State v. Schmitz

• Decision Date: 31 July 1991
• Docket Number: Cr. N
• Citation: 474 N.W.2d 249
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. James R. SCHMITZ, Defendant and Appellant. os. 900356, 900357.
• Court: North Dakota Supreme Court

Page 249

474 N.W.2d 249

STATE of North Dakota, Plaintiff and Appellee, v. James R. SCHMITZ, Defendant and Appellant.

Cr. Nos. 900356, 900357.

Supreme Court of North Dakota.

July 31, 1991.

Peter H. Furuseth (argued), State's Atty., Williston, for plaintiff and appellee.

Brad L. Arndorfer (argued), Billings, Mont., for defendant and appellant.

MESCHKE, Justice.

Challenging the constitutionality of separate searches, James Schmitz appealed from convictions for theft of four implement tires and for theft of a three-point hitch. We affirm the conviction for theft of the tires, but reverse the conviction for theft of the hitch.

On June 28, 1989, detective Stancel of the Williams County Sheriff's Department questioned Schmitz about gates that had been stolen from an auction sale. While on the Schmitz farmstead, Stancel noticed a number of truck rims stacked on a pallet. Remembering that similar rims had been reported stolen, Stancel left the Schmitz farmstead and got a more complete description of the missing rims.

Upon returning to the Schmitz farmstead, Stancel noticed that the rims had been moved from the pallet. Schmitz then drove up in his pickup, and Stancel briefly discussed the missing rims with him. Noticing fresh vehicle tracks leading down the prairie trail from which Schmitz had just come, Stancel followed the vehicle tracks a short distance to a ravine. Stancel there found nine gates matching the description of the gates missing from the auction. ¹ Stancel arrested Schmitz.

Schmitz consented to a search for the rims. After locating four of the seven missing rims, Stancel noticed two more rims in a pile of old tires. While dismantling the pile to retrieve the rims, Stancel found four new implement tires that matched the description of tires stolen from Boldt Farm Supply. Stancel seized the four tires and they were later confirmed as those stolen from Boldt Farm Supply.

On July 11, 1989, Stancel served and executed a warrant authorizing a search of the Schmitz farmstead. ² The search warrant identified the property sought as "various items which I have reason to believe have been recently stolen in Williams County which are evidence of crimes recently committed." While conducting the warrant search, Stancel found and seized a three-point John Deere hitch that matched the description of a hitch that had been reported stolen. The owner later confirmed the identity of the hitch.

Schmitz was charged with multiple theft crimes. Felony charges for thefts of the tires and of the hitch were brought in district court. Schmitz moved to suppress evidence of the seizure of the tires and the hitch, alleging that the searches were illegal. The district court denied the motion and the case proceeded to trial.

After one day of trial, the parties entered into a plea agreement and stipulation, whereby the two felony charges were reduced to misdemeanors and refiled in county court. There Schmitz entered a conditional plea of guilty to the two charges pursuant to NDRCrimP 11(a)(2). Judgments of conviction were entered in county court, and Schmitz appealed.

I. CONSENT SEARCH

Schmitz argues that the seizure of the four implement tires was in violation of the state and federal constitutions, ³ and that the court therefore erred in refusing to suppress the evidence. ⁴ Schmitz chiefly argues that the officer's search exceeded the scope of the consent given. The State replies that the officer acted within the scope of the consent when he looked through the pile of tires and rims, and that he then saw the implement tires in plain view.

To be valid as an exception to the warrant and probable cause requirements of the Fourth Amendment, a consent search must be "conducted according to the limitations placed upon an officer's right to search by the consent." State v. Huether, 453 N.W.2d 778, 782 (N.D.1990). "The scope of a search is generally defined by its expressed object." Florida v. Jimeno, --- U.S. ----, 111 S.Ct. 1801, 1804, 114 L.Ed.2d 297 (1991). The question whether a search exceeds the scope of consent is a factual one, subject to the "clearly erroneous" standard of review. Huether, 453 N.W.2d at 782; State v. Padgett, 393 N.W.2d 754, 757 (N.D.1986). The trial court is in a superior position to judge the credibility of witnesses, to resolve conflicts in the evidence, and to draw appropriate inferences. Huether, 453 N.W.2d at 783. Any conflict in the evidence is resolved in favor of affirming the trial court's determination. Huether, 453 N.W.2d at 783; State v. Lorenzen, 401 N.W.2d 508 (N.D.1987). These standards of review guide us here.

