Appeal fro the District Court of Stutsman County, Southeast Judicial District, the Honorable Thomas E. Merrick, Judge.
Katherine Marilyn Naumann, Assistant State's Attorney, Jamestown, ND, for plaintiff and appellee.
John Tainter Goff, Fargo, ND, for defendant and appellant.
Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. I concur in the result. Dale V. Sandstrom. Opinion of the Court by Crothers, Justice.
[¶1] Gayne Alan Gasal appeals from a district court criminal judgment entered upon a jury conviction of hunting without a license and from a district court order denying his motions to suppress evidence obtained after the issuance of a search warrant on his farmstead for two hunting rifles and from statements he made during conversations with the game warden. Gasal argues the district court erred by denying the motion to suppress evidence obtained by an invalid search warrant and by denying the motion to suppress statements obtained in violation of the Miranda requirements. We affirm.
[¶2] In November 2012, Game Warden Mark Pollert received information Gayne Gasal shot a deer outside the area authorized by his gratis deer tag. After observing two vehicles coming from the described area, the game warden stopped the white pickup truck driven by Gasal and inquired about the deer. Gasal told the game warden the deer was in the truck driven by his son. The game warden asked if he could follow Gasal to his farmstead to look at the deer. Gasal agreed.
[¶3] The game warden followed Gasal to his farm where he met with Gasal's son, Jarred Gasal, and a minor grandson. The deer was tagged with the grandson's gratis deer tag. The game warden interviewed all three of the Gasal family members, together and separately. The game warden recorded the interviews without the Gasals' knowledge. The game warden claimed he witnessed the alleged violation and did not tell the Gasals about receiving information from another source. The Gasals told the game warden the grandson shot the deer using his Ruger rifle. The other rifle used by the hunting party was a Browning. The game warden seized the deer carcass, recovered the bullet and had the bullet analyzed by the State Crime Lab. The analyst informed the game warden that it is unlikely the bullet was fired from a Ruger rifle. Based upon the Gasals' incongruent story and the lab report, the game warden applied for search warrants for the Ruger and Browning rifles.
[¶4] Search warrants were issued for the residences of Gayne Gasal and Jarred Gasal on December 10, 2012 at 4:15 p.m., but the record includes only the search warrant for the " Ruger M77" at Jarred Gasal's residence. Both rifles were retrieved from Gayne Gasal's residence after Jarred Gasal voluntarily surrendered the Ruger rifle and Gayne Gasal surrendered the Browning rifle. A subsequent crime lab report indicated that the Ruger rifle did not fire the bullet lodged in the deer carcass and that the Browning rifle could not be identified or eliminated as firing the bullet lodged in the deer carcass.
[¶5] Gasal was charged with hunting without a license. Gasal moved to suppress evidence, alleging his Fourth Amendment rights were violated because the warrant was not dated. Gasal also moved to suppress statements he made to the game warden, arguing the game warden violated his right against self-incrimination, a violation of the Miranda requirements. Miranda v. Arizona,384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court denied ...