State v. IversonCriminal Nos. 390 and 393
Erickstad, Judge, on reassignment.
On May 2, 1969, James Leroy Iverson was found guilty by a jury in the District Court, Grand Forks County, of the crime of murder in the first degree of Diane Patricia Bill and of the crime of murder in the second degree of Carol Mayers, the two cases having been consolidated for trial. On May 9, 1969, Iverson was sentenced to life imprisonment at hard labor for murder in the first degree and to an indeterminate[187 N.W.2d 11]
sentence of imprisonment at hard labor from twenty-five to thirty years for murder in the second degree, the sentences to run concurrently.
On July 22, 1969, Iverson appealed to this court from the verdicts rendered on May 2, 1969, and from the judgments of the District Court entered on May 9, 1969. On November 17, 1969, Iverson appealed to this court from the order of the District Court denying his motion for a new trial. In this opinion we will consider all issues.
At approximately 10:30 in the morning of Wednesday, November 27, 1968, in the city of Grand Forks, the bodies of Carol Mayers and Diane Patricia Bill were discovered in the apartment of Carol Mayers by the parents of Diane Bill. Mr. and Mrs. Bill had gone looking for their daughter after receiving a phone call from her employer informing them that Diane and Carol had failed to show up at work for the second consecutive morning. The record indicates that although Diane had her own apartment and had only been working with Carol for a few weeks, she had on several occasions walked to Carol's apartment so they could go to work together. Both girls had to be at work between 6:30 and 7:00 every morning. An autopsy performed later that day established that Carol died from traumatic asphyxiation, with findings compatible with strangulation, and that Diane died from traumatic asphyxiation, with findings compatible with manual strangulation.
An investigation was begun by the City of Grand Forks Police Department and by the Grand Forks County State's Attorney's office. The investigation continued throughout the day of the discovery of the bodies, Wednesday, November 27, 1968. While police officers were investigating the scene of the crime, the State's Attorney was conducting a State's Attorney's Inquiry into these deaths.
As part of the investigation at Carol's apartment, a bloodhound was used. A pillowcase found at the scene was used as the source of the scent given to the bloodhound. The trail followed by the bloodhound ended in the alley outside the apartment. After the bloodhound had been used at the scene of the crime, the pillowcase and the bloodhound were brought to the police station at approximately 5:15 p.m., when Iverson had just completed testifying at the State's Attorney's Inquiry. The bloodhound, having been given a scent from the pillowcase once again, followed a trail that led to Iverson.
Iverson was permitted to leave the police station, but later that evening, at approximately 8:00, while he was bowling with his league, Iverson was taken into custody by the State's Attorney and his administrative assistant. Subsequently, upon affidavits of several investigating officers, a search warrant was issued authorizing a search of Iverson's automobile and residence. In the course of the search of his residence, a coat, a towel, and a pair of trousers were seized. After he was taken into custody, Iverson was advised of his rights and was interrogated. His statements were taken down. These statements, together with his testimony at the State's Attorney's Inquiry, were used by the State for impeachment purposes in the course of Iverson's trial.
Iverson raises several constitutional issues, the first of which goes to the conduct of the State's Attorney's Inquiry. Section 11-19A-09, N.D.C.C., provides that when a state's attorney becomes cognizant of any violation or criminal act causing a person's death, he may inquire into the facts and may subpoena witnesses to testify. The statute authorizes the state's attorney to compel the attendance of witnesses in the same manner and with the same effect as if they had been subpoenaed by the judicial branch of government. The statute also provides that, "Any witness compelled to testify under the provisions of this section shall be entitled to counsel and all other constitutional rights."[187 N.W.2d 12]
Three persons were subpoenaed and testified at the State's Attorney's Inquiry held by the State's Attorney in the afternoon of Wednesday, November 27, 1968. Robert E. Shepler testified at 3:00 p.m. His roommate, Bruce Gustafson, testified at 3:45 p.m. Shepler and Gustafson lived in the apartment immediately below Carol's apartment. Iverson testified at 4:50 p.m., with his testimony being completed at approximately 5:15 p.m.
As to Iverson, the matters preliminary to his testimony at the State's Attorney's Inquiry were as follows:
"Q. Now, this is a state's attorney's inquiry as to the death of Carol Mayers and Diane Patricia Bill. I must advise you that you cannot refuse to answer the questions. Once the statement has been completed here and transcribed, you will be required to sign that this is your testimony. I must advise you that you have a right to have an attorney present during these questions if you so desire. What is your wish? I can tell you that the matter of the inquiry is the fact of a double murder or at least a homicide of one nature.
"A. Okay.
"Q. Okay what?
"A. Well, you said--proceed. The statement is all right with me.
"Q. All right.
"A. I don't understand it.
"Q. All right. Mr. Iverson, now we are talking about accounting for your time from approximately 3:30 Monday."
Iverson alleges that these proceedings were unconstitutional in that he was 'not given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). He further alleges that these proceeding were unconstitutional in that he was told he could not refuse to answer the questions and thus was compelled to testify against himself, in violation of Section 13 of the Constitution of North Dakota and in violation of the Fifth Amendment to. the Constitution of the United States as made applicable to the states through the Fourteenth Amendment in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Both Section 13 and the Fifth Amendment provide that, "No person shall ... be compelled in any criminal case to be a witness against himself***"
Miranda specifically reaffirmed the earlier decision of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Escobedo held that the denial of counsel to an accused at the interrogation stage of the proceedings against him was a violation of the Sixth Amendment right to have the assistance of counsel for his defense as made applicable to the states through the Fourteenth Amendment in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963). Escobedo distinguished between an investigation and a proceeding designed to wrap up a case against a suspect.
"We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution ... and that no statement elicited by the police during the interrogation may be used against him at a criminal trial." Escobedo v. Illinois, supra, 84 S.Ct. 1758, 1765.
