State v. Page

• Decision Date: 15 March 1979
• Docket Number: Cr. N
• Citation: 277 N.W.2d 112
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Brian PAGE, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Randall PAGE, Defendant and Appellant. os. 649 to 652.
• Court: North Dakota Supreme Court

Page 112

277 N.W.2d 112

STATE of North Dakota, Plaintiff and Appellee, v. Brian PAGE, Defendant and Appellant.

STATE of North Dakota, Plaintiff and Appellee, v. Randall PAGE, Defendant and Appellant.

Cr. Nos. 649 to 652.

Supreme Court of North Dakota.

March 15, 1979.

David L. Drey, State's Atty., and Carl O. Flagstad, Asst. State's Atty., Minot, for plaintiff and appellee; argued by Carl O. Flagstad, Minot.

Teevens, Johnson & Montgomery, Minot, for defendants and appellants; argued by Kent L. Johnson, Minot.

PEDERSON, Justice.

Brian Page and Randall Page appeal from four judgments entered on jury verdicts convicting each of them on separate charges of robbery and theft of property. The brothers were charged with the robbery of a large sum of money from Joe Smith of rural Sawyer, and theft of property belonging to Gilmore House of Beauty in Minot. We affirm.

In the early morning hours of February 20, 1978, two men went to Joe Smith's farm under the pretense of borrowing gas for their car, and then robbed him at gunpoint. One of the men carried a red gas can and both men were wearing snowmobile suits, light-colored gloves, and ski masks, which effectively concealed their identity. Shortly thereafter, Smith went to Sawyer and notified the Minot Police Department and the Ward County Sheriff's Office of the robbery.

Upon arriving at Smith's farmstead, officers searched the area and discovered boot tracks which led them to a nearby road where they found tire tracks in the snow, which they believed were made by the robbers. Photographs, drawings and measurements were taken of the boot tracks and tire tracks. Officers then interviewed residents of the Sawyer area and were told that Brian and Randall Page had been in the vicinity shortly before the robbery and were driving a 1973 blue Pontiac LeMans. Also, they learned that the brothers lived in northwest Minot.

The next day officers located the apartment of Randall and Brian Page and measured the tires of the Pontiac LeMans parked outside. Measurements of boot prints leading from the car to the apartment were also taken. The shape and size of the tire tracks and the boot prints found near the apartment were nearly identical to those found on the Smith farm.

The officers went to the door of the apartment and were admitted by Randall Page, who declined to answer the officers' questions. Both Pages agreed to accompany the officers to the Minot police station for further investigation. While Randall was dressing, in preparation of accompanying the officers to the station, one of the officers observed a billfold in his pocket containing a large amount of money. Both of the Pages were then placed under arrest. Two pair of boots were taken from the Page brothers shortly thereafter.

After the arrest, the officers procured a warrant to search the apartment and the Pontac LeMans. Several curling irons and other items belonging to Gilmore House of Beauty were found in the apartment. The police found another billfold containing a large sum of money under one of the bedroom mattresses. In their search of the defendants' car, the officers discovered, among other things, two pistols, a pair of white rubber gloves, and a red gas can matching the description given to them by Joe Smith.

CHANGE OF VENUE

The Pages assert that the trial court abused its discretion in refusing to grant a change of venue. They allege that they could not obtain a fair and impartial trial in the Minot community because a pretrial newspaper account of the robbery was prejudicial. The defendants further claim that because they are native Americans, it was impossible to select an impartial jury panel from the Minot area. The defendants apparently did not renew their motion for change of venue after the voir dire examination.

Pursuant to Rule 21(a), NDRCrimP:

"The court upon motion of the defendant shall transfer the proceeding as to him to another county or municipality whether or not such county or municipality is specified in the defendant's motion if the court is satisfied that there exists in the county or municipality where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial."

