927 N.W.2d 84 (N.D. 2019), 20180239, State v. Gardner

Docket Nº20180239
Citation927 N.W.2d 84, 2019 ND 122
Opinion JudgeTufte, Justice.
Party NameSTATE of North Dakota, Plaintiff and Appellee v. Steven GARDNER, Defendant and Appellant
AttorneyMark R. Boening, Assistant State’s Attorney, Fargo, N.D., for plaintiff and appellee. Luke T. Heck (argued) and Drew J. Hushka (on brief), Fargo, N.D., for defendant and appellant.
Judge PanelJerod E. Tufte, Daniel J. Crothers, Lisa Fair McEvers, Jon J. Jensen Gerald W. VandeWalle, C.J.
Case DateMay 16, 2019
CourtSupreme Court of North Dakota

Page 84

927 N.W.2d 84 (N.D. 2019)

2019 ND 122

STATE of North Dakota, Plaintiff and Appellee


Steven GARDNER, Defendant and Appellant

No. 20180239

Supreme Court of North Dakota

May 16, 2019

Page 85

[Copyrighted Material Omitted]

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Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Wade L. Webb, Judge.

Mark R. Boening, Assistant State’s Attorney, Fargo, N.D., for plaintiff and appellee.

Luke T. Heck (argued) and Drew J. Hushka (on brief), Fargo, N.D., for defendant and appellant.


Tufte, Justice.

[¶1] Steven Gardner appeals from an order deferring imposition of sentence following his conditional guilty plea to conspiracy to possess methamphetamine with intent to deliver, as well as from an order denying his motion to suppress evidence found in a package that was neither addressed to him nor sent to his residence. Gardner argues he was the owner of a package unconstitutionally seized by police officers and his rights were violated by the seizure and subsequent search of the package. The State argues Gardner did not establish a personal, possessory interest in the property sufficient to support a claim that his rights were violated. We reverse the district court’s order denying Gardner’s motion to suppress, and remand to allow Gardner to withdraw his guilty plea.


[¶2] United Parcel Service ("UPS") notified law enforcement about a suspicious package in its possession addressed to a "Paulie Mccaff" at a residence on 9th Street North in Fargo. A Fargo police officer asked UPS to set the package aside so a canine search of the package could be performed. UPS set the package aside when it arrived in Fargo, but would not permit Fargo Police Department canines on UPS property. UPS told the officer he could temporarily take the package elsewhere to conduct a canine search. The officer took the package to the City of Fargo Public Safety Building, where a second officer conducted a canine free air sniff. The dog alerted on the package. After obtaining a search warrant for the package, the officers searched it and found methamphetamine inside. Officers learned that Paul Metcalf lived in apartment four at the address listed on the package. An officer identified a vehicle registered to Paul Metcalf in the apartment parking lot and attempted delivery of the package at the apartment. Metcalf answered the door, showed his North Dakota identification and accepted the package. Moments later officers searched the apartment and detained Metcalf, who was alone in the apartment. Metcalf told law enforcement that his brother would send packages to the apartment, intending them for Gardner. Metcalf described himself as a "middle man" regarding the packages. Upon receipt of a package, Metcalf was to call Gardner, who would come and pick up the package. Metcalf told police the package

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was Gardner’s and Gardner would ordinarily give him some methamphetamine for the use of his address. At the officers’ request, Metcalf called Gardner to come pick up the package. When Gardner arrived, Metcalf gave him the package. Gardner did not pay Metcalf or otherwise exchange anything for the package. Upon leaving the apartment building with the package, Gardner was arrested. Gardner filed a motion to suppress the evidence resulting from the package search.

[¶3] After conducting a hearing, the district court found that the package was an "effect" for purposes of the Fourth Amendment. Relying on State v. Ressler, 2005 ND 140, ¶ 25, 701 N.W.2d 915, the court determined that the removal of the package from UPS to conduct a canine search was an illegal seizure. In ultimately denying Gardner’s motion to suppress, the court concluded Gardner lacked a sufficient personal interest in the package to claim the illegal seizure violated his constitutional rights. The district court focused exclusively on the package characteristics and the fact that Gardner’s name and address were not on the package. Adding that Gardner did not live at the address where the package was delivered, the court concluded, "I see no real connections whatsoever of Mr. Gardner to the package."


