State v. Hager, Cr. N
| Decision Date | 31 October 1978 |
| Docket Number | Cr. N |
| Citation | 271 N.W.2d 476 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Virgil HAGER, Defendant and Appellant. o. 640. |
| Court | North Dakota Supreme Court |
Clifford C. Grosz, Wells County State's Atty., Harvey, for plaintiff and appellee.
Ted D. Seibel, Harvey, for defendant and appellant; appeared only by filing briefs but not for oral argument.
Defendant Virgil Hager, was convicted on two counts of delivering alcoholic beverages to a minor. Following a bench trial on 15 February 1978 before the Wells County Court of Increased Jurisdiction, he was sentenced to a fine of $300 and 90 days incarceration in the county jail.
The defendant appealed and contended the trial court erred in denying his motion to dismiss the complaint on the ground the complaint failed to set forth sufficient facts on which a magistrate could make a finding of probable cause to issue an arrest warrant. Defendant also contended and argued that the trial court erred in not releasing to defense counsel parts of a prior statement made by a State witness following direct examination of that witness.
On 3 February 1978, two complaints charging defendant with delivery of alcoholic beverages to a minor, a class A misdemeanor, were sworn to by the Wells County sheriff. The complaints read:
"That on or about the 16th day of December, 1977, in Harvey, Wells County; the above-named Defendant committed the offense of: Delivery of Alcoholic Beverage to a minor in violation of Section 5-01-09 of the North Dakota Century Code, by then and there willfully delivering alcoholic beverages to a minor, namely (. . .), age 15, to-wit that the said Virgil Hager did deliver mixed drinks to the said (. . .) at the apartment of (. . .) at approximately 1:00 P.M. and thereafter on the said date." (Names omitted by this court.)
On the basis of these complaints, an arrest warrant was issued by the Judge of the Wells County Court of Increased Jurisdiction.
Rule 4 of the North Dakota Rules of Criminal Procedure requires a determination of probable cause be made by a magistrate before an arrest warrant is issued. The Rule further provides the probable cause determination shall be made upon the complaint and from any affidavit filed with the complaint. Under the Rule the magistrate may also examine the complainant or any other witness, or both, under oath, in which case the proceedings must be recorded by a court reporter or recording equipment.
There is no evidence in the record indicating the complainant or any other witness was examined by the Wells County Court before the arrest was issued. Nor is there any evidence in the record indicating any affidavits were submitted with the complaint. Accordingly, we must conclude the probable cause determination for the defendant's arrest warrant was based solely on the facts stated in the complaint.
Defendant contends the statements contained in the complaint are conclusions, and in accordance with previous holdings of this court and of the United States Supreme Court are not adequate to serve as the basis for a probable cause determination. State v. Erdman, 170 N.W.2d 872 (N.D.1969); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).
Analyzing the complaint in accordance with Rule 4, NDRCrimP, and prior decisions of this court and the United States Supreme Court, we note that although the information upon which the magistrate makes his determination of probable cause need not reflect the personal observations of the complainant, the magistrate must be informed of the underlying circumstances from which the complainant gathered that information. State v. Erdman, 170 N.W.2d 872 (N.D.1969); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). The purpose of the complaint is to enable the magistrate to determine whether or not the "probable cause" required to support a warrant exists. The magistrate must be in a position to judge for himself the persuasiveness of the facts relied upon to show reasonable cause. He cannot accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime. Giordenello v. United States, supra.
Based upon the information contained in the record before us, we have only the complaint charging the defendant with the offense of delivering alcoholic beverages to a minor. All the complaint contains is a bare assertion that at the time and place set forth in the complaint, the defendant delivered alcoholic beverages to certain named persons in violation of § 5-01-09, NDCC. The complaint contains no assertion that the complainant personally observed the events contained therein, nor does it indicate a source for the complainant's belief. No doubt the complainant based his assertions upon the pretrial statements made by the two minor witnesses in this case, but there is nothing contained in the record that indicates that he informed the magistrate of the source of his information. The complaint itself does not establish probable cause for arrest.
On the day of defendant's trial, immediately preceding opening statements to the court, defense counsel made an oral motion to dismiss on the grounds of a defective complaint in accordance with Rule 12(b), NDRCrimP. Rule 12(b) provides in pertinent part:
"b. Pretrial Motions.
Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised prior to trial:
(1) Defenses and objections raised on defects in the institution of the prosecution;
(2) Defenses and objections based on defects in the indictment, information, or complaint . . . ;
(3) Motions to suppress evidence on the ground that it was illegally obtained."
Rule 12(b), NDRCrimP, specifically provides that a motion based on defects in the complaint other than a failure to show jurisdiction or to change an offense "must be raised prior to trial." Subsection (f) of Rule 12, NDRCrimP, provides that failure to raise a defense or objection that must be raised prior to trial constitutes a waiver of that defense. Because we dispose of the issue of the defective complaint in this case on other grounds we need not decide if defendant's motion to dismiss was timely raised. 1
We now determine if the trial court's error in denying the motion to dismiss affected the substantial rights of the defendant such as to require a reversal of his conviction. If the error was harmless, defendant's conviction need not be overturned on this issue.
A defendant who is being detained without a judicial determination of probable cause may properly challenge that confinement through a timely made motion to dismiss. In this case, however, the trial court's adverse ruling to defendant's motion to dismiss did not result in any additional restraint on his liberty. Immediately following the trial court's ruling on the motion to dismiss, defendant's trial began and any subsequent incarceration was based upon a conviction as a result of the trial and not because of an improperly issued arrest warrant or an adverse ruling on a motion to dismiss.
In addition to defendant being entitled to release from pretrial detention until a judicial determination of probable cause is made, the usual sanction for an invalid arrest is that neither tangible items discovered in a search incident to such arrest, nor verbal statements of the accused obtained as a result of the arrest, are admissible in evidence. State v. Erdman, 170 N.W.2d 872 (N.D.1969); Wright, Federal Practice and Procedure: Criminal § 52, p. 37 (1969). Defendant, however, urged this court to adopt a rule that convictions following an illegal arrest are void. This we decline to do. Although both the United States and North Dakota Constitutions require the judicial determination of probable cause as a prerequisite to extended restraints, the judicial probable cause determination is not a prerequisite to the state's decision to charge for a crime. Judicial determination is required only for those suspects who suffer restraints on liberty other than that they appear for trial. Consequently, although an arrestee may challenge the probable cause for his pretrial confinement, his conviction will not be vacated solely on the ground he was arrested without a determination of probable cause. Illegal arrest or detention does not void a subsequent conviction. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, 68 (1975).
In this case no motion was made by defendant to suppress any evidence obtained as a result of the arrest. Nor is there a claim here on appeal that defendant's conviction rests upon evidence seized as a result of an illegal arrest, or upon a confession secured pursuant to an illegal arrest. Even on independent examination of the record we have failed to uncover any evidence used against the defendant that was secured as a result of his arrest.
As a result, no substantial rights of the defendant were affected by his illegal arrest as to justify reversal on this issue. The defendant was arrested and released on $5,000 bond. The record does not show how long he was incarcerated as a result of the arrest. The only prejudice suffered by the defendant would be his brief incarceration or the requirement of furnishing a bond. However, because the defendant did not make his motion until just immediately before trial, which substantially reduced whatever prejudice may have existed, and because we are remanding this case for new trial on another issue, we decline to reverse defendant's conviction on the grounds of an invalid arrest. Defendant is not prohibited on those proceedings from raising the issue of his illegal arrest anew should he be detained prior to trial or desire to suppress any evidence he feels was obtained as a result of the arrest. 2
As a second but more important issue, defendant contended the trial...
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State v. Loughead, 20060160.
...also raised a discovery issue under the Jencks Act, which we will not address due to its inapplicability here. See State v. Hager, 271 N.W.2d 476, 482 (N.D.1978) ("[T]he Jencks Act [is] not constitutionally mandated and thus not binding on the state's criminal courts."). [¶ 20] We recently ......
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...in the instruction on intent was harmless error under Rule 52(a) of the North Dakota Rules of Criminal Procedure. See also State v. Hager, 271 N.W.2d 476 (N.D.1978). IV. Sheldon contends that the form of the verdict submitted by the district court to the jury was a special verdict. The dist......
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