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North Dakota Supreme Court protects Fourth Amendment rights with decision this week

August 19, 2011 - Andrea Johnson
Sometimes protecting our Fourth Amendment rights hurts a little bit, but the North Dakota Supreme Court did just that with a ruling this week.

Not long ago the Ward County Narcotics Task Force had evidence that suggested a man had received a shipment of controlled substances and had been dealing drugs. An officer tracked him down, saw the man leaving a local bar with two women, and tailed his car. The man had been foolish enough to have three registration tabs in different places on his license plate, which is illegal, and he obliged the police further by making an illegal left turn, giving them a reason to pull him over for a traffic violation.

The officer brought in the drug-sniffing dog to circle his car and, when the dog alerted, the cops had probable cause to search the man's vehicle. The search turned up a plastic bag with marijuana residue. The man kept looking to his right and making "furtive movements," in the officer's judgement. The officer performed a pat-down, felt something soft in the man's pocket, and performed a more invasive search, which turned up four bundles of cocaine, and the man was arrested and charged.

Both the district court and now the state supreme court have ruled that the search of the car was legal but the search of the man was not. The district court ordered the evidence found on the man's person thrown out. The state appealed, arguing that the man and his pockets were "containers" within the vehicle that the state had probable cause to search and, therefore, a search of the man's body was legal.

The State Supreme Court has disagreed. In their ruling, issued Aug. 15, they wrote: "We hold the automobile exception did not justify the warrantless search of (the man's) person. The dog-sniff of the vehicle established probable cause the vehicle contained a controlled substance, but the pockets of the clothes (the man) was wearing were not "containers." The State also argued that (the man), as the driver of the vehicle, was part of the contents of the vehicle. The State offers no support for its arguments that would render (the man) a container or contents of the vehicle, rather than a person entitled to "heightened protection" against searches of his person. The district court correctly decided the automobile exception justified the search of the vehicle, but not (the man's) person. The district court correctly ordered the cocaine evidence suppressed."

The Fourth Amendment protection against unlawful search and seizure sometimes protects the technically guilty as well as the innocent, which is a necessary evil if we are all to continue to enjoy our freedoms. It is perhaps even more essential to protect those rights in a society that locks up more of its citizens than most other western countries and where prison sentences have become ever more harsh.

Supreme Court Justices Carol Ronning Kapsner, Mary Muehlen Maring and Daniel J. Crothers issued the majority decision, with Chief Justice Gerald VandeWalle concurring in the result and Justice Dale Sandstrom dissenting.

The State Supreme Court issued its ruling, which can be found on its Web site, on Monday.


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