Whether or not venue should be changed for reason of prejudice rests within the sound discretion of the trial court. State v. Jager, 85 N.W.2d 240 (N.D.1957). Our court recently stated in State v. Olson, 274 N.W.2d 190, 193 (N.D.1978), that on appeal we will look at the totality of circumstances to determine whether the trial was fair. Determining venue is a part of those total circumstances. In Olson we stated:

"On a pretrial review of an order denying a motion for change of venue, a defendant may well be in a position to urge that doubts be resolved in his favor. After trial and conviction, where the reasonable likelihood of prejudice has been refuted by voir dire examination, we give deference to the trial judge who has heard the responses made by the jurors."

The trial court denied the request for change of venue because there was no proof that widespread prejudice in Minot would prevent a native American from receiving a fair trial. We cannot fully review this determination because of the failure to supply a complete record. No record of the voir dire examination is available nor is there any other record showing that a native American cannot receive a fair trial in Minot. The one front-page newspaper article printed shortly after the robbery is headlined: "Brothers Held." While this article describes the salient facts of the robbery, it does not describe the Page brothers as belonging to any particular racial group. The article merely states that the brothers were suspects and that a sum of money believed to have been taken in the robbery was recovered from their apartment.

In the memorandum opinion relating to venue, the trial court stated that pretrial publicity is not inherently prejudicial. We agree with this statement. Nothing in the article is prejudicial on its face, and the Pages have not provided us with any other reason to hold that it is prejudicial.

UNREASONABLE SEARCH

The Page brothers assert that the trial court committed reversible error by admitting into evidence the boots and other items taken from the apartment in violation of their Fourth Amendment protection against unreasonable searches and seizures. They claim that their arrests were invalid because:

(1) The officers did not obtain an arrest warrant, and

(2) There was lack of probable cause to arrest without a warrant.

Under § 29-06-15, NDCC, a peace officer without a warrant may arrest a person when a felony has been committed and the police officer has reasonable cause to believe the person arrested has committed it. Our court has interpreted the terms "reasonable cause" and "probable cause" as being synonymous. State v. Frye, 245 N.W.2d 878 (N.D.1976); State v. Salhus, 220 N.W.2d 852 (N.D.1974).

In State v. Kolb, 239 N.W.2d 815, 816 (N.D.1976), our court defined probable cause as follows:

"Probable cause exists when the facts and circumstances within a police officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed."

Although the facts and circumstances upon which the officer relies need not amount to evidence sufficient to convict (State v. Erdman, 170 N.W.2d 872, 876 (N.D.1969)), the officer must have more than a bare suspicion that the defendant committed the offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). In determining what constitutes probable cause, 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. The standard of proof is accordingly correlative to what must be proved.' " State v. Chaussee, 138 N.W.2d 788, 792 (N.D.1965).

Here, there was probable cause to arrest prior to the time the officers were admitted to the defendants' apartment. The officers acted reasonably upon trustworthy reports that the defendants had been in the vicinity prior to the robbery. They knew that the Pontiac LeMans the Pages were driving had large rear tires approximately the size of the prints that were located on Joe Smith's farm. Measurements and description of the footprints found around the car were similar to those found near the scene of the robbery. The cumulative effect of this information provided more than a mere suspicion that Brian and Randall Page had committed the robbery.

It is asserted that even with the requisite proximate cause, the officers' entry into the apartment was unlawful because consent was not given to enter or, if consent was given, it was involuntary because of coercive tactics on the part of the officers. The Pages claim that their arrest and the search of their home violated their Fourth Amendment expectation of reasonable privacy, and the evidence acquired after the unlawful entry was inadmissible against them.

In the case of United States v. Phillips, 497 F.2d 1131, 1135 (9th Cir. 1974), the Ninth Circuit Court of Appeals said: "An officer without an arrest warrant certainly has no more license than an officer with a warrant in seeking entry to effect an arrest." Absent a judicial determination to the contrary, the Fourth Amendment protection that assures citizens the privacy of their homes "is applicable not only in case of entry to search for property, but also in cases of entry to arrest a suspect."

The Fourth Amendment right against an unreasonable entry to an individual's home for the purpose of arrest or search is a right which can be waived. State v. Manning, 134 N.W.2d 91, 97 (N.D.1965). Thus, if a person consents to an entry of his home by law officers, he cannot later claim that his rights have been violated by the entry.

The ...