State v. Chatman

• Decision Date: 22 December 2015
• Docket Number: No. 20150037.,20150037.
• Citation: 872 N.W.2d 595
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Marcus Orlando CHATMAN, Defendant and Appellant.
• Court: North Dakota Supreme Court

872 N.W.2d 595

STATE of North Dakota, Plaintiff and Appellee

v.Marcus Orlando CHATMAN, Defendant and Appellant.

No. 20150037.

Supreme Court of North Dakota.

Dec. 22, 2015.

Justin J. Schwarz (argued), Assistant State's Attorney, and Dawn M. Deitz (on brief), Assistant State's Attorney, Burleigh County Courthouse, 514 East Thayer Avenue, Bismarck, N.D. 58501–4413, for plaintiff and appellee.

Charles A. Stock, P.O. Box 605, Crookston, Minn. 56716–0605, for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Marcus Chatman appeals from a criminal judgment entered after a jury found him guilty of possession of heroin with intent to deliver, possession of cocaine, and possession of marijuana by a driver. Chatman argues the district court should have suppressed evidence because illegally seized evidence was used to establish probable cause for a search warrant. He also argues his Sixth Amendment confrontation and compulsory process rights were violated. We affirm.

I

[¶ 2] On May 15, 2014, Chatman was arrested on an unrelated charge. After the arrest, Bismarck police officers searched Chatman's cell phone without a warrant and found text messages about drug distribution.

[¶ 3] On May 20, 2014, an informant began providing information to a Bismarck Police detective in exchange for two one-way bus tickets and to potentially help with her boyfriend's criminal charges. The informant told the detective she was a heroin user, Chatman was her source for heroin, Chatman was known by the street name "D," she had seen Chatman in possession of heroin two days earlier, and he was selling the heroin for $100 for one-tenth of a gram. The informant told the detective she was meeting Chatman later that day. After meeting with Chatman, the informant told the detective that Chatman was leaving for Chicago that night to pick up heroin and cocaine and asked her to accompany him on the trip.

[¶ 4] The informant traveled to Chicago with Chatman and kept in contact with the detective during the trip. The detective received a text message from the informant around 11:12 p.m. on May 20, 2014, stating they had left Bismarck to go to Chicago. On the morning of May 21, 2014, the detective received a text message from the informant stating they were in Wisconsin. On May 22, 2014, the detective applied for a warrant for cell tower information for a cell phone belonging to another individual the detective believed was with Chatman and the informant to track their progress. The affidavit submitted in support of the search warrant application included information obtained from the May 15, 2014, warrantees search of Chatman's cell phone. After the detective applied for the warrant for the cell tower information, he received a text message from the informant informing him they were almost to "the cities" and Chatman had the heroin in his jeans pocket.

[¶ 5] The detective applied for a warrant to search Chatman and the vehicle he was driving. The detective testified in support of the application and also submitted a copy of his affidavit from the prior cell phone tower warrant application. A warrant was issued, authorizing a search of Chatman's person and the vehicle he was driving when he arrived in Bismarck.

[¶ 6] Officers set up surveillance along the route they believed Chatman would take to determine when Chatman returned to Bismarck. The detective observed Chatman driving the vehicle on the interstate heading toward Bismarck, he notified other officers, and the officers stopped Chatman's vehicle when it reached his residence. Officers searched Chatman and the vehicle and found heroin, cocaine, and marijuana. Chatman was charged with possession of heroin with intent to deliver or manufacture, a class A felony; possession of cocaine, a class C felony; and possession of marijuana by a driver, a class A misdemeanor.

[¶ 7] Chatman moved to suppress the evidence obtained from searching him and his vehicle. He argued information from the May 15, 2014, warrantees cell phone search was used to obtain the search warrant, a warrant must be obtained to search a cell phone incident to arrest, and therefore all evidence obtained as a result of the illegal search of his cell phone must be suppressed. After a hearing, the district court denied the motion, concluding the Fourth Amendment was not violated by the search of Chatman and the vehicle because there was sufficient evidence to find probable cause to issue the search warrant absent the information obtained from the May 15, 2014, cell phone search.

