833 N.W.2d 15 (N.D. 2013), 20120324, State v. Holly

Docket Nº:20120324.
Citation:833 N.W.2d 15, 2013 ND 94
Opinion Judge:MARING, Justice.
Party Name:STATE of North Dakota, Plaintiff and Appellee v. John Joseph HOLLY, Defendant and Appellant.
Attorney:Sean B. Kasson, Assistant State's Attorney, Minot, N.D., for plaintiff and appellee. Eric P. Baumann, North Dakota Public Defenders' Office, Minot, N.D., for defendant and appellant.
Judge Panel:GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, J., concur. CROTHERS, Justice, concurring in part and dissenting in part. SANDSTROM, Justice, dissenting.
Case Date:June 19, 2013
Court:Supreme Court of North Dakota
 
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833 N.W.2d 15 (N.D. 2013)

2013 ND 94

STATE of North Dakota, Plaintiff and Appellee

v.

John Joseph HOLLY, Defendant and Appellant.

No. 20120324.

Supreme Court of North Dakota.

June 19, 2013

Rehearing Denied July 18, 2013.

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Sean B. Kasson, Assistant State's Attorney, Minot, N.D., for plaintiff and appellee.

Eric P. Baumann, North Dakota Public Defenders' Office, Minot, N.D., for defendant and appellant.

MARING, Justice.

[¶ 1] John Holly appeals the trial court's criminal judgments finding him guilty of the following counts: (1) possession of marijuana, greater than one ounce; (2) possession of a schedule III controlled substance; (3) possession of drug paraphernalia, other than marijuana; (4) possession of drug paraphernalia, marijuana; (5) possession of Psilocyn; (6) possession of a schedule IV controlled substance; and (7) possession of drug paraphernalia, other than marijuana. We conclude the search of Holly's vehicle was lawful; sufficient evidence existed on the record to sustain a conviction of guilt for counts 5, 6, and 7; and, the trial court did not err in finding, sua sponte, Holly guilty of a lesser-included offense. We affirm the criminal judgments which are based on the evidence found in Holly's vehicle. We conclude the nighttime search warrant of Holly's residence was not supported by separate probable cause, and the evidence found in Holly's residence must be suppressed. We reverse the criminal judgments which are based on the evidence found in his residence. We remand for the trial court to amend its order denying Holly's motion to suppress and the criminal judgments consistent with this opinion.

I

[¶ 2] On February 7, 2011, North Dakota Bureau of Criminal Investigation Agent Rob Browne received information from Timothy Marquez and Micah Sesseman that Holly would be traveling to Montana and returning to Minot, North Dakota, with marijuana and unknown prescription drugs. Sesseman identified himself as Holly's current roommate. Sesseman informed Agent Browne that Holly would be traveling in a white Ford Ranger with Texas license plates; Holly's girlfriend, a third roommate, would be driving the vehicle; and, Holly would be returning to Minot the following evening. Agent Browne relayed this information to Deputy Sheriff Willie Graham working with the Ward County Narcotics Task Force.

[¶ 3] On February 8, 2011, Deputy Graham met with Sesseman at the residence he and Holly occupied. Sesseman again relayed information regarding Holly's travel plans. He also informed Deputy Graham that Holly frequently smoked marijuana in his bedroom. While at the residence, Sesseman entered Holly's bedroom. From Deputy Graham's vantage point in the living room, he observed a multi-colored glass smoking device, which he believed to be a bong, sitting on a dresser in Holly's bedroom.

[¶ 4] After his conversation with Sesseman, Deputy Graham sought a search warrant for Holly's vehicle and residence. The magistrate issued Deputy Graham a search warrant allowing law enforcement to search Holly's vehicle and residence during the " daytime." The warrant was

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later modified at the request of Deputy Graham to " anytime."

[¶ 5] On February 8, 2011, at 10:14 p.m., Deputy Graham and other officers executed the search warrant for the vehicle and residence. There is no dispute that the search warrant was executed during the nighttime. The officers seized the following from Holly's vehicle: two plastic bags of marijuana; one plastic bag containing approximately twenty-six pills of Clonazepam; one plastic bag of Psilocyn, hallucinogenic mushrooms; and one glass smoking device. In Holly's residence, the officers seized: one plastic bag containing aluminum foil that contained Testosterone Propionate; one grey digital scale with marijuana residue; one multi-colored glass smoking device; one plastic tub containing various size plastic bags and marijuana residue; and one metal smoking device. Holly was subsequently charged with six counts of possession of controlled substances and drug paraphernalia and one count of possession with intent to deliver marijuana.

[¶ 6] On April 18, 2011, Holly moved to suppress the evidence seized, arguing the warrant affidavit lacked probable cause. Specifically, Holly argued (1) the warrant affidavit did not contain information establishing the reliability of Sesseman as an informant; (2) Deputy Graham's observation of the multi-colored, glass smoking device constituted an illegal search; and (3) Deputy Graham lacked probable cause to believe the glass smoking device was in fact a bong. Lastly, Holly argued the warrant affidavit did not establish the separate probable cause required for the issuance of an " anytime" warrant. After holding a hearing on May 23, 2011, the trial court denied Holly's motion to suppress.

[¶ 7] Holly then moved to suppress the evidence based on the warrant affidavit's reference to " six pounds" of marijuana. Holly argued Deputy Graham intentionally or with reckless disregard for the truth misled the magistrate in obtaining the search warrant by stating that Holly would be transporting six pounds of marijuana. The trial court held a hearing on October 27, 2011. The trial court denied Holly's motion, concluding that, although the information was later determined to be false, Deputy Graham did not intentionally or with reckless disregard for the truth mislead the magistrate.

[¶ 8] Holly waived his right to a jury trial. At a bench trial, the trial court found Holly guilty of all six counts of possession of controlled substances and possession of drug paraphernalia. The trial court found that the State failed to prove beyond a reasonable doubt that Holly possessed marijuana with the intent to deliver. The trial court dismissed the charge, but found the State had proven beyond a reasonable doubt the lesser-included offense of possession of a controlled substance, namely possession of more than one ounce of marijuana.

[¶ 9] Holly appeals arguing the trial court erred in denying his motions to suppress, denying his motion for a judgment of acquittal, and finding him guilty of the lesser-included offense.

II

[¶ 10] Holly argues the trial court erred in denying his motions to suppress. He argues the warrant affidavit lacked sufficient probable cause and the search of his residence and vehicle violated the U.S. Const. Amend. IV and N.D. Const. art. I, § 8. We conclude the warrant affidavit contained sufficient separate probable cause to issue a nighttime search warrant for Holly's vehicle. We conclude, however, the warrant affidavit did not contain sufficient separate probable cause to search Holly's residence at night, and

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therefore, the evidence found in Holly's residence must be suppressed.

[¶ 11] We affirm a trial court's order denying a motion to suppress evidence if " there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence." State v. Beane, 2009 ND 146, ¶ 8, 770 N.W.2d 283. Conflicts in testimony are resolved in favor of affirmance, as the trial court is in a superior position to assess the witnesses' credibility. Id. " Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. The determination of whether probable cause exists to issue a search warrant is a question of law." State v. Johnson, 2011 ND 48, ¶ 9, 795 N.W.2d 367 (citations and quotations omitted). We give deference to the trial court's determination of probable cause if a substantial basis for the conclusion exists. Johnson, at ¶ 10. " Marginal cases are decided in favor of the [trial court's] determination." Id.

[¶ 12] " The Fourth Amendment of the United States Constitution and Article I, section 8 of the North Dakota Constitution protect against unreasonable searches and seizures." Id. at ¶ 10. A search warrant may be obtained 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." ’ " Id. (quoting 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)). We apply the totality-of-the-circumstances test to determine whether the information before the magistrate was sufficient to establish probable cause:

Although each piece of information may not alone be sufficient to establish probable cause and some of the information may have an innocent explanation, probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.

State v. Guthmiller, 2002 ND 116, ¶ 10, 646 N.W.2d 724 (quotation omitted).

A

[¶ 13] Holly argues the warrant affidavit failed to contain information establishing Sesseman's reliability as an informant. Holly argues Sesseman was a confidential informant and, therefore, his reliability should have been established.

[¶ 14] There are three types of informants: citizen, confidential, and anonymous. State v. Roth, 2004 ND 23, ¶ 9, 674 N.W.2d 495 [hereinafter " Roth I " ]. " A citizen informant is ‘ someone who volunteers information, does not want anything in return for the information, and is not at risk or in fear of going to jail.’ " Id. at ¶ 10 (quoting State v. Rangeloff, 1998 ND 135, ¶ 4 n. 3, 580 N.W.2d 593). Citizen informants are...

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