State v. Stockert

• Decision Date: 24 August 1976
• Docket Number: No. 547,547
• Citation: 245 N.W.2d 266
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Leon STOCKERT, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 266

245 N.W.2d 266

STATE of North Dakota, Plaintiff and Appellee, v. Leon STOCKERT, Defendant and Appellant.

Crim. No. 547.

Supreme Court of North Dakota.

Aug. 24, 1976.

Syllabus by the Court

1. If the notice of appeal properly describes the appeal as from the judgment, the fact that the title page of the brief describes it otherwise does not affect the validity of the appeal.

2. While standards for warrantless searches of automobiles may be less stringent than searches of dwellings or other buildings, because of ambulatory character of automobiles, lesser expectation of privacy, and fact that automobile contents are often in plain view of officers, such lesser standards will not be applied where the necessity for them does not exist.

3. Warrantless searches of automobiles may be permissible when the automobiles are in the lawful custody of police and police are exercising their duty to protect the vehicle contents from damage or theft or exercising their right to protect themselves from the use of weapons within the vehicle.

4. Warrantless search of unoccupied vehicle on private property, not in police custody, not suspected of containing contraband, not immediately mobile, and not suspected of being (or of containing anything dangerous to officers, was not a reasonable search within the terms of Section 18, North Dakota Constitution.

5. A statute (Section 39--04--55, N.D.C.C.) requiring the carrying of a registration card for a motor vehicle while the vehicle is being operated upon a highway does not authorize the warrantless search of an unoccupied vehicle on private property.

6. An operator of a motor vehicle has no legitimate expectation of privacy as to an identification number on his vehicle.

7. States are free to impose higher standards of constitutionality than Federal standards.

8. Where testimony as to the subject matter of a severed charge against the defendant was injected into a trial, it should have been excluded; but in the absence of a prior motion in limine, reversal is not based upon the error in admitting the testimony.

Albert J. Hardy, State's Atty., and Donald L. Jorgensen, Asst. State's Atty., Dickinson, for plaintiff and appellee State of North Dakota.

Freed, Dynes, Malloy & Reichert, Ronald A. Reichert, Dickinson, for defendant and appellant.

VOGEL, Justice.

The issue raised in this case is whether Section 18 of the North Dakota Constitution and the Fourth and Fourteenth Amendments to the United States Constitution permit the search, without a warrant, of the glove compartment of an unoccupied automobile stuck in a snowbank on private property, and the seizure, without a warrant, of the contents of the glove compartment. We hold that the search and seizure were unreasonable, and reverse and remand for a new trial.

On April 20, 1975, shortly after midnight, three employees of the A & W Drive-In restaurant in Dickinson were preparing to leave. While one of them was removing snow from the windshield of her car, a man wearing a ski-mask and dark coveralls and holding a rifle, confronted her and said, 'Hey, lady, give me the money.' She said she did not have the money because the boss had taken it with him. The man said, 'Okay,' and ran away in a northeasterly direction. The incident was immediately reported to the Dickinson police, and an officer arrived about 1 a.m. Due to darkness, the investigation was discontinued until the following morning at about 6 a.m. Two officers then followed footprints from the scene of the attempted robbery to a grove of trees where they found a rifle, a pair of coveralls, and a ski-mask thrust into the branches of an evergreen tree. Two of the officers followed another set of tracks which led to an automobile stuck in a large bank of snow. The driver's door was locked and the passenger doors were blocked with snow. After examining the car's exterior, one of the officers entered the vehicle through an unlocked rear door on the driver's side. He opened the glove compartment and removed a billfold, some money, a driver's license, a vehicle registration card, and a 'plastic bag containing green plant material.' The critical question in this case concerns the admissibility at the trial of the driver's license found in the billfold taken from the glove compartment. It was offered and received in evidence at the trial to identify the defendant as the person committing the attempted robbery. A motion to suppress was made prior to trial and was denied. A motion to sever the two charges of attempted robbery and possession of marijuana was granted, but a motion for mistrial, made when one of the officers testified at the trial as to the finding of the bag of green plant material, was denied.

