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State of North Dakota v. andrew Philip Mittleider

December 22, 2011

STATE OF NORTH DAKOTA,
PLAINTIFF AND APPELLEE
v.
ANDREW PHILIP MITTLEIDER, DEFENDANT AND APPELLANT STATE OF NORTH DAKOTA,
PLAINTIFF AND APPELLEE
v.
RICKY LEE MITTLEIDER, DEFENDANT AND APPELLANT



Appeals from the District Court of Kidder County, South Central Judicial District, the Honorable Cynthia M. Feland, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

N.D. Supreme CourtState v. Mittleider,

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

2011 ND 242

AFFIRMED.

Opinion of the Court by VandeWalle, Chief Justice.

[¶1] In consolidated appeals, Andrew Mittleider appealed from the district court judgment entered upon his conditional plea of guilty to the charges of illegal hunting, taking, attempting to take, or possession of big game, and hunting in a closed or restricted area, and Ricky Mittleider appealed from the district court judgment entered upon his conditional plea of guilty to the charge of hunting in a closed or restricted area. We affirm.

I.

[¶2] This appeal was submitted on the following stipulated facts. In 2010, the Mittleiders obtained the appropriate tags and licenses for the deer hunting season, which opened at noon on November 5, 2010. That morning, the Mittleiders observed deer and went to a location they believed was outside the Lake George Wildlife Refuge. The refuge is not properly signed as specified by the United States Fish and Wildlife Service Sign Manual, which requires two signs be posted at every boundary. When the season opened at noon, Andrew Mittleider shot a deer that was later discovered to be on the refuge. The Mittleiders loaded the deer into Ricky Mittleider's pickup and brought it to the farmstead.

[¶3] A short time later, Deputy Sheriff Lemiux entered the Mittleider farmstead without permission and without a search warrant. The stipulated facts do not reflect why Deputy Lemiux came to the farmstead. The Mittleiders have two "no trespassing" signs posted near the entrance to the farmstead, although it is unclear from the record exactly where the signs were located. When Deputy Lemiux arrived, the pickup was 207 feet from the public right-of-way. Several people were standing by the back of the pickup, and Deputy Lemiux left his patrol car, walked over to and looked inside the pickup box, and saw the deer. The deer was removed from the pickup and placed in the yard by the Mittleiders. Deputy Lemiux called Game Warden Myhre.

[¶4] Game Warden Myhre also received a report from Tom Nienow stating he had seen a hunter on the refuge and that a member of the Mittleider hunting party had shot a big buck. Game Warden Myhre then went to the Mittleider farmstead and entered without permission and without a search warrant. Game Warden Myhre observed the deer lying on the ground, and Andrew Mittleider stated he shot the deer and confirmed the location where the deer was shot. Game Warden Myhre went to the refuge and determined, using a GPS device, that the deer was shot on the refuge. He later met with the State's Attorney and they applied for a search warrant to seize the deer, the weapon used to shoot the deer, and photos of the deer, which was granted.

[ΒΆ5] The Mittleiders moved to suppress all evidence, asserting Deputy Lemiux and Game Warden Myhre violated their reasonable expectation of privacy by entering the farmstead because they had two "no trespassing" signs posted near the entrance. The Mittleiders also filed a motion in limine to submit evidence at trial of the affirmative defense of mistake of fact--they reasonably believed they were not hunting on the refuge because the refuge's signs were not properly posted. The district court denied the motion to suppress because it determined Deputy Lemiux and Game Warden Myhre had legitimate business to enter, and any member of the public would have entered in the same manner as the officers because there was not a "no trespassing" sign immediately to the edge of the road or in the area immediately surrounding the residence. The court denied the motion to ...


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