State v. Runck

• Decision Date: 27 July 1995
• Docket Number: No. 940270,940270
• Citation: 534 N.W.2d 829
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Clayton RUNCK, Jr., Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 829

534 N.W.2d 829

STATE of North Dakota, Plaintiff and Appellee, v. Clayton RUNCK, Jr., Defendant and Appellant.

Crim. No. 940270.

Supreme Court of North Dakota.

July 27, 1995.

Allen Kipp Albright (argued), Asst. State's Atty., Fargo, for plaintiff and appellee.

George E. Duis (argued), Fargo, for defendant and appellant.

LEVINE, Justice.

Clayton Runck, Jr., appeals from the judgment of conviction and the sentence imposed upon a jury verdict finding him guilty of theft. We affirm.

On May 14, 1993, the State charged Runck with theft for possession of farm chemicals stolen in Minnesota. On July 1, 1993, the State filed an amended complaint also charging Runck with possession of tires stolen in Minnesota. The charge relating to the farm chemicals was dismissed upon motion of the State. ¹ Runck was tried on the tire charge. A jury found Runck guilty. Judgment of conviction was entered and Runck appealed, challenging, among other things, the validity of the issuance and execution of three search warrants.

On May 13, 1993, Detective Budd Warren, Cass County Sheriff's Department, applied for a warrant to search "all storage buildings, excluding residences" on the "farmstead owned and operated by Lanny D. Runck and Craig A. Runck of Route 1, Box 77, Durbin, North Dakota" (hereinafter referred to as the Runck farmstead), for certain described farm chemicals. The application was supported by Warren's affidavit which set forth the details of the theft of farm chemicals from three Minnesota farm-related businesses by Mark Matuska, who named Runck as a co-conspirator, the two men having met and become friends at the N.D. State Penitentiary. The stolen chemicals were stored in two buildings at the Runck farmstead. On May 13, 1993, a magistrate issued the requested warrant. A search on May 14, 1993, resulted in the seizure of several boxes of chemicals found in one of the buildings.

On May 14, 1993, Lt. Arland Rasmussen, Cass County Sheriff's Department, applied for a second warrant to search "a small wood framed structure located just to the south of the main residence" on the Runck farmstead, and a "large gray four-door cadillac, North Dakota license plate 38397, located in a storage building" on the farmstead. The application was supported by Rasmussen's lengthy affidavit relating that in a May 14 search of the Runck farmstead, officers recovered approximately $60,000 worth of farm chemicals believed to have been stolen in the Minnesota burglaries; that not all of the chemicals placed in one location by Matuska and Runck were found there, and that Rasmussen believed that more chemicals would be found in a Cadillac on the Runck farmstead and in Runck's mother's residence, which had not been used recently and which Runck had told Matuska would be a suitable location for storing some of the stolen farm chemicals. A magistrate issued the requested warrant.

Search of the Cadillac resulted in the seizure of several containers of farm chemicals. Search of Runck's mother's residence resulted in the discovery of a number of tires, which led to a request for a third search warrant.

On June 25, 1993, Detective Warren applied for a third warrant to again search Runck's mother's residence and "all out buildings and storage buildings" on the Runck farmstead for nine tires. The application was supported by Warren's affidavit relating that the search of Runck's mother's residence uncovered "six (6) Cooper (brand) Discoverer (make) raised white letter, mud and snow radial tires .. in the bathtub," and that an assortment of semi-trailer tires were found, which Matuska said he had stolen in Minnesota and which corresponded to tires stolen from Nepstad Oil Company in Hendrum, Minnesota. A magistrate issued the requested warrant and a search resulted in seizure of the described tires.

Runck argues that the warrants and their execution violated Rule 41, N.D.R.Crim.P. ² Rule 41, N.D.R.Crim.P., was drawn from Rule 41, F.R.Crim.P., and therefore, we give great weight to the construction placed on it by the federal courts. State v. Rueb, 249 N.W.2d 506 (N.D.1976). Rule 41 contains a number of ministerial requirements. Rule 41 also incorporates the Warrant Clause requirements of the Fourth Amendment to the United States Constitution that no search "warrants shall issue but upon probable cause ... and particularly describing the place to be searched." Federal courts have construed Rule 41, F.R.Crim.P., so that a violation of the ministerial aspects of the rule very seldom results in the suppression of evidence. See, e.g., United States v. Kelly, 14 F.3d 1169 (7th Cir.1994) (a copy of the search warrant was never given to the defendant or his counsel before trial) United States v. Gatewood, 786 F.2d 821 (8th Cir.1986); United States v. Luk, 859 F.2d 667 (9th Cir.1988). But a violation of Rule 41(d) can lead to exclusion "when there is a showing of prejudice, or an intentional and deliberate disregard of the rule." United States v. Kelly, supra, at 1173. And, of course, a violation that also offends the Warrant Clause of the Fourth Amendment, would call for suppression. United States v. Hornick, 815 F.2d 1156 (7th Cir.1987).

