State v. Phelps

Decision Date12 December 1979
Docket NumberCr. N
Citation286 N.W.2d 472
PartiesSTATE of North Dakota, Plaintiff and Appellant, v. Michael PHELPS, Defendant and Appellee. o. 692.
CourtNorth Dakota Supreme Court

Thomas M. Tuntland, State's Atty., Mandan, for plaintiff and appellant.

C. J. Schauss, Mandan, for defendant and appellee.

SAND, Justice.

Michael Phelps was arrested pursuant to a warrant and charged with burglary and arson, a violation of §§ 12.1-22-02 and 12.1-21-01, North Dakota Century Code. Prior to trial, Phelps moved the district court to suppress evidence seized from him during a police detention prior to his arrest. The parties submitted briefs and an evidentiary hearing was held. The district court entered an order suppressing the evidence as unlawfully obtained and the State appealed the order to this court. We affirm.

During the evening of 10 May 1979, Michael Phelps was a customer in Ma's Place, a liquor establishment located in Mandan, North Dakota. At closing time, one o'clock a. m., 11 May 1979 Mavis Monahan, the owner of Ma's Place, requested Phelps to leave the premises. He refused, and then confessed to a previous burglary of another business owned by Monahan. Phelps inquired about the bar's burglar alarm and boasted to Monahan that he could break into any building in Mandan. Phelps finally left the bar at 1:30 a. m., but threatened to return and perpetrate destruction. He remained in the vicinity for some time thereafter, and pounded repeatedly on the bar door.

Monahan called the Mandan police at approximately 2:03 a. m. and two officers, Howard Moldenhauer and Richard Ladwig, started for Ma's Place. When they arrived, Phelps was no longer in the area. Monahan and her bartenders informed the officers of Phelps' conduct and his burglary confession and threat. After the officers heard the facts and checked out the area they returned to routine patrol.

Officer Moldenhauer knew that Phelps had been convicted of a previous burglary in Mandan, and that he had been found in possession of a shotgun which was stolen from a Mandan police car during another burglary. Moldenhauer also knew that Phelps was a suspect in several other burglaries.

At approximately 3:46 a. m., a burglar alarm was tripped at the Clinic building in Mandan. The Clinic building was located less than one block from Ma's Place. A police dispatcher immediately radioed the burglar alarm to the patrol officers then on duty. Officer Moldenhauer arrived at the Clinic building in his marked patrol car at 3:48 a. m. on 11 May 1979.

Moldenhauer radioed in that a fire was burning inside the Clinic building and then drove east down an alley which ran behind Ma's Place. As he came to an intersection of the alley, Officer Moldenhauer looked south and saw an individual running. The individual turned and saw the police car and then ran on. Moldenhauer recognized the individual as Michael Phelps and began pursuit. Phelps was found flattened up against a doorway, and Moldenhauer notified Officer Ladwig, who had by then arrived in another patrol car, to pick up Phelps. Phelps was taken into custody, but not placed under arrest.

Mandan police detective Dennis Bullinger was notified of the burglary and possible arson, and arrived at the Clinic building where he inspected the area and the point of forced entry into the building. Phelps was then transported to the Mandan police department, and was told repeatedly that he was not under arrest.

Bullinger attempted to interrogate Phelps, but Phelps refused to answer more than a few preliminary questions. Phelps also refused to voluntarily give up his clothes as evidence. Bullinger then informed Phelps that he would not be kept in custody and that he was not under arrest, but that he would not be permitted to leave until he gave up his clothing. Phelps still refused to give up his clothes.

Bullinger then forcibly removed Phelps' boots and scraped them for possible glass chips. Next, three Mandan police officers physically held Phelps down against his will and forcibly removed his shirt and trousers. It was then shortly after 4:30 a. m. 11 May 1979. Phelps was given a pair of coveralls and released. No search warrant was obtained by the police officers at any time.

Later that day, a probable cause hearing was held before the Morton County court of increased jurisdiction at which it was determined that probable cause existed to issue a complaint against Michael Phelps. Phelps was arrested pursuant to a warrant and charged with burglary and arson.

