State v. Klodt

• Decision Date: 03 November 1980
• Docket Number: No. 727,727
• Citation: 298 N.W.2d 783
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. John Joseph KLODT, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 783

298 N.W.2d 783

STATE of North Dakota, Plaintiff and Appellee, v. John Joseph KLODT, Defendant and Appellant.

Crim. No. 727.

Supreme Court of North Dakota.

Nov. 3, 1980.

Rehearing Denied Nov. 21, 1980.

Kent M. Morrow, Asst. State's Atty., Watford City, for plaintiff and appellee State of North Dakota (on brief).

James L. Taylor, Watford City, for defendant and appellant (on brief).

VANDE WALLE, Justice.

John Joseph Klodt appeals from a judgment of conviction ¹ of the crime of theft of property, a Class C felony, in McKenzie County district court after a trial to the court without a jury. We affirm.

The State and Klodt, through their respective counsel, have entered into a stipulation of facts and of record for appeal. The pertinent part of that stipulation is as follows:

"That on or about the 20th day of October, A.D.1979, and at the request of Mike Baranko, as owner of a store and postoffice building on an eight-acre tract of land located along US Highway # 85 "In the back of the pickup was a barrel of oil, a barrel of gas, junk items and some old dirty and greasy clothes. The wind had dislodged some of the clothes in such a way that the Sheriff was able to determine that underneath there were air tanks and masks customarily used in the oil well drilling industry. In all there were seven (7) of such tanks and masks with one oxygen resuscitator, two (2) of which were located in the front or cab of the pickup. With the aid of a flashlight, the Sheriff took the serial numbers off the tanks and then called Norbert Sickler of the North Dakota Crime Bureau, who in turn advised Sheriff Cornell to take the property into his custody and store it in his vault in Medora so that no one would steal it, which the Sheriff did. Two days later information was received by Sheriff Cornell and the North Dakota Crime Bureau that similar items of property were reported missing on or about the 16th day of October, A.D., 1979 from an oil well site located in McKenzie County, only a few miles from the Baranko store. Upon the checking of the serial numbers by Norbert Sickler of the North Dakota Crime Bureau of the property that was reported missing with the serial numbers of the property that was taken into custody by Sheriff Cornell, it was then learned that the seven (7) air tanks and oxygen resuscitator that were found in the defendant's pickup were the same and identical property.

between Watford City and Dickinson in North Dakota, Sheriff Ted Cornell of Billings County came to move a pickup truck parked near the entrance of the Baranko store when after several days no one came to move or claim it. Unable to start the pickup, Sheriff Cornell enlisted the assistance of Frank Rodakowsky, a county commissioner of Billings County, who the following day moved the pickup to his quonset building close by, being used as a county road shed. The pickup was repaired and three or four weeks later was moved to Medora, North Dakota and parked near the Sheriff's own garage where it still stands.

"Following the preliminary examination, requested by the defendant, and after his being charged with the crime of theft of property, defendant made a motion to suppress evidence on the basis that the Sheriff in failing to obtain a search warrant to search the defendant's pickup actually conducted an unlawful search of the defendant's pickup truck with the confiscating of the property by the Sheriff being unlawful, which motion was denied, and it is from that order of the district court that the defendant takes his appeal.

"IT IS HEREBY FURTHER STIPULATED AND AGREED by and between the respective counsel hereto, the record on appeal shall consist of this stipulation of fact, transcript of preliminary hearing, depositions of Mike Baranko and of Sheriff Cornell, partial transcript of the district court, and all of the papers, records and documents filed in said case." ²

The issues, as set forth by Klodt, are as follows:

"I.

"Does the defendant have standing under the Fourth and Fourteenth Amendments of the United States Constitution and Section 18 of Article I of the North Dakota Constitution to object to the use of certain items of personal property as evidence to convict him of a crime, where the items of personal property were taken by the County Sheriff from the defendant's pickup, mechanically inoperable, and left parked for three (3) days on private property in a rural area being used as a general store and postoffice?

"II.

"If it be determined the defendant has standing to challenge the legality of the search, can the reasonable expectation of privacy necessitate the officers obtaining a search warrant?

"III.

