State v. Ballweg

• Citation: 2003 ND 153,670 N.W.2d 490
• Decision Date: 23 October 2003
• Docket Number: No. 20030053., No. 20030051, No. 20030052
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Darren BALLWEG, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee, v. Kathy Materi, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

670 N.W.2d 490

2003 ND 153

STATE of North Dakota, Plaintiff and Appellee, v. Darren BALLWEG, Defendant and Appellant.

State of North Dakota, Plaintiff and Appellee, v. Kathy Materi, Defendant and Appellant.

Nos. 20030051, 20030052, 20030053.

Supreme Court of North Dakota.

October 23, 2003.

R. Scott Stewart, State's Attorney, Langdon, ND, for plaintiff and appellee.

Lindsey D. Haugen (argued) and Steven M. Light, Larivee & Light, Grand Forks, ND, for defendants and appellants.

VANDE WALLE, Chief Justice.

[¶ 1] Darren Ballweg ("Ballweg") appealed from the trial court judgments and convictions following his conditional guilty pleas to manufacturing methamphetamine and theft of property. Kathy Materi ("Materi") appealed a trial court judgment and conviction following her conditional guilty plea for manufacturing methamphetamine. They contend the trial court erred in denying their motion to suppress evidence seized while executing a search warrant. We affirm.

I

[¶ 2] On April 9, 2002, a district judge issued a search warrant for Ballweg and Materi's premises. Chief Deputy Greg Fetsch prepared the affidavit requesting the search warrant. The affidavit contained information regarding events which occurred between March 2 and April 9, 2002. Deputy Fetsch stated that on March 2, Dale Kuchar of the Nekoma Farmers Elevator reported a full anhydrous tank was missing from its inventory and had to be assumed stolen. On March 11, Kuchar reported someone had seen the anhydrous tank in Ballweg's yard.

[¶ 3] Deputy Fetsch and Sheriff Zeis went to Ballweg's farmyard. Ballweg was there when they arrived. It appeared he was in the process of unloading the contents of a trailer into a burning barrel. Fetsch and Zeis questioned Ballweg. Deputy Fetsch stated Ballweg was "very nervous." Ballweg informed the officers he received the anhydrous tank the previous fall and never used it on his crops because it snowed. The officers went to look at the tank and noticed its gauge read 86 percent, and it "appeared to have been there for a while as there were no fresh tracks around." Ballweg did not accompany the officers to look at the tank but instead got into his vehicle and drove away. Deputy Fetsch stated this was "very suspicious behavior," but he did not explain why.

[¶ 4] As they were walking back to their vehicle Ballweg returned and spoke to the officers. He told them he used the anhydrous to gas some rats on the farm. He stated he could not remember whether he picked the tank up from the elevator or whether it had been delivered. As the officers were leaving the farm, they noticed a garage on the property had its windows boarded up, its door padlocked from the outside, and one side completely covered with a blue tarp. Deputy Fetsch stated, "This made us suspicious as to why it was concealed so no one could look inside it."

[¶ 5] After leaving Ballweg's farmyard, Deputy Fetsch went to the Nekoma Elevator to speak with Kuchar. Kuchar stated there was no record of the tank being removed from the elevator. He explained the process Nekoma used for keeping track of tanks and told Fetsch that Ballweg had called and told him he used some of the anhydrous to gas rats on the farm. Deputy Fetsch stated, "Anhydrous ammonia is a key ingredient in the manufacture of methamphetamine."

[¶ 6] Deputy Fetsch told Kuchar to go get the tank and see if any anhydrous was missing from it. Kuchar reported one hundred pounds was missing. Deputy Fetsch spoke with Ballweg's father who stated they received the tank in October and could not apply the anhydrous because of snow.

