State v. Kunkel
| Decision Date | 28 May 1987 |
| Docket Number | No. 1215,1215 |
| Citation | 406 N.W.2d 681 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Werner KUNKEL, Defendant and Appellant. Crim. |
| Court | North Dakota Supreme Court |
Lewis C. Jorgenson, State's Atty., Devils Lake, for plaintiff and appellee State of North Dakota.
Thomas L. Trenbeath, of Fleming, DuBois & Trenbeath, Cavalier, for defendant and appellant.
Werner Kunkel appealed from the jury verdict of the district court of Ramsey County which found him guilty of assault on a peace officer. Kunkel also appealed from the denial by the district court of his motion to suppress evidence of the assault and his motion for dismissal. We affirm.
On August 5, 1986, at approximately 5:40 a.m., Kunkel's mother, Marita, telephoned the Law Enforcement Center in Devils Lake. She requested that law-enforcement officers be sent to her home to remove Kunkel. When Officer Belgarde and Deputy Halvorson arrived at Marita's home, she admitted them and stated that Kunkel had struck her several times. The presence of dried blood on her face and clothes substantiated her statement. Marita told the officers that she wanted them to remove Kunkel from the home, but she refused to sign a complaint against him. She apparently did not want him arrested, but only removed from her home.
The officers asked Marita where Kunkel was and she told them he was downstairs in his bedroom. The officers proceeded downstairs and knocked on the door to Kunkel's bedroom. There was no response so the officers opened the door and entered the bedroom. They saw Kunkel lying in bed and informed him that he had to leave the home. Kunkel told the officers, with quite explicit language, to leave the bedroom. 1 The officers told him that they were not arresting him, but that he had to leave the home and that they would take him wherever he wanted to go. Kunkel then got out of bed and began to dress. He asked the officers if he could drive in his own car but the officers refused because they believed that he was intoxicated. 2
Following this exchange between Kunkel and the officers, Kunkel attacked the officers, inflicting scratches which required medical attention to Deputy Halvorson's face. The officers retreated to the upstairs portion of the home and telephoned Kunkel's parole officer, who came to the scene and ordered that Kunkel be taken into custody for detoxification. Kunkel was removed without further incident and later was charged with violating Section 12.1-17-01, N.D.C.C., simple assault on a peace officer.
At trial Kunkel attempted to have the officers' testimony regarding his attack suppressed. The trial court ruled that Marita had common authority over the bedroom in which Kunkel was staying. The trial court also found that the officers had probable cause to arrest Kunkel pursuant to Section 29-06-15, N.D.C.C., and that exigent circumstances existed which would allow the officers to enter Kunkel's bedroom. The trial court ruled that the officers' testimony was therefore admissible. The jury returned a verdict of guilty and Kunkel appealed.
On appeal Kunkel raises the following issues:
1. Whether Marita's consent was valid; and
2. Whether exigent circumstances were present.
Kunkel contends that both issues should be answered in the negative, and thus he claims that the trial court committed reversible error by admitting the officers' testimony. Kunkel argues that the officers' actions, in entering his room and attempting to remove him from the home, violated his constitutional rights and that evidence of his attack on the officers should therefore be suppressed.
Before considering these issues on their merits, we observe that procedurally Kunkel's attempt to suppress the officers' testimony may be questionable. He claims that the officers were not entitled to enter his bedroom, and therefore he had the right to demand that they leave. When they failed to do so, he asserts that he had the right to attack them to force them to leave. 3 Kunkel cites Section 12.1-05-06, N.D.C.C., for the proposition that an occupant may use force to remove persons who are unlawfully on the premises. Section 12.1-05-06 provides:
"Force is justified if it is used to prevent or terminate an unlawful entry or other trespass in or upon premises, or to prevent an unlawful carrying away or damaging of property, if the person using such force first requests the person against whom such force is to be used to desist from his interference with the premises or property, except that a request is not necessary if it would be useless or dangerous to make the request or substantial damage would be done to the property sought to be protected before the request could effectively be made."
This section permits a certain amount of force when acting in defense of premises. But Kunkel misinterprets the proper method of using the justification provided in this section. He seeks to use it as a reason for suppression of evidence. However, Section 12.1-05-01(1), N.D.C.C., states: "Except as otherwise provided, justification or excuse under this chapter is a defense." [Emphasis added.] Kunkel could have claimed that he was justified in attacking the officers as a defense before the jury, rather than by a motion to suppress evidence of the attack. In fact, Kunkel made such an argument to the jury, and in view of the guilty verdict, it appears that the jury did not believe Kunkel was justified in his attack.
Kunkel maintains that the officers' entry into his bedroom was illegal because his mother's consent was not valid. In the usual case, consent is given by a third party to search an area or seize certain items. In the present case Marita admitted the officers into her home and requested that they remove Kunkel because he had struck her. When they asked where he was, she directed them to Kunkel's bedroom in the basement. Although she may not have consented to a search of Kunkel's bedroom, she clearly consented to the officers' entry into that bedroom. Thus, if her consent was valid, the officers acted properly in entering Kunkel's bedroom.
We stated in State v. Swenningson, 297 N.W.2d 405, 407 (N.D.1980), in which consent was given by the defendant's father to search the defendant's bedroom, that "It is sufficient and reasonable if consent is given by a third party who possesses common authority over, or other sufficient relationship to, the premises."
Common authority is based upon mutual use of the premises by persons who generally have control over or joint access to the premises for most purposes. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). In examining whether a third party has sufficient common authority over the premises, we must determine whether it is reasonable to recognize:
1. That any of the coinhabitants, including the third party, has the right to permit the entry in her own right; and
2. That the defendant has assumed the risk that one of the coinhabitants might permit others, including the police, to enter the common area.
Thus the critical inquiry is whether Marita had sufficient authority over or relationship to Kunkel's bedroom that she could consent to the officers' entry. Marita owned the home in which Kunkel was living. Although Kunkel claims that he agreed to pay rent when he could afford it, and to provide services when he could not, as of the time of his attack on the officers he had not paid any rent. He had provided services such as cleaning and baby-sitting, but that is not unusual when a son is living in his mother's home. He also assisted in some excavation to repair a sewer line. The evidence was insufficient to establish a landlord-tenant relationship, and, in essence, the arrangement was merely that of a son residing with his mother. Kunkel had been staying in his basement bedroom for approximately two months, but he had stayed with Marita on prior occasions whenever he was living in town.
Kunkel makes much of the fact that the basement is separated from the upstairs of the home by a door which is lockable from the upstairs but not unlockable from the basement. This only indicates that Marita could exclude Kunkel from the upstairs if she chose to do so. Kunkel could not exclude her from the basement and does not claim he could. However, he does assert that he had "exclusive authority" over the bedroom in which he stayed, and therefore Marita could not have consented to the officers' entry.
Marita's testimony at the suppression hearing indicates that she retained authority over Kunkel's bedroom, despite his claim that the bedroom was his. During examination, Marita testified:
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