State v. Borden, Cr. N

• Decision Date: 18 February 1982
• Docket Number: Cr. N
• Citation: 316 N.W.2d 93
• Parties: The STATE of North Dakota, Plaintiff and Appellant, v. Michael BORDEN, Defendant and Appellee. The STATE of North Dakota, Plaintiff and Appellant, v. Keith DOWTY, Defendant and Appellee. os. 780, 781.
• Court: North Dakota Supreme Court

Page 93

316 N.W.2d 93

The STATE of North Dakota, Plaintiff and Appellant, v. Michael BORDEN, Defendant and Appellee.

The STATE of North Dakota, Plaintiff and Appellant, v. Keith DOWTY, Defendant and Appellee.

Cr. Nos. 780, 781.

Supreme Court of North Dakota.

Feb. 18, 1982.

Richard L. Schnell, State's Atty., Mandan, for plaintiff and appellant.

No argument or briefs were presented on behalf of appellee Michael Borden.

Bair, Brown & Kautzmann, Mandan, for defendant and appellee Keith Dowty; argued by Dwight C. H. Kautzmann, Mandan.

PAULSON, Justice.

This is an appeal from the two orders suppressing evidence dated June 17, 1981, of the District Court of Morton County. We reverse.

Michael Borden rented motel Room No. 208 in the Seven Seas Motel, Mandan, North Dakota, on March 2, 1981. On the evening of Monday, March 2, 1981, Raymond Heidt, a security guard at the Seven Seas Motel, contacted Lieutenant Dennis Bullinger, a detective with the Mandan Police Department. Lieutenant Bullinger drove to the Seven Seas Motel and learned from Mr. Heidt that there was considerable activity going on in Room 208. Lieutenant Bullinger then checked the license number of an automobile which had been driven by a male visitor who was in Room 208 with Mr. Borden. Lieutenant Bullinger contacted the Bismarck Police Department and was informed that the automobile was registered to Kenneth Hessinger of Bismarck, a person who was allegedly active in local drug traffic. Lieutenant Bullinger then commenced a surveillance of Room 208 until approximately 2 a. m. of Tuesday, March 3, 1981.

During the evening of March 3, 1981, Lieutenant Bullinger was contacted by Mr. Barry Davis, the owner and manager of the Seven Seas Motel, who informed Bullinger that the security guard, Mr. Heidt, had overheard persons occupying Room 208 mention that they had "two pounds to get rid of". Shortly thereafter, Bullinger contacted the Morton County State's Attorney, Richard L. Schnell, who directed Bullinger to continue the surveillance of Room 208.

Bullinger, together with Captain Michael Quinn and Detective Donald Seifert of the Mandan Police Department, drove to the Seven Seas Motel to continue the surveillance of Room 208. Officers Quinn and Bullinger stationed themselves in Room 210, which was adjacent to Room 208. A short time later, an individual from Room 208 permitted the entrance of another person into the motel through a locked, outside door; both of them proceeded to Room 208. The two officers then overheard a discussion concerning money between two individuals in Room 208. Later, a person called "Danny" entered Room 208; subsequently, the officers overheard a discussion taking place in Room 208 with reference to "25 pounds".

As the officers were leaving Room 210 at approximately 2:30 a. m. on March 4, 1981, they noticed two wastebaskets located in the hallway just outside Room 208. They examined the contents of the wastebaskets and discovered what they believed to be marijuana (roaches), hypodermic syringe caps, bloody facial tissues, money due slips, marijuana seeds, and a hospital receipt issued to Mr. Borden.

The officers then left with these items, which they had removed from the two wastebaskets, and contacted the Morton County state's attorney in order to schedule a meeting with him early that morning. Lieutenant Bullinger then dispatched Officer Seifert and Mandan Patrolman Craig Sjoberg to the Seven Seas Motel to guard Room 208.

Officers Bullinger and Quinn then contacted Mr. Aaron E. Rash, supervisor of the Crime Laboratory of the State Laboratories Department, at his residence in Bismarck. Rash, after examining the materials which the officers had recovered from the wastebaskets, concluded as his opinion that one of the substances in the wastebaskets was marijuana. Verification tests were not conducted at that time to confirm Rash's opinion.

Officers Bullinger and Quinn then contacted the Morton County state's attorney, who prepared a "no-knock" search warrant directing the officers to conduct a search of Room 208 of the Seven Seas Motel and to conduct a search of the person of Borden. A hearing was held before the Honorable William G. Engelter, Judge of the Morton County Court of Increased Jurisdiction, and Judge Engelter determined that there was probable cause for the issuance of such a warrant. The "no-knock" search warrant was therefore issued, pursuant to § 19-03.1-32 of the North Dakota Century Code.

At approximately 8:45 a. m. on March 4, 1981, five officers drove to the Seven Seas Motel and waited in motel rooms adjacent to or in the vicinity of Room 208. While the officers were waiting, Officers Bullinger and Quinn obtained master keys and practiced the opening of locks on other unoccupied motel rooms nearby.

At approximately 9:20 a. m., on March 4, 1981, the officers executed the search warrant. They unlocked the door to Room 208 and entered the room with guns drawn. Borden and his companion, Keith Dowty, were each handcuffed and transferred from Room 208 to Room 210 of the motel. Borden and Dowty each received a copy of the search warrant and were given Miranda warnings. Room 208 was searched while Borden and Dowty were in Room 210. A short time later Borden and Dowty were placed under arrest for possession of a controlled substance and for possession of a controlled substance with intent to deliver.

Dowty was then returned to Room 208, permitted to dress, and handed a copy of the search warrant, a copy of the inventory, and a separate receipt for $263.00. Dowty inquired as to additional money in Room 208 and led the officers to $4,000 in a plastic bag. Officer Bullinger took the money and delivered a receipt to Dowty for such amount.

Prior to the suppression hearing, a preliminary hearing was held before Judge Engelter, and Borden and Dowty were bound over to the district court of Morton County for trial. Borden and Dowty then brought a motion to suppress the evidence. After a hearing on the motion to suppress, the district court ordered a suppression of the evidence recovered in the search of Room 208. The State appeals from those two orders.

We are presented with the following issues:

1. Does the State's failure to file the mandatory prosecutor's statement with the notice of appeal, as required by § 29-28-07(5), N.D.C.C., warrant dismissal of the appeal?

2. Was the "no-knock" search warrant issued pursuant to § 19-03.1-32(3), N.D.C.C., valid?

I

We must first determine whether or not the State has the right to take this appeal. In a criminal action, the State has only such right of appeal as is conferred by law. State v. McEnroe, 69 N.D. 445, 287 N.W. 817, 818 (1939). Section 29-28-07(5), N.D.C.C., provides that the State may appeal from:

"5. An order granting the return of property or suppressing evidence, or suppressing a confession or admission, when accompanied by a statement of the prosecuting attorney asserting that the deprivation of the use of the property ordered to be returned or suppressed or of a confession or admission ordered to be suppressed has rendered the proof available to the state with respect to the criminal charge filed with the court, (1) insufficient as a matter of law, or (2) so weak in its entirety that any possibility of prosecuting such charge to a conviction has been effectively destroyed. The statement shall be filed with the clerk of district court and a copy thereof shall accompany the notice of appeal."

The appellee Dowty ¹ contends that the State has no right to take this appeal because it failed to file the required statement along with the notice of appeal.

The parties did not raise or discuss this issue in the briefs. Counsel for Dowty raised the issue at oral argument, and at that time made a motion to dismiss the appeal. On rebuttal, the State moved that it be allowed to file the required statement late. On December 21, 1981, the State filed...