[¶ 7] On April 7, Deputy Fetsch received a report that Ballweg bought some items used in the process of making methamphetamine from the Devils Lake Wal-Mart. Along with other purchases, Ballweg "purchased 3 boxes of Sudafed, 96 count per box, 2 packages of 4 AA Lithium batteries, 2 packages of non-latex rubber gloves, 1 package of latex gloves, and 2 boxes of baking soda." Deputy Fetsch stated:

Sudafed and lithium from that type of battries (sic) is also key ingredients used in the manufacturing of methamphetamine. Baking soda is commonly used as a cutting agent in meth manufacturing. Gloves are also used by the manufacturers of methamphetamine because of the toxcity (sic) of the chemicals and the anhydrous will burn hands that are unprotected by rubber gloves.

[¶ 8] The affidavit also contained information Deputy Fetsch received from North Dakota Highway Patrolman Dana King. The previous Friday night, Trooper King followed a suspicious vehicle registered to Chad Lee into Ballweg's yard at 2:00 a.m. Trooper King pulled into the yard and checked out Lee. While this was occurring, Ballweg came out of the house to see what was going on and instead of talking with them he got a flashlight out of a vehicle and came back. Trooper King found this suspicious because they were parked under a yard light, but he did not explain why. According to the affidavit, Ballweg stated he knew Lee when asked by King. Deputy Fetsch discovered Lee recently got off probation for felony possession of methamphetamine and misdemeanor possession of marijuana.

[¶ 9] Deputy Fetsch concluded the affidavit by describing the land Ballweg and his father farmed. He found there were buildings "capable of housing a meth lab" at three different locations. Based upon the foregoing information, a search warrant was issued for Ballweg's premises. As a result of the evidence discovered during the search, Ballweg and Materi were each charged with manufacturing methamphetamine and Ballweg was charged with theft of property.

[¶ 10] Ballweg and Materi filed a motion to suppress the evidence seized during the search. The trial judge denied the motion, holding there was probable cause to issue the search warrant and, even if there was not, the good faith exception to the exclusionary rule applied. On appeal, they contend the affidavit did not establish probable cause to search and the good faith exception to the exclusionary rule should not apply to this situation.

II

[¶ 11] The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, § 8 of the North Dakota Constitution require searches and seizures to be reasonable and warrants to be issued only upon a showing of probable cause. The existence of probable cause is a question of law. State v. Rangeloff, 1998 ND 135, ¶ 16, 580 N.W.2d 593. "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 (quoting State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995)).

[¶ 12] The totality-of-the-circumstances test is used to determine whether sufficient evidence was presented to a magistrate to establish probable cause, independent of the trial court's findings. State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912.

"Although each bit of information ..., by itself, may not be enough 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 ... which is not weighed in individual layers but in the `laminated' total."`"

Id. (citations omitted). The magistrate evaluates all the evidence and makes a practical, common sense decision whether probable cause exists to search a particular place. Id. at ¶ 6. We generally defer to a magistrate's determination of probable cause so long as there was a substantial basis for the conclusion, and doubtful or marginal cases should be resolved in favor of the magistrate's determination. Id.

[¶ 13] Ballweg and Materi contend Deputy Fetsch's affidavit did not establish probable cause. They contend the information in the affidavit was misleading, conclusory, and described normal, everyday conduct.

IV

[¶ 14] Ballweg and Materi argue the affidavit was misleading because it falsely implied the anhydrous tank was stolen even though Deputy Fetsch knew before he submitted the affidavit that the tank had not actually been stolen. Ballweg and Materi rely on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), which was applied by this Court in State v. Morrison, 447 N.W.2d 272, 274 (N.D.1989). Under Franks:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Franks, at 155-56, 98 S.Ct. 2674. "The Franks standard has been extended to statements that are misleading by omission." State v. Holzer, 2003 ND 19, ¶ 7, 656 N.W.2d 686 (citing Rangeloff, 1998 ND 135, ¶ 9, 580 N.W.2d 593). Negligent or innocent mistakes are not enough to establish reckless or deliberate falsity. Damron, 1998 ND 71, ¶ 9, 575 N.W.2d 912. The alleged misleading facts must affect the magistrate's determination of probable cause. Morrison, at 274. Whether there is reckless or deliberate falsity is a finding of fact and is reviewed under the clearly erroneous standard. Damron, at ¶ 10 (quoting Morrison, at 275). "A finding of fact is...