State v. Thompson

369 N.W.2d 363, 1985 N.D. LEXIS 330
North Dakota Supreme Court·Decided June 10, 1985·No. Cr. 1045-46, 1051-52·Published·Cited by 40 cases

Opinions

ERICKSTAD, Chief Justice.

Our task in these appeals is to ascertain the validity of a search warrant issued by a county magistrate on the basis of the sworn affidavit of a law enforcement officer acting on an anonymous informant’s tip. We hold that, under the circumstances of this case, the search warrant should not have been issued because the officer’s affidavit did not provide a substantial basis to support the magistrate’s finding of probable cause, and, further, that all evidence obtained in the subsequent execution of the warrant must be suppressed.

On February 15, 1984, Mercer County Deputy Sheriff Wesley J. Berg obtained a search warrant authorizing the search of the defendants’ residence and their vehicle for “marijuana, other controlled substances, and related drug paraphernalia.” The search warrant was issued on the affidavit of Deputy Sheriff Berg, signed and sworn to before Donna M. Buchmann, a county magistrate. This affidavit reads:

“I, Wesley J. Berg, being first duly sworn, depose and state that I am a deputy with the Mercer County Sheriff’s Office. As such, one of my duties is to investigate crimes occurring in Mercer County. In that capacity I have become familiar with the below described facts.
“On February 15, 1984, at about 10:00 a.m., CST, the North Dakota Drug Enforcement Unit in Bismarck, North Dakota, received an anonymous phone call. The caller told them that Randy and Jackie Thompson, who live outside of Zap, North Dakota, presently have a large supply of marijuana in their house. According to the informant, Randy and Jackie Thompson lived inside the city of Zap until a short time ago when they moved to a farmstead. Randy Thompson was described as being heavy set, five feet ten inches tall, with dark hair and is approximately 30 years old. Jackie Thompson was described as a large woman with light hair and who is 27 or 28 years old. The informant said, further, that both Randy and Jackie Thompson work at a power plant near Beulah, North Dakota, and that Jackie Thompson, specifically, works in the office at the power plant. The Thompsons, according to the informant, drive a blue and white pickup with a camper on it.
“This informant advised the Drug Enforcement Unit that she had provided information against a Mr. Mike Stockert in May of 1983. The information she provided against Mr. Stockert proved to be correct in every detail, and Mr. Stoc-kert is presently serving time in the North Dakota State Pennitentiary [sic] as a result of this information.
“Acting on the above information, I have verified that Randy and Jackie Thompson did live in the city of Zap until shortly before Christmas. At that time, they moved to the Edward Bauer farmstead located in the Northeast quarter of Section 14, Township 146, Range 89. Jackie Thompson works cleaning the office at the Great Plains Coal Gasification Associates. Randy and Jackie Thompson own a blue and white 1978 Ford pickup, license number TCW-499 which has a topper or camper on it.
“The anonymous informant advised the Drug Enforcement Unit that Randy and Jackie Thompson were selling marijuana in Bismarck on February 11, 1984. They were driving their blue and white pickup at the time.
[365] “Based on the foregoing information, I hereby apply for a warrant to search the Randy and Jackie Thompson residence located at the former Edward Bauer farmstead located in the Northeast quarter of Section 14, Township 146, Range 89, in Mercer County. This application is for a warrant to cover the house, and any out buildings on the farmstead, as well as for the blue and white pickup owned by Randy and Jackie Thompson described above. The objects of the search are marijuana, any other controlled substances, and related drug paraphernalia which may be found.”

The search warrant was executed at approximately 6:00 p.m. on February 15, 1984, by Deputy Berg and other law enforcement officers, including two special agents of the North Dakota Drug Enforcement Unit. As a result of the search, charges were filed in the District Court of Mercer County against Randy and Jackie Thompson for possession of a controlled substance with intent to deliver (288.96 grams of marijuana), a class B felony. The Thompsons were also charged in Mercer County Court with possession of drug paraphernalia, a class A misdemeanor.

On April 13, 1984, the Thompsons filed in county court, and on April 26,1984, filed in district court, motions to suppress “any and all evidence, including personal observation of any person, made as the result of the search warrant” issued by the county magistrate. Following the submission of briefs by the parties, the county court, the Honorable O.A. Schulz, issued a memorandum opinion and order dated May 23, 1984, denying the motions. The district court, the Honorable Dennis A. Schneider, issued a memorandum opinion and order dated July 7, 1984, granting the motions.

The district court concluded that the affidavit of Deputy Berg did not comply with the standards set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and further explicated in Spi-nelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).1 The district court recognized that the United States Supreme Court, in Illinois v. Gates, 462 U.S. 213,103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), abandoned the two-pronged Aguilar-Spinelli test in favor of a “totality of circumstances” approach for determining whether or not an informant’s tip suffices to establish probable cause for the issuance of a warrant. The district court concluded, however, that Gates was inapplicable, reasoning that Gates did not “ipso facto” change North Dakota case law “which is grounded in our [State] Constitution, Article I, Section 8.” In addition, the district court concluded that the affidavit failed to satisfy the “totality of circumstances” analysis of Gates. In so holding the court said:

“The informant’s story and the surrounding facts possess no internal coherence that give weight to the whole of her story. Her story carries no more credence than that told by any person with or without motive and lacks any significant attributes of verification, nor is that verification supplied in the affidavit by any other source.”

The county court concluded that the search warrant was valid under Gates. In a bench trial had on August 20, 1984, the county court found Randy and Jackie Thompson guilty of the crime of possession of drug paraphernalia. Their convictions were based entirely on the use in evidence against them of drug paraphernalia that had been seized during the search of their residence and vehicle.

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State v. Thompson, 369 N.W.2d 363, 1985 N.D. LEXIS 330 (N.D. 1985).

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