State v. Bollingberg, No. 20020348-20020350.

• Decision Date: 28 January 2004
• Docket Number: No. 20020348-20020350.
• Citation: 2004 ND 30,674 N.W.2d 281
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Brian BOLLINGBERG, Defendant and Appellant.
• Court: North Dakota Supreme Court

674 N.W.2d 281

2004 ND 30

STATE of North Dakota, Plaintiff and Appellee v. Brian BOLLINGBERG, Defendant and Appellant.

Nos. 20020348-20020350.

Supreme Court of North Dakota.

January 28, 2004.

Kathleen K. Trosen, State's Attorney, Fessenden, N.D., for plaintiff and appellee.

Steven M. Light of Larivee & Light, Grand Forks, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Brian Bollingberg is appealing from a Southeast Judicial District Court criminal judgment and commitment after a jury convicted him of a class A misdemeanor and two class B felonies for deceptive writings. Brian Bollingberg argues the district court erred in denying his motion to suppress evidence he claims was obtained in violation of the Fourth Amendment. He also argues the district court erred in denying his motion for judgment of acquittal on the misdemeanor count. Because Bollingberg's motion to suppress was properly denied, we affirm.

I

[¶ 2] In January 2001, two separate complaints were filed, each charging Brian Bollingberg with deceptive writings. In April 2001, another complaint was filed, charging Bollingberg with the same. The charges against Bollingberg arose from his separate dealings with two individuals. His felony charges arose from dealings with Delmer Sukut, who had filed a civil suit against Bollingberg regarding missing cattle he had left at Bollingberg's place. Bollingberg's answer to the civil suit included two bills of sale listed as exhibit A and exhibit B, now State's exhibits 3 and 4. These documents were signed; however, the signatures were forged. The documents purported to be signed by Sukut; however, he testified he had not signed these documents.

[¶ 3] The misdemeanor charge arose from dealings with Alan Klain and Jayson Walker. Klain and Walker purchased thirty head of cattle from Bollingberg for $875 per head and were informed the cattle should all give birth in May 2000. A bill of sale was given in exchange for the payment. Eight of the cows did not give birth, and Bollingberg told Klain and Walker he would exchange the cows for cow-calf pairs. Klain and Walker dropped off their cows but did not receive the cow-calf pairs. They did, however, receive $550 for each cow they returned. A signed bill of sale was sent with this payment. The bill of sale contained what purported to be Klain's signature; however, Klain testified he had not signed the bill of sale.

[¶ 4] In June 2001, Fred Frederikson, the East River Fieldman for the North Dakota Stockmen's Association, applied to the Southeast Judicial District Court for a search warrant to search the premises, outbuildings, vehicles, and curtilage at Brian Bollingberg's residence (15 County Highway 5, Bremen, County of Wells, North Dakota); to search for all books and records relating to the sale or lease of cattle, including computer records and branding irons and tags; and to search for all evidence relating to the creation of deceptive, traced, forged, or altered writings. Frederikson investigates illegal activities relating to livestock within the State of North Dakota.

[¶ 5] In his affidavit, Frederikson alleged he received a complaint from Sukut about missing cattle kept at Bollingberg's farm. The affidavit alleged Bollingberg failed to make contract payments to Sukut and a civil collection action was pending between the parties. Frederikson further alleged that Sukut claimed his signatures on several exhibits attached to Bollingberg's answer in the civil action were forged. He alleged these documents had been submitted to a handwriting expert who concluded it was probable they were traced forgeries. He alleged he has been in the personal residence of Bollingberg and has observed cattle business records at the residence on prior occasions. He stated that he believed there was probable cause to search the premises, outbuildings, vehicles, and curtilage at Bollingberg's residence.

[¶ 6] The search warrant stated there was probable cause to believe the property so described was being concealed at the outbuildings, vehicles, and curtilage at Brian Bollingberg's residence, and it authorized a search of the same. The probable cause and command portions of the search warrant did not mention premises.

[¶ 7] On June 27, 2001, Frederikson and numerous other law enforcement officers searched Bollingberg's house, and several items of evidence were taken, including State's exhibit 14, a bill of sale signed by Alan Klain; State's exhibit 16, a blank bill of sale; State's exhibit 17, Bollingberg's computer; State's exhibit 53, a brand release book; and State's exhibit 54, a brand release book.