Miranda also expanded the rights which must be granted to an accused to[187 N.W.2d 13]
protect his Fifth Amendment right not to be compelled to incriminate himself. As a result of this decision, an individual held for interrogation must be clearly informed that he has the right to counsel and to have his lawyer with him during any interrogation; that he has the right to remain silent; that anything stated by him can be used in evidence against him; that if he is an indigent a lawyer will be appointed for him; and that these warnings must be given prior to any interrogation. Once these warnings have been given and the individual in any manner indicates he wishes to remain silent, the interrogation must cease.
"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against selfincrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."
At this point the Court inserted footnote 4:
"This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused." Miranda v. Arizona, supra, 86 S.Ct. 1602, 1612.
The preliminary matters discussed with Iverson at the State's Attorney's Inquiry fell short of the warnings required by Miranda. Although Iverson alleges that he was entitled to these warnings, the real issue is whether at the time of the State's Attorney's Inquiry he had the status of a person to whom the Miranda warnings must be given. That is, at the time of the State's Attorney's Inquiry, was Iverson a witness, or was he the suspect or the focus of the investigation?
In Miranda the U.S. Supreme Court condemned certain police interrogation methods designed to elicit confessions. These methods are psychologically rather than physically oriented.
"To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must 'patiently maneuver himself or his quarry into a position from which the desired objective may be attained.' When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.
"Even without employing brutality, the 'third degree' or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals." Miranda v. Arizona, supra, 86 S.Ct. 1602, 1617, 1618.
Following its analysis of these interrogation methods, of which the foregoing is but a small part, the Court stated:
"We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored."[187 N.W.2d 14]
[Emphasis supplied.] Miranda v. Arizona, supra, 86 S.Ct. 1602, 1624.
Our reading of Miranda is not that every person questioned in the process of a criminal investigation must be given the Miranda warnings, but rather that these warnings must be given to any person who is suspected of having committed a crime, or upon whom the investigation is focused.
"General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present." [Emphasis supplied.] Miranda v. Arizona, supra, 86 S.Ct. 1602, 1629, 1630.
In other words, neither the Fifth Amendment to the United States Constitution nor Section 13, which is its counterpart in our State Constitution, requires that every witness questioned in a criminal fact-finding process be given the Miranda warnings.
Had Iverson been a suspect or the focus of the investigation at the time of the State's Attorney's Inquiry, his Fifth Amendment and Section 13 constitutional rights would have been violated by the failure to give him the Miranda warnings. Whether at the time of the State's Attorney's Inquiry he was a suspect or whether the investigation had focused upon him is a question of fact to be determined from the record. That he was later arrested and convicted of two counts of murder does not prove that he was the suspect or focus of the investigation at the time of the State's Attorney's Inquiry.
The record of the events up to and including the State's Attorney's Inquiry does not reveal facts sufficient to establish the probable cause necessary to take Iverson into custody. In the four cases decided in Miranda the defendant in each case had been arrested or "picked up" before he was subjected to custodial interrogation in which some of the methods condemned by Miranda were used for periods ranging from several hours to five days. Not only was probable cause for Iverson's arrest lacking at the time of the Inquiry, but so also was any substantial progress in the investigation.
At the time that Iverson arrived at the police station for the Inquiry, the investigation was only seven hours old. The cause of death had not been determined; the length of time the girls had been deceased was not known; witnesses had not been found who had heard or observed anything unusual relating to the girls in the past several days; substantial and revealing clues had not been found at the scene of the crime. In short, what the record reveals is that a full-scale investigation was being conducted and that the investigators were seeking any and all information that would explain the deaths of the two young women, and that up to and including the time of the State's Attorney's Inquiry, the information being gathered from all sources had not been correlated.
The Legislature viewed the consequences of a criminal act causing death as so serious that it created a procedure, Section 11-19A-09, N.D.C.C., wherein persons could be subpoenaed and compelled to testify concerning any such criminal act. The State's Attorney in this case merely made use of the statutory tool provided him. Each of the three men subpoenaed to testify at the State's Attorney's Inquiry was questioned in the presence of the State's Attorney, two police detectives, and a court reporter who transcribed the proceedings. A reading of those proceedings indicates that the interrogations were short (approximately half an hour each) and that the questions[187 N.W.2d 15]
asked of the witnesses called were not accusatorial or inquisitorial, but were merely designed to elicit any information that would assist in the investigation. When the proceedings were complete, the witnesses were permitted to leave. These proceedings do not resemble the custodial interrogation methods condemned by Miranda.
The State's Attorney's questioning of Shepler and Gustafson prior to the questioning of Iverson revealed no information which would lead a reasonable man to believe that Iverson was a suspect, upon whom the investigation would have focused.
Shepler and Gustafson testified that their apartment was directly below Carol's and that there were two registers between their apartments through which Shepler and Gustafson could hear sounds and see light coming from Carol's apartment. They were graduate physics students at the University of North Dakota in Grand Forks. They had developed certain study and leisure-time habit patterns. They would sleep late each morning; attend classes and activities at the University during the day; eat supper and watch television at their apartment for a while; and then leave to study at their offices in the physics building, usually until 2:00 in the morning, after which they would return to their apartment and retire. Both men testified that Carol had several regular male visitors who would come to her apartment very early in the morning (around 2:00 or 3:00).
Shepler testified that he heard someone in Carol's apartment get up and turn off an alarm clock that rang at approximately 3:15 Tuesday morning, November 26, 1968. He stated that the footsteps he heard had sounded like Carol's. That was the last sound that either of them heard coming from Carol's apartment. Shepler and Gustafson testified that they heard no unusual sounds or commotion from Carol's apartment, and that they had not heard any male visitors at Carol's apartment for approximately a week prior to the discovery of the bodies of Carol and Diane.
Shepler also testified that as to Carol's male visitors, "It just seemed to me that there were about two or three guys that came pretty regular, and one of them either had a bum leg or something wrong with his leg, because you could tell it by the way he walked. One foot would hit heavier than the other."
Gustafson also had noticed this one visitor by his walk. His testimony was as follows:
"Q Do you know of any males who frequent that apartment?
