State v. Klosterman

• Decision Date: 25 March 1982
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Howard Mark KLOSTERMAN, Defendant and Appellant. o. 796.
• Court: North Dakota Supreme Court

Page 796

317 N.W.2d 796

STATE of North Dakota, Plaintiff and Appellee, v. Howard Mark KLOSTERMAN, Defendant and Appellant.

Cr. No. 796.

Supreme Court of North Dakota.

March 25, 1982.

Ronald W. McBeth, Asst. State's Atty., Wahpeton, for plaintiff and appellee.

Christian M. Anderson, Wahpeton, for defendant and appellant.

SAND, Justice.

The defendant Howard Mark Klosterman appealed from a district court judgment resulting from a jury verdict of guilty of the crime of possession of stolen property, a class C felony. ¹

After receiving complaints from Ken Frolek and Doug Heitkamp concerning missing automotive equipment and tools, the Richland County sheriff's office conducted an investigation which culminated in the prosecution of the instant action. The affidavit in support of the search warrant ² reflects that Frolek and Heitkamp had previously reported to deputy sheriff Robert Johnson that they had caught Klosterman stealing parts and equipment from their properties, and they expressed suspicion that he was involved in the latest thefts. The latest items reported stolen included a transmission, two black bucket seats, automotive carpeting, tools, wrenches, and a blue deck lid. Armed with this information concerning the reported stolen property Johnson went to the Mark Klosterman farm near Barney, North Dakota. Mark Klosterman is the father of Howard Mark Klosterman. The facts developed before us reflect that Howard Mark Klosterman assembled and dismantled automobiles in the farmyard area of his father's farm.

At the Mark Klosterman farm, deputy sheriff Johnson was met by Howard's mother, Mrs. Mark Klosterman. He informed her that her son was suspected of stealing some automotive parts and asked to look around. She agreed and consented to a search of the farmyard. During this search, the deputy sheriff observed two black bucket seats and a blue deck lid which resembled those reported stolen and which he believed were stolen. Deputy sheriff Johnson informed Mrs. Klosterman of his belief and she advised him that a search warrant was needed for any further search. The deputy sheriff then left the Mark Klosterman farm and went to the county judge to secure a search warrant which was based upon his affidavit. (See footnote 2.)

After securing a search warrant, ³ deputy sheriff Johnson returned to the Mark Klosterman farm with the head of security at the North Dakota State School of Science, Donald Sebo, and Frolek and Heitkamp. The farmyard and outbuildings were searched and several items identified as stolen by the complainants were seized. The items initially seized included two utility lawnwheels valued at $25, one black bucket seat, and several tools stolen from the North Dakota State School of Science. As it subsequently turned out, the two black bucket seats and blue deck lid observed by Johnson earlier were not stolen property, but a black bucket seat reported stolen was seized. A copy of the search warrant and a copy of the inventory of the items seized was given to Mrs. Klosterman. Thereafter Klosterman was arrested, read his rights, and brought to the county law enforcement center. He later signed a statement of his rights and made a statement concerning the thefts, pursuant to which the other black bucket seat was recovered, as well as a fender valued at $100. The testimony reflects that the two black bucket seats were valued at $100.

At the time of the search and seizure Klosterman lived in Breckenridge, Minnesota, not on the Klosterman farm. He was present during the search, and volunteered additional statements incriminating himself. Formal criminal charges were made. The items seized pursuant to the search warrant were introduced into evidence at trial over Klosterman's motion to suppress, and a 12-man jury found him guilty. Judgment was entered and Klosterman appealed to this Court.

The defendant contends that his constitutional right to be secure from an unreasonable search and seizure was violated by the issuance and execution of the search warrant which was not supported by probable cause and by the subsequent use of the evidence obtained as a result of this search at his trial.

Initially we must consider a question which was briefly discussed during oral argument. This question concerns whether or not Klosterman can constitutionally challenge the search of the Mark Klosterman farm.

