State v. Dahl

• Citation: 440 N.W.2d 716
• Decision Date: 17 May 1989
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Linda DAHL, Defendant and Appellant. o. 880315.
• Court: United States State Supreme Court of North Dakota

Page 716

440 N.W.2d 716

STATE of North Dakota, Plaintiff and Appellee, v. Linda DAHL, Defendant and Appellant.

Cr. No. 880315.

Supreme Court of North Dakota.

May 17, 1989.

Brian W. Nelson (argued), Fargo, for defendant and appellant.

Lyle R. Bopp, State's Atty. (argued), Forman, for plaintiff and appellee.

ERICKSTAD, Chief Justice.

Linda Dahl brings this appeal from a jury verdict finding her guilty of possession of a controlled substance with intent to manufacture or deliver. Prior to trial, Dahl had moved the court for an order suppressing evidence obtained as the result of a search warrant. The motion was denied. On appeal, Dahl asserts that the information provided to the magistrate, based upon the statement of an informant, was insufficient to establish probable cause for the issuance of a search warrant, and argues that the evidence obtained as a result of the search should be suppressed. We affirm.

In April of 1987, the sheriff of Sargent County, Arden Barglof, received a report that a farmstead used as a hunting lodge had been broken into and numerous articles, including a custom made burgundy couch, matching chair and footstool, had been taken from the residence. On July 22, 1987, Sheriff Barglof and Officer Dick Rolle of the North Dakota Bureau of Criminal Investigation interviewed the informant regarding the burglary. At the time, the informant was incarcerated at a federal prison in Minnesota. During the course of the interview, Sheriff Barglof and Officer Rolle represented to the informant that he would not be prosecuted for the information he was about to give concerning the hunting lodge burglary and another related burglary.

After obtaining a written statement from the informant, indicating among other things that the stolen property was currently located at the Dahl residence, Sheriff Barglof submitted an affidavit to Judge Tjon of Sargent County in order to procure the issuance of a search warrant. Judge Tjon decided that it would be appropriate to obtain additional recorded oral testimony to determine whether or not there was probable cause for the issuance of the warrant and a hearing was held. The informant's written statement was not submitted at that hearing. Further, Judge Tjon was not advised that the informant was currently incarcerated, nor was he informed that Sheriff Barglof and Officer Rolle had told the informant that he would not be prosecuted with regards to the information he had given them. However, Sheriff Barglof testified as to the informant's reliability, both on direct examination and in response to questions from the court. Judge Tjon determined that probable cause existed and issued a warrant to search the Dahl residence.

On July 27, 1989, Sheriff Barglof and several other law enforcement officers searched the residence where Linda Dahl lived with her husband. Although no one was home at the time of the search, the officers found mail addressed to Linda Dahl laying on the table in the dining room area and women's clothing hanging in the closet. During the course of the search, the officers found the custom made burgundy couch, matching chair and footstool. The officers also discovered several large potted marijuana plants in a basement room, growing under a system of lights. The furniture, the marijuana plants, and the growing equipment were seized as evidence. Dahl was subsequently charged with the offense of possession of a controlled substance