Runck argues that execution of the warrants violated Rule 41, N.D.R.Crim.P., because "a copy of the Warrant was not served, and the copy was not dated, signed, and all of the blank spaces were blank, and none of the Affidavits were signed where they were supposed to be on the copies." Detective Warren testified at the suppression hearing that they always bring the original search warrant, signed by a judge, to the premises to be searched and that they "always show that original warrant to the person at the property." Warren admitted that the warrant copy left with the farmhand who lived on the property was undated and unsigned, but testified that was "the way that search warrants are always done on a routine basis." Warren and his department are bound to follow Rule 41. However, their noncompliance does not evidence a deliberate institutional disregard that requires a judicial response to protect the integrity of our system. See, e.g., Madison v. North Dakota Department of Transportation, 503 N.W.2d 243, 246-47 (N.D.1993). However, continued noncompliance, if "commonplace," may warrant suppression. Cf., State v. Steffes, 500 N.W.2d 608 (N.D.1993). Runck has not shown that he was prejudiced by the fact that the copy left at the farmstead was undated and unsigned. Nor has Runck shown either "an intentional and deliberate disregard of the rule or a Fourth Amendment violation." United States v. Kelly, supra, 14 F.3d at 1173. Under the circumstances of this case, we conclude that leaving an unsigned and undated copy of the search warrant at the farmstead was a ministerial violation of Rule 41, N.D.R.Crim.P., that does not warrant suppression of the evidence seized upon execution of the warrant.

Runck argues that the warrants violated Rule 41, N.D.R.Crim.P., because they did not describe with particularity the place or building to be searched, thereby challenging the validity under the Fourth Amendment. We disagree. A description is sufficient if it enables the officer with the search warrant, with reasonable effort, to ascertain and identify the place intended. Steele v. United States, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925). See also United States v. Bonner, 808 F.2d 864, 866 (1st Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1632, 95 L.Ed.2d 205 (1987) (The test is whether the description of the place to be searched is sufficient " 'to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.' " Citations omitted.). The degree of specificity required in a warrant may vary depending upon the nature of the place to be searched. State v. Dallmann, 441 N.W.2d 912 (N.D.1989). The required specificity "differs for rural and urban areas and depends heavily on the facts of each case." United States v. Dorrough, 927 F.2d 498, 500 (10th Cir.1991). In United States v. Sherrell, 979 F.2d 1315, 1316 (8th Cir.1992), a search warrant authorized search of the "Sherrill [sic] Trucking facility including all buildings and vehicles located at Route 1 Box 483, Mammoth Springs, Arkansas." The court held that the warrant described the place to be searched with sufficient particularity, where the facility "is isolated and is in a rural area," the officer obtaining the warrant had "previously entered the property," and "there was no chance the officers would search the wrong premises." Id. at 1317. In People v. Smith, 21 Cal.App.4th 942, 26 Cal.Rptr.2d 580, 582 (Cal.App.), cert. denied, --- U.S. ----, 115 S.Ct. 254, 130 L.Ed.2d 175 (1994), also dealing with the particularity requirement of the Fourth Amendment, an officer obtained a warrant to search certain "premises" and " 'outbuildings ... used in connection with or within the curtilage of said premises.' " The court held that an "outbuilding" within the 40-acre parcel upon which the mobile home was located, was "particularly described." 26 Cal.Rptr.2d at 581. "[A] warrant to search 'premises' located at a particular address is sufficient to support the search of outbuildings and appurtenances in addition to a main building when the various places searched are part of a single integral unit." 26 Cal.Rptr.2d at 585, quoting People v. Dumas, 9 Cal.3d 871, 881, fn. 5, 109 Cal.Rptr. 304, 512 P.2d 1208 (1973).

In this case, the three search warrants authorized searches of (1) "all storage buildings, excluding residences," (2) "a small wood framed structure located just to the south of the main residence" and a "large gray four-door cadillac, North Dakota license plate 38397," and (3) "a small, wood framed structure located just to the south of the main residence" and "all out buildings and storage buildings" on the Runck farmstead. The...