State v. Kottenbroch

• Decision Date: 13 May 1982
• Docket Number: Cr. N
• Citation: 319 N.W.2d 465
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Gerard W. KOTTENBROCH, Defendant and Appellant. o. 808.
• Court: North Dakota Supreme Court

Page 465

319 N.W.2d 465

STATE of North Dakota, Plaintiff and Appellee, v. Gerard W. KOTTENBROCH, Defendant and Appellant.

Cr. No. 808.

Supreme Court of North Dakota.

May 13, 1982.

Rodney Feldner, Asst. States Atty., Mandan, for plaintiff and appellee.

Kelsch, Kelsch, Bennett, Ruff & Austin, Mandan, for defendant and appellant; argued by Arlen M. Ruff, Mandan.

ERICKSTAD, Chief Justice.

Gerard W. Kottenbroch appeals from a verdict of guilty of the crime of possession of a controlled substance (marijuana--less than one-half ounce), the order deferring imposition of judgment and sentence, and the order of the court denying suppression of the evidence introduced against him at trial. On appeal he argues that the arresting officer did not have probable cause to believe that a crime was being committed and thus the warrantless search of his motor vehicle violated his Fourth Amendment rights. Secondly, he argues that Section 29-07-01.1 of the North Dakota Century Code, mandating that an indigent defendant reimburse the county for the costs of his court-appointed counsel, is unconstitutional. We affirm the verdict of guilty, order deferring imposition of judgment and sentence, and the order denying suppression of the evidence.

On June 14, 1981, Kottenbroch was driving a 1968 Rambler stationwagon on Interstate 94 west of Mandan. His stationwagon was clocked by an aircraft and determined to be traveling at 68 miles per hour. Officer Houston of the North Dakota State Highway Patrol stopped the Rambler and asked Kottenbroch to produce his driver's license. Kottenbroch's license revealed that he was eighteen (18) years of age. Kottenbroch's brother, Mark, age 25, was seated in the passenger seat of the Rambler.

When Officer Houston looked in the window of the Rambler, he noticed beer cans on the front floor of the passenger's side of the vehicle. He also saw beer cans on a mattress which was in the back of the car. Officer Houston testified that he asked the passenger whether the cans contained any beer. At least one of the beer cans was held up and determined to be empty. Officer Houston then asked Kottenbroch and his brother to get out of the car. They had to get out of the passenger's side because the driver's door would not open. Officer Houston then walked around the car to the passenger's side and entered the car through the passenger's door. Officer Houston testified that when he reached inside the car to check the beer cans, he noticed an odor of marijuana. He testified that he had been trained in identifying the sight and odor of marijuana at the North Dakota State Highway Patrol Academy and had been involved in numerous cases subsequent to that training where he had occasion to see and smell marijuana.

After smelling the marijuana, Officer Houston continued his search for beer cans. He reached under the passenger's seat and found a glass tube, approximately a foot and a half long and an inch and a half to two inches in diameter. The tube had what Officer Houston believed to be marijuana resin on it. Officer Houston then conducted a complete search of the interior and discovered another glass tube in the glove compartment, a roach clip, a 35 millimeter film cannister with marijuana in it, and a bag of marijuana seeds under the mattress in the back of the vehicle. After Gerard Kottenbroch had been placed under arrest and taken to the Morton County Jail, jailer Roger Halverson discovered a bag of marijuana in the defendant's front shirt pocket. Officer Houston's search of the car included a search underneath the front seat, in the ash tray, in the glove compartment, in a fatigue jacket lying in the car, and under a mattress lying in the rear of the car.

Gerard Kottenbroch was charged and subsequently convicted at a jury trial in the County Court with Increased Jurisdiction of Morton County of possession of a controlled substance. The court imposed a deferred imposition of sentence upon Kottenbroch's compliance with a number of conditions, including the repayment of his court-appointed attorney's fees.

On October 8, 1981, a motion for reduction or correction of sentence was made by Kottenbroch pursuant to Rule 35 of the North Dakota Rules of Criminal Procedure. A hearing on that motion was set for October 26, 1981. On October 14, 1981, notice of appeal was served by Kottenbroch. The hearing on the Rule 35 motion was held on October 26, 1981, and that motion was denied. Four issues are presented on this appeal:

1. Does a Rule 35 motion to reduce a criminal defendant's sentence presuppose that the conviction is valid?

2. Did Officer Curtis Houston conduct a valid search of the motor vehicle operated by Kottenbroch?

3. Is the order deferring imposition of judgment and sentence appealable?

4. Can a court include in its sentencing of a defendant, who has been found guilty following a jury trial, a condition requiring the defendant to reimburse the county for the costs of the defendant's court-appointed counsel?