[¶4] The issue on appeal is whether, under the Fourth Amendment to the United States Constitution, or Article I, § 8 of the North Dakota Constitution, an individual may assert his right against unreasonable searches and seizures relating to a package that was neither addressed to him nor sent to property where he was living. If such facts do not categorically bar Gardner’s claim, we then must consider whether the totality of circumstances presented in the evidence before the district court supports a finding that Gardner lacked a sufficient possessory interest in the package to assert a violation of his personal rights.

[¶5] When reviewing a district court’s decision on a motion to suppress: We will defer to a district court’s findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the district court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally a district court’s decision to deny a motion to suppress will not be reversed 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. Adams, 2018 ND 18, ¶ 8, 905 N.W.2d 758. Although we defer to the district court’s resolution of underlying factual disputes, the ultimate conclusion of whether the facts satisfy the applicable legal standard is a question of law fully reviewable on appeal. State v. Nickel, 2013 ND 155, ¶ 12, 836 N.W.2d 405.

[¶6] An individual challenging a search or seizure has the initial burden to show a constitutionally protected personal interest implicated by the search or seizure. State v. Zacher, 2015 ND 208, ¶ 7, 868 N.W.2d 847; State v. Glaesman, 545 N.W.2d 178, 182 n.1 (N.D. 1996) ("In suppression cases, the defendant has the initial burden of establishing a prima facie case that the evidence was illegally seized."). When the State conducts a search or seizure without a warrant, it bears the burden of overcoming the presumption that a warrantless search or seizure is unreasonable. State v. Pogue, 2015 ND 211, ¶¶ 10-11, 868 N.W.2d 522;

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5 Wayne R. LaFave, Search and Seizure § 11.2(b), p. 38 (3d ed. 1996) (stating "if the search or seizure was pursuant to a warrant, the defendant has the burden of proof; but if the police acted without a warrant the burden of proof is on the prosecution"). Where the issue is whether the defendant’s personal rights have been violated, as opposed to the rights of a third party, we have said the defendant bears the burden to show a sufficient personal interest in the asserted violation. See State v. Raywalt, 444 N.W.2d 688, 689 (N.D. 1989) ("Once the State raises lack of standing, it is the defendant’s burden to establish that he had a legitimate expectation of privacy in the place searched.").

[¶7] The exclusionary rule is an attempt to effectuate the search and seizure protections of the state and federal constitutions. State v. Klevgaard, 306 N.W.2d 185, 190 (N.D. 1981) (describing the rule’s two purposes: "(1) to deter unlawful police conduct and ... (2) to preserve judicial integrity by not permitting evidence tainted with illegality to be admitted in court"). Although originally applied by the United States Supreme Court to exclude evidence obtained in violation of the Fourth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), this Court has also applied the exclusionary rule to violations of Article I, § 8 of the North Dakota Constitution. State v. Stockert, 245 N.W.2d 266, 271 (N.D. 1976). An individual is entitled to the protection of the exclusionary rule only if the individual’s own constitutional rights were violated— the individual may not claim violation of a third party’s rights. State v. Oien, 2006 ND 138, ¶ 8, 717 N.W.2d 593; State v. Fischer, 270 N.W.2d 345, 349 (N.D. 1978) (citing Mancusi v. DeForte, 392 U.S. 364, 366, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) ("Fourth Amendment rights are personal rights, and ... may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure.")) (abrogated on other grounds); Plumhoff v. Rickard, 572 U.S. 765, 778, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014) ("Fourth Amendment rights are personal rights which ... may not be vicariously asserted.").

[¶8] "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. The constitutional text tells us a violation occurs when four things are true: (1) the State engaged in a search or seizure of (2) the claimant’s (3) person, house, paper, or effect, and (4) the search or seizure unreasonably violated the claimant’s right to be secure in the object searched or seized. See

State v. Planz, 304 N.W.2d 74, 77 (N.D. 1981).

[¶9]First, was there a "search" or a "seizure" by the State? State v. Garrett, 1998 ND 173, ¶ 13, 584 N.W.2d 502 ("It is axiomatic that the Fourth Amendment’s protection from unlawful search and seizures is not triggered unless there has in fact been a ‘search’ or ‘seizure’ by the State."). Our cases have consistently considered a "search" to implicate the constitutional protection in the context of the "reasonable expectation of privacy" test....

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