State v. Howe
| Citation | 182 N.W.2d 658 |
| Decision Date | 09 December 1970 |
| Docket Number | Cr. N |
| Parties | STATE of North Dakota, Plaintiff and Respondent, v. Frank HOWE, Defendant and Appellant. o. 391. |
| Court | United States State Supreme Court of North Dakota |
Syllabus by the Court
1. The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
2. A warrantless search is permissible if it is consented to by a proper party.
3. If a search is unlawful, the discovery of evidence against one suspected of a violation of law does not make it lawful. The search is either good or bad when it starts, and the result of the search does not determine whether it was reasonable or unreasonable.
4. An examination of the judgment roll reveals that no supporting affidavit was filed with the search warrant. On this basis alone, the search warrant is invalid since it did not comply with §§ 29--29--03, 29--29--04, and 29--29--16, N.D.C.C.
5. Section 29--29--10, N.D.C.C., requires that a search always be made during the daytime unless the affidavits are positive that the property is on the person or in the place to be searched.
6. Where the conviction of the defendant is sustained by other than the disputed evidence, error in permitting the introduction of such disputed evidence, to justify reversal, must be error which is obnoxious to fundamental criminal procedure.
7. When considering the question whether evidence which was obtained from an illegal search and seizure and which was admitted during the course of the trial violated the Federal Constitution, or whether it constituted harmless error, it is necessary to apply the tests that the United States Supreme Court has set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065, reh. den. 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967).
8. For reasons stated in the opinion, the judgment of the district court is affirmed.
Thompson, Lundberg & Nodland, Bismarck, for defendant and appellant.
Helgi Johanneson, Atty. Gen., Dale H. Jensen, State's Atty., and William G. Engelter, Asst. State's Atty., Burleigh County, Bismarck, for plaintiff and respondent.
Frank Howe has appealed to this Court from the verdict of guilty and final judgment upon a conviction of the crime of burglary in the Burleigh County District Court. Mr. Howe's specification of error is that the district court failed to grant his written, oral, and standing motion for a return of seized property and for suppression of evidence. Thus, Hr. Howe, has raised the issue of whether the verdict of the jury resulted from inadmissible evidence submitted at the trial.
Mr. Howe was convicted of burglarizing the Bismarck residence of Arseius Volk, from which used wearing appeal, namely, two men's suits, were taken. The burglary was committed while Mr. and Mrs. Volk were away on vacation. The burglary was first called to the attention of the Bismarck Police Department on June 19, 1969, when the Volks returned from their vacation trip. The following day, the Bismarck Police Department was provided with an inventory of the items missing from the Volk residence.
A few days later, Lieutenant Clarence Conitz of the Bismarck Police Department received a telephone call from the manager of Mars Cleaners, a business establishment located in Bismarck. The manager informed Lieutenant Conita that Frank Howe had left an assortment of clothing at Mars Cleaners, and the manager then requested that the police conduct an investigation. Subsequently, Mrs. Volk was taken to Mars Cleaners, whereupon she positively identified two of her husband's suits. Furthermore, these same suits were identified as missing from the Volk residence after the burglary in question. The manager then released the two suits to the police. At no time did the Bismarck Police Department obtain a search warrant for Mars Cleaners.
The complaint against Frank Howe charging him with burglary was made and a warrant for his arrest was issued on June 30, 1969. In addition, on the same date, a search warrant was approved and issued to search the home of Mrs. Eloise Howe, the mother of Frank Howe, as Frank Howe and his wife also resided at that residence.
During the evening of June 30, 1969, and after Mr. Howe had been arrested, police officers went to the residence of Mrs. Eloise Howe and presented her with the search warrant. No property identified as having been taken in the burglary of the Volk residence was seized during the search of the Howe home. However, while the search warrant was being read to Mrs. Eloise Howe, another police officer, while inspecting the grounds, observed a box of clothing and miscellaneous articles which were in plain view and located near the northwest corner of the house. Mrs. Volk later identified this personal property as belonging to the Volks and stated that the property had been missing from their home since the burglary in question.
At this point it should be noted that the State and Mr. Howe are in disagreement as to whether the search warrant used for the search of the Howe residence conformed to § 29--29--04 of the North Dakota Century Code. Section 29--29--04, N.D.C.C., requires that a magistrate, before issuing a search warrant, must take a written affidavit from the complainant and from any witness the complainant may produce, after having examined these persons under oath. Each affidavit must set forth the facts which tend to establish the grounds of an application or probable cause for believing that the facts exist. On appeal, Mr. Howe correctly sets forth that no affidavit appears in the judgment roll. However, the attorney for the State urges that there is a copy of the complaining officer's affidavit in the state's attorney's file, but that he was unable to also locate the original affidavit of the officer.
Before Mr. Howe's trial, a written motion for suppression of this evidence was served and filed on October 9, 1969, which motion was restated orally in open court on the following day. The motion to suppress was denied by the trial court on October 16, 1969. Mr. Howe renewed such motion at the commencement of trial on the same day. The trial court ordered that a standing objection as to any testimony pertinent to Mr. Howe's motion would be permitted.
Mr. Howe was charged specifically with taking the two suits, which were recovered at Mars Cleaners, as a result of the burglary of the Volk residence. Nevertheless, all of the personal property found beside the home of Mrs. Eloise Howe, as well as the two suits seized from Mars Cleaners, were introduced in evidence.
The jury found Frank Howe guilty of the crime of burglary. Mr. Howe bases his appeal on the contention that his conviction was founded upon evidence seized in violation of constitutional guarantees secured to him by the Fourth and the Fourteenth Amendments of the United States Constitution, and by § 18 of the North Dakota Constitution, the relevant provisions of which read as follows:
Article IV of the U.S. Constitution:
'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
Article XIV, § 1, U.S. Constitution:
'The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.'
Furthermore, it is Mr. Howe's contention that the search warrant used as authority to search his mother's home was in violation of the following North Dakota statutes:
29--29--03, N.D.C.C. 'Issued only upon probable cause.--A search warrant can be issued only upon probable cause, supported by affidavit naming or describing the person, and particularly describing the property and the place to be searched.'
29--29--04, N.D.C.C.
29--29--10, N.D.C.C.
29--29--12, N.D.C.C. 'Return of warrant.--The officer executing a search warrant must return the warrant to the magistrate forthwith, and deliver to him a written inventory of the property taken, made publicly or in the presence of the person from whose possession it was taken and the applicant for the warrant, if...
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