State v. Matthews

TEIGEN, Judge

(dissenting).

I dissent in both cases. These cases are parallel on the salient facts and the procedures followed in taking the appeals. This dissent, like the majority opinion, is made applicable in both cases. It is my opinion that these appeals should be dismissed because the appellants have failed to include in the record on appeal the relevant evidence upon which the rulings of the trial court, challenged on this appeal, are based.

It is fundamental that the party seeking review of an alleged error must see to it that the record is properly presented to the appellate court and that it is sufficient to show the alleged error, including all matters necessary for a consideration of the question presented for review. 4 Am.Jur. 2d, Appeal and Error, § 398.

Our rules of appellate procedure also place this burden upon the appellant. Rule 10(b) of the Rules of Appellate Procedure for th.e Supreme Court of North Dakota, in part, provides:

“If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record [on appeal] a transcript of all evidence relevant to such finding or conclusion.”

And Rule 10(c), N.D.R.App.P., in part, provides:

“If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection.”

The Rules of Appellate Procedure for the Supreme Court of North Dakota were patterned after the Federal Rules of Appellate Procedure for the United States *106 Courts of Appeal and the above-quoted portion of the North Dakota rule is identical with the comparable federal rule. In speaking of Rule 10(b), Moore’s Federal Practice, Second Edition, Vol. 9, at 1618, states that this rule places the burden of ordering and furnishing the necessary-parts of the transcript squarely upon the appellant, as follows:

“This is so because of the familiar rule of appellate practice that the burden of showing error by reference to matters of record is upon the appellant. Unless the record that he brings before the court of appeals affirmatively shows the occurrence of the matters upon which he relies for relief, he may not urge those matters on appeal.”

In the two cases under consideration here each of the parties, separately, noticed a pretrial motion to suppress the con-f traband. The record on appeal in each of these cases contains the motion, notice of motion and the order denying the motion. However, no transcript of the hearing on these respective motions was certified to this court and the evidence or proofs adduced thereat were not made a part of the record on appeal. During the trial in each of these cases, held several days after the motion to suppress was denied, the contraband was marked as exhibits and offered in evidence. Objections were made thereto, in the respective cases, as follows :

In the Matthews case:

"We are going to object, not on the basis of foundation, but on the basis of our previous motion to suppress the evidence in’ this case, and on the basis it was as a result of an illegal search and seizure and to maintain and keep that objection into the record.”

And again:

“That is right, we waive any. requirement of foundation regarding those two items and we are again retaining our objection to the introduction of this Exhibit only on the basis of our previous motion to suppress.”

And in the Long case:

“We object to this on the grounds we have previously stated in our motion [to suppress].”

And again:

“Same objection, your Honor, on the grounds it was obtained without a search warrant.”

In each case the objections were overruled and the contraband was admitted in evidence.

It is clear from the transcripts, made a part of the record in these two appeals, and from the nature of the objections, the rulings of the trial court, and the colloquy of the attorneys at the trial that the objections were based entirely upon what transpired at the hearings on the respective motions to suppress and not upon evidence adduced at the trials. The records of these proceedings are not before us and we cannot judge on this review the correctness or incorrectness of the trial court’s rulings on these motions.

Some of the facts may be gleaned from the transcripts of the records made at the two trials. They are clearly not complete. The evidenced adduced at the two trials obviously does not set forth the facts relied upon by the State or by the appellants on the motions to suppress. The evidence in each of these cases, presented at the respective trials, indicates that Mr. Hilde, the acting superintendent of the State Crime Bureau, had telephoned each of the two law enforcement officers involved in these arrests, advising that two packages, which he described as containing marijuana, had been sent from Arizona via Greyhound Bus to Jamestown, North Dakota, which packages were addressed to certain named persons with given addresses and showed a designated return address. As a *107 result the officers placed the Greyhound Bus Depot in Jamestown under surveillance. When the packages were called for and received by these respective appellants, at different times, the appellants were arrested, without a warrant, and the package in the possession of each was seized. Mr. Hilde, who had supplied the information to the arresting law enforcement officers, was not called to testify at either trial. However, it appears from the testimony of the arresting officers that under United States v. Ventresca, 380 U.S. 102 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965), they were entitled to rely upon the information furnished them by a fellow law enforcement officer — Mr. Hilde, the acting superintendent of the State Crime Bureau; that, therefore, they had probable cause under Draper v. United States, 358 U.S. 307 , 79 S.Ct. 329 , 3 L.Ed.2d 327 (1959), to arrest the respective appellants, without a warrant, when they were found to be in the possession of the packages containing the marijuana. These packages had been described to them by Mr. Hilde with enough particularity to allow identification on observation. Therefore, when the packages were seen and recognized in the possession of the appellants, who were carrying them away, exigent circumstances developed which constituted probable cause to make the arrest without a warrant and to search and seize the contraband as an incident to the arrest. United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260 , 94 S.Ct. 488 , 38 L.Ed.2d 456 (1973).

Under these circumstances, which seem plausible from the evidence adduced at the trials, the investigation and search of the respective packages at the bus depot, while in the possession of the personnel of the bus company, were unnecessary under the law and, therefore, were surplus acts on the part of these officers and should not constitute a basis upon which to set these convictions aside, particularly in the absence of the record upon which the rulings of the trial court were made. Ventresca and Draper have not been overruled or eroded by subsequent decisions of the United States Supreme Court.