[¶ 8] Before trial, Chatman requested the trial be reset because he was unable to contact the informant to testify. The district court granted the request and the trial was reset. On the morning of the first day of trial, Chatman informed the court he had subpoenaed the informant, but the person who responded to the subpoena was not the informant involved with his case, and he stated the informant should be present for the case to properly proceed. The State advised the court it did not know where the informant was. Chatman did not make any further motions or make any further argument about the informant's absence. A jury trial was held, and the jury found Chatman guilty on all three charges.

[¶ 9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. Chatman's appeal was timely under N.D.R.App.P. 4(b). We have jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29–28–06.

II

[¶ 10] Chatman argues the district court erred in denying his motion to suppress evidence. He claims information obtained from the illegal May 15, 2014, search of his cell phone was used to obtain the search warrant for his person and vehicle and any evidence obtained as a result of the search warrant should be suppressed. He also contends anticipatory search warrants violate the Fourth Amendment. According to Black's Law Dictionary, an anticipatory search warrant is "[a] conditional search warrant that becomes effective only if and when some event occurs that itself creates the probable cause that permits the search." Black's Law Dictionary 1553 (10th ed.2014); see also State v. Wahl, 450 N.W.2d 710, 713 n. 1 (N.D.1990).

[¶ 11] In reviewing a district court's decision on a motion to suppress, we give deference to the district court's findings of fact. State v. Morales, 2015 ND 230, ¶ 7, 869 N.W.2d 417. We recognize "[t]he district court is in a superior position to assess the credibility of witnesses and weigh the evidence, and conflicts are resolved in favor of affirmance." Id. (quoting State v. DeCoteau, 1999 ND 77, ¶ 6, 592 N.W.2d 579 ). We will not reverse the court's findings of fact if there is sufficient competent evidence fairly capable of supporting the court's findings and the decision is not contrary to the manifest weight of the evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). Questions of law are fully reviewable on appeal. Morales, at ¶ 7.

A

[¶ 12] Chatman argues the warrantless search of his cell phone was illegal and all evidence obtained as a result must be suppressed, including the evidence obtained when the search warrant was executed, because information obtained from the cell phone search was used to establish probable cause for the warrant.

[¶ 13] The Fourth Amendment of the United States Constitution and Article I, Section 8, of the North Dakota Constitution prohibit unreasonable searches and seizures. State v. Kuruc, 2014 ND 95, ¶ 10, 846 N.W.2d 314. A warrantless search is unreasonable unless it falls within one of the recognized exceptions to the warrant requirement. Morales, 2015 ND 230, ¶ 8, 869 N.W.2d 417. "Evidence discovered during a warrantless search when no exception exists must be suppressed under the exclusionary rule." Kuruc, at ¶ 12 (quoting State v. Gagnon, 2012 ND 198, ¶ 8, 821 N.W.2d 373 ).

[¶ 14] In Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 2493, 189 L.Ed.2d 430 (2014), the United States Supreme Court held police generally may not conduct a warrantless search of a cell phone, even when the phone is seized incident to arrest. Riley had not been decided when Chatman's cell phone was searched on May 15, 2014. The State, however, does not argue that the search of the phone was legal or that Riley does not apply retroactively, and therefore we will not address any issue about the application of Riley. Rather, the State argues the evidence obtained as a result of the search warrant should not be suppressed even if the search of the cell phone was illegal. The State contends there was probable cause to issue the search warrant even if the information from the cell phone search were excised from the affidavit and testimony supporting the warrant application.

[¶ 15] Evidence derived as a result of illegally acquired evidence must be suppressed. City of Fargo v. Ellison, 2001 ND 175, ¶ 12, 635 N.W.2d 151. "[I]llegally obtained evidence cannot be used to establish probable cause to issue a search warrant." State v. Fields, 2005 ND 15, ¶ 6, 691 N.W.2d 233. If illegally obtained evidence was used to establish probable cause, "we excise the tainted information from the affidavit and consider the remaining legal evidence presented to the issuing magistrate" to determine whether probable cause existed to issue the warrant.Id.

[¶ 16] Probable cause is required to issue a search warrant, and there is probable cause 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." Fields, 2005 ND 15, ¶¶ 5, 7, 691 N.W.2d 233 (quoting State v. Corum, 2003 ND 89, ¶ 22, 663 N.W.2d 151 ). Whether there is probable cause to issue a search warrant is a question of law, and we apply a totality-of-the-circumstances test to determine whether the information before the magistrate was sufficient to establish probable cause. Fields, at ¶ 5.

[¶ 17] An affidavit in support of the...