State v. Iverson

Decision Date08 April 1971
Docket NumberNos. 390,393,s. 390
Citation187 N.W.2d 1
PartiesSTATE of North Dakota, Plaintiff and Respondent, v. James Leroy IVERSON, Defendant and Appellant. Crim.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. A person who is a suspect or upon whom an investigation is focused must be advised prior to any interrogation that he has the right to counsel and to have counsel with him during any interrogation; that he has the right to remain silent; that anything stated by him can be used in evidence against him; and that if he is an indigent, a lawyer will be appointed for him. These are the Miranda warnings. Unless these warnings are first given to such person, no statement or other evidence obtained as a result of the interrogation can be admitted in evidence against him.

2. A witness questioned in a general investigation which has not focused upon him need not be given the Miranda warnings.

3. It was proper to subpoena witnesses to testify at a State's Attorney's Inquiry held in accordance with Section 11--19A--09, N.D.C.C., and it was not necessary to give them the Miranda warnings when they were not suspects or persons upon whom the investigation was focused.

4. A witness subpoenaed to testify at a State's Attorney's Inquiry was not a suspect or the focus of the investigation when there was not probable cause to take him into custody; when the investigation was only several hours old and substantial clues had not been found; when the cause of death had not been determined; when the length of time a victim had been deceased was not known; when witnesses to the crime had not been found; when the information from all sources had not been correlated; when the testimony of prior witnesses revealed only that a murder victim had frequently received male visitors late at night, that one of these visitors was described as the 'one-legged guy' because of his footstep, that another of these visitors was called Jim, that a cab from one company had on occasion been seen in the area of the scene of the crime, and that visitors to the victim's apartment had not been observed for at least a week prior to the discovery of the murder victim; when the witness who was subpoenaed was called Jim, had a built-up sole on one shoe, and drove a cab; and when the conduct of the State's Attorney's Inquiry and the questions asked of the witness were not inquisitorial or accusatorial.

5. A witness testifying under compulsion of a subpoena has his freedom of action limited in a significant way, but the compulsion of a subpoena alone is not enough in itself to require that the Miranda warnings be given.

6. Questioning of witnesses in the fact-finding process, the primary tool of which is the subpeona, does not require that the Miranda warnings be given. The State's Attorney's Inquiry is such a fact-finding process.

7. To advise a witness testifying under compulsion of a subpoena that he cannot refuse to answer the questions is not improper, as the purpose and legal effect of a subpoena is to compel a witness to attend a legal proceeding and to testify.

8. It is the duty of a witness to answer every question relevant to the subject of the inquiry.

9. The power to compel a witness to testify under compulsion of a subpoena is limited by the right of the witness to not be compelled to testify against himself, as guaranteed by the Fifth Amendment to the U.S. Constitution and Section 13 of the North Dakota Constitution.

10. The Fifth Amendment and Section 13 rights of the witness are personal and must be claimed by him.

11. A witness need not be advised of his right not to incriminate himself.

12. Testimony, the trustworthiness of which satisfies legal standards, given by the defendant at the State's Attorney's Inquiry was properly used, without violating his constitutional rights, to impeach him at his trial when he voluntarily took the stand to testify in his own behalf, notwithstanding that he was not given the Miranda warnings at the State's Attorney's Inquiry.

13. Reasonable grounds to believe that the defendant had committed the felony of murder in the first degree existed when all the information, after being correlated, revealed that the victim had died of strangulation; that the victim was a female whose defense was her hands and fingernails, and thus one could expect to find scratch marks on her assailant; that the defendant had testified earlier as a witness at the State's Attorney's Inquiry that he had knocked on the door of the victim's apartment at approximately 6:00 a.m., November 26, 1968, thereby placing himself at the scene of the crime during the 24-hour period in which the autopsy revealed that the victim had been strangled; and that a bloodhound identified the defendant as the source of the scent found on a pillowcase at the scene of the crime.

14. An arrest without a warrant made pursuant to Section 29--06--20, N.D.C.C., meets the probable cause requirement of the Fourth Amendment to the U.S. Constitution and of Section 18 of the North Dakota Constitution when reasonable grounds exist to believe that the person arrested has committed a felony, reasonable grounds and probable cause being substantial equivalents of the same meaning.

15. An arrest was made by the state's attorney and his administrative assistant as private persons when the defendant was restrained by the administrative assistant, who revealed his gun and told the defendant he was under arrest.

16. Notwithstanding that the defendant may not have been verbally informed of the cause of his arrest, the objective of Section 29--06--21, N.D.C.C., requiring that a person being arrested be informed of the cause of his arrest, was accomplished when the circumstances of the defendant's arrest and the State's Attorney's Inquiry conducted three hours earlier, in which the defendant testified as a witness, provided him sufficient notice of the cause of his arrest.

