State v. Larson, Cr. N

• Citation: 343 N.W.2d 361
• Decision Date: 13 January 1984
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. John Arthur LARSON, Defendant and Appellee. STATE OF North Dakota, Plaintiff and Appellant, v. Roger Charles JOHNSEN, Defendant and Appellee. os. 951, 952.
• Court: North Dakota Supreme Court

Page 361

343 N.W.2d 361

STATE of North Dakota, Plaintiff and Appellant, v. John Arthur LARSON, Defendant and Appellee.

STATE OF North Dakota, Plaintiff and Appellant, v. Roger Charles JOHNSEN, Defendant and Appellee.

Cr. Nos. 951, 952.

Supreme Court of North Dakota.

Jan. 13, 1984.

Walter M. Lipp, State's Atty., McClusky, for plaintiff and appellant.

Baer & Asbridge, Bismarck, for defendants and appellees; argued by Darold A. Asbridge, Bismarck.

SAND, Justice.

The Sheridan County justice court granted a motion suppressing evidence against the defendants, John A. Larson (Larson) and Roger C. Johnsen (Johnsen), in a prosecution for alleged violation of North Dakota game laws. The State appealed.

On 2 October 1982 Johnsen, his two sons, Larson, his two sons, and a friend, were waterfowl hunting from a camp on Larson's land in Sheridan County. Unbeknown to Larson and Johnsen, state and federal game wardens were watching them from nearby hills from early morning until late afternoon. David Kraft, a special agent for the United States Fish and Wildlife Service, kept a log of events as the wardens watched. Kraft's log indicated that he saw the hunters shoot eighteen to twenty ducks and that the ducks were taken to several locations, a trailer house, a vehicle, an outhouse, an abandoned shed, and some brush near the shed. According to Kraft, Johnsen and his son left the camp in Johnsen's vehicle about 4:00 p.m.

Greg Cleveland, a friend of Larson, arrived at the camp with two more hunters about 5:00 p.m. Shortly thereafter, North Dakota game warden Tim Larson, and special agent Terry Grosz of the United States Fish and Wildlife Service, entered the camp. Grosz questioned the hunters and checked their licenses and guns. Grosz gave no Miranda warnings to Larson at that time nor at any time during the investigation.

Meanwhile, warden Larson, who was in radio contact with other wardens from the surveillance point, began a search of the brush area near the shed. When warden Larson returned from his search he reported to Grosz that he did not find any of the ducks. According to Cleveland, Grosz then said to defendant Larson, "We have spotters on the hillside, before daylight they saw you got more birds stashed down here. I will give you one chance and one chance only to show me or we will bring down six wardens and four dogs." ¹ Larson then took Grosz to several locations where the ducks had been placed. Meanwhile, two more wardens joined wardens Grosz and Larson at the camp. Because Grosz apparently did not want to involve the children, he advised Cleveland to take the children "far away" and to "come back after dark." After Cleveland and the children had left, Grosz began to question defendant Larson about who had shot which ducks. Larson admitted to Grosz that he shot twelve ducks, seven more than permitted by law. Grosz then confiscated Larson's shotgun.

The wardens were at the camp for about two and one-half hours. When they left, they met Johnsen coming toward the camp in his pickup. Kraft explained to Johnsen that they had talked to Larson and that they "[knew] what had happened." Kraft showed the confiscated ducks to Johnsen and asked him to identify which ones he had shot. Johnsen admitted that he shot more than his limit. The wardens then confiscated Johnsen's gun and told him he could return to the camp.

On 5 October 1982 separate complaints were filed against Larson and Johnsen and warrants were issued for their arrests. The complaints charged that Larson had shot seven ducks more than his limit, and that Johnsen had shot three more than his limit.

Larson and Johnsen moved to suppress all of the evidence and their statements on the grounds that the search was conducted in violation of their fourth amendment protection against unreasonable searches and seizures and that their statements were given in violation of their fifth amendment privilege against compelled self-incrimination. ²

The Sheridan County court held an evidentiary hearing in which the two complaints were consolidated. The court suppressed all of the evidence and the defendants' statements on the grounds that their fourth and fifth amendment rights had been violated, and the State appealed.