It is my opinion that these appeals should be dismissed because of the appellants’ failure in their duty to provide this court with records upon which we may properly review the decisions of the trial court.

In respect to the appellants’ challenge of the search of the packages at the bus depot, I agree with the holding of the Wisconsin Supreme Court in the very recent decision of State v. Christel, reported at 61 Wis.2d 143 , 211 N.W.2d 801 (1973), and, on the basis of the reasoning of that decision, conclude that these appellants did not have standing to challenge the allegedly illegal search of the packages at the bus depot prior to delivery thereof to these appellants.

It is also my opinion that the Fourth Amendment to the United States Constitution does not support the exclusionary rule of evidence and that the common law rule in effect in this state since statehood, and until the exclusionary rule was forced upon us by Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), should be restored in an appropriate decision of the United States Supreme Court, freeing the states of the mandate of that case. In that connection I am in agreement with the statements made by several of the justices in their separate opinions in Coolidge v. New Hampshire. 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971). I quote excerpts from some of these separate opinions in Coolidge with which I agree.

Mr. Justice Harlan, concurring, stated:

“From the several opinions that have been filed in this case it is apparent that the law of search and seizure is due for an overhauling. State and federal law enforcement officers and prosecutorial *108 authorities must find quite intolerable the present state of uncertainty, which extends even to such an everyday question as the circumstances under which police may enter a man’s property to arrest him and seize a vehicle believed to have been used during- the commission of a crime.

' “I would begin this process of reevaluation by overruling Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), and Ker v. California, 374 U.S. 23 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 (1963). The former of these cases made the federal ‘exclusionary rule’ applicable to the States. The latter forced the States to follow all the ins and outs of this Court’s Fourth Amendment decisions, handed down in federal cases.

“In combination Mapp and Ker have been primarily responsible for bringing about serious distortions and incongrui-1 ties in this field of constitutional law.”

In a separate, dissenting-in-part and concurring-in-part opinion, Mr. Chief Justice Burger states:

“Thi§ case illustrates graphically the monstrous price we pay for the exclusionary rule in which we seem to have imprisoned ourselves.”

And in Justice Black’s concurring and dissenting opinion, he states, in part:

“The Fourth Amendment prohibits unreasonable searches and seizures. The Amendment says nothing about consequences. It certainly nowhere provides for the exclusion of evidence as the remedy for violation.”

He then quotes from the Amendment, and comments:

“* * * No examination of that text can find an exclusionary rule by a mere process of construction. * * *

>{c ⅜ ⅜ ⅝ ⅜ ⅜

“* * * Evidence properly seized under the Fourth Amendment, of course, is admissible at trial. But nothing in the Fourth Amendment provides that evidence seized in violation of that Amendment must be excluded.

“* * * The majority treats the exclusionary rule as a judge-made rule of evidence designed and utilized to enforce the majority’s own notions of proper police conduct. * * *

“I readily concede that there is much recent precedent for the majority’s present announcement of yet another new set of police operating procedures. By invoking this rule-making power found not in the words but somewhere in the ‘spirit’ of the Fourth Amendment, the Court has expanded that Amendment beyond recognition. And each new step is justified as merely a logical extension of the step before.

“It is difficult for me to believe the Framers of the Bill of Rights intended that the police be required to prove a defendant’s guilt in a ‘little trial’ before the issuance of a search warrant. But see Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969). No such proceeding was required before or after the adoption of the Fourth Amendment, until this Court decided Aguilar and Spinelli."

Although I concur in these statements, they do not help in these cases.

It is my opinion in these cases that because the appellants have failed in their duty to provide the records on which we may properly review the decisions of the trial court, the appeals should be dismissed.

By additament the majority allude to the above dissent and speculate that no evidence was offered at the hearings on the motions to suppress in these cases. They conclude the result would be the same if “we dismissed subject to correction of the irregularity.”

*109 The rulings of the court at the trials were specifically based on its respective pretrial orders denying the respective pretrial motions to suppress and not on the evidence adduced at the trials. The orders denying the motions to suppress are intermediate orders, reviewable on the appeals from the judgments of conviction. Section 29-28-27, N.D.C.C. The majority have not reviewed the orders denying the motions to suppress. The majority opinion is based entirely on the evidence adduced at the trials, which was not intended by either party to constitute the grounds upon which the State or the defense relied in offering and resisting the introduction of the contraband in evidence as exhibits. I feel that the majority, not being desirous of dismissing the appeals for the reasons set forth in my dissent, should grant new trials under the power granted by Section 29-28-28, N.D.C.C., or. remand the respective cases for evidentiary hearings concerning the search as was done by the Circuit Court of Appeals in United States v. Robinson, 145 U.S.App.D.C. 46 , 447 F.2d 1215 . After the remand the conviction was reaffirmed. This resulted in a new appeal to the Circuit Court of Appeals (United States v. Robinson, 153 U.S.App.D.C. 114 , 471 F.2d 1082 ), which reversed the conviction. The United States Supreme Court granted certiorari and reversed the Circuit Court. It held that in case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment but is also a “reasonable” search under that amendment. United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 .