State v. Ackerman

• Citation: 499 N.W.2d 882
• Decision Date: 11 May 1993
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Darrin R. ACKERMAN, Defendant and Appellant o. 920169.
• Court: United States State Supreme Court of North Dakota

Page 882

499 N.W.2d 882

61 USLW 2763

STATE of North Dakota, Plaintiff and Appellee v. Darrin R. ACKERMAN, Defendant and Appellant

Cr. No. 920169.

Supreme Court of North Dakota.

May 11, 1993.

Robert Allan Freed, Asst. State's Atty., Jamestown, for plaintiff and appellee.

Mackenzie, Jungroth, Mackenzie & Reisnour, Jamestown, for defendant and appellant; argued by William A. Mackenzie.

VANDE WALLE, Chief Justice.

Darrin R. Ackerman appealed from the judgment of conviction and sentence entered by the trial court upon finding Ackerman guilty of possession of drug paraphernalia, a class A misdemeanor, in violation of Sec. 12.1-31.1-03, N.D.C.C. We reverse.

At approximately 12:07 a.m. on August 27, 1991, Jamestown police officers received a report of a loud party and were dispatched to Lot # 34, Eastside Trailer Court. Officer LeRoy Gross arrived at the scene and immediately heard loud music and smelled the odor of burning marijuana. Officer Tom Nagel and Corporal Rudnick also arrived and all three agreed that they smelled the odor of burning marijuana. The odor got stronger as they moved closer to the trailer. A trailer window facing the officers was open, but curtained.

Rudnick went to the back of the trailer to prevent anyone from leaving, while Nagel and Gross went to the front door. Nagel knocked on the door and the trailer's owner, Dale W. Doepke, opened the door. Nagel testified at a hearing on a motion to suppress evidence that when the door was opened, "the odor of ah, burning marijuana was very strong." Doepke attempted to prevent Nagel's entry and asked for a warrant. Nagel entered the trailer, telling Doepke that he "did not have a warrant but ... could smell strong odor of burning marijuana." Once inside the trailer, Nagel saw Ackerman put his foot on top of a surgical clamp, "commonly referred to as ... a roach clip ... and it looked like he was attempting to hide it from me." Nagel also testified that he did not "see anything before [he] entered the trailer." ¹

Ackerman was arrested and charged with possession of drug paraphernalia. Ackerman filed a motion to suppress evidence, contending (1) that he was a guest of Doepke, (2) that the officers entered the trailer "against Doepke's specific demand that they not enter, without consent, without legal sufficient probable cause and without a valid search warrant"; and (3) that "the items of evidence seized were not in plain view prior to the Law Enforcement Officer's unauthorized and unlawful entry." The trial court concluded that "the officers had the right to be on the premises for the purpose of quieting the loud party and what they discovered while there is admissible evidence," ruled that Ackerman's standing issue was moot, and denied the suppression motion. Ackerman was found guilty of possession of drug paraphernalia and he appealed.

Ackerman asserts that, as a guest in the trailer, he has standing to seek suppression of the evidence seized in the trailer on the ground that the officers' entry into the trailer and their seizure of evidence violated his rights under the Fourth Amendment to the United States Constitution ² and Article 1, Sec. 8 of the North Dakota Constitution. ³

The United States Supreme Court in Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 1687, 109 L.Ed.2d 85, 92 (1990), said:

"Since the decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), it has been the law that 'capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.' Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978)."

The court held that one's status as an overnight guest in another's home "is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable." 495 U.S. at 96-97, 110 S.Ct. at 1688, 109 L.Ed.2d at 93. Compare State v. Raywalt, 444 N.W.2d 688 (N.D.1989) (defendant made no showing that he had an expectation of privacy in an apartment searched pursuant to a warrant). Ackerman was a guest, but not an overnight guest, in Doepke's home. Professor LaFave, however, has observed that much of the reasoning underlying the Supreme Court's finding of standing on the part of an overnight guest would support standing on the part of other guests, as well:

"[I]t is fair to say that the Olson decision lends considerable support to the claim that shorter-term guests also have standing. For one thing, by rejecting the contention that a visitor must have 'complete dominion and control' the Olson Court undercut the basis on which many lower courts found shorter-term guests to lack standing. For another, ... [, when the warrantless police intrusion occurred,] Olson's 3 p.m. legitimate expectation--in the words of the Court, that 'he and his possessions will not be disturbed by anyone but his host and those his host allows inside'--would exist whether he arrived the night before, only that morning, or, indeed, only shortly before the police entry. Moreover, visiting the house of another without an overnight stay is (again in the words of Olson) likewise 'a longstanding social custom that serves functions recognized as valuable by society' and an event during which 'hosts will more likely than not respect the privacy interests of their guests.' "

4 Wayne R. LaFave, Search and Seizure Sec. 11.3, at 56 (2d ed. 1987, 1993 pocket part).

A guest present in a trailer house in which music is played so loudly as to cause complaints to the police and in which the odor of burning marijuana is allowed to escape through an open window and become detectable by neighbors, passersby, or police officers responding to a loud music complaint, may expect a knock at the door. And, if the door is opened to a police officer, such a guest may expect to be arrested for a crime being committed in the officer's presence at the time the door is opened. Such a guest, however, need not expect a police officer to enter and search without either consent or a warrant, absent the immediate commission of a crime.

Ackerman contends that the trial court erred in denying his suppression motion because there were no exigent circumstances justifying the officers' warrantless entry into the trailer. We agree.

The officers testified at the suppression hearing that they believed a crime was being committed in their presence. Gross testified that he entered the trailer without consent or a warrant "[b]ecause I believed a law was being broken and when that door opened up and I could smell the odor of that marijuana, ah--I believe a crime had been committed and we went in, after the door was opened." Nagel testified that when he smelled the odor of burning marijuana, he believed the crime of possessing marijuana was being committed. ⁴ Rudnick testified that when he smelled the odor of marijuana coming out of the open window in the trailer, he believed that the crime of possession of marijuana was being committed.

Section 29-06-15(1)(a), N.D.C.C., authorizes an arrest without a warrant if an offense is committed in an officer's presence:

"1. A law enforcement officer, without a warrant, may arrest a person:

"a. For a public offense, committed or attempted in the officer's presence; and for the purpose of this subdivision, a crime must be deemed committed or attempted in the officer's presence when what the officer observes through the officer's senses reasonably indicates to the officer that a crime was in fact committed or attempted in the officer's presence by the person arrested."

Here, however, the officers did not arrest for an offense committed in their presence and then enter and search. Gross did not arrest Doepke for "probably in excess of an hour" after entering the trailer. Nagel did not arrest Ackerman for "about an hour and a half" after entering the trailer. The delay occurred while the officers unsuccessfully sought a warrant to conduct a further search of the trailer. The drug paraphernalia was not in plain view until after the officers entered the trailer without a warrant and the search was not incident to an arrest because no arrests were made until more than an hour after the search.

The officers testified that they feared the destruction of evidence. The imminent destruction of evidence may constitute exigent circumstances justifying a warrantless intrusion. Minnesota v. Olson, supra; State v. Page, 277 N.W.2d 112 ...