The State argues in the alternative either that the entry into the glove compartment and the removal of the contents were not a search and seizure, or that they were justified by the provisions of Section 39--04--55, North Dakota Century Code, which requires, in part:

'The registration card issued for a vehicle shall be carried in the driver's compartment of the vehicle . . . at all times while the vehicle is being operated upon a highway in this state. Such card shall be subject to inspection by any peace officer or highway patrolman. . . .'

I

Before going farther, we pause to dispose of the motion of the State to dismiss the appeal. The State alleges that the appeal should be dismissed because the appellant's brief does not state the issues to be considered by the court on the appeal, and that the appeal is denominated on the title page of the brief as an 'appeal from order denying motion to suppress.' These contentions are insufficient. The notice of appeal specifies that it is from the judgment. Such a notice, if timely, as it is here, is sufficient to permit the raising of all questions of law on which the trial court has ruled in a criminal case. See State v. Haakenson, 213 N.W.2d 394 (N.D.1973). Furthermore, defendant's statement in his brief of the issue raised by the appeal ('whether the police have a right to conduct a warrantless search of an automobile immobilized upon private property') is sufficient to raise the issue before us. A mere misdescription of the kind of appeal on the title page of a brief is not fatal to the appeal.

II

In State v. Matthews, 216 N.W.2d 90, 99 (N.D.1974), we stated three basic premises in search-and-seizure cases. The first was that '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' (quoting State v. Gagnon, 207 N.W.2d 260, 263 (N.D.1973)). The second is that where a violation of the Fourth Amendment provision as to search and seizure is asserted, the burden of proof on a motion to suppress is on the State. The third is that 'ever since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), evidence obtained by search and seizure violative of the Fourth Amendment is, by virtue of the Due Process Clause of the Fourteenth Amendment, inadmissible in State courts. State v. Manning, 134 N.W.2d 91 (N.D.1965).'

State v. Matthews was a case where a sealed package containing marijuana, which had been transported by bus, was opened by or at the request of police officers and then resealed and held by the bus company until it was called for. The police were then notified. The police arrested the person who called for the package after he had it in his possession. We held that the search and seizure were violative of the constitutional rights of the defendant, pointing out that, among other things, the police had ample time within which to obtain a search warrant from an impartial magistrate.

We also pointed out in State v. Matthews that the existence of probable cause to believe that a crime had been committed, alone, without a search warrant or a simultaneous, valid arrest or other exigent circumstances, was insufficient to justify a warrantless search. In State v. Iverson, 219 N.W.2d 191 (N.D.1974), we held that a belief, however well founded, that contraband is concealed within a dwellinghouse furnishes no justification for a search without a warrant, and that a search unlawfully undertaken is not made valid by evidence of crime which it brings to light. These principles are equally applicable to the case before us.

The State strenuously urges that searches of automobiles are treated differently from searches of dwellinghouses and other buildings, citing State v. Binns, 194 N.W.2d 756 (N.D.1972); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed.2d 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); and Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). To these might be added the very recent cases of South Dakota v. Opperman, --- U.S. ---, 96 S.Ct. 3092, 49 L.Ed.2d --- (1976), and Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975).

The cases cited generally recognize that searches of vehicles may sometimes be made under circumstances where searches of buildings would not be allowed because of the ambulatory character of automobiles, the lesser expection of privacy as to automobiles, and the fact that automobiles are often brought within the plain view of officers. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); State v. Binns, supra; State v. Matthews, supra; South Dakota v. Opperman, supra. Warrantless searches of automobiles are sometimes authorized when the automobiles are lawfully within the custody of the police, who have a duty to protect the vehicle from damage or theft and the right to protect themselves from the use of weapons which may be found within the vehicle. South Dakota v. Opperman, supra; Cady v. Dombrowski, supra. However, none of these considerations apply in ...