The United States Supreme Court in United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619, 623 (1980), recently dealt with standing in cases involving crimes with possession as an element, and held that "defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated." ⁴ Thus, a determination of whether of not Klosterman has standing to challenge the search requires asking whether or not he had an expectation of privacy in the area searched.

The facts relative to Howard Klosterman's expectation of privacy in the Mark Klosterman farmyard were not fully developed in the form of a suppression hearing or affidavit, nor did Howard Klosterman testify at trial. These facts may suggest that Howard Klosterman was operating a junkyard at his father's farm where he dismantled and assembled cars. Based on this, we believe that a proprietary interest may have been established.

Be that as it may, we also note that failure to make a timely challenge during litigation to the question of standing will preclude a later raising of the issue on appeal. Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). In this instance the issue has been only indirectly raised in questions from the bench during oral argument and, in fact, the State has not asserted that Klosterman does not have standing to raise possible fourth amendment questions.

Accordingly, we need not pass on that precise issue and we will consider the merits of Klosterman's assertions.

In conjunction with Klosterman's assertion that the search warrant was not supported by probable cause, Klosterman asserts that deputy sheriff Johnson's observations at the Mark Klosterman farm do not establish probable cause, and further that if there was minimal probable cause then the warrant nevertheless failed because it was not properly limited in scope.

The fourth amendment to the United States Constitution provides as follows:

"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."

Further, Article I, Sec. 8 of the North Dakota Constitution and Rule 41(c), North Dakota Rules of Criminal Procedure, require that no warrant shall be issued until probable cause for its issuance has been established.

In Dalia v. United States, 441 U.S. 238, 255, 99 S.Ct. 1682, 1692, 60 L.Ed.2d 177, 191 (1979), the United States Supreme Court summarized its holdings on the requirements of search warrants as follows:

"First, warrants must be issued by neutral, disinterested magistrates. See, e.g., Connally v. Georgia, 429 U.S. 245, 250-251, 97 S.Ct. 546 [548-549], 50 L.Ed.2d 444 (1977) (per curiam); Shadwick v. Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119 [2122], 32 L.Ed.2d 783 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 459-460 91 S.Ct. 2022 [2034-2035], 29 L.Ed.2d 564 (1971). Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that 'the evidence sought will aid in a particular apprehension or conviction' for the particular offense. Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642 [1650], 18 L.Ed.2d 782 (1967). Finally, 'warrants must particularly describe the "things to be seized," ' as well as the place to be searched. Stanford v. Texas, supra [379 U.S.], at 485, 85 S.Ct. 506 [at 511], 13 L.Ed.2d 431."

It is the first two items which we must initially consider in this case.

In Berger v. State of New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040, 1050 (1967), the United States Supreme Court stated:

"Probable cause under the Fourth Amendment exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); Husty v. United States, 282 U.S. 694, 700-701, 51 S.Ct. 240, 241-242, 75 L.Ed. 629 (1931); Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879 (1949)."

As the court in Brinegar v. United States, supra, observed in dealing with probable cause, as the 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. See also, State v. Nagel, 308 N.W.2d 539 (N.D.1981); State v. Berger, 285 N.W.2d 533 (N.D.1979); State v. Schmeets, 278 N.W.2d 401 (N.D.1979); State v. Mertens, 268 N.W.2d 446 (N.D.1978).

The Brinegar court also observed that there is a large difference in the quanta and modes of proof required to establish guilt in a criminal trial and to establish the existence of probable cause in a pretrial proceeding to suppress evidence.

Affidavits executed in support of a search warrant are to be tested in a commonsense and realistic fashion and not in a hypertechnical manner. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Mertens, supra. The Supreme Court in United States v. Ventresca, supra, 380 U.S. at 108-109, 85 S.Ct. at 745-746, 13 L.Ed.2d at 689, went on to say:

"They [affidavits] are normally drafted by...