State v. Berger

• Decision Date: 26 September 1979
• Docket Number: Cr. N
• Citation: 285 N.W.2d 533
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. William J. BERGER, Defendant and Appellant. o. 679.
• Court: North Dakota Supreme Court

Page 533

285 N.W.2d 533

STATE of North Dakota, Plaintiff and Appellee, v. William J. BERGER, Defendant and Appellant.

Cr. No. 679.

Supreme Court of North Dakota.

Sept. 26, 1979.

Thomas Tuntland, Morton County States Atty., Mandan, for plaintiff and appellee; argued by Mr. Tuntland.

Chapman & Chapman, Bismarck, for defendant and appellant; argued by Daniel J. Chapman, Bismarck.

ERICKSTAD, Chief Justice.

The defendant appeals from a judgment of conviction entered on March 27, 1979 in the Morton County District Court. We affirm.

The defendant, William J. Berger, was convicted on two counts of a violation of Section 19-03.1-23, N.D.C.C., one count referring to delivery of a controlled substance (marijuana) and the other possession of a controlled substance with the intent to deliver (marijuana). The facts that led up to this conviction are as follows:

During the summer of 1978, Peter Blotsky, a Mandan police officer, became acquainted with Susan Blaser, a 16-year-old high school junior, while both were working at a service station in Mandan, North Dakota. According to Blotsky, Blaser approached him sometime in October of 1978 and asked him if he wanted to try marijuana, and a few days later, Blaser again approached Blotsky and offered to get him some marijuana for $45 a bag. Blotsky subsequently reported this conversation to his superiors, and it was decided that an attempt to buy would be made.

A few days prior to November 3, 1978, Blotsky telephoned Blaser at her home and asked her if the deal was still on. She replied that it was, and arrangements were made to meet at the parking lot of the Choice Cut restaurant in Mandan at approximately 7:00 p. m. on November 3rd.

Prior to that meeting, Mandan police detective Dennis Bullinger obtained $45 in cash two twenty-dollar bills and a five-dollar bill from the police narcotics fund, and these bills were photocopied, marked with invisible ink and given to Officer Blotsky. Blotsky then went to the arranged meeting spot.

Shortly thereafter, Susan Blaser arrived, but she didn't have the marijuana, so arrangements were made to meet later that evening. At approximately 8:30 p.m. that same evening, Blotsky again met Blaser, who was now accompanied by LuAnn Caya. Blaser stated that she first needed the money in order to purchase the marijuana, so Blotsky handed her the $45 in marked bills. He then followed the two girls to a parking lot of a store at the Twin City Estate Trailer Court in Mandan. There the girls left Blotsky to wait while they purchased the marijuana at the defendant Berger's mobile home, located at 1008 South Frontier in the City of Mandan, with the money Officer Blotsky had given them.

The two girls returned shortly, and the marijuana was delivered to Blotsky at the original meeting spot. Blotsky then radioed Detective Bullinger and Officer Steve Anderson, and they stopped Blaser's car and took the girls to the Mandan Police Department where they were turned over to the juvenile authorities.

At about 11:30 p. m. that same evening of November 3, 1978, application was made for a warrant to search Berger's residence at 1008 South Frontier in Mandan for marijuana, two twenty-dollar bills and one five-dollar bill. The application was heard by the Honorable William G. Engelter, Judge of the Morton County Court of Increased Jurisdiction.

Sworn, recorded testimony was given in support of the search warrant by Mandan police officers Peter Blotsky and Dennis Bullinger, and by LuAnn Caya and Susan Blaser.

Based on the sworn testimony of these four witnesses, Judge Engelter concluded that there was probable cause to believe that marijuana and the marked bills were in Berger's residence or on his person, and he issued a search warrant for Berger's residence, directing that it could be executed at any time of the day or night.

