Bank of North Dakota v. Brown

2012 ND 196, 2012 ND 198, 821 N.W.2d 373, 2012 N.D. LEXIS 204

• Court: North Dakota Supreme Court
• Decided: September 25, 2012
• Docket: 20120145
• Status: Published

Opinions

CROTHERS, Justice.

[¶ 1] William Scott Gagnon III appeals a criminal judgment entered on a conditional plea of guilty to manufacturing marijuana. He reserved his right to appeal the denial of his motion to suppress evidence discovered in his residence. Gagnon argues the evidence was unconstitutionally seized during an illegal warrantless search of his home. We reverse the judgment, remand to allow Gagnon to withdraw his guilty plea and for further proceedings.

I

[¶ 2] On May 28, 2010, North Dakota Department of Parole and Probation Officer Mike Nason was in Douglas, North Dakota, volunteering as a campaigner for a Ward County Sheriffs candidate. While distributing campaign information, Nason saw two marijuana plants in- a window in the back of Gagnon’s residence. On May 29, 2010, Nason contacted the North Dakota Bureau of Criminal Investigation (“BCI”) and reported observing the marijuana.

[¶ 3] On June 3, 2010, Special Agent Steve Niebuhr of the BCI traveled to Douglas. At approximately 1:30 p.m., he parked his vehicle on a public street outside Gagnon’s residence. Using binoculars while on the public street, Niebuhr observed two marijuana plants in the window of Gagnon’s residence. Niebuhr radioed for assistance, and three officers from the Ward County Narcotics Task Force responded. At approximately 2:10 p.m., Niebuhr and the other officers approached Gagnon’s residence. Niebuhr and Trevor Huber approached the front and knocked on the door while the other two officers covered the back. Without opening the door, a female inside the residence called for Niebuhr and Huber to “come in.” Niebuhr opened the door and was met by Tara Yellowbird, who lived in the residence. Niebuhr asked Gagnon and Yellowbird for consent to search the residence. They refused. Niebuhr told Gagnon that because he and the other officers had seen marijuana plants in the window, the premises would be secured until a search warrant was obtained. Niebuhr walked through the inside of the residence.

[¶ 4] At approximately 2:16 p.m., while Niebuhr was walking through the residence, Gagnon told Huber he would consent to a search. Gagnon and Yellowbird signed a joint “Consent to Search” form. The officers seized a total of 54 marijuana plants from inside and outside the residence, a pill container used to store marijuana and a marijuana smoking device.

[¶ 5] Gagnon was charged with manufacture of marijuana and possession of drug paraphernalia. He moved to suppress all evidence, arguing the warrantless search of his home was unconstitutional because he did not consent until after law enforcement violated his constitutional rights. Gagnon alleged several violations occurred including Nason’s initial entry onto his property, Niebuhr’s use of binoculars to view the interior of the residence, Niebuhr and Huber’s entry into the residence despite the presence of “No Trespassing” signs and Niebuhr’s walk through the residence. Without separately addressing the alleged violations, the district court denied the motion, concluding the search fell within the consent and plain view exceptions to the warrant requirement. Gagnon entered a conditional plea of guilty to manufacturing marijuana. The possession of drug paraphernalia charge was dismissed.

II

[¶ 6] Gagnon argues law enforcement illegally entered and conducted a number of illegal searches of his residence before he consented to the search. We address only Gagnon’s contention that Niebuhr’s walk through the residence was illegal because it is dispositive of this appeal.

[¶ 7] Gagnon argues Niebuhr’s walk through the residence was an illegal warrantless search. The State responds it was reasonable for Niebuhr to walk through the residence “to ascertain that there were no other individuals present that could pose any threat to the officers or destroy evidence while the search warrant was being sought.” We affirm a district court’s disposition of a motion to suppress if, after resolving conflicting evidence in favor of affirmance, sufficient competent evidence fairly capable of supporting the district court’s findings exists and the decision is not contrary to the manifest weight of the evidence. State v. Mitzel, 2004 ND 157, ¶10, 685 N.W.2d 120. Our standard recognizes the importance of the district court’s opportunity to observe the witnesses and assess credibility and the deference we give to the district court’s factual findings in suppression matters. Id. Whether a factual finding meets a legal standard is a question of law that is fully reviewable on appeal. Id.

[¶ 8] The Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures. A search occurs when the government intrudes upon an individual’s reasonable expectation of privacy. Mitzel, 2004 ND 157, ¶ 11, 685 N.W.2d 120. “Warrantless searches inside a person’s home are presumptively unreasonable.” Id. However, a warrantless search of a home is not unreasonable if it falls under a recognized exception to the warrant requirement. Id. Evidence discovered during a warrantless search when no exception exists must be suppressed under the exclusionary rule. Id. at ¶ 12.

[¶ 9] The State argues Niebuhr’s “quick walk” through Gagnon’s residence was lawful under the United States Supreme Court’s decision in Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984). Segura was suspected of trafficking cocaine from his apartment. Id. at 799, 104 S.Ct. 3380. After watching Segura for a period of time, officers arrested Segura in the lobby of his apartment building at approximately 11:15 p.m. Id. at 799-800, 104 S.Ct. 3380. The officers then took Segura to his third floor apartment and entered without requesting or receiving permission. Id. at 800, 104 S.Ct. 3380. The officers found four individuals in Seg-ura’s living room. Id. After informing the individuals Segura was under arrest and a search warrant was being obtained, the officers “conducted a limited security check of the apartment to ensure that no one else was there who might pose a threat to their safety or destroy evidence.” Id. at 800-01, 104 S.Ct. 3380. During the security check, the officers viewed but did not seize evidence of drug trafficking that was in plain view. Id. at 801, 104 S.Ct. 3380. Segura and the others were removed from the apartment, and two officers remained in the apartment to wait for a warrant. Id. A warrant was issued and the apartment was searched at approximately 6:00 p.m. the next day. Id.

