Grand Forks Homes, Inc. v. State of North Dakota

2011 ND 65, 2011 ND 48, 795 N.W.2d 367, 2011 N.D. LEXIS 50
CourtNorth Dakota Supreme Court
DecidedMarch 22, 2011
Docket20100198
StatusPublished
Cited by14 cases

This text of 2011 ND 65 (Grand Forks Homes, Inc. v. State of North Dakota) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grand Forks Homes, Inc. v. State of North Dakota, 2011 ND 65, 2011 ND 48, 795 N.W.2d 367, 2011 N.D. LEXIS 50 (N.D. 2011).

Opinion

CROTHERS, Justice.

[¶ 1] Daryl G. Johnson appeals the district court’s judgment entered after his conditional plea of guilty to the charges of possession of a controlled substance, manufacture of a controlled substance and possession of drug paraphernalia. Johnson argues that the warrant issued to search his residence and other property was not supported by probable cause and that the evidence seized during the search must be suppressed. We affirm.

I

[¶ 2] On March 24, 2010, law enforcement executed a search warrant for Johnson’s residence and vehicle. During the search, law enforcement found drug paraphernalia, items associated with a metham *369 phetamine lab and methamphetamine. The search warrant was obtained based on evidence provided at the search warrant application hearing held on March 24, 2010.

[¶ 3] At the hearing, Christopher Karl-gaard, a peace officer with the Southeast Multi-County Agency Drug Task Force, testified about his investigation of Johnson. Karlgaard explained law enforcement received a warrant to search Brooke Kief-fer’s residence a week before the hearing. On March 23, 2010, law enforcement executed the warrant for Kieffer’s residence, finding marijuana, paraphernalia for marijuana and methamphetamine paraphernalia and also finding a methamphetamine syringe on Kieffer. Karlgaard interviewed Kieffer, and she told him she used the syringe to inject methamphetamine Johnson provided at his residence on March 22 and 23, 2010. Karlgaard also observed needle marks on Kieffer’s arms.

[¶ 4] Karlgaard testified he performed surveillance on Kieffer on March 23, 2010, seeing Kieffer spending time with Johnson, seeing Kieffer and Johnson enter and exit Johnson’s residence, at one point spending forty-five minutes inside his residence, seeing Kieffer and Johnson enter Johnson’s vehicle and seeing Kieffer and Johnson enter Kieffer’s vehicle.

[¶ 5] Karlgaard stated that the drug task force has been gathering information about Johnson for four or five years and that many known drug users were associated with Johnson and were observed going to Johnson’s house. A confidential informant completed a controlled buy at Johnson’s home in 2008. The buy was monitored, but during the buy, a loud noise prevented law enforcement from hearing the confidential informant and Johnson’s conversation. The informant came out of Johnson’s house with one gram of methamphetamine. The informant stated the noise was from Johnson turning on a vacuum cleaner. The confidential informant stated Johnson was paranoid and checked him for a wiretap.

[¶ 6] Karlgaard testified a cigarette package containing a meth pipe and two small baggies of methamphetamine was found in Johnson’s neighbor’s yard. The neighbor who called police about the cigarette package suspected it belonged to Johnson or to one of Johnson’s friends, but Karlgaard had little evidence that was true. The district court found probable cause existed to issue the search warrant for Johnson’s residence, vehicle and shed.

[¶ 7] Based on the evidence found during a search of Johnson’s residence, on March 29, 2010, Johnson was arrested and charged with possession of a controlled substance with intent to deliver, manufacture of a controlled substance, possession of drug paraphernalia, possession of marijuana and possession of marijuana drug paraphernalia. Johnson pled not guilty and moved to suppress the evidence found in his residence and in his vehicle. The State opposed the motion. The district court denied Johnson’s motion to suppress, and Johnson entered a conditional guilty plea to possession of a controlled substance, manufacture of a controlled substance and possession of drug paraphernalia. The district court entered judgment based on Johnson’s guilty plea. Johnson appealed.

II

[¶ 8] Johnson argues the district court erred by not suppressing the evidence obtained during the search because the search warrant was not supported by probable cause. The State claims the district court properly concluded the search warrant was supported by probable cause. We agree with the State.

*370 [¶ 9] “A district court’s decision to deny a motion to suppress ‘will not be reversed [on appeal] if there is sufficient competent evidence capable of supporting the district court’s findings, and ... if its decision is not contrary to the manifest weight of the evidence.’ ” State v. Poitra, 2010 ND 137, ¶ 13, 785 N.W.2d 225 (quoting State v. Scholes, 2008 ND 146, ¶ 7, 753 N.W.2d 377). “Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.” State v. Lunde, 2008 ND 142, ¶ 10, 752 N.W.2d 630 (quoting State v. Albaugh, 2007 ND 86, ¶ 8, 732 N.W.2d 712). “The determination of whether probable cause exists to issue a search warrant is a question of law.” State v. Schmalz, 2008 ND 27, ¶ 12, 744 N.W.2d 734.

[¶ 10] The Fourth Amendment of the United States Constitution and Article I, section 8 of the North Dakota Constitution protect against unreasonable searches and seizures. See Scholes, 2008 ND 146, ¶ 8, 753 N.W.2d 377. “A search warrant may be issued only upon a showing of probable cause.” Id. “Probable cause exists ‘if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband ... will be found in the place to be searched.’ ” State v. Kieper, 2008 ND 65, ¶ 7, 747 N.W.2d 497 (quoting State v. Nelson, 2005 ND 59, ¶ 3, 693 N.W.2d 910). “The standard of proof necessary to establish guilt at trial is not necessary to establish probable cause.” State v. Ebel, 2006 ND 212, ¶ 12, 723 N.W.2d 375 (quoting State v. Ballweg, 2003 ND 153, ¶ 18, 670 N.W.2d 490). This Court “defer[s] to a [district court’s] determination of probable cause so long as a substantial basis for the conclusion exists.” Kieper, at ¶ 6 (quoting Ebel, at ¶ 12). “Marginal cases [are decided] in favor of the [district court’s] determination.” Kieper, at ¶ 6 (quoting Ebel, at ¶ 12).

[¶ 11] The district court found the search warrant was supported by probable cause based on Karlgaard’s testimony about his observations and about the information Kieffer provided to him. Johnson asserts no probable cause existed for the search warrant for his residence because Kieffer’s reliability was not established. When an informant is a member of the criminal milieu the informant’s reliability must be established. See Lunde, 2008 ND 142, ¶ 11, 752 N.W.2d 630. The “[r]e-liability of an informant can be established in numerous ways, such as corroboration through independent investigation, by affi-ant’s vouching or assertion that the information is reliable, or by the informant giving detailed information overcoming any doubt.” Id. (quoting State v. Stewart, 2006 ND 39, ¶ 8, 710 N.W.2d 403). The district court found Kieffer’s credibility was established through Karlgaard’s observations, stating:

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Bluebook (online)
2011 ND 65, 2011 ND 48, 795 N.W.2d 367, 2011 N.D. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grand-forks-homes-inc-v-state-of-north-dakota-nd-2011.