State v. Matthews, Cr. N

• Decision Date: 31 January 1974
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. David MATTHEWS, Defendant and Appellant. o. 450.
• Court: North Dakota Supreme Court

Page 90

216 N.W.2d 90

STATE of North Dakota, Plaintiff and Appellee, v. David MATTHEWS, Defendant and Appellant.

Cr. No. 450.

Supreme Court of North Dakota.

Jan. 31, 1974.

Rehearing Denied March 27, 1974.

Syllabus by the Court

1. Under the facts in this case, a defendant charged with a crime in which possession is an essential element has standing to challenge a search of a sealed package called for by the defendant where the search was made without a warrant, there being ample time to obtain a warrant, even though the search was made in defendant's absence on premises not controlled by the defendant prior to the time of the arrest of the defendant and prior to the time of his alleged possession of the evidence as contraband.

2. A defendant charged with a crime in which possession is an essential element of the offense is not required to question the legality of the search only at a pretrial suppression hearing but may also make a motion to suppress during the course of the trial.

3. Where the crime charged involves possession as an essential element of the offense, the defendant is not required to assert a claim of ownership before he has standing to challenge an allegedly unconstitutional search; rather, the State is precluded 4. It is within the power of this court to apply higher constitutional standards than the minimal standards required of the States by the Federal Constitution.

from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence.

5. 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 search warrant.

6. Where a violation of the Fourth Amendment provision as to search and seizure is asserted, the burden of proof on a motion to suppress is on the State.

7. Evidence obtained by search and seizure violative of the Fourth Amendment is, by virtue of the Due Process Clause of the Fourteenth Amendment, inadmissible in State Courts.

8. A search incidental to a lawful arrest is an exception to the requirement of a valid search warrant prior to search and seizure.

9. A border search is an exception to the requirement of a valid search warrant prior to search and seizure.

10. A search consented to by the appropriate person is an exception to the requirement of a valid search warrant prior to a search and seizure.

11. When items of evidence or contraband are in 'plain view' of officers legally in a position to see them, a valid search warrant is not required prior to seizure.

12. A search conducted by a person not a police officer is the equivalent of a police search if the search is conducted at the instigation and direction of the police.

13. The 'plain view' exception is not applicable to sealed packages the appearance of which is not indicative of their illicit contents.

14. The mere existence of exigent circumstances is not, in itself, a separate type of exception to the general rule requiring a valid search warrant prior to search and seizure; rather, the term 'exigent circumstances' is only a short way of referring to the historically accepted exceptions.

15. There is a constitutional difference between searches of and seizures from houses and similar structures and from vehicles. This distinction, recognized in earlier cases, is adhered to.

16. The 'automobile exception' to the general requirement of a search warrant does not apply to searches of packages in bus depots.

17. There are no 'exigent circumstances' justifying a warrantless search of a sealed package where the package was under constant surveillance by the police, where there was no danger of destruction, removal, or concealment, and where arrangements had been made with the common carrier to hold the package until such time as it was called for while the police were present, thus allowing ample time for police to secure a vaild search warrant.

18. The Fourth Amendment protects people and not places. Where a person has a reasonable expectation of privacy in a sealed package, that expection of privacy must be constitutionally protected whether the sealed package is subject to letter-rate postage, is shipped via air express, or is transported by a bus company.

19. In a situation where a warrantless search by the police cannot be justified, a search warrant issued by the proper magistrate must be obtained. By failing to secure a warrant prior to search, the police acted beyond the law, and the evidence must be suppressed.

Charles J. Gilje, State's Atty., Jamestown, for plaintiff and appellee State of North Dakota.

Benny A. Graff, Carrington, for defendant and appellant.

VOGEL, Judge.

The defendant was convicted of the crime of possession of marijuana, and asserts that his conviction was based upon a violation of the search-and-seizure provisions of the Fourth Amendment of the United States Constitution, which provides:

'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 causeSupported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Section 18 of the Constitution of North Dakota is substantially the same.

There is no dispute as to the material facts, but we set them forth because they are important to a disposition of the case.

On January 17 or 18, 1973, a special agent of the North Dakota Bureau of Criminal Identification learned that two packages containing marijuana were being sent from Phoenix, Arizona, to Jamestown, North Dakota, to two unidentified persons by a Greg Anderson. He notified the Jamestown police department, which, in turn, notified him on January 23 that one of the packages had arrived at the bus depot in Jamestown at 9 a.m. of that day. (This is the package involved in State v. Long, 216 N.W.2d 109 (N.D.1973), decided today. The facts of both cases will be briefly stated in this opinion.) The first package (hereinafter, the Long package) was addressed to a Gayle Johnson and was picked up by Long at 7:30 p.m. on the 23d. The second package (hereinafter, the Matthews package) arrived at 9:30 p.m. on the 23d, was addressed to a Gaylon Baker, and was picked up by Matthews at 7:30 p.m. on January 24.

Thus the Long package was in the possession of the bus company for about 10 1/2 hours before it was picked up, and the Matthews package was in the possession of the bus company for approximately 22 hours before it was picked up. The Jamestown police department was promptly notified of the arrival of each package, and officers were sent to conduct a surveillance of the bus depot. During the surveillance, which was participated in by Jamestown police officers and representatives of the Bureau of Criminal Identification, the Jamestown police department caused the Long package to be opened and the contents examined, and found that the contents included marijuana, and a Bureau of Criminal Identifidation representative directed the Matthews package to be opened by the bus company agent. The contents were identified as marijuana. In both cases the packages were then resealed and the surveillance continued until the packages were picked up and arrests made.

No search warrants were obtained at any time, although there was ample time to obtain them.

Furthermore, representatives of both the Bureau of Criminal Identification and the bus company testified that they had agreed that the packages would not be delivered unless an officer were present, so additional time was available if necessary.

The addresses on both packages were fictitious, and the addresses may or may not have been existing persons. In the case of the Matthews package, a telephone call was made to the addressee, Gaylon Baker, and the person answering the telephone stated that the package would be picked up the next day, as it was. We do not deem the use of a fictious name, if it was fictious, as significant to the outcome of these cases. See Williams v. State, 501 P.2d 841 (Okl.Cr.1972).

Matthews signed a receipt for the Matthews package, using his own name rather than the name of the person to whom the package was addressed. He was arrested with the package in his possession.

He made a motion to suppress prior to trial. The court denied the motion and found him guilty after a trial to the court, a jury having been waived.

It is true, as the dissent points out, that no transcript of the oral argument on the motion to suppress was included in the record submitted to us. It is not known whether the argument was reported by a court reporter. Nor does it matter, in our view. There is no indication that any evidence was offered at the hearing, or that the argument was any different from the legal argument made before us.

There was no disagreement between the State and the defendant as to the facts of the case. All issues were briefed and argued before us, and we believe that the result would be the same if we dismissed subject to correction of the irregularity, following which the dismissal would be canceled and the case reargued. Secs. 29--28--20, 29--28--21, and 29--28--26, N.D.C.C. Since all necessary facts are before us, we will deal with the merits.

We are faced with two questions of constitutional law:

1. Whether the defendant has 'standing' to question and challenge the legality of he search of the package; and

2. If the answer to the first question is affirmative, whether the search was constitutionally permissible.

Before going into the question of standing, we sum up the fact situation before us in terms that have been considered important and sometimes determinative in decisions of the Supreme Court of the United States and of this court and other appellate courts: (1) the charge is one involving possession as an element of the crime; ...