State v. Birk

484 N.W.2d 834, 1992 N.D. LEXIS 91, 1992 WL 79177
CourtNorth Dakota Supreme Court
DecidedApril 21, 1992
DocketCr. 910150
StatusPublished
Cited by18 cases

This text of 484 N.W.2d 834 (State v. Birk) 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
State v. Birk, 484 N.W.2d 834, 1992 N.D. LEXIS 91, 1992 WL 79177 (N.D. 1992).

Opinions

ERICKSTAD, Chief Justice.

Timothy A. Birk appeals from a judgment of conviction entered on a conditional plea of guilty under Rule 11(a)(2), N.D.R.Crim.P., to manufacturing a controlled substance, i.e., marijuana. Birk asserts that the trial court erred in denying his motion to suppress the incriminating evidence because there was a lack of probable cause for a warrant to search his home. We disagree and, accordingly, we affirm the judgment of conviction.

The sole basis for issuance of the search warrant was the November 21, 1990, sworn affidavit of Bismarck police officer Roger Becker, who stated:

“I.
“That I am a Bismarck police officer and have been so employed for 9 and years.
“That your Affiant has had approximately seventeen years in law enforcement and has received training at the North Dakota Basic Law Enforcement Academy, as well as numerous hours of training in the field of narcotics enforcement and identification through the North Dakota Drug Enforcement Unit and the Federal Drug Enforcement Agency.
“That your Affiant is presently assigned to detectives, Narcotics Division, and has been so assigned for over three years.
“II.
“That on November 21, 1990, at approximately 4:30 your Affiant received a call from an anonymous citizen who provided information to your Affiant regarding a Timothy Birk. This individual indicated that Timothy Birk lives on Northwest Drive, Bismarck, North Dakota, between Trailer No. 112 and 116. The caller was not able to be specific as to the number because he said that trailer did not have a house number on it. The individual indicated that Timothy Birk drives a red Camaro, and that it was presently in the driveway of that address at that time. The individual also indicated that Timothy Birk has a Harley Davidson motorcycle, unknown model. This person indicated that Timothy Birk is presently unemployed, but that according to the caller, he had previously worked for the City of Bismarck Street Department and was seen driving a yellow city truck. According to the caller, Timothy Birk has a green pickup truck for sale parked outside of the residence on Northwest Drive, Bismarck, North Dakota. The caller advised your Affiant that the caller has known Timothy Birk for a period of time and is aware of Timothy Birk’s previous drug conviction.
“III.
“According to what the caller told your Affiant, the caller was personally present at the Timothy Birk residence as previously described on November 21, 1990, and observed a number of people coming and going. That while the caller was at the residence, the caller observed what appeared to be marijuana on a plate in the living room and estimated the amount to be approximately Vs of an ounce and also observed a triple beam scale and approximately ¼ pound of marijuana. According to the caller, while at the Birk residence he heard Timothy Birk and other individuals talking about crank that they had to get rid of at $30.00 per quarter gram, $60.00 per half gram.
“IV.
“This caller also provided the following verifying facts: (a) Timothy Birk had a cousin by the name of Anthony (Tony) who was just recently arrested for shoplifting at Target. The caller further de[836]*836scribed Timothy Birk as being approximately thirty years of age, 6’1” to 6’3”, shoulder length black hair, with a mustache, and weighing approximately 220 to 240 pounds. This caller also indicated that while he was present at the Timothy Birk residence Timothy Birk mentioned the name of Dennis.
“V.
“That your Affiant has verified that Timothy Birk does own and drive a 1971 Chevy Camaro, red in color, plate no. BTL552, and that his date of birth is October 17, 1959. Your Affiant has further verified that Timothy Birk does live at 114 Northwest Drive, Bismarck, North Dakota, and that he does possess a Harley Davidson motorcycle. That your Af-fiant has personally conducted surveillance and has reviewed the surveillance and intelligence reports of other officers regarding Timothy Birk over the last several years. Your Affiant is also aware that Timothy Birk was convicted of possession of cocaine in 1986. Your Affiant has also verified that a cousin of Timothy Birk named John A. (Anthony) Morse was arrested on November 20, 1990, for shoplifting at Target.
“VI.
“That your Affiant has knowledge of various police contacts from a number of citizen calls that Timothy Birk has been dealing in controlled substances. Your Affiant has personally observed on July 31, 1990, a number of individuals going to the Timothy Birk residence for short periods of time and then leaving. Based on your Affiant’s training and experience this type of visitor pattern as observed by your Affiant and reported in the telephone calls is typical and indicative of trafficking in controlled substances.
“VII.
“That on March 13,1990, a confidential informant who has provided reliable information to your Affiant on numerous occasions, advised your Affiant that she had taken another individual to the Timothy Birk residence. According to the confidential informant, the other individual smoked marijuana while at the Timothy Birk residence and that individual advised the confidential informant that Timothy Birk had plenty of marijuana on hand. That your Affiant is aware through police intelligence that a primary associate of Timothy Birk and frequent visitor to the residence of Timothy Birk at 114 Northwest Drive, Bismarck, North Dakota, is Dennis Beglau, a known and convicted drug trafficker and user. Your Affiant has also received information in July of 1990 that Timothy Birk has kept up to three pounds of marijuana in his residence.”

On the day this affidavit was given, the county court magistrate authorized the search of Birk’s residence for “controlled substances, books, notes, and other documentation regarding the use, possession, or sale of controlled substances and drug paraphernalia.” The subsequent search turned up marijuana, marijuana plants and growing apparatuses, a triple beam scale, and a cutting agent normally used for controlled substances, and other drug paraphernalia.

Probable cause to search does not require a prima facie showing of criminal activity. State v. Berger, 285 N.W.2d 533, 536 (N.D.1979); State v. Mertens, 268 N.W.2d 446, 450 (N.D.1978). Rather, under the Fourth Amendment to the United States Constitution and Article I, § 8 of the North Dakota Constitution, probable cause to search “exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place.” State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988).

The problem of determining the existence of probable cause to issue a search warrant is increased when the affiant has obtained his information through an informant. See State v. Schmeets, 278 N.W.2d 401, 406 (N.D.1979). We have said that information supplied by an anonymous informant cannot alone establish probable [837]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Weinmann
2015 ND 213 (North Dakota Supreme Court, 2015)
Myers v. State
2009 ND 13 (North Dakota Supreme Court, 2009)
State v. Lunde
2008 ND 142 (North Dakota Supreme Court, 2008)
State v. Utvick
2004 ND 36 (North Dakota Supreme Court, 2004)
State v. Ochoa
2004 ND 43 (North Dakota Supreme Court, 2004)
State v. Holzer
2003 ND 19 (North Dakota Supreme Court, 2003)
State v. Van Beek
1999 ND 53 (North Dakota Supreme Court, 1999)
State v. Damron
1998 ND 71 (North Dakota Supreme Court, 1998)
State v. Hage
1997 ND 175 (North Dakota Supreme Court, 1997)
State v. Woehlhoff
540 N.W.2d 162 (North Dakota Supreme Court, 1995)
State v. Cox
532 N.W.2d 384 (North Dakota Supreme Court, 1995)
Woehlhoff v. State
487 N.W.2d 16 (North Dakota Supreme Court, 1992)
State v. Kettleson
486 N.W.2d 227 (North Dakota Supreme Court, 1992)
State v. Birk
484 N.W.2d 834 (North Dakota Supreme Court, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
484 N.W.2d 834, 1992 N.D. LEXIS 91, 1992 WL 79177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-birk-nd-1992.