Schmitz argues that the consent to search for the rims extended only to the outbuildings on the farm and only while he was present. Because he did not testify, Schmitz must rely upon Stancel's testimony. However, Stancel's testimony does not clearly indicate that the consent to search was as limited as Schmitz claims. Schmitz is taking one portion of Stancel's testimony out of context to draw an inference favorable to his version of the facts. However, our review of the testimony in its entirety shows that other inferences may properly be drawn that support the court's findings. The scope of the consent was a disputed fact for the trial court to resolve. The trial court's finding of a valid consent search is not clearly erroneous. ⁵

We have reviewed Schmitz's other arguments on this question and we conclude that they are without merit. We conclude that the court did not err in refusing to suppress evidence of the seizure of the implement tires.

II. SEARCH WARRANT

Schmitz argues that the search warrant executed on July 11, 1989, was facially invalid, and that accordingly Stancel's plain-view seizure of the hitch while executing the warrant was invalid. We agree.

The Fourth Amendment to the United States Constitution and Article I, Section 8 of the North Dakota Constitution command that no search warrant shall issue unless it particularly describes the things to be seized. The purpose of the particularity requirement is to prevent exploratory rummaging in a person's belongings by a general search. See Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72 (1987); State v. Dallmann, 441 N.W.2d 912, 914 (N.D.1989). "By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Maryland v. Garrison, 107 S.Ct. at 1016. A search warrant must particularly describe the things to be seized.

The State supplies no caselaw or other authority holding that language as non-descriptive and conclusory as that used in this warrant is constitutionally permissible. Rather, it is universally held that a warrant authorizing the seizure of "stolen property," without further particulars, is inadequate. See 2 LaFave, Search and Seizure Sec. 4.6(c) (2d ed. 1987). In United States v. LeBron, 729 F.2d 533, 536-537 (8th Cir.1984) the United States Court of Appeals for the Eighth Circuit explained:

Applying this standard, courts generally approve warrants if they provide reasonable guidance to the exercise of informed discretion. Similarly, when it is impossible to describe the fruits of a crime, approval has been given to a description of a generic class of items.... But the general description of "property ... believe[d] to be stolen" is not a description of a generic class. In fact, it is not descriptive at all. It is simply conclusory language. No guidelines are provided to guide the officers in their execution of the warrant or to limit their discretion. No means of distinguishing between stolen property and property that is not stolen is delineated; moreover, the distinction is not one that is readily apparent. These directions provide no protection against subjecting a person's lawfully held property to a general search and seizure. Such a general authorization allows officers to search indiscriminately throughout one's house and to seize anything they please.

[Citations omitted]. Other courts are in accord. For examples, see United States v. Holzman, 871 F.2d 1496, 1509 (9th Cir.1989) (description "any property or devices used or obtained through fraud operations" insufficient); People v. Brown, 153 Ill.App.3d 307, 106 Ill.Dec. 99, 101, 505 N.E.2d 405, 407 (1987) (description referring to stolen property insufficient); Commonwealth v. Rutkowski, 406 Mass. 673, 550 N.E.2d 362, 364 (1990) (description "stolen handguns, jewelry and coins" insufficient); State v. Connard, 81 N.C.App. 327, 344 S.E.2d 568, 571 (1986), aff'd, 319 N.C. 392, 354 S.E.2d 238 (1987) (description "stolen goods" insufficient); State v. Gallegos, 712 P.2d 207, 209-210 (Utah 1985) (description "stolen property" insufficient). The warrant description here, "various items ... recently stolen," is such a general authorization.

This general description furnishes no guidance to the executing officers to limit their discretion, no means of distinguishing stolen items from non-stolen items, and no protection against a broad-ranging, exploratory search. LeBron, 729 F.2d at 537. This vague language "is the epitome of a general warrant." Holzman, 871 F.2d at 1509. We conclude that this warrant did not particularly describe the things to be seized as commanded by the federal and state constitutions.

Still, the State asserts that our decision in Dallmann supports the use of a warrant that generically describes the property to be seized. In Dallmann, 441 N.W.2d at 915, the warrant authorized a search of a farm for "livestock, ear tags, and other livestock paraphernalia which was stolen." We relied upon the nature of those items in holding that, where a more specific description is impossible or would not have assisted the executing officer, a generic description...