State v. Albaugh, 20060334.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: Kapsner
• Citation: 2007 ND 86,732 N.W.2d 712
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Ronald Gene ALBAUGH, Defendant and Appellant.
• Docket Number: No. 20060334.,20060334.
• Decision Date: 07 June 2007

732 N.W.2d 712 2007 ND 86 STATE of North Dakota, Plaintiff and Appellee
v.
Ronald Gene ALBAUGH, Defendant and Appellant. No. 20060334. Supreme Court of North Dakota. June 7, 2007.

[732 N.W.2d 714]

Tracy Jo Peters, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

William Kirschner, Fargo, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Ronald Albaugh appeals from a judgment entered upon a N.D.R.Crim.P. 11 conditional plea agreement, which reserved the right to appeal the court's denial of his motion to suppress evidence. Concluding the officer was engaged in a

732 N.W.2d 715

valid community caretaking encounter when he entered the premises and was acting upon the express consent of the defendant when he discovered the illegal contraband in plain view, we affirm.

I

[¶ 2] On September 17, 2005, West Fargo police officer Ken Zeeb was dispatched to a commercial shop structure in West Fargo. The building's landlord, Norm Diede, had called the police department to check on his property after he had served an eviction notice on a tenant. Diede was concerned someone was still in possession of the premises. Diede stated he wanted the police present just in case someone was there and to prevent any problems that may arise if he encountered anyone at the shop.

[¶ 3] Upon arriving at the shop, Zeeb spoke with Diede outside. Diede informed the officer that he was "there to verify that everybody and everything had been removed, and he wanted the West Fargo Police there in case somebody was there and there would be problems that would arise." While Diede entered the building, Zeeb stood in the doorway. Zeeb heard Diede speaking with someone inside, so he entered the shop until he could see the person with whom Diede was speaking. Diede was speaking with the defendant, Albaugh. Albaugh's brother, Robert, owned Albaugh Construction, the tenant business. Albaugh had been sleeping at the shop in the upstairs office/loft area with Robert Albaugh's permission.

[¶ 4] Zeeb asked Albaugh if he had any identification on him. Albaugh tried to find his identification in a vehicle inside the shop. When he could not find it, he told Officer Zeeb it might be upstairs. Zeeb asked if Albaugh minded if he came up with him. Albaugh responded, "Okay, and motioned with his hand for [Zeeb] to follow him." Zeeb followed Albaugh upstairs. In plain view on the coffee table, Zeeb noticed a small baggie of what he thought was methamphetamine and some marijuana paraphernalia. Upon seeing this contraband, Zeeb arrested Albaugh.

[¶ 5] Immediately following the arrest, Zeeb searched the area in the immediate vicinity of the defendant. During this search, Officer Zeeb located additional drug paraphernalia. Zeeb then moved Albaugh from the upstairs area and placed him in the patrol car. Zeeb called in a detective to question Albaugh. Detective Brad Berg arrived at the scene shortly after the call. Berg Mirandized Albaugh and questioned him. During the questioning, Albaugh conceded the drug paraphernalia Officer Zeeb found was his. Albaugh told Detective Berg that there was more paraphernalia in one of the cars outside the shop. Before retrieving the paraphernalia, Detective Berg asked Albaugh if he would consent to a broader search of the shop and the vehicles. Albaugh orally consented, but Detective Berg prepared a written consent to memorialize the agreement. The written consent allowed the officers to search the entire shop and several vehicles located on the premises. The written consent provided that the search was voluntary and was not premised on any threats or promises being made. Albaugh was informed verbally and in writing that he could refuse to sign the consent form. Albaugh was given time to read the consent form and to ask questions about it. After reading the consent, Albaugh signed it. The officers then retrieved the drug paraphernalia Albaugh had mentioned during his conversation with Detective Berg.

[¶ 6] Albaugh moved to suppress the evidence on the basis that Officer Zeeb illegally entered the shop without a warrant and all subsequently found items should be suppressed because they are the

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"fruit of the poisonous tree." The district court denied Albaugh's motion.

II

[¶ 7] On appeal, Albaugh argues the evidence should have been suppressed because Officer Zeeb did not have a warrant and had no permission or authority to enter the shop. The State argues Officer Zeeb was engaged in a proper community caretaking function, which did not constitute a "search" for Fourth Amendment purposes. The State also argues the evidence seized without a warrant falls within the "plain view" exception to the search warrant requirement and the subsequent searches of the shop and vehicles were valid under the "consent" exception to the search warrant requirement.

III

[¶ 8] The standard of review for a district court's decision on a motion to suppress evidence is well established. As this Court recently wrote in State v. Goebel, 2007 ND 4, 725 N.W.2d 578:

When reviewing a district court's ruling on a motion to suppress, we defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. We recognize that the district court is in a superior position to assess the credibility of witnesses and weigh the evidence. State v. Woinarowicz, 2006 ND 179, ¶ 20, 720 N.W.2d 635 (citations omitted). 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. Id. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. Graf, at ¶ 7.

Goebel, at ¶ 11. In this case, the district court held:

1. The entry of Officer Zeeb into the premises was a legitimate activity, not protected by the Fourth Amendment.

2. The subsequent seizure of items found on the coffee table was pursuant to the plain view exception after the Defendant consented to have the officer follow him upstairs.

3. The items in Defendant's immediate area were found subsequent to a search incident to a valid arrest.

4. After the Defendant's arrest, the rest of the [property] was found pursuant to a signed written consent, and is therefore valid.

5. The motion to suppress is DENIED.

IV

[¶ 9] Albaugh argues Officer Zeeb's initial entry into the shop was illegal. Under the circumstances, we conclude Zeeb's entry was reasonable.

[¶ 10] "Unreasonable searches and seizures are prohibited by the U.S. Const. amend. IV and N.D. Const. art. I, § 8." Woinarowicz, 2006 ND 179, ¶ 21, 720 N.W.2d 635. Generally, a warrantless entry and search is constitutionally impermissible unless it falls within a recognized exception to the search warrant requirement. See id.; State v. Genre, 2006 ND 77, ¶ 17, 712 N.W.2d 624. The warrant requirement protects an individual's reasonable expectations of privacy. See State v. Proell, 2007 ND 17, ¶ 8, 726 N.W.2d 591. As a long-term guest, Albaugh had a reasonable expectation of privacy in the shop. State v. Oien, 2006 ND 138, ¶¶ 8-9, 717 N.W.2d 593; State v. Ackerman, 499 N.W.2d 882, 884 (N.D.1993) (citing Minnesota

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v. Olson, 495 U.S. 91, 98-99, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990)). Because this property was commercial, however, Albaugh's expectation of privacy is less than it would be in a residential property. See New York v. Burger, 482 U.S. 691, 699-700, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987) ("An expectation of privacy in commercial premises . . . is different from, and indeed less than, a similar expectation in an individual's home.").

[¶ 11] Not all police encounters implicate the Fourth Amendment. This Court has recognized "several permissible types of law enforcement-citizen encounters, including: (1) arrests, which must be supported by probable cause; (2) `Terry' stops, seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which do not constitute Fourth Amendment seizures." State v. Boyd,...