"Would the defendant's Voluntary Statement made (sic ) stand if the search of the vehicle was illegal?"

STANDING

The issue of Klodt's standing to bring a motion to suppress evidence is based on the premise that the evidence was obtained in violation of his rights under the Fourth Amendment to the United States Constitution and Section 18 of the North Dakota Constitution, both of which essentially provide the right of the people to be secure against unreasonable searches and seizures. These constitutional rights may be enforced by the exclusion of evidence. State v. Fischer, 270 N.W.2d 345 (N.D.1978). The United States Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), held that standing to enforce the exclusion of evidence obtained in violation of the Fourth Amendment could be based on three alternative grounds: (1) standing based upon an interest in the property seized; or (2) standing based upon a possessory or proprietary interest in the premises or a legitimate presence upon the premises at the time of the search; or (3) automatic standing to contest a seizure of goods where the offense charged is possessory and is based upon the possession of the seized goods. See: State v. Fischer, supra. In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the United States Supreme Court determined that the "legitimately on the premises" standard was too broad a gauge for measurement of Fourth Amendment rights. 439 U.S. at 142, 99 S.Ct. at 429, 58 L.Ed.2d at 400. In United States v. Salvucci, --- U.S. ----, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the United States Supreme Court overruled the automatic-standing rule of Jones v. United States, supra, and held that defendants charged with crimes of possession may claim the benefits of the exclusionary rule only if their own Fourth Amendment rights have, in fact, been violated, stating:

"As in Rakas, we again reject 'blind adherence' to the other underlying assumption in Jones that possession of the seized good is an acceptable measure of Fourth Amendment interests. As in Rakas, we find that the Jones standard 'creates too broad a gauge for measurement of Fourth Amendment rights' and that we must instead engage in a 'conscientious effort to apply the Fourth Amendment' by asking not merely whether the defendant had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched. Thus neither prosecutorial 'vice,' nor the underlying assumption in Jones that possession of a seized good is the equivalent of Fourth Amendment 'standing' to challenge the search, can save the automatic standing rule." --- U.S. at ----, 100 S.Ct. at 2553, 65 L.Ed.2d at 629.

Both the State and Klodt have argued the significance of these decisions at length. The State contends that Klodt has no standing to challenge the validity of the warrantless search because he had no legitimate possessory interest in the items taken. Interesting as the discussion is, we must keep in mind that Klodt was not charged with the crime of possession of stolen property, in which crime possession of the property would be an essential element, but rather he was charged with theft of property in violation of Section 12.1-23-02, N.D.C.C., ³ in which possession of the property at the time of the warrantless search is not an element. ⁴ Secondly, although the State attempts to focus on the fact that Klodt has no possessory interest in the stolen property which is protected by the Fourth Amendment, it is not the search of the stolen property but rather the search of the pickup, which the State apparently concedes was owned by Klodt, which is at issue.

The United States Supreme Court has now held that while property ownership is a factor to be considered in determining whether or not an individual's Fourth Amendment rights have been violated, that does not end the inquiry. Salvucci, supra; Rakas, supra. The Salvucci and Rakas decisions indicate that an illegal search violates only the rights of those who have a legitimate expectation of privacy in the invaded place. Prior to the decisions in Salvucci and Rakas, this court, basing its holding on Jones, supra, indicated that standing could be established by a defendant who claimed a possessory or proprietary interest in the premises searched. State v. Fischer, supra, 270 N.W.2d at 350. We have previously indicated that it is within our power to apply higher constitutional standards than are required of the States by the Federal Constitution. State v. Matthews, 216 N.W.2d 90 (N.D.1974). Although the United States Supreme Court has, for the most part, overruled Jones, upon which the decisions in Matthews and Fischer were based, we need not decide today whether we will adhere to our previous decisions in those cases or follow the rationale of the United States Supreme Court in Salvucci and Rakas. Whether we merely look at Klodt's ownership of the pickup as providing standing to challenge the validity of the warrantless search or merely consider Klodt's legitimate expectation of privacy in the pickup, or both, we conclude that Klodt has at least a threshold standing to raise the question of the validity of the search of the pickup.

CONSTITUTIONALITY OF THE SEARCH

This court has...