A lawyer spent a weekend in jail. North Dakota justices say his rights were violated
Robert Virgil Bolinske Sr. can argue whether the 2019 warrantless arrest that put him behind bars for 74 hours without seeing a judge is grounds for dismissing a harassment case.
BISMARCK — An attorney’s rights were violated when he was kept in a Bismarck jail for three days without a judge approving an arrest warrant, the North Dakota Supreme Court ruled recently.
A statewide rule instructing district courts that they need a judge to review probable cause over the weekend likely won’t come, lawyers have said. But it seems the case has sparked change in south-central North Dakota.
Robert Virgil Bolinske Sr. can argue in Burleigh County District Court whether the 2019 warrantless arrest that put him behind bars for 74 hours without seeing a judge is grounds for dismissing a harassment case, Supreme Court justices opined in a Jan. 21 ruling.
“I’m amazed that somebody hasn’t done something about this problem before I did,” Bolinske told The Forum.
Burleigh County Sheriff’s Deputy Brian Thompson arrested Bolinske late afternoon Friday, Oct. 18, 2019, on terrorizing and harassment charges. An affidavit of probable cause alleged Bolinske left threatening voicemail messages at the office of his son, attorney Robert Bolinske Jr. on Oct. 14, 2019.
Bolinske acknowledged leaving the voicemails but said Thompson didn’t fully investigate the incident. The attorney said he intended to inform his son that he was suing him, not threatening to harm him.
Bolinske refused requests by Thompson to come to the Sheriff’s Department that week, saying he was busy with a U.S. Court of Appeals brief, according to court filings in the case. He said he would come in the next week, but Thompson found the attorney where he was working.
“They jerked me off the street,” he said. “They just came and took me.”
When arrested, Bolinske Sr. asked to see a judge but instead was transported to the Burleigh Morton Detention Center. Court was closed by the time he was booked into the jail, so he remained in jail until appearing Monday afternoon, Oct. 21, 2019.
A jury acquitted Bolinske Sr. in April on the felony terrorizing charge but found him guilty of harassment, a misdemeanor. He was sentenced to almost a year of unsupervised probation.
The U.S. Supreme Court ruled in 1975 that a judge must find probable cause to hold a suspect within 48 hours of an arrest. However, North Dakota courts are not open between 5 p.m. Fridays and 8 a.m. Mondays.
North Dakota Supreme Court Chief Justice Jon Jensen declined to comment on whether the Bolinske ruling would prompt a statewide rule on how to handle such incidents since the case is still pending.
Some judges in North Dakota courts, including in Cass County, review arrest warrants on weekends. The South Central District that includes Burleigh used to have such a process, but that was discontinued at an unknown date, according to Burleigh County Sheriff Kelly Leben.
The sheriff’s department has to follow court policy, Leben said. Officers typically will take someone to jail if there is a threat of violence to others, Leben said.
“Ultimately, an officer has to look at what is best for the community,” he said.
Jails work with prosecutors and courts to arrange appearances. They can't just take someone to court, as Bolinske Sr. requested, Leben noted.
Thompson followed the policies in place at the time, the sheriff said.
Leben confirmed the South Central District in recent months approved processes for law enforcement agencies to submit warrants to judges on the weekend because of the Bolinske case.
What other courts do
The Forum confirmed that the Southeast, North Central and Southwest districts have a process to review arrest warrants on the weekends. Officers in the 14-county Southeast District, which contains Richland, Barnes and Stutsman counties, can call a judge on a recorded line and testify to probable cause evidence, Southeast Presiding Judge Daniel Narum said.
“That’s been our policy for many years, and it complies with the state and federal requirements,” he said.
Judges typically sign warrants before an arrest is made, and the warrantless ones that come in over the weekend are rare, Narum and Southwest Presiding Judge William Herauf said. Herauf, who oversees an eight-county district that includes Stark County, also has a rotation of judges to review warrantless arrests.
“For us, we are 24/7,” he said. “We get called in the middle of the night for such things as (driving under the influence) and search warrants.”
Northeast District Presiding Judge Donovan Foughty said Ramsey and Benson counties also have judges on call to approve warrants on the weekend. He was meeting Friday, Jan. 28, with other judges to make sure the other counties in his district had a similar process.
Judges from the Northwest, Northeast Central, East Central and South Central districts did not return messages left by The Forum.
The violation of Bolinske’s rights does not mean his case can be dismissed. He would have to prove that evidence or statement obtained during the unlawful detention contributed to his conviction, the North Dakota Supreme Court ruled.
There is rarely a remedy for a person who is held more than 48 hours since there is no evidence to suppress, said Fargo attorney Mark Friese. The lawyer, who was not involved in this case, has advocated for rules and laws in North Dakota that protect a person’s right against being held unjustly.
“We’ve repeatedly raised it and little gets done,” Friese said.
He said he hopes the Bolinske ruling sparks discussion in the state Legislature, but he doubted a statewide change will come.
All institutions will have to honor the state Supreme Court ruling, meaning a rule change isn’t needed, Bolinske said.
He will be allowed to “demonstrate prejudice or establish other circumstances that may warrant dismissal of his case,” the state Supreme Court ruled.
“I’m still not done with it, but I’m not one to give up very easily,” he said.
Bolinske ran against state Supreme Court Justice Jerod Tufte in 2016 but lost, earning 39% of the vote to Tufte's 61%.