17. A delay occasioned by the processing of the defendant in the police station for approximately four hours between his arrest and his appearance before a magistrate was not per se an unnecessary delay when there was no showing of prejudice.

18. Complaints which fail to set forth sufficient information cannot support a magistrate's finding of probable cause.

19. The intent of Section 29--06--05, N.D.C.C., is to interpose the judgment of an independent magistrate between the judgment of a peace officer or a private person in arresting another person without a warrant and the decision to hold him for a preliminary examination or to stand trial.

20. The magistrate, having found probable cause based on two affidavits praying for a search warrant in a proceeding held one hour and forty-five minutes earlier regarding the same crime, necessarily had knowledge of the information contained in these affidavits, which, together with the two complaints which in themselves failed to set forth sufficient information, was sufficient to support a finding of probable cause to hold the defendant for a preliminary examination.

21. A search warrant issued on probable cause shown by the affidavits praying for the search warrant and the affidavits themselves must be judged in a commonsense and realistic fashion, with any doubt being resolved in favor of upholding the search warrant, given the constitutional preference for a search conducted pursuant to a warrant, as opposed to a warrantless search.

22. Affidavits praying for a search warrant, when read together, established that the female victims had been murdered; that the defendant knew one of the victims and had visited her apartment two days before the discovery of their bodies; that the defendant, who was interrogated on the day of the discovery of the victims, bore scratch marks on his hand, neck, and body; and that the defendant on occasion had driven one of the victims to work. These affidavits, when judged in a common-sense fashion, established probable cause for the issuance of a search warrant, since from the facts established, it was reasonable to assume that in a violent crime, such as murder, blood would be present; that female victims would have fought with the weapons available--their hands and fingernails--and that, accordingly, their assailant could be expected to bear scratch marks; that the defendant, who knew one of the victims and had visited her apartment two days before the discovery of their bodies, and who bore scratch marks, could be the assailant; and that the defendant would have driven his automobile to his residence to clean up and to change out of any blood-stained clothing.

23. Items of clothing can be means of committing a felony and, hence were lawfully seized under Section 29--29--02(2), N.D.C.C., pursuant to a search warrant.

24. A blood-stained towel that could have been used to wipe any blood off the defendant's person was a means of committing a felony, in that it aided the defendant in concealing evidence of the commission of his crime.

25. Evidence, even though not described in the search warrant with sufficient particularity, may nevertheless have been lawfully seized and admitted in evidence if it was stolen property, property used as a means of committing a felony, or property the possession of which is a crime.

26. A towel, although not described with sufficient particularity in the search warrant, was lawfully seized and admitted in evidence as a means of committing a felony.

27. When the defendant was already incarcerated pursuant to a lawful arrest, his privacy could not have been invaded by a nighttime search of his residence pursuant to a nighttime search warrant issued on affidavits that lacked the positive statement required by Section 29--29--10, N.D.C.C.; therefore, the authorization of the nighttime search was harmless error, which must be disregarded on appeal as required by Section 29--28--26, N.D.C.C.; hence, evidence seized pursuant to the...

To continue reading

Request your trial
62 cases
  • State v. Sakellson
    • United States
    • North Dakota Supreme Court
    • December 18, 1985
    ...reason for not finding it so under Article I, Section 8 of our State Constitution. This is consistent with our reasoning in State v. Iverson, 187 N.W.2d 1 (N.D.1971). Justice Levine relies on Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, to support the view that an announce......
  • State v. Santiago
    • United States
    • Hawaii Supreme Court
    • December 29, 1971
    ...175, 186 N.W.2d 206 (1971); Rooks v. State, Ark., 466 S.W.2d 478 (1971); Jorgenson v. People, Colo., 482 P.2d 962 (1971); State v. Iverson, 187 N.W.2d 1 (N.D.1971); Utsler v. Erickson, 440 F.2d 140 (8th Cir. 1971); Perez v. State, 466 S.W.2d 283 (Ct.Crim.App.Tex.1971).13 By final we mean th......
  • People v. Memro
    • United States
    • California Supreme Court
    • November 30, 1995
    ...the corpse as it is left, not by its assailant, but by the probing instruments and procedures of the medical examiner.' " (State v. Iverson (N.D.1971) 187 N.W.2d 1, 38, quoting People v. Turner (1969) 17 Mich.App. 123, 132, 169 N.W.2d 330, 335; see also People v. Burns (1952) 109 Cal.App.2d......
  • Iverson v. State of North Dakota, 72-1600.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 11, 1973
    ...North Dakota of the strangulation murder of two young women. His conviction was affirmed by the North Dakota Supreme Court. State v. Iverson, 187 N.W.2d 1 (N.D.1971), cert. denied, 404 U.S. 956, 92 S.Ct. 322, 30 L.Ed.2d 273. Thereafter petitioner sought and was granted on August 31, 1972, a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT