State v. Riedinger

• Decision Date: 01 October 1985
• Docket Number: Cr. N
• Citation: 374 N.W.2d 866
• Parties: The STATE of North Dakota, Plaintiff and Appellant, v. Robert RIEDINGER, Defendant and Appellee. The STATE of North Dakota, Plaintiff and Appellant, v. Eugene FRANK, Defendant and Appellee. os. 1047, 1048.
• Court: North Dakota Supreme Court

Page 866

374 N.W.2d 866

The STATE of North Dakota, Plaintiff and Appellant, v. Robert RIEDINGER, Defendant and Appellee.

The STATE of North Dakota, Plaintiff and Appellant, v. Eugene FRANK, Defendant and Appellee.

Cr. Nos. 1047, 1048.

Supreme Court of North Dakota.

Oct. 1, 1985.

Richard L. Schnell, State's Atty., Mandan, for plaintiff and appellant; argued by Richard L. Schnell.

Ken R. Sorenson, Bismarck, for defendant and appellee Riedinger; argued by Ken R. Sorenson.

Pulkrabek & Tuntland, Mandan, for defendant and appellee Frank; argued by Terrence McGannon, Senior Law Student, University of North Dakota Law School; appearance by Thomas M. Tuntland.

MESCHKE, Justice.

We consider whether a stolen microwave oven, identified by serial number during the course of a valid search for drugs and money, should be suppressed as not properly seized under the "plain view" exception to the Warrant Clause of the Constitution. We also consider whether stolen goods and related evidence seized pursuant to second and third search warrants should be suppressed because those warrants stemmed from the discovery and seizure of the stolen microwave oven. We hold that none of the evidence of stolen goods should be suppressed.

The State appeals from an order suppressing "all other evidence seized" under a series of three search warrants, except controlled substances and paraphernalia held properly seized under the initial warrant. We reverse as to the stolen microwave oven and the evidence of stolen goods seized on the second and third warrants.

I. FACTS

On March 13, 1984, Special Agent Maixner of the North Dakota Drug Enforcement Unit arranged an undercover purchase of marijuana from Mr. Fetzer in a parking lot in Mandan. When Fetzer left to get the marijuana he was followed by Special Agent Nicks and Mandan Police Officer Dever to the home of Eugene Frank and Wayne Otto in Mandan.

Officer Dever saw Fetzer speak to Otto on the back steps of the house. Although no exchange of money or marijuana was observed, Fetzer remained under constant surveillance until he returned and delivered the marijuana to Agent Maixner in the parking lot. Fetzer was arrested and searched, but the money that he had received was not found. The officers sought a warrant to search the house for the money and controlled substances.

Before applying for the search warrant, Agent Maixner unsuccessfully attempted to contact Agent Milton Lennick of the North Dakota Crime Bureau to consider whether they should also search for stolen goods. Agent Lennick had once told Officer Dever that Otto had been seen in the area of a burglary, which had led Dever to keep Otto under some surveillance.

Agent Maixner obtained the warrant from the County Judge to search the Frank and Otto residence for "concealed controlled substances ... including marijuana and currency consisting of five fifty dollar bills," and to seize the described items, if found.

Accompanying Agent Maixner to execute the search warrant, Officer Dever thought it also might be an opportunity to see stolen goods as evidence to connect Otto with burglaries.

The search was made at about 6:15 p.m. Robert Riedinger was the only one in the house. In continuing the search in the basement of the house, the officers found a microwave oven sitting on a cooler. It was not plugged in, nor in apparent use. Agent Maixner picked up the oven and held it while another officer copied the serial number, which was embossed on a small strip on the back of the oven.

The officers radioed the serial number to the Mandan police station, which ran a computer check on the serial number through the National Crime Information Center, a national computer service for stolen goods. While still at the house, the officers received word by radio that the microwave oven was stolen. They seized the microwave, along with marijuana and paraphernalia, and a number of other unrelated items: pellet gun, a wooden box, a splicing knife, 2 receipts, a paper with numbers, a notebook, a lease, and a pistol.