"A Well, this sounds funny, but there is one guy. Bob was in during the summer. He had seen him come. I only heard him once, but they called him the onelegged guy because it was funny the way he walked up and down the stairs. I could tell there was something wrong. The cadence in the steps was different than normal, than a normal person's walk up and down the stairs. One foot hit--when one foot hit, it would sound different than the other foot. Naturally we thought he was lame or had an artificial leg or something like that. I only heard him once. Then I think sometime in October we heard one guy. We used to hear him go up and down the stairs, but you hear people going up and down stairs at night and late in the morning. Usually this one guy, this one we called the one-legged guy, would come late in the morning, early in the morning about 3:00 o'clock. And other times--sometime in October one guy came up there about 2:00 or 3:00 in the morning and knocked on the door and she let him in. It sounded like he was a little drunk because he kept asking her, 'Just have one beer, Carol, and I will go.' And she said, 'Jesus, it's 3:30 in the morning. Get out of here.' He wanted to have one beer. Meanwhile, he must have had a friend out in the car because then one more man came up the stairs. And she called him Jim. That's the only name we heard.[187 N.W.2d 16]
"Q She called him Jim?
"A Yes.
"Q Was there anything unusual as to this Jim's talk or mannerism?
"A Well, we didn't see him. All we heard was his voice. He didn't sound angry or anything."
Later on in his testimony he was asked:
"Q Mr. Gustafson, this man you call the one-legged man, is he the same one that Carol called Jim?
"A No. There were two different men.
"Q I see. The one-legged man went upstairs first?
"A Not the one-legged man. I think it was last Thursday night-- not Thursday. I'd say maybe last Wednesday or Tuesday night of that last week.
"Q But the night you heard someone come up and later on another party came up and she used the name Jim, is that the night you heard the one-legged man go up?
"A No. it's a totally different noise. That was sometime in October, exactly when, I don't know."
Gustafson's testimony concluded as follows:
"Q Let me ask you this: At any time have you seen an automobile parked outside that may have been associated with that apartment, an automobile, truck, taxi-cab, or anything?
"A No. There are quite a few cars that park out there and some I have placed with certain apartments. But you ask if any of them are associated with certain apartments there. I don't know.
"Q Have you ever seen a taxi-cab parked out there?
"A A taxi-cab that comes once in a while to the place next door. I have noticed that.
"Q What cab company?
"A A black cab with a red sign, I guess Nodak. Now, whether this cab was going to the place next door to pick up somebody and take them some place, I don't know."
It should be noted that Iverson's first name is Jim; that at the time of his being taken into custody he was employed as a driver for Nodak Cab; and that he has an injured leg that requires the use of a heavily built-up shoe. It is significant to note also that Gustafson stated that the onelegged man and Jim were two different persons. It is also significant that neither Shepler nor Gustafson noticed any male visitor to Carol's apartment within a week of her murder, particularly the one-legged man, whose walk was so noticeable.
Our conclusion is that at the time of the State's Attorney's Inquiry, Iverson was merely a possible source of information and was not a suspect or the focus of the investigation. Accordingly, there was no need to give Iverson the Miranda warnings at that time.
An additional problem is posed, however, by the Miranda definition of "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, supra, 86 S.Ct. 1602, 1612. It must be conceded that one who testifies under the compulsion of a subpoena has his freedom of action limited in a significant way, as he must appear under compulsion of law. It would appear then that anyone subpoenaed to testify must be given the Miranda warnings even though he is in no way a suspect or the focus of the investigation. A subpoena, however, is the primary tool of the grand jury, the one fact-finding process written into the Fifth Amendment to the United States Constitution. And Miranda specifically provides that, "general questioning of citizens in the fact-finding[187 N.W.2d 17]
process is not affected by our holding." Miranda v. Arizona, supra, 86 S.Ct. 1602, 1629.
The State's Attorney's Inquiry is analogous to the grand jury. In State v. Ruggeri, 19 Utah 2d 216, 429 P.2d 969, 973 (1967), the Supreme Court of Utah affirmed the decision of the district court holding inadmissible certain testimony given before a grand jury when the witness subpoenaed to testify before the grand jury was in fact the target of its investigation. The Court recognized the right of the grand jury to compel witnesses to testify. This right is also recognized by Shillitani v. U.S., 384 U.S. 364, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966). Ruggeri, however, distinguished between a witness and one who is the target of the investigation. In other words, the compulsion of. testimony under a subpoena is not in itself enough to require that the Miranda warnings be given. Rather, the Miranda warnings need be given only to a person who is a suspect or a target of the investigation. We agree with Ruggeri in this regard and, accordingly, conclude that the compulsion of the subpoena did not require the giving of the Miranda warnings.
One final question raised with respect to the State's Attorney's Inquiry arises from the fact that Iverson was told that, "You cannot refuse to answer the questions." Iverson alleges that this statement alone constituted compulsion by the State which deprived him of his constitutional rights. Implicit in this allegation is the contention that, on the contrary, he should have been advised of his right not to be compelled to testify against himself. As we have concluded that Iverson was a witness at the time of the State's Attorney's Inquiry, we limit our consideration of this issue to the question of the rights of a witness under the Fifth Amendment and Section 13.
To advise a witness testifying under compulsion of a subpoena that he cannot refuse to answer the questions is not improper, as the purpose and legal effect of a subpoena is to compel a witness to attend a legal proceeding and to testify. This power to compel the attendance and testimony of a witness is basic to our system of jurisprudence and has long been recognized. Shillitani v. U.S., supra, 86 S.Ct. 1531, 1535; U.S. v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950); Blair v. U.S., 250 U.S. 273, 39 S.Ct. 468, 470, 63 L.Ed. 979 (1919); Application of Caldwell, 311 F.Supp. 358, 360 (D.C.N.D.Cal.1970). It is the duty of a witness to answer every question relevant to the subject of the inquiry. Blair v. U.S., supra, 39 S.Ct. 468, 471; State v. Blake, 46 Wis.2d 386, 175 N.W.2d 210, 212 (1970); O'Neal v. State, 468 P.2d 59, 71 (Okla.Cr.1970); Shippen v. C.I.R., 274 F.2d 860, 863 (C.A.5th 1960); 98 C.J.S. Witnesses § 430 (1957).