A preliminary hearing was held and Phelps was bound over for arraignment in the district court. At the arraignment, Phelps moved to suppress the clothing seized as evidence during the police detention of 11 May 1979. An evidentiary hearing was held on 26 June 1979, and the court concluded that, although there was probable cause to arrest Phelps, the police neglected or failed to make an arrest and failed to procure a search warrant for the purpose of the seizure of the clothing and boots. Phelps' motion to suppress those items of evidence was granted.

The State appealed to this court from the order suppressing the evidence.

The fourth and fourteenth amendments to the United States Constitution and Article I, § 18 of the North Dakota Constitution prohibit unreasonable searches and seizures. The guiding principle behind these prohibitions is to safeguard personal privacy and dignity against unwarranted intrusions by the State. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Meadows, 260 N.W.2d 328 (N.D.1977). To realize this principle, all evidence obtained in searches and seizures which transgress the commandments of the fourth amendment to the federal Constitution has been made inadmissible in state courts by the United States Supreme Court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Iverson,219 N.W.2d 191 (N.D.1974); State v. Matthews, 216 N.W.2d 90 (N.D.1974). In the case before us, if the seizure of Phelps' clothing and boots by the Mandan police officers on 11 May 1979 violated the fourth amendment to the United States Constitution, that evidence is inadmissible at a subsequent trial against Phelps.

No search warrant was obtained by the police officers in this case at any time. Any search and seizure made without a valid search warrant is unreasonable unless it is shown to fall within one of the exceptions to the constitutional requirement that a search be made only upon valid search warrant supported by probable cause. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); State v. Matthews, supra; State v. Gagnon, 207 N.W.2d 260 (N.D.1973). Therefore, if the Mandan police officers' search and seizure was not within an exception to the fourth amendment requirement, the trial court's suppression of the seized evidence was justified and proper.

One of the exceptions to the requirement of a search warrant is that a search may be made without a warrant incident to a lawful arrest. It is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Matthews, supra; State v. Gagnon, supra.

There was no lawful arrest prior to the seizure of the evidence in this case. Phelps was taken into custody by the Mandan police at approximately 3:50 a. m. on 11 May 1979 and detained for about 40 minutes. During that period of detention Phelps was told several times that he was not under arrest, and at one point Detective Bullinger told Phelps that he was not going to be kept in custody, was not under arrest, but he was not going to be released until he gave up his clothing. Thus, despite the presence of attendant conditions constituting probable cause and grounds for a lawful arrest pursuant to Ch. 29-06, North Dakota Century Code, at the time of Phelps' detention and the seizure of his clothing, he was not placed under arrest at that time. The Chimel exception to the warrant requirement was not applicable here because the seizure was not incident to a valid arrest.

In Cupp v. Murphy 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), the United States Supreme Court applied the principles of Chimel to design another distinct exception to the warrant requirement. The defendant in Cupp, upon learning of the strangulation of his wife, voluntarily went to the police station for questioning, but was not arrested. At the station, the police noticed a dark spot on his finger, and suspecting it...

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9 cases
  • State v. Sakellson
    • United States
    • North Dakota Supreme Court
    • December 18, 1985
    ...necessitating the suppression of the evidence obtained. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Phelps, 286 N.W.2d 472 (N.D.1979); see, e.g., Commonwealth v. DeMichel, supra; State v. Carufel, The State also invites this Court to adopt a "good faith" excep......
  • State v. Herrick
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    ...and to bolster judicial integrity by not allowing convictions based on unconstitutionally obtained evidence). But see State v. Phelps, 286 N.W.2d 472, 475 (N.D.1979) (stating the Fourth Amendment is intended to operate as a safeguard for personal privacy and dignity by preventing against un......
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    ...v. Kunkel, 455 N.W.2d 208, 210 (N.D.1990). Likewise, evidence seized subsequent to an invalid arrest is inadmissible. State v. Phelps, 286 N.W.2d 472, 475-76 (N.D.1979). Haverluk contends the search-incident-to-arrest exception does not apply because the search occurred before his arrest. H......
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