[¶ 8] On March 26, 2002, Bollingberg moved to suppress the evidence found in his house. On April 4, 2002, a suppression hearing was held, and Bollingberg's motion to suppress was denied. During the trial on the charges for deceptive writings, Bollingberg moved for a judgment of acquittal on the misdemeanor charge because he felt a reasonable person could not conclude his conduct exhibited intent to deceive or intent to harm. Bollingberg's motion was denied. The jury found Bollingberg guilty of all charges. This appeal followed.

[¶ 9] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was 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. §§ 29-01-12 and 29-28-06.

II

[¶ 10] Bollingberg argues the district court erred in denying his motion to suppress evidence found during the search of his house, because the search warrant did not provide for such a search and because the good-faith exception to the exclusionary rule did not apply in this case.

[¶ 11] The State argues Bollingberg did not properly preserve this issue on appeal, because he misstated the date of the search and did not include a copy of the brief in support of the motion to suppress in his appendix. The State does not cite any authority to support its argument. An argument without relevant authority or citation is assumed to be without merit. Peters-Riemers v. Riemers, 2002 ND 49, ¶ 7, 641 N.W.2d 83. Further, a teleconference was held on April 4, 2002, during which the district court had an opportunity to intelligently rule on this issue. "`One of the touchstones for an effective appeal on any proper issue is that the matter was appropriately raised in the trial court so it could intelligently rule on it.'" State v. Anderson, 2003 ND 30, ¶ 6, 657 N.W.2d 245 (quoting State v. Osier, 1999 ND 28, ¶ 14, 590 N.W.2d 205). We conclude this issue was properly preserved.

[¶ 12] Bollingberg argues the search of his house exceeded the scope of the search warrant, because the command line did not provide for a search of his premises or the equivalent.

[¶ 13] When reviewing the district court's decision on a motion to suppress, we defer to the district court's findings of fact and resolve conflicts of testimony in favor of affirmance. State v. Tognotti, 2003 ND 99, ¶ 5, 663 N.W.2d 642. The district court's decision is affirmed unless there is no sufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence. Id. This standard recognizes the importance of the district court's opportunity to observe the witnesses and assess their credibility, and great deference is given to the district court in suppression matters. State v. Matthews, 2003 ND 108, ¶ 8, 665 N.W.2d 28. If the review involves a question of law, it is fully reviewable on appeal. Id.

[¶ 14] The Fourth Amendment provides protection from unreasonable searches and seizures. U.S. Const. amend. IV. A search and seizure has occurred if a person has a reasonable expectation of privacy in an area searched or in materials seized. Matthews, 2003 ND 108, ¶ 10, 665 N.W.2d 28. Warrantless searches inside a person's house are presumptively unreasonable. Id. (citing Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Generally, a search authorized by a search warrant is limited to the place described in the warrant and does not include additional or different places. State v. Erickson, 496 N.W.2d 555, 560 (N.D.1993).

[¶ 15] In this case, a search warrant was requested to search Bollingberg's house; however, the command line of the warrant did not authorize such a search. Further, the warrant did not state there was probable cause to search the house. The search warrant stated that Frederikson had alleged in his affidavit that the premises, outbuildings, vehicles, and curtilage at Bollingberg's residence contained evidence of the number and brands of cattle located at the premises; books and records relating to the sale or lease of cattle, including computer records and branding irons and tags; and evidence relating to the creation of deceptive, traced, forged, or altered writings, including computer records, which constituted evidence of a criminal offense.

[¶ 16] The search warrant stated there was probable cause to believe the property described was being concealed at the outbuildings, vehicles, and curtilage at Bollingberg's residence. The search warrant also authorized a search of the outbuildings, vehicles, and curtilage at Bollingberg's residence. The search warrant further authorized the seizure of all documents and computers relating to the foregoing for examination by law enforcement personnel.

[¶ 17] The district court concluded that the search warrant was not invalid and that a typographical error was likely the reason "premises" was not on the command line of the warrant. The court said it would have been reasonable for the officers to understand from the four corners of the document that something else needed to be searched. The district court explained that the second paragraph of the command portion of the warrant authorized seizure of computers and documents and that one would not likely find these things in outbuildings, vehicles, or...