The power to compel testimony under a subpoena has long been subject to the "constitutional exemption from being compelled in any criminal case to be a witness against oneself, entitling the witness to be excused from answering anything that will tend to incriminate him***" Blair v. U.S., supra, 39 S.Ct. 468, 471.
This court in 1908 recognized the right of a witness before a grand jury to claim his Section 13, right not to be compelled to incriminate himself. In Re Beer, 17 N.D. 184, 115 N.W. 672, 675. This right, however, is personal and must be claimed by the witness. State v. Manning, 134 N.W.2d 91, 100 (N.D. 1965); U. S. v. Luxenberg, 374 F.2d 241, 246 (C.A.6th 1967); Gollaher v. U.S., 419 F.2d 520, 525 (C.A.9th 1969) cert. denied 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424 (19619); Rogers v. U.S., 340 U.S. 367, 71 S.Ct. 438, 440, 95 L.Ed. 344, 19 A.L.R.2d 378 (1951), rehearing denied 341 U.S. 912, 71 S.Ct. 619, 95 L.Ed. 1348 (1951); U.S. v. Merrell, 303 F. Supp. 490, 493 (D.C.N.D.N.Y. 1969); State v. Dilworth, 83 S.D. 363, 159 N.W.2d 795, 798 (1968). Furthermore, a witness need not be advised of his Fifth Amendment (and, correspondingly,[187 N.W.2d 18]
his Section 13) right not to incriminate himself. U.S. v. Luxenberg, supra, 374 F.2d 241, 246; U.S. v. Fruchtman, 282 F.Supp. 534, 536 (D.C.N.D. Ohio 1968); U.S. v. DiMichele, 375 F.2d 959, 960 (C.A.3rd 1967); Robinson v. U.S., 401 F.2d 248, 250 (C.A.9th 1968); Beckley v. State, 443 P.2d 51, 54 (Alaska 1968).
The State's Attorney's admonition to Iverson that he could not refuse to answer the questions submitted to him was superfluous, as he was required under the subpoena to appear and answer. Having earlier concluded that the compulsion of a subpoena upon a witness is not violative of his constitutional rights, we hold that a statute which merely enforces a subpoena is not violative of his constitutional rights. Accordingly, the application of the statute in this case did not violate Iverson's constitutional rights.
Notwithstanding that we have concluded that the State's Attorney's Inquiry did not violate Iverson's rights under Miranda, we think it significant to note that the U. S. Supreme Court has confined the effect of Miranda to illegally obtained evidence used by the prosecution in its case in chief. Harris v. New York, 400 U.S. 91 S.Ct. 643, 28 L.Ed.2d 1 , 39 U.S.L.W. 4281 (1971), allowed a statement made by an accused in violation of his Miranda rights to be used to impeach him when he took the stand to testify in his own behalf.
"Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.
"In Walder v. United States, 347 U.S. 62 (1954), the Court permitted physical evidence, inadmissible in the case in chief, to be used for impeachment purposes.
'It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.
'***[T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility.' 347 U.S. at 65, 74 S.Ct. at 356.
"It is true that Walder was impeached as to collateral matters included in his direct examination, whereas petitioner here was impeached as to testimony bearing more directly on the crimes charged. We are not persuaded that there is a difference in principle that warrants a result different from that reached by the Court it Walder *** The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner's credibility, and the benefits of this process should not be lost, in our view, because of the 'speculative possibility that impexmissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.
"Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury*** Having voluntarily taken the stand, petitioner was under an[187 N.W.2d 19]
obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truthtesting devices of the adversary process." Harris v. New York, supra, 91 S.Ct. 643, 645, 646.
In this case, Iverson voluntarily took the stand in his own defense. There is no question that the truthworthiness of the evidence obtained at the State's Attorney's Inquiry satisfies legal standards; accordingly, Iverson's testimony at the Inquiry was properly used for impeachment purposes, notwithstanding that he was not given the Miranda warnings at the State's Attorney's inquiry.
Iverson next alleges that his arrest was unlawful in that there was not probable cause to believe that he had committed the offense at the time of his arrest and in that it was not made in accordance with the arrest statutes. Accordingly, he contends that a handkerchief seized from him and testimony given by him subsequent to his arrest were improperly admitted in evidence as products of an unlawful arrest
Iverson was taken into custody by the Grand Forks County State's Attorney and his administrative assistant shortly after 8:00 p.m., Wednesday, November 27, 1968, at a Grand Forks bowling alley. While the State's Attorney waited away from the bowlers, his administrative assistant twice observed Iverson as he was bowling. Although Iverson was wearing a long-sleeved shirt, the State's Attorney's administrative assistant, Leo Novacek, observed that Iverson had scratch marks on his hand and neck, thus verifying observations made by one of the detectives at the State's Attorney's Inquiry.
Apparently, between the time Iverson was released from the State's Attorney's Inquiry and the time the State's Attorney and his administrative assistant went to the bowling alley to observe Iverson, the Grand Forks Police Department and the State's Attorney's Office correlated the various information that their investigation to that time had produced. This information included the report of a detective that he had observed scratch marks on Iverson's hand and neck at the State's Attorney's Inquiry, and the identification of Iverson by a bloodhound.
Iverson contends, however, that since the observation of the scratch marks and the identification of him by a bloodhound occurred at the time of the State's Attorney's Inquiry, absolutely no new knowledge was received by the investigating officers to cause his arrest to be made later in the evening. Implicit in this contention is the assertion that since his ultimate arrest was based on this information, which was known to the investigating officers at the time of the State's Attorney's Inquiry, the Inquiry should have been halted and the Miranda warnings should have been given to him.
The record is not clear as to when the bloodhound identification took place. There is evidence that it took place during a break in Iverson's testimony at the Inquiry. However, a reading of the questions asked after this break does not indicate that Iverson was a suspect. There is also evidence that the bloodhound identification took place after the Inquiry was completed as to Iverson. If this were the case, the fact that he was released indicates that he was not a suspect. Also, a bloodhound identification at that point would have had no effect upon his testimony at the Inquiry which had just been completed.
