D.O. v. D.O.

• Decision Date: 19 December 2013
• Docket Number: No. 20130174.,20130174.
• Citation: 840 N.W.2d 641,2013 ND 247
• Parties: In the Interest of D.O., a child State of North Dakota, Petitioner and Appellee v. D.O., Child, E.O., Mother, K.O., Father, Respondents D.O., Child, Appellant.
• Court: North Dakota Supreme Court

840 N.W.2d 641

2013 ND 247

In the Interest of D.O., a childState of North Dakota, Petitioner and Appellee

v. D.O., Child, E.O., Mother, K.O., Father, RespondentsD.O., Child, Appellant.

No. 20130174.

Supreme Court of North Dakota.

Dec. 19, 2013.

Christine Hummert McAllister, Assistant State's Attorney, Bismarck, ND, for petitioner and appellee.

Justin Jacob Vinje, Bismarck, ND, for respondents and appellant.

CROTHERS, Justice.

[¶ 1] D.O. appeals from a juvenile court's order granting the State's motion to transfer D.O.'s case to the district court and denying D.O.'s suppression motion. D.O. argues that law enforcement offered false or misleading testimony in support of the search warrant, that insufficient probable cause existed to justify the search warrant's issuance, that the juvenile court relied on out-of-court statements in violation of his statutory right to confrontation and that his case was inappropriately transferred to the district court. We affirm.

I

[¶ 2] A series of burglaries occurred over several months in Bismarck involving more than $65,000 in stolen property and property damage. D.O. is a juvenile thought to be involved with the crimes. While investigating D.O.'s involvement, Detective Matthew Fullerton performed a probation search of D.O.'s residence, obtained information from a tipster and a confidential informant, searched publicly available information on D.O.'s Facebook page and performed a “cell tower dump” showing cell phone activity in the area of the burglaries at the time they occurred.

[¶ 3] Fullerton filed search warrant affidavits on January 16, 2013 for Facebook information and for text message content. According to Fullerton's Facebook affidavit, the cell tower dump revealed D.O.'s phone was near three burglary sites at the time they occurred. The text message affidavit states that during a probation search of D.O.'s residence Fullerton found items similar to those reported missing during a gas station burglary. Fullerton also found a backpack containing light-colored latex gloves, dark clothing and tools. Fullerton testified that surveillance from the robberies showed culprits wearing light-colored gloves and dark clothing, but that the items found could not be matched definitively to the footage. The Facebook affidavit also indicates D.O.'s publicly available Facebook information showed comments about “robbin shit like a thug crook,” “snitches” and pictures of large sums of money.

[¶ 4] Fullerton sought access to all known Facebook information, including basic subscriber information, expanded subscriber information—such as wall posts, friend lists and status updates—user photos, and private messages using Facebook's instant messaging service from July 20, 2012 until the time he filed the affidavit. Fullerton sought all known data associated with photos posted on D.O.'s wall on December 12, 2012, when a photo depicting large sums of money was posted. Fullerton requested text message content for D.O.'s cell phone because he believed relevant texts were sent and received after the burglaries and after D.O.'s probation search.

[¶ 5] The State filed a juvenile court petition on April 16, 2013, alleging numerous acts of criminal mischief and burglary. The State then moved to transfer the proceeding to district court. D.O. opposed transfer to district court, moving to suppress evidence from the search warrant because he alleged law enforcement provided false or misleading information to support their search warrant request and the affidavit did not establish probable cause for the warrant. The juvenile court held a transfer hearing encompassing D.O.'s Franks issue and probable cause issue. The court denied D.O.'s motion to suppress evidence, finding law enforcement did not provide false or misleading information in its affidavit requesting the Facebook search warrant and probable cause existed to issue the search warrant. The juvenile court also found probable cause for transferring the case to the district court.

II

[¶ 6] This Court's standard of review of a juvenile court's order is well-established:

“Under N.D.R.Civ.P. 52(a), this Court reviews a juvenile court's factual findings under a clearly erroneous standard of review, with due regard given to the opportunity of the juvenile court to judge the credibility of the witnesses. A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law. This Court reviews questions of law de novo.”

Interest of R.A., 2011 ND 119, ¶ 4, 799 N.W.2d 332 (quoting Interest of A.R., 2010 ND 84, ¶ 5, 781 N.W.2d 644).

