of these other containers were not visible. Officer Chapman then opened the containers and found items that appeared to be controlled substances and drug paraphernalia. The pail and its contents were confiscated, inventoried and analyzed. Gronlund was subsequently charged with two counts of possession of a controlled substance with intent to deliver.

Gronlund moved to suppress the evidence of the pail and its contents on the ground that the search exceeded the scope of the warrant issued for the automobile. He did not, and does not now on appeal, contest the validity of the warrant. Rather, Gronlund argues that the search was limited to those places where an intact wooden walking cane might reasonably be found. The State, on the other hand, argues that the officers had reasonable grounds to believe the cane might be broken into one or more pieces and that these pieces might have been in the green pail. The State contends that once the officers legitimately opened the pail, they could search anything within the pail.

The trial court found that although the officers testified that Anton informed them the cane broke during the beating, that information was not reflected in the search warrant and the officers later determined the cane was not broken. From that finding the court concluded as a matter of law that the green pail could not contain a walking cane and since the pail's contents were not readily visible, the search of the pail was an impermissible general search for drugs. Accordingly, the court ordered the pail and all items contained within it suppressed.

Both the State and Gronlund frame the issue on appeal as whether or not the search of the pail exceeded the scope of the warrant issued for the automobile. In our view the disposition of this appeal requires a more detailed inquiry. First, did the initial opening of the pail exceed the scope of the search warrant? Second, if the initial opening was proper, did the further search of the pail's contents without a warrant violate Gronlund's Fourth Amendment right to be free from unreasonable searches and seizures? The trial court decided the first question in the affirmative and, consequently, had no occasion to reach the second question.

Gronlund takes the position that the officers could not reasonably expect to find an intact wooden walking cane in a five-gallon pickle pail and because the search warrant did not specify that the cane might be broken, the officers could not look for pieces of a cane. The State contends that it would unduly hamper law enforcement officials to require that degree of specificity when the officers could reasonably believe the cane might not be intact. ¹

The proper inquiry is whether or not the search was reasonable under the circumstances. It is essential that the particularity requirement be applied with some degree of flexibility, depending on the type of property to be seized. United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir.1982). The purpose of the particularity requirement is to minimize the chances that the executing officer will exceed the scope of the permissible search because of confusion or uncertainty. "A rigid and unrealistic reading of a search warrant is not mandated."...