As to the observation of the scratch marks, these scratches escaped the notice of the State's Attorney and the other detective present at the Inquiry. This observation alone did not take on any particular significance until it was reported after the Inquiry was completed and correlated with the other information produced by the investigation. This observation took on significance, however, when coupled with the facts that a bloodhound had identified Iverson as the source of the scent[187 N.W.2d 20]
on the pillowcase found at the scene of the crime; that the autopsies had revealed that both girls had been dead from 24 to 48 hours; that Carol died as a result of strangulation, and that Diane died as a result of manual strangulation; that Iverson in his testimony at the State's Attorney's Inquiry had admitted knocking on the door of Carol's apartment at approximately 6:00 a.m., Tuesday, November 26, 1968, which placed him at the scene of the crime within the 24-hour period in which the autopsies revealed the girls were strangled. From these facts it would be reasonable to assume that when attacked the girls would have fought with the weapons available--their hands and fingernails--and that their assailant could be expected to bear scratch marks. Without the correlation of all this information, the observation of these scratch marks by a detective and unannounced at the Inquiry did not give sufficient cause to the State's Attorney who was conducting the Inquiry to stop the Inquiry and give the Miranda warnings to Iverson.
The case of Commonwealth v. Fisher, 354 Mass. 549, 238 N.E.2d 525 (1968), cited by Iverson, is inapplicable here, as it can be distinguished on its facts. In Fisher, the police recalled a witness to explain certain discrepancies in his testimony given earlier in an investigation into the murder of a woman. During the interrogation the officers noticed scratch marks on the witness's neck. The officers immediately questioned him about the scratches 'and ordered him to take off his shirt, revealing more scratches. At that point the officers stopped the interrogation and advised him of his constitutional rights. The Massachusetts Supreme Court held that the investigation focused upon the witness the moment the scratches were noticed. In our case, however, although the scratch marks were noticed during his testimony at the State's Attorney's Inquiry, there is no evidence to indicate that this observation, without being correlated subsequently with all the other information, caused the investigation to focus upon Iverson. The scratch marks were not mentioned during the Inquiry nor were they pointed out to the State's Attorney who was conducting the investigation.
The correlation of all the information gave the investigators reasonable grounds to believe that Iverson had committed the murders. But, as the State's Attorney and the other detective had failed to observe the scratch marks at the Inquiry, it was prudent that they be verified before the investigating officials concluded that they had reasonable grounds to believe Iverson had committed the murders. Once the scratch marks had been verified, reasonable grounds were established to justify arresting Iverson without a warrant pursuant to Section 29-06-20(3), N.D.C.C., which provides that:
"29-06-20. When private person may arrest.--A private person may arrest another:
"3. When a felony has been in fact committed, and he has reasonable ground to believe the person arrested to have committed it."
The term reasonable ground to believe that the person arrested has committed the felony is substantially equivalent to the probable-cause requirement of the Fourth Amendment to the U. S. Constitution; therefore, an arrest without a warrant made pursuant to a statute satisfies the Fourth Amendment if reasonable grounds exist. Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 331, 3 L.Ed.2d 327 (1959). In Draper the U. S. Supreme Court held that:
"The crucial question for us then is whether knowledge of the related facts and circumstances gave Marsh 'probable cause' within the meaning of the Fourth Amendment, and 'reasonable grounds' within the meaning of § 104(a) *** to believe that petitioner had committed or was committing a violation of the[187 N.W.2d 21]
narcotic laws. If it did, the arrest, though without a warrant, was lawful***"
In a footnote at this point the Court added:
"The terms 'probable cause' as used in the Fourth Amendment and 'reasonable grounds' as used in § 104(a) of the Narcotic Control Act, 70 Stat. 570, are substantial equivalents of the same meaning." Draper v. U.S., supra, 79 S.Ct. 329, 331.
Accordingly, "reasonable ground to believe" the person arrested has committed a felony satisfies the "probable-cause" requirement of Section 18 of the North Dakota Constitution, as its language is virtually identical to that of the Fourth Amendment to the U. S. Constitution.
An arrest pursuant to a state statute providing for a citizen's arrest, although made without a warrant, is valid if "reasonable cause" exists. U.S. v. Montos, 421 F.2d 215, 224 (C.A.5th 1970); cert. denied 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532 (1970). This court upheld an arrest without a warrant, holding that "reasonable cause" constitutes "probable cause" within the meaning of the Fourth Amendment to the U.S. Constitution, and that as to the existence of reasonable cause, "each case must be decided on its own facts and circumstances." State v. Chaussee, 138 N.W.2d 788, 791, 792 (N.D. 1965).
Iverson's testimony at his trial reveals how his arrest was made.
"A. Leo Novacek, after my second game of bowling came and tapped me on the shoulder and said, 'Mr. Alphson [the State's Attorney] would like to talk to you.' Mr. Alphson was in the building towards the street entrance and I said, 'Okay'. I went with him and Mr. Alphson said, 'Well, let's go to the basement, I have something I would like to discuss with you.' And I said, 'We could have just as well discussed them right here.'
"MR. ALPHSON: I'll object to this conversation as hearsay.
"THE COURT: The objection is sustained as to what Mr. Alphson said.
"Q. (By Mr. Rubin) Then what happened?
"A. Mr. Alphson and Mr. Novacek forced me to the basement of the Uptown.
"Q. They what?
"A. Forced me in the basement of the Uptown.
"Q. They forced you in there?
"A. Yes.
"Q. Mr. Alphson and Mr. Novacek?
"A. Yes. Novacek had a hand on his gun and said, 'If you make a move, I will shoot'.
"MR. ALPHSON: I object.
"THE COURT: Sustained.
"Q. (By Mr. Rubin) Then what happened?
"A. They took me down in the basement, shut all the doors so there would be no witnesses and took me downstairs into the basement.
"Q. Then what happened?
"A. They told me down there, Novacek had his hand on his gun and he said, 'Now we want to look at your body, take off your clothes'.
"Q. Then what happened?
"A. I said I didn't want to take them off.
"Q. Then what happened?