Kottenbroch argues that the issue concerning the validity of the search of a motor vehicle should be more precisely framed: Does the presence of one empty beer can, without more, establish probable cause to allow an officer to conduct a warrantless search of a motor vehicle? The record in this case, however, indicates that Officer Houston saw more than one empty beer can when he looked through the windows of the Rambler. We therefore do not adopt Kottenbroch's statement of the issue.

We will discuss each of the issues separately.

I. Does a Rule 35 motion to reduce a criminal defendant's sentence presuppose that the conviction is valid?

The State contends that because a Rule 35 motion is essentially a plea for leniency and because courts have stated that it presupposes a valid conviction, it follows that Kottenbroch's making of a Rule 35 motion precludes this appeal. ¹ While courts have said that a Rule 35 motion presupposes a valid conviction, we disagree with the State that such language precludes an appeal by a defendant who has made a Rule 35 motion. See United States v. Ellenbogen, 390 F.2d 537, 543 (2d Cir. 1968); Poole v. United States, 250 F.2d 396, 401 (D.C.Cir.1957).

The State's view of those cases would make Rule 35 motions and appeals mutually exclusive remedies. We have found nothing to support such a view. To the contrary, we believe that a more logical interpretation of those cases is that a Rule 35 motion presupposes a valid conviction only for the purposes of a hearing on that motion. A criminal defendant in the State of North Dakota has a statutory right to appeal. Sec. 29-28-03, N.D.C.C. The interpretation urged by the State would abridge that statutory right. We are unwilling to adopt that interpretation and therefore address the substantive issue of whether or not Officer Houston's search was valid.

II. Did Officer Curtis Houston conduct a valid search of the motor vehicle operated by Kottenbroch?

We have concluded that Officer Houston's warrantless search was valid under the automobile exception to the warrant requirement and plain view doctrine.

Although a warrantless search violates the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 8, of the North Dakota Constitution, there are specific established and well delineated exceptions to that rule. One of those exceptions is the automobile exception. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

A warrantless search and seizure by a police officer is constitutionally permissible only if there is compliance with the following two prerequisites: (1) the officer must have probable cause to believe that seizable items are located in the place to be searched; and (2) the circumstances must bring the search within one of the exceptions to the rule that a search must be based upon a valid search warrant. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); State v. Meadows, 260 N.W.2d 328 (N.D.1977); State v. Stockert, 245 N.W.2d 266 (N.D.1976). Kottenbroch's only argument on appeal is that Officer Houston did not have probable cause to search the Rambler. He raises no argument concerning the application of the automobile exception.

The premise of Kottenbroch's argument is that Officer Houston had nothing more than a mere suspicion that a crime was being committed. Searches based on a mere suspicion are invalid. State v. Gagnon, 207 N.W.2d 260 (N.D.1973). For a warrantless search of an automobile to be permissible, the searching officer must have probable cause to believe that incriminating evidence is in the automobile, and the search must be of limited scope. ² Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

We defined probable cause in State v. Binns, 194 N.W.2d 756, 759 (N.D.1972), as follows:

"[A]utomobiles and other conveyances may be searched without warrants under circumstances that would not justify a search without a warrant of a home or an office, provided there is probable cause to believe that the automobile contains articles that the officer is entitled to seize. Therefore, if the search of an automobile without warrant is made upon probable cause, based upon a reasonable belief arising out of the circumstances known to the officer--that the automobile contains articles which are subject to seizure--the search is valid." (Emphasis added.) 194 N.W.2d at 759.

In State v. Meadows, 260 N.W.2d 328, 330 (N.D.1977), a factually similar case, a deputy sheriff observed Meadows simultaneously driving a motor vehicle and drinking out of a beer bottle. He followed Meadows into a truck stop parking area to investigate the apparent violation of the open bottle law and, upon looking into the vehicle, saw a partially opened six pack of beer and smelled the odor of alcohol. He continued his search and discovered a pistol in the console. In affirming the conviction for carrying a pistol in a motor...