III

[¶ 7] D.O. argues law enforcement offered false or misleading testimony regarding matching shoe prints in support of the search warrant. He asserts that, because the information was relevant to the judge's determination of probable cause, the offending statements should be stricken from the affidavit.

[¶ 8] When a defendant believes false or misleading testimony has been offered in support of a search warrant, a defendant can request a Franks hearing. State v. Donovan, 2004 ND 201, ¶ 7, 688 N.W.2d 646;Franks v. Delaware, 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). A hearing must be held on the matter if requested to determine the effect on probable cause. Donovan, at ¶ 7;Franks, at 155–56, 98 S.Ct. 2674. “The defendant has the burden to prove false statements were made intentionally or with reckless disregard for the truth, and whether this burden was met is reviewed under the clearly erroneous standard.” Donovan, at ¶ 8. “A false affidavit statement under Franks is one that misleads the neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate's evaluation of whether or not there is probable cause.” Donovan, at ¶ 7 (quoting State v. Jones, 2002 ND 193, ¶ 10, 653 N.W.2d 668). “When there is a claim statements are misleading because important information was omitted, the defendant has the burden to show: (1) that law enforcement omitted facts with the intent or in reckless disregard of whether they made the affidavit misleading, and (2) the affidavit would not have been sufficient to support a finding of probable cause if the omitted information had been included.” State v. Poitra, 2010 ND 137, ¶ 17, 785 N.W.2d 225.

[¶ 9] D.O. argued Fullerton's Facebook affidavit falsely stated D.O.'s shoe prints were found at the burglary scenes. Examination of the search warrant affidavit reveals Fullerton twice referenced shoe prints found at the crime scenes. Fullerton claimed the burglaries were connected because “[t]wo distinct sets of footprints have been found on at least three (3) incidents.” He then stated:

“That I am requesting a search warrant be obtained for these individuals' accounts based on known Facebook activity, and other factors, including but not limited to: Crime stopper's tips being received that these subjects are involved, a Confidential Informant, who has been proven to be a reliable source, relaying information pertaining to their involvement, known cell phone activity in the area of the burglaries, and matching shoe prints at the burglary sites.”

(Emphasis added.) Fullerton listed matching prints as one of several reasons justifying a search warrant for the four named individuals' Facebook accounts. Reading the affidavit in its entirety shows the mention of the shoe prints connected the burglaries to one another, rather than specifically to D.O. At most, this suggested the matching shoe prints possibly belonged to one of the four named individuals against whom Fullerton sought the warrant. This is not enough to show intentional fraud or reckless disregard of whether the affidavit was misleading.

[¶ 10] We also must ask whether the affidavit would not have been sufficient to support finding probable cause if the omitted information was included. Poitra, 2010 ND 137, ¶ 17, 785 N.W.2d 225. Had Fullerton explicitly included that he was unsure whether the matching shoe prints were connected to the named individuals in the affidavit, sufficient evidence to support a finding of probable cause still existed, as discussed in section IV below.

[¶ 11] The juvenile court was not clearly erroneous in finding D.O. failed to show Fullerton supported his search warrant affidavit with false or misleading information.

IV

[¶ 12] D.O. argues insufficient probable cause existed to issue the search warrant.

[¶ 13] “The existence of probable cause [to issue a search warrant] is a question of law.” State v. Dodson, 2003 ND 187, ¶ 9, 671 N.W.2d 825. “Probable cause to search does not require the same standard of proof necessary to establish guilt at a trial; rather, 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.” Donovan, 2004 ND 201, ¶ 13, 688 N.W.2d 646 (quoting Jones, 2002 ND 193, ¶ 14, 653 N.W.2d 668). “Probable cause to search exists ‘if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.’ ” State v. Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861 (citation omitted). “This Court reviews a search warrant's validity using the totality-of-the-circumstances approach, independentof the district court's determination.” State v. Proell, 2007 ND 17, ¶ 12, 726 N.W.2d 591. “We consider all information for probable cause together, and we test affidavits executed in support of a warrant in a commonsense and realistic fashion.” Id. “We generally defer to a magistrate's determination of probable cause if a substantial basis for the conclusion exists, and doubtful or marginal cases should be...