"A. Novacek said, 'You better, you are under arrest.'
"Q. Then what happened?
"A. I took them off when he said I was under arrest.[187 N.W.2d 22]
"Q. What happened next?
"A. They checked the scratches and told me to put my shirt back on and took me back upstairs. I told them I wanted to change from my bowling shoes to my regular shoes and Novacek followed me through where the bowlers were in bowling and to the locker room to where I changed my shoes."
"A. Novacek brought me--followed me with his hand on his gun all the way from the locker room to the anteroom going out there and he said, 'Stand still! We have a police officer coming to pick you up.'
"Q. Then what happened?
"A. Officer Hinsz or Hinsz, I think it is--
"Q. Yes?
"A. Came in and said, 'Jim, they want you down at the police station.' And I said, 'Okay'."
At the preliminary hearing, Officer Hinsz stated that he arrested Iverson at 2000 hours, Wednesday, November 27, 1968. Iverson contends that his arrest by officer Hinsz was unlawful, as he did not state his authority or the cause of the arrest as required by Section 29-06-17, N.D.C.C., when an officer makes an arrest without a warrant. But from Iverson's own testimony and from the testimony of Leo Novacek, it is apparent that he was arrested by the State's Attorney and his administrative assistant, and not by Officer Hinsz.
Section 29-06-02, N.D.C.C., provides that an arrest may be made by a peace officer, with or without a warrant, or by a private person. Section 29-05-10, N.D.C.C., defines peace officer as a "sheriff of a county or his deputy, or a coroner, constable, marshal, or policeman of a township, city, or village. As Iverson's arrest was accomplished by the State's Attorney and his administrative assistant (neither of whom is a peace officer within the meaning of Section 29-05-10, N.D.C.C.), it must be tested by the law governing arrest by a private person. An arrest was in fact made in this situation, since Iverson was actually restrained by the persons making the arrest.
"29-06-09. How arrest made.--An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the person making the arrest." N.D.C.C.
The authority for making this arrest is found in Section 29-06-20(3), N.D.C.C., as previously set forth in this opinion. The State's Attorney and his administrative assistant, as private persons, knew that a felony had been committed and had reasonable grounds to believe that Iverson had committed it. Iverson, however, contends that this arrest was unlawful, in that he was not informed of the cause of the arrest as required by Section 29-06-21, N.D.C.C.
"29-06-21. Must inform person of cause of arrest.--A private person making an arrest must inform the person to be arrested of the intention to arrest him, and of the cause of the arrest, unless:
"1. The person to be arrested then is engaged in the commission of an offense;
"2. Such person is pursued immediately after its commission or after an escape;
"3. Such person flees or forcibly resists before the person making the arrest has opportunity to inform him; or
"4. The giving of such information will imperil the arrest."
Since none of the foregoing exceptions to the statute is applicable, Iverson was entitled to be informed of the cause of his arrest. Notwithstanding that Iverson may not have been verbally informed of the cause of his arrest, we are satisfied[187 N.W.2d 23]
that the circumstances of his arrest and the State's Attorney's Inquiry conducted three hours-earlier, in which Iverson testified as a witness, provided him sufficient notice of the cause of his arrest so that the objective of the statute was accomplished. Application of Kiser, 83 S.D. 272, 158 N.W.2d 596, 602 (1968), Federal Court Habeas Corpus denied 294 F.Supp. 1167, 1169 (D.C.S.D. 1969), affirmed 419 F.2d 1134 (C.A.8th.1969); Schindelar v. Michaud, 411 F.2d 80, 83 (C.A.10th 1969); U.S. v. Baxter, 361 F.2d 116, 120 (C.A.6th 1966); Pullins v. State, Ind. 256 N.E.2d 553, 556 (1970).
Having been lawfully arrested by private persons, Iverson was properly delivered to a peace officer, Officer Hinsz, as required by Section 29-06-23, N.D.C.C.
"29-06-23. Arrested by private person--Duty--Taken before magistrate.--A private person who has arrested another for the commission of a public offense, without unnecessary delay, must take him before a magistrate or deliver him to a peace officer."
Iverson contends that his arrest was nevertheless unlawful, because he was not without unnecessary delay taken before the nearest magistrate, as required by Section 29-06-25(1), N.D.C.C.
"29-06-25. Procedure against person arrested without warrant.-- When an arrest is made by a peace officer or a private person without a warrant, the person arrested without unnecessary delay must be taken.
"1. Before the nearest or most accessible magistrate in the county where the arrest is made;***
"A complaint stating the charge against the person arrested must be made before such magistrate, as is provided in section 29-05-04."
Iverson was arrested after 8:00 p.m. on Wednesday, November 27, 1968, and was not taken before the magistrate until 12:15, a.m., Thursday, November 28, 1968. At the time of his arrest, Iverson was transported to the Grand Forks police station. The scratches on this person were photographed and a physician was called to examine these scratches. Iverson was properly advised of his rights by being given the Miranda warnings, after which he was interrogated. A reporter recorded the entire proceeding. During this time Iverson was presented with a warrant authorizing the search of his residence and automobile and with warrants for his arrest for the first degree murders of Carol and Diane.
We are satisfied that this delay of approximately four hours before Iverson was brought before the magistrate was not per se unnecessary and that no prejudice resulted. U.S. v. Bandy, 421 F.2d 646, 648 (C.A.8th 1970) (Delay of three days with no showing of prejudice); State v. Ramos, 11 Ariz. App. 196, 463 P.2d 91, 96 (1969) (Eleven-hour delay was held not prejudicial); Dimsdle v. State, 456 P.2d 621, 622 (Okla.Cr. 1969), cert. denied 396 U.S. 966, 90 S.Ct. 446, 24 L.Ed.2d 431 (1969) (Six days' delay was not prejudicial); State v. Madison, 281 Minn. 170, 160 N.W.2d 680, 683 (1968). cert. denied 393 U.S. 1102, 89 S.Ct. 904, 21 L.Ed.2d 796 (1969) (Three and a half days' delay was not prejudicial).