Also observed during the search, but not seized, were an ornamental sword approximately three feet long with red, green and gold designs and an antique black horse collar with a battery powered clock mounted within it. After the search, the officers obtained information that identified those two items as stolen property. They also observed a blue 1966 Ford car on the premises. The officers noticed that the Ford had a broken arm rest and later used that information to connect the car with a particular burglary through a piece of the broken arm rest left where a stolen safe had been unloaded.

Linking the microwave oven and their observations during the search with other information, the officers obtained and executed two additional search warrants on March 14, 1984, one to search and seize specific stolen property, burglary tools, and evidence in the house and one to search the vehicle and seize the broken arm rest and any burglary tools found in it. A number of items of stolen goods and related evidence were seized pursuant to these warrants.

II. STATEMENT OF THE CASE

Eugene Frank and Robert Riedinger were charged with possession of stolen property. Frank moved to suppress all items seized upon the grounds that the officers "relied on illegally obtained evidence to secure their statement of probable cause" to obtain the warrants. Reidinger joined in the motion to suppress. ¹

After hearing, the District Court entered an order denying the motion to suppress the controlled substances and paraphernalia seized but suppressing "all other evidence seized" in executing the three search warrants of March 13 and 14.

The District Court found that the officers "were legally on the premises pursuant to a valid narcotics search warrant" for the initial search, but that they "began a random, exploratory search and seizure," and seized the nine unrelated items which they had no "reason to believe ... were contraband, stolen, evidence of a crime, or used in the commission of a crime."

Since they "entered the premises with the hope and intention of finding evidence of other crimes unrelated to the subject of the search warrant," the District Court determined that the officers "acted in bad faith in engaging in a general exploratory search."

Specifically as to the microwave oven, the District Court found:

"To determine the serial number the officers had to pick up or otherwise move the microwave and inspect the oven closely."

The District Court went on to find that "it was only because the police took the serial number from the microwave oven" that the officers were able to develop information linking the ornamental sword and horse collar clock to burglaries in the same county where the microwave oven was stolen.

The District Court concluded that both the second and third search warrants were "based on the illegally obtained serial number" and that "probable cause for the issuance of the second and third search warrants was based solely on evidence obtained because of the bad faith exploratory search of the police in the execution of the initial narcotics search warrant." There was also a finding that "there is no reason to believe that the evidence seized would have inevitably been discovered if the police had not engaged in a general exploratory search."

The State urges on appeal that the officers could properly check the serial number of the microwave oven and that it was properly seized as contraband in "plain view," so as to validate the evidentiary use of it as well as the items seized on the next two warrants. The State alternatively argues that the stolen property seized on the second and third search warrants would have been inevitably discovered or discovered from an independent source and should not therefore be suppressed.

III. SEARCH AND SEIZURE

Our heritage applies constitutional restraints on law enforcement officers in carrying out their duties in searches and seizures. The United States Constitution, Fourth Amendment, and the Constitution of North Dakota, Article I, Section 8, are virtually identical:

"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 warrant shall issue but upon probable cause, supported by oath or affirmation, [and] particularly describing the place to be searched and the persons and things to be seized." ²

For nearly two hundred years, this constitutional principle has guided judges in weighing law enforcement practices, balancing rights of individual liberty with the common interests of a form of government founded to justly insure those rights.

Court decisions have balanced the preferred warrant procedure with certain generally recognized exceptions for warrantless searches and seizures which are considered reasonable because of practical necessities. As stated in State v. Gagnon, 207 N.W.2d 260, 263 (N.D.1973) and repeated in State v. Matthews, 216 N.W.2d 90, 99 (N.D.1974):

"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."

Something about the current approach to exceptions to the warrant requirement for searches and seizures can be gathered from the following summary by Justice White, writing for the majority in New Jersey v. T.L.O., 469 U.S. ----, 105 S.Ct. 733, 83 L.Ed.2d 720, (1985):

"Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place. The determination of the standard of reasonableness governing any specific class of searches requires 'balancing the need to search against the invasion which the search entails.' Camara v. Municipal Court, supra, [387 U.S. 523] at 536-537, 87 S.Ct. [1727] at 1735 [18 L.Ed.2d 930 (1967)...