State Of N.D. v. Huether

• Decision Date: 02 December 2010
• Docket Number: No. 20100018.,20100018.
• Citation: 2010 ND 233,790 N.W.2d 901
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Ray Leon HUETHER, Defendant and Appellant.
• Court: North Dakota Supreme Court

790 N.W.2d 901

2010 ND 233

STATE of North Dakota, Plaintiff and Appellee

v.Ray Leon HUETHER, Defendant and Appellant.

No. 20100018.

Supreme Court of North Dakota.

Dec. 2, 2010.

COPYRIGHT MATERIAL OMITTED.

Kelly Ann Dillon, Assistant State's Attorney, Minot, N.D., for plaintiff and appellee.

Kent M. Morrow, Bismarck, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Ray Huether appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition. We hold the district court's denial of Huether's motion to suppress is supported by sufficient competent evidence and is not contrary to the manifest weight of the evidence. We also conclude the court did not rely upon an impermissible factor in sentencing Huether. We affirm.

I

[¶ 2] The State charged Huether with possession of child pornography and with gross sexual imposition for allegedly engaging in sexual acts with a child less than six years of age between April 2006 and August 2007. During that time, Huether lived with the child's mother, the child, and the child's brother in Huether's house in Minot. Huether subsequently began working in Fargo and moved there in 2007, but returned to Minot on weekends for several months. According to the child's mother, she ended her relationship with Huether in February 2008, but he continued to allow the child's family to live in his Minot house.

[¶ 3] In June 2008, the child's mother reported to Minot police the child had revealed that Huether had engaged in oral sex with the child on several occasions. During an interview at the Northern Plains Children's Advocacy Center, the child stated Huether had engaged in oral sex with her on several occasions in “Ray's office” in the basement of Huether's Minot house. On June 23, 2008, Minot Police Officer David Goodman went to Huether's Minot house without a warrant to meet with the child's mother and entered Huether's basement office to see where the child said the sexual acts had occurred. According to the officer, he initially believed the house belonged to the child's family and the mother had access to the whole house. The officer testified he observed some pornography and computer and video equipment in “Ray's office,” and while in the office, he saw a utility bill in Huether's name and then learned Huether owned the house. The officer testified the child's mother then informed him that while Huether lived in the house, the office was “basically off limits” to the child's family. According to the officer, he then left Huether's basement office. Partly on the basis of the officer's entry into Huether's basement office, Minot police officers subsequently obtained and executed a warrant to search Huether's Minot house, resulting in the seizure of some evidence.

[¶ 4] Five weeks later, at about 7:45 in the morning, six law enforcement officers executed a search warrant for a house in Fargo where Huether rented a basement bedroom. The owner of the house let the officers into the house and led Officer Goodman to a main floor bedroom where Huether was lying in bed. According to Officer Goodman, Huether was told he was not under arrest, he was free to leave, and he did not have to answer any questions, and Huether stated he understood. While the other officers executed the search warrant, Officer Goodman interviewed Huether in the main floor bedroom regarding the child's allegations. Huether was not given a warning under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before he was interviewed. The entire interview lasted approximately two hours, and during a recorded part of the interview, Huether made several incriminating statements about engaging in oral sex with the child. Shortly after the interview and completion of the search, Huether was arrested and charged with gross sexual imposition and with possession of child pornography.

[¶ 5] Huether moved to suppress all evidence seized after the warrantless entry into his office in the Minot house and the incriminating statements he made to police at the Fargo house. Huether claimed Officer Goodman failed to obtain valid consent to enter his office in his Minot house. Huether also claimed the incriminating statements to police at the Fargo house were made before he received a Miranda warning and violated his right against self-incrimination.

[¶ 6] After hearing, the district court denied Huether's motion to suppress evidence obtained after the entry into his office in his Minot house, ruling that when the officer initially entered the office, he reasonably believed the child's mother had common authority and control over the premises and thus obtained valid third-party consent from the child's mother to enter the office. The court denied Huether's motion to suppress some incriminating statements made to law enforcement officers at the Fargo house, ruling he was free to leave the area and was not under arrest or in custody when he made those statements. The court ultimately severed the two criminal charges, and a jury found Huether guilty of gross sexual imposition.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Huether's appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 8] In City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994), we established the standard of review of a district court's decision on a motion to suppress evidence:

A trial court's findings of fact in preliminary proceedings of a criminal case will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, 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. City of Grand Forks v. Risser, 512 N.W.2d 462, 464 (N.D.1994) (request for second alcohol test); State v. Murray, 510 N.W.2d 107, 109 (N.D.1994) (voluntariness of confession); State v. Nelson, 488 N.W.2d 600, 602 (N.D.1992) (reasonable suspicion to stop vehicle); State v. Everson, 474 N.W.2d 695, 704 (N.D.1991) (consent to search). We do not conduct a de novo review. State v. Discoe, 334 N.W.2d 466, 470 (N.D.1983). We evaluate the evidence presented to see, based on the standard of review, if it supports the findings of fact. See Risser; Murray; Nelson; Everson; Discoe.

III

[¶ 9] Huether argues the district court erred in denying his motion to suppress all seized evidence stemming from the warrantless entry into his office in his Minot house. He argues the entry into his office violated the Fourth Amendment and all subsequent evidence obtained as a result of that illegal entry was inadmissible. He claims the child's mother did not have common authority over his office and was required to receive permission from him to enter the office. He asserts Officer Goodman made no attempt to ascertain the ownership of the house or the office and the officer's belief about the child's mother's authority was not reasonable. Huether contends the officer's failure to ask the child's mother basic questions about ownership before entering the house was unreasonable.

[¶ 10] The Fourth Amendment to the United States Constitution protects against unreasonable searches and generally prohibits the warrantless entry of a person's home. State v. Zimmerman, 529 N.W.2d 171, 174 (N.D.1995). Voluntary consent is an exception to the warrant requirement, and the prohibition against warrantless entries of a person's home does not apply when voluntary consent has been obtained from the individual whose property is searched, or from a third party who possesses common authority over the premises. Fischer, 2008 ND 32, ¶ 12, 744 N.W.2d 760; Zimmerman, 529 N.W.2d at 174. In Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), the United States Supreme Court held the Fourth Amendment is not violated if police officers reasonably believe a consenting third party has common authority over the premises, explaining:

[The] determination of consent to enter must “be judged against an objective standard: would the facts available to the officer at the moment ... ‘warrant a man of reasonable caution in the belief’ ” that the consenting party had authority over the premises? Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). If not, then warrantless entry without further inquiry is unlawful unless authority actually exists. But if so, the search is valid.

Under Rodriguez, there is no Fourth Amendment violation if police officers reasonably believe a consenting third party has authority over the property, when viewed from the officers' perspective. Fischer, at ¶ 12; Zimmerman, at 174-75.

[¶ 11] Here the issue is whether the child's mother had apparent authority to permit Officer Goodman to enter Huether's office, which involves whether the officer reasonably believed the child's mother had authority over the premises when he entered the office. According to Officer Goodman, he initially believed the house belonged to the child's family and the mother had access to the whole house. The officer testified he observed some pornography and computer and video equipment in “Ray's office,” and while in the office, he saw a utility bill in Huether's name and then learned Huether owned the house. The officer testified the child's mother then informed him that while Huether lived in the house, the office was “off limits” to the child's family. According to the officer, he then left Huether's basement office.

[¶ 12] The district court found that when Officer Goodman entered Huether's office with the child's mother, it was reasonable for him to believe the mother had control of the house, and even after he learned Huether owned the house, it would not have been unreasonable to believe the child's mother had common authority over the...