Iverson, however, contends that his arrest was unlawful in that the complaints required to be made by Section 29-06-25(1), "Procedure against person arrested without warrant", N.D.C.C., as previously set forth, were deficient in that they did not set forth the probable cause upon which his arrest was based, as required by the Fourth Amendment and Section 18. Section 29-06-25(1), N.D.C.C., requires that the complaint must be made as provided in Section 29-05-04, N.D.C.C.
Section 29-05-04, N.D.C.C., reads:
"29-05-04. Accused arrested without warrant.--If any officer or other person shall bring any person he has arrested[187 N.W.2d 24]
without a warrant before a magistrate, it is the duty of such officer or person to specify the charge upon which he has made the arrest. It then is the duty of the magistrate or state's attorney to make a complaint of the offense charged, and to cause the officer or person, or some other person, to subscribe and make oath to such complaint and to file it."
The required contents of a complaint are set forth in Section 29-05-01, N.D.C.C., as follows:
"29-05-01. What complaint must state.--A complaint must state:
"1. The name of the person accused, if known, or if not known and it is so stated, he may be designated by any other name;
"2. The county in which the offense was committed;
"3. The general name of the crime or public offense committed;
"4. The acts or omissions complained of as constituting the crime or public offense named;
"5. The person against whom, or against whose property, the offense was committed, if known; and
"6. If the offense is against the property of any person, a general description of such property.
"The complaint must be subscribed and sworn to by the complainant."
Two complaints were made against Iverson by S. Duane Knutson, Chief of Police of the City of Grand Forks. One complaint charged Iverson with murder in the first degree in the death of Carol Mayers; the other charged him with murder in the first degree in the death of Diane Patricia Bill. These complaints were read to Iverson at his appearance before the magistrate. Each complaint fulfills the requirements of Sections 29-05-01 and 29-05-04, N.D.C.C., in that they name the accused; designate the county in which the crime was committed; state the general name of the crime; detail the acts constituting the crime charged; name the person against whom the crime was committed; and were made under oath.
As to the constitutional requirements of a complaint, the U. S. Supreme Court in Giordenello v. U. S., 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), stated:
"The purpose of the complaint, then, is to enable the appropriate magistrate, here a Commissioner, to determine whether the 'probable cause' required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime.
"When the complaint in this case is judged with these considerations in mind, it is clear that it does not pass muster*** The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made***
"*** the issue of probable cause had to be determined by the Commissioner, and an adequate basis for such a finding had to appear on the face of the complaint." Giordenello v. U.S., supra, 78 S.Ct. 1245, 1250.
Later U.S. Supreme Court cases affirmed Giordenello in its requirement that a complaint must set forth sufficient facts so that a magistrate can judge for himself whether or not probable cause exists. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 587, 21 L.Ed.2d 637 (1969).[187 N.W.2d 25]
Giordenello, Aguilar, Spinelli, and State v. Erdman, 170 N.W.2d 872, 878 (N.D. 1969), were all cases which held that the defendant's Fourth Amendment right, and in Erdman, his Section 18 right, had been violated, and that the remedy to be applied to cure the constitutional violation was that evidence obtained as a result of a violation of the defendant's constitutional rights must be excluded from his trial.
Judged by the standards of Giordenello, the complaints made by Chief of Police Knutson failed to set forth sufficient information on which the magistrate could have found that probable cause existed to issue arrest warrants and to hold Iverson for a preliminary hearing or to stand trial. Had these complaints been the only source of information available to the magistrate, we would have to hold that Iverson's Fourth Amendment and Section 18 rights not to be held except "upon probable cause, supported by oath or affirmation" had been violated.
These two complaints were used in two instances in the proceedings against Iverson. They were first used at approximately 10:30 p.m., Wednesday, November 27, 1968, when Chief of Police Knutson appeared before the magistrate, seeking two warrants for Iverson's arrest for murder in the first degree. They were used again as required by Section 29-05-04, N.D.C.C., at Iverson's first appearance before the magistrate held at 12:15 a.m., Thursday, November 28, 1968. The fact that these complaints were first used to obtain arrest warrants instead of being used to support an arrest without a warrant makes no difference, as the arrest warrants were unnecessary, Iverson having been lawfully arrested by private persons without a warrant prior to the issue of these warrants. Pillsbury v. State, 31 Wis.2d 87, 142 N.W.2d 187, 190 (1966). No evidence was obtained as the result of the issuance of these two arrest warrants.
Section 29-06-25, N.D.C.C., as previously set forth, requires that a person arrested without a warrant be brought before a magistrate without unnecessary delay and that a complaint be filed against him. Clearly, it is the intent of this statute to interpose the judgment of an independent magistrate between the judgment of a peace officer or a private person in arresting another person without a warrant and the decision to hold him for a preliminary examination or to stand trial. The fact that we have concluded that Iverson's arrest without a warrant by private persons was lawful and based on reasonable grounds to believe he had committed a felony does not alter the manner in which a magistrate must find probable cause for his arrest, or, as in this case, probable cause to hold him for a preliminary examination or to stand trial.
"An inquiry into the existence of probable cause is the same, whether made by a magistrate on application for a warrant or made by a court after an arrest or search and seizure without a warrant." U.S. v. Lee, 428 F.2d 917, 921, 922 (C.A.6th 1970).
Upon a review of the record, we find that the only item in evidence that can be challenged as a result of the decision of the magistrate to hold Iverson for a preliminary examination is a blood-stained handkerchief. This handkerchief was seized from Iverson as he was being booked into the county jail following his first appearance before the magistrate at 12:15 a.m., Thursday, November 28, 1968, wherein the magistrate found probable cause to order Iverson confined without bail for two counts of murder in the first degree pursuant to Section 29-08-05, N.D.C.C.
