State v. Klevgaard, 760

• Decision Date: 12 May 1981
• Docket Number: No. 760,760
• Citation: 306 N.W.2d 185
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Keith KLEVGAARD, Defendant and Appellee. Crim.
• Court: North Dakota Supreme Court

Page 185

306 N.W.2d 185

STATE of North Dakota, Plaintiff and Appellant, v. Keith KLEVGAARD, Defendant and Appellee.

Crim. No. 760.

Supreme Court of North Dakota.

May 12, 1981.

Robert G. Hoy, Asst. State's Atty., Fargo, for plaintiff and appellant.

Garaas Law Firm, Fargo, for defendant and appellee; argued by David Garaas.

SAND, Justice.

A complaint charging Keith Klevgaard (Klevgaard) with burglary was filed in district court. Klevgaard moved to suppress certain evidence. After a hearing, the court issued an order ¹ suppressing physical evidence seized from and statements or confessions made by Klevgaard, the defendant. The State of North Dakota appealed.

On 11 June 1980 at approximately 2:40 a. m., deputy sheriff Budd Warren (Warren) of the Cass County sheriff's department was routinely patrolling the community of Hunter, North Dakota, when he observed a lone automobile with Minnesota license plates parked on Main Street in front of the Bronze Hut Cafe. Two males, Klevgaard and Mike, ² were at the rear of the automobile. Warren parked his squad car and approached the individuals. He innocuously inquired, "What's the problem?" and was confronted by Klevgaard who responded in a profane and obtrusive manner. Warren observed that Klevgaard had blood on his arm and shirt from a cut on his wrist. Warren also detected the odor of alcoholic beverages on Klevgaard's breath.

Mike then came from the rear of the car and told Warren that they were having trouble with their brake lights and blinkers. During this conversation Warren noticed a cardboard box under the rear of their automobile. However, the record reflects that at this time he was not able to observe the contents of the cardboard box. ³ Warren then told them to fix their tail lights and be on their way.

Warren got in his squad car, drove past the parked car and noticed Klevgaard and Mike return to the rear of the car, presumably to work on the tail lights. After Warren had driven past the parked car, Klevgaard and Mike picked up the box underneath the car, put it in the car and drove out of town in a northerly direction. The tail lights on their car were working at this time.

Warren radioed for assistance because he suspected a "possible burglary" and turned around to follow the car. As he drove by the Bronze Hut Cafe he noticed three candy bars on the "curve" ⁴ next to where the car had been parked. Warren followed the car for approximately ten miles without using red lights or a siren. In order to keep a constant distance between his squad car and the car he was following Warren had to vary his speed, and, at times, he had to go between 70 and 100 miles per hour. ⁵ The car ultimately became stuck and Klevgaard and Mike got out of the car. Warren had reason to believe the situation was dangerous because of the defendant's obnoxious behavior at the earlier encounter.

Warren instructed them to lie down in the middle of the road. Mike complied with this instruction, but Klevgaard continued to walk toward Warren and it took several repeated instructions until Klevgaard finally laid down on the road. In the meantime the backup assistance requested by Warren arrived, and Klevgaard and Mike were arrested and put in separate squad cars. Klevgaard was not informed of the cause of his arrest at this time, nor was the arrest pursuant to a warrant. However, Warren read the Miranda ⁶ rights to Klevgaard and Mike at the time of the arrest. Klevgaard responded that he understood the rights read to him.

Warren then went to the car, which was still running, and looked inside it. The passenger door was left open. From outside the car, Warren observed a box of candy bars, hamburger patties, and some hamburger or hot dog buns. Warren then seized these items without a warrant. After the search was finished, the officers and the two men then returned to Hunter. Klevgaard rode with Warren and Mike rode with the other officer. When Warren stopped in front of the Bronze Hut Cafe, he asked Klevgaard which door they broke into and Klevgaard replied "the back door." According to Warren, this is the only question he asked of Klevgaard during the ride from the place where the arrest was made to the Bronze Hut Cafe. The officers investigated the Bronze Hut Cafe. The resulting investigation established that the cafe had been forcibly entered by breaking a window in the rear door. Several candy bars and hamburger patties were strewn about on the floor and both refrigerator doors were open. Additionally, there was blood on the refrigerator doors and the floor, as well as the rear entrance.

At the cafe, Warren took blood samples as well as pictures and other physical evidence. During this investigation Klevgaard and Mike were still in the back seat of separate squad cars which were parked near the cafe.

After the investigation, Klevgaard and Mike were transported to the Cass County jail in Fargo in separate squad cars. Klevgaard was a passenger in the squad car driven by Warren, and during this ride several inculpatory statements were made by Klevgaard concerning his involvement in the burglary of the Bronze Hut Cafe. At the Cass County jail Klevgaard was informed for the first time that he was under arrest for burglary.

Prior to trial in district court, Klevgaard moved to suppress "all physical evidence seized by the law enforcement officials on or about June 11, 1980 ... near Hunter, North Dakota, and ... all confessions or statements made by the defendant on or about June 11, 1980." The district court, after a hearing on the motion, entered an order suppressing all such physical evidence and confessions or statements because it found that the warrantless arrest of Klevgaard was made without probable cause and all the evidence seized and statements made were tainted by the illegal arrest. The State appealed from that order. ⁷

The first issue for our consideration is whether or not the "physical evidence" seized from and "statements or confessions" made by Klevgaard were in violation of his fourth amendment ⁸ rights. Several interrelated questions must be considered to resolve this issue. The initial question is whether or not Warren had reasonable cause to arrest Klevgaard.

The trial court doubted the credibility of Warren's testimony regarding the contents of the cardboard box and where the candy bars were found. Footnotes 3 and 4 explain the problem involved.

In this instance both the arrest of Klevgaard and the subsequent seizure of evidence were done without warrant. Any search and seizure made without a valid search warrant is unreasonable unless it falls within one of the exceptions to the constitutional requirement that a search be made only upon a valid search warrant supported by probable cause. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); State v. Matthews, 216 N.W.2d 90 (N.D.1974).

One of the exceptions to the requirement of a search warrant is that a warrantless search may be made incident to a lawful arrest. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); State v. Harris, 286 N.W.2d 468 (N.D.1979); State v. Arntz, 286 N.W.2d 478 (N.D.1979).

An arrest made without a warrant must be based upon reasonable cause. State v. Arntz, supra; § 29-06-15, NDCC. ⁹ However, an arrest may not be made upon mere suspicion. State v. Gagnon, 207 N.W.2d 260 (N.D.1973).

Reasonable cause exists when the facts and circumstances within a law enforcement officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed. State v. Phelps, 286 N.W.2d 472 (N.D.1979); State v. Page, 277 N.W.2d 112 (N.D.1979). Reasonable cause must exist at the time of the arrest. State v. Arntz, supra; State v. Harris, supra.

In determining whether or not reasonable grounds for an arrest exist, the total atmosphere and factual setting must be considered, and even though no single item by itself may establish reasonable cause, if the totality of the circumstances establish reasonable cause, the arrest is valid. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Arntz, supra.

To establish probable cause it is not necessary that the officer possess knowledge and facts sufficient to establish guilt; all that is necessary is knowledge that would furnish a prudent man with reasonable grounds for believing a violation has occurred. Brinegar v. United States, supra.

In Brinegar, supra, the United States Supreme Court made the following pertinent statement concerning probable cause:

"In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly corelative to what must be proved.

"These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." 69 S.Ct. at 1310-11.

A violation of the constitutional rights guaranteed by the fourth amendment is enforceable by excluding from trial the evidence searched for...