[¶ 10] Although the security check in Segura was similar to the walk through in this case, the Segura Court clearly stated the legality of the security check was not at issue:

“At the outset, it is important to focus on the narrow and precise question now before us. As we have noted, the Court of Appeals agreed with the District Court that the initial warrantless entry and the limited security search were not justified by exigent circumstances and were therefore illegal. No review of that aspect of the case was sought by the Government and no issue concerning items observed during the initial entry is before the Court. The only issue here is whether drugs and the other items not observed during the initial entry and first discovered by the agents the day after the entry, under an admittedly valid search warrant, should have been suppressed.”

468 U.S. at 804, 104 S.Ct. 3380. After defining the issue before it, the Court considered whether the officers unreasonably seized Segura’s apartment by entering and remaining on the premises while a search warrant was obtained. Id. at 805-10, 104 S.Ct. 3380. In upholding the officers’ actions, the Court noted the distinction between warrantless searches and warrant-less seizures:

“We hold, therefore, that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents. We reaffirm at the same time, however, that, absent exigent circumstances, a warrantless search — such as that invalidated in Vale v. Louisiana, 399 U.S. 30, 33-34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) — is illegal.”

Segura, at 810, 104 S.Ct. 3380. Because the Segura Court considered the time after the officers entered and remained in the apartment while Segura was in police custody and not the security search of the apartment, the State’s reliance on Segura is misplaced. The proper inquiry here is not whether the walk through was an unreasonable seizure but whether it was an unreasonable search.

[¶ 11] The district court found the war-rantless search of Gagnon’s residence was justified by the consent and plain view exceptions to the warrant requirement. Because Gagnon did not consent until after Niebuhr began walking through the residence, we must assume the district court determined the walk through was justified because the marijuana plants were in plain view.

[¶ 12] The “plain view” doctrine only applies when an officer is legitimately in a constitutionally protected area. State v. Gronlund, 356 N.W.2d 144, 147 (N.D.1984) (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). “Plain view alone ... is never enough to justify the warrant-less search or seizure of evidence.” State v. Garrett, 1998 ND 173, ¶ 16, 584 N.W.2d 502. Therefore, standing alone, the fact that the officers standing on a public street observed marijuana plants inside the home was not sufficient to justify a warrantless search of Gagnon’s residence.

[¶ 13] The State asserts the need to prevent destruction of evidence and to protect officer safety were exigent circumstances justifying Niebuhr’s walk through the residence. We have recognized that evidence in plain view may be seized if exigent circumstances exist. Gronlund, 356 N.W.2d at 147. Exigent circumstances are a recognized exception to the warrant requirement. State v. De-Coteau, 1999 ND 77, ¶ 14, 592 N.W.2d 579. We have defined exigent circumstances as “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” Id. at ¶ 15 (quotation omitted). “The government has the burden to demonstrate exigent circumstances to overcome the presumption a warrantless search is unreasonable.” Id. The ultimate determination whether the facts constitute exigent circumstances is a question of law that we review de novo. Id.

[¶ 14] The timeline of events in this case does not support the conclusion a warrantless search was necessary to avoid imminent destruction of evidence. Nason observed marijuana in Gagnon’s window on May 28 and reported his observation to the BCI on May 29. When Niebuhr traveled to Douglas on June 3, marijuana plants were still in Gagnon’s window. Following Niebuhr’s initial observation, the plants remained in the window for approximately forty minutes while Niebuhr waited for additional officers. Nothing in the record indicates destruction of the plants became imminent when the additional officers arrived. To the contrary, Gagnon’s failure to remove the marijuana from the window and Yellowbird’s invitation that the officers “come in,” indicate Gagnon and Yellowbird were unaware their residence was being observed by law enforcement until Niebuhr and Huber walked in their door. Finding a warrantless search was justified under these circumstances would permit law enforcement to create an exigency by deciding to approach the residence without a warrant despite ample opportunity to obtain one. In addition, nothing in the record indicates the safety of the officers or any other person was threatened before the officers approached Gagnon’s residence. The State argues that after Niebuhr and Huber entered the residence, their safety was a concern because an unidentified person could have been inside. The presence of unidentified persons inside a residence always will be a possibility and that possibility, without more, does not create an exigency sufficient to justify a warrantless search. See United States v. Waldner, 425 F.3d 514, 517 (8th Cir.2005) (holding a protective sweep of an office violated the Fourth Amendment when “there [was] no evidence that the officers had any articulable facts that an unknown individual might be in the office, or anywhere else in the house, ready to launch an attack”). This is especially true when any limitations on law enforcement entry would have and could have been eliminated during the ample time — here days — available to secure a warrant. Under the facts of this case, we conclude that neither the possibility of the destruction of evidence nor the need to protect officer safety were exigent circumstance justifying a warrantless search.

[¶ 15] Niebuhr’s walk through Gag-non’s residence was an unreasonable war-rantless search. Because of our resolution of this issue, we need not address the other issues raised.

Ill

[¶ 16] We reverse the judgment, remand to allow Gagnon to withdraw his guilty plea and for further proceedings.

[¶ 17] MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.