"29-08-05. Bail upon charge of murder in first degree.--Bail by sufficient sureties may be admitted upon arrest in a criminal action when the offense is murder in the first degree unless the proof of guilt is evident or the presumption thereof great. In such action, bail shall be taken only by the supreme court or a judge thereof, and the taking[187 N.W.2d 26]
thereof shall be discretionary, regard being had to the nature and circumstances of the offense and to the evidence and to the usages of law ***"
As to all the other evidence, the evidence obtained pursuant to the search warrant was not tainted by Iverson's first appearance before the magistrate, as the search warrant was based on affidavits setting forth probable cause independent of and prior to his appearance before the magistrate. The record of the interrogation of Iverson after his arrest and after he had been given the Miranda warnings was used at his trial for purposes of impeachment. This record of interrogation was likewise not tainted, as it was obtained prior to his appearance before the magistrate and his rights were safeguarded. The record clearly indicates that Iverson was advised of his constitutional rights as set forth in Miranda, and that he executed a voluntary waiver of these rights and agreed to submit to interrogation. Here, however, unlike the testimony at the State's Attorney's Inquiry, the only constitutional objection to the use of this testimony is that it was the product of an unlawful arrest.
Because we have found that there were reasonable grounds to believe Iverson had committed the felony of murder in the first degree, which is to say that probable cause existed for his arrest under the Fourth Amendment and Section 18, and that the procedures for his arrest by private persons without a warrant were substantially complied with, we conclude that this testimony was obtained pursuant to a lawful arrest and not as a result of his first appearance before the magistrate.
Therefore, if we were to hold that Iverson was held at his first appearance before the magistrate in violation of his rights under the Fourth Amendment and Section 18 due to the failure of the complaints to set forth sufficient grounds upon which the magistrate could find probable cause, the only evidence that should have been excluded was the handkerchief. Nevertheless, notwithstanding the insufficiency of the complaints, we are satisfied that the magistrate had sufficient information to find that probable cause existed to hold Iverson on two counts of murder in the first degree.
When Iverson appeared before the magistrate at 12:15 a.m., the magistrate had already found probable cause to issue a search warrant at a proceeding held one hour and forty-five minutes earlier. Although we will subsequently discuss the sufficiency of the affidavits praying for a search warrant, we are satisfied that these two affidavits set forth sufficient information to support a finding of probable cause. These affidavits are part of the record of this case. The magistrate, having found probable cause to issue the search warrant based on these affidavits, necessarily had knowledge of the information contained in these affidavits, which, together with the two complaints which in themselves failed to set forth sufficient information, was sufficient to support a finding of probable cause to hold Iverson for a preliminary examination. on review, not only of the complaints but also of the affidavits, we conclude that the magistrate had sufficient information to find probable cause to hold Iverson for a preliminary examination.
His arrest having been lawful, the handkerchief seized from him at the time of his being booked, and after his first appearance before the magistrate, was properly admitted in evidence at his trial as evidence seized incident to a lawful arrest, the search having been limited solely to his person. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969), rehearing denied 396 U.S. 869, 90 S.Ct. 36, 24 L.Ed.2d 124 (1969).
We note that no pre-trial motion was made to suppress this handkerchief and that no objection was made when it was admitted in evidence at Iverson's trial. Failure to make such timely motions waives the objection to the admissibility of the evidence.[187 N.W.2d 27]
Jones v. U. S., 362 U.S. 257, 80 S.Ct. 725, 736, 737, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960); Mesmer v. U.S., 405 F.2d 316, 318 (C.A.10th 1969); Kuhl v. U.S., 370 F.2d 20, 21 (C.A.9th 1966). We note also that the evidence provided by the bloodstains on this handkerchief was merely cumulative, as bloodstains of the same blood type were found on another item of evidence seized pursuant to the search warrant.
The search warrant presented to Iverson after his arrest authorized the search of his automobile and residence in daytime or nighttime for "ladies' garments either torn or with blood stains on them, ladies' purses, identification for Carol Mayers..." Pursuant to this search warrant, Iverson's automobile and his residence were searched. The officers conducting the search at his residence seized a pair of trousers, a coat, and a towel. These items, along with the handkerchief previously mentioned, were admitted in evidence at Iverson's trial.
Through expert testimony it was established that Carol belonged to blood group type B and that Diane belonged to blood group type A. Iverson testified that he belonged to blood group type A.
Expert testimony established that blood stains found on the handkerchief belonged to blood-group type B; that blood stains found on the trousers were of both blood-group types A and B; that blood stains on the towel belonged to blood group type A; and that no blood stains were found on the coat. Expert testimony further established that hairs from Diane were found on the trousers and the towel, and that hairs from Carol were found on the trousers, the towel, and the coat.
Iverson contends that these items seized pursuant to the search warrant should not have been admitted in evidence, because the affidavits in support of the search warrant did not sufficiently establish probable cause as required by the Fourth Amendment and Section 18; that the affidavits did not describe with sufficient particularity the items to be seized as required by the Fourth Amendment and Section 18; that the search warrant authorized a search for property other than that permitted by Section 29-29-02, N.D.C.C.; and that the search warrant authorized a nighttime search in violation of Section 29-29-10, N.D.C.C., because the affidavits did not state that the property to be seized was positively located in the place to be searched.
The search warrant was issued by the magistrate at approximately 10:30 p.m., Wednesday, November 27, 1968, upon two affidavits sworn to by two officials engaged in the investigation of the deaths of Carol and Diane. The Fourth Amendment to the U.S. Constitution reads: "... no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched, and the persons and things to be seized." Section 18 of the North-Dakota Constitution contains similar language.
The U. S. Supreme Court in affirming a search warrant authorizing search for an illegal distillery held that toestablish probable cause as required by the Fourth Amendment,
"*** affidavits for search warrants *** must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude *** toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.
"*** Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp" for the police. *** Although in a particular case[187 N.W.2d 28]
it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." U.S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).
The affidavits in the present case are not burdened by elaborate specificity, and it is obvious that they were prepared in the midst and haste of a criminal investigation. However, when judged in a common-sense and realistic fashion, with any doubt being resolved in favor of upholding the search warrant, the affidavits in this case established the necessary probable cause, thereby justifying the issuance of the search warrant.
The affidavits, when read together, establish that Carol Mayers and Diane Patricia Bill had been murdered; that Iverson knew Carol and that he had visited her in her apartment on several occasions, the most recent visit being two days before the discovery of the bodies of C