With respect to the State's contention that no fourth amendment violation occurred, we begin by noting that, ordinarily, all searches made without a valid search warrant are unreasonable unless they are shown to come within one of the exceptions to the rule that a search must be made upon a valid warrant. Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856, 859 (1964).

The State contended that a search warrant was unnecessary because the surveillance and subsequent search of the camp was conducted pursuant to the "open fields" doctrine announced in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). In Hester the Court said that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects' is not extended to the open fields." 265 U.S. at 59, 44 S.Ct. at 446, 68 L.Ed. at 900. Thus, the Court drew a distinction between the dwelling and its curtilage, which was protected, and an open field, which was not. See W. Ringel, Searches and Seizures, Arrests and Confessions, Sec. 8.4 (1983). Although the open fields/curtilage distinction is not easily drawn, most courts and commentators have defined curtilage as that area near a dwelling, not necessarily enclosed, that generally includes buildings or other adjuncts used for domestic purposes. State v. Vicars, 207 Neb. 325, 299 N.W.2d 421, 425 (1980); W. LaFave, Search and Seizure Sec. 2.4, at 332 (1978).

The utility of the open fields doctrine, however, has become suspect in light of the Supreme Court's holding in Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582 (1967), that the fourth amendment protects people, not places. Thus, a greater emphasis is now placed upon an examination of whether or not one possesses a reasonable expectation of privacy in the object or area to be searched. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, 899 (1968); State v. Matthews, 216 N.W.2d 90, 103 (N.D.1974). Nevertheless, this Court has not completely abandoned pre-Katz concepts, like the open fields doctrine, because such concepts are still important in determining whether or not the person searched had a reasonable expectation of privacy. See State v. Planz, 304 N.W.2d 74, 79 (N.D.1981). Indeed, the United States Supreme Court has said that it "has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by [the fourth] Amendment." Rakas v. Illinois, 439 U.S. 128, 144, 99 S.Ct. 421, 431, 58 L.Ed.2d 387, 401 n. 12 (1978). The Court has also recently referred to the open fields doctrine in determining that a defendant's expectation of privacy with respect to activities inside his cabin did not extend to police observation of a car carrying a container with an electronic beeper inside it as it arrived on defendant's property after leaving a public highway. United States v. Knotts, 460 U.S. ----, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). See also Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 44 L.Ed.2d 607 (1974) (application of open fields doctrine to warrantless entry by health inspector on defendant's outdoor premises).

In the instant case, the wardens were watching the defendants from surrounding hills about one-quarter to one-half mile away. The record does not indicate whether or not the wardens were on defendant Larson's property, although warden Kraft testified that the wardens were on "[what was] known to [Kraft] as the John Larson Hunting Camp, Sheridan County." If the wardens were in fact on Larson's property, the record does not reflect whether or not the camp was also visible from other property, such as a public road or neighboring land.

Kraft testified that the camp was located "kind of in a pasture" between two large sloughs. The camp contained a trailer house, an outhouse, and a dilapidated shed located about thirty feet from the trailer house. The record does not indicate for what purposes, or how often, the buildings were used. The record does indicate that Larson's land was posted, although it does not indicate how many signs there were or where the signs were located. Johnsen testified that one had to drive through a stubble-field to get to the camp, but the record does not indicate whether or not the area was fenced, or whether or not any gates had to be opened.

Many of the unknown factors noted above, while not individually dispositive, would be cumulatively significant in applying the open fields doctrine to determine whether or not the defendants had a reasonable expectation of privacy. ³ Because of the nature of the disposition of this case, however, we need not resolve that question. The fact remains that warden Larson's initial search of the area near the shed was unproductive. The wardens did not discover the ducks until defendant Larson led them to the ducks following Grosz' statement that he was prepared to dispatch dogs and more wardens.

The State argued, in the alternative, ⁴ that if the open fields doctrine was inapplicable, then Larson voluntarily consented to the search that produced the ducks. In cases involving the voluntariness of a confession or a consent to search, this Court will not reverse the trial court's determination unless it is contrary to the manifest weight of the evidence. The trial court's determination will not be overturned if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's determination. State v. Discoe, 334 N.W.2d 466, 469 (N.D.1983).

A determination of whether a consent to a search was voluntary or...