Officers Blotsky and Bullinger, who had been joined by Mandan police officers Steve Anderson and Ardel Quam, then left for Berger's residence. None of the officers were in uniform, so they requested assistance from a uniformed officer to gain entry to Berger's home.

Mandan Chief of Police, Hugo Ternes, joined the four officers outside Berger's residence. An orderly search of the residence was then conducted, resulting in the discovery of twenty bags of marijuana and the marked bills. The officers then gave Berger an inventory of the property seized and left the trailer home.

The following Monday, November 6, 1978, Berger was charged with the two counts upon which he was ultimately convicted.

On December 1, 1978, Berger filed a motion to suppress the evidence seized pursuant to the search warrant. The motion was denied in all respects on February 7, 1979, and on February 14, 1979, Berger was convicted on two counts of a violation of Section 19-03.1-23, N.D.C.C., one count pertaining to delivery of a controlled substance and the other count relating to possession of a controlled substance with the intent to deliver. He appeals to this court from that conviction.

Berger raises several issues on appeal which can be summarized as follows:

(1) Errors in connection with the motion to suppress, and the issuance and execution of the search warrant;

(2) Error in refusal to submit the entrapment defense to the jury;

(3) Error in connection with the admission of evidence when the necessary chain of custody is supplied only by a witness who changed his previous sworn testimony;

(4) Error in failing to grant a motion for acquittal at the close of the State's case; and

(5) Error in failing to comply with the mandatory sentencing provisions.

We will first determine issue (1) which otherwise stated is whether or not the search warrant was issued without probable cause.

The Fourth Amendment to the United States Constitution, Section 18 of the North Dakota Constitution, and Rule 41(c) of the North Dakota Rules of Criminal Procedure, require that probable cause be established prior to the issuance of a search warrant. This requirement guarantees a substantial probability that the invasions involved in a search will be justified.

The United States Supreme Court has said:

"Probable cause under the Fourth Amendment exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed." Berger v. State of New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040, 1050 (1967).

Whether or not probable cause exists depends on the facts and circumstances of each case, but probable cause to search does not require a prima facie showing of criminal activity. Rather, it relates to the factual and practical considerations of everyday life on which reasonable and prudent men act. Iverson v. State of North Dakota, 480 F.2d 414 (8th Cir. 1973), Cert. den. 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 335 (1973); State v. Mertens,268 N.W.2d 446 (N.D.1978).

The United States Supreme Court has long expressed a strong preference for the use of search warrants over searches without warrants. This preference has resulted in a subtle difference between the probable cause required to sustain a search conducted with a search warrant and the probable cause required to sustain a search conducted without a search warrant. The Court, in United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965) stated:

"This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the 'underlying circumstances' upon which that belief is based. . . . Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a common-sense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants."

Probable cause for a search pursuant to a warrant must turn on the facts before the magistrate, and substantial deference will be given to judicial determinations of probable cause. In doubtful or marginal cases, a search under a warrant may be sustainable where without one it would fall. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); State v. Iverson, 187 N.W.2d 1 (N.D.1971), Cert. den. 404 U.S. 956, 92 S.Ct. 322, 30 L.Ed.2d 273 (1971). As long as there is a substantial basis for the magistrate to conclude that narcotics were probably present, and the magistrate is performing his 'neutral and detached' function and not serving as merely a rubber stamp for the police, the judicial determination of probable cause will be sustained.

In the instant case, at approximately 11:30 p. m. on November 3, 1978, application was made for a warrant to search Berger's residence at 1008 South Frontier in Mandan. The items to be searched for included marijuana, two twenty-dollar bills, and one five-dollar bill.

In accordance with Rule 41(c), N.D.R.Crim.P., sworn and recorded testimony was given in support of the search warrant by Mandan police officers Peter Blotsky and Dennis Bullinger, and by LuAnn Caya and Susan Blaser, two 16-year-old girls.

The pertinent testimony given by these individuals may be summarized as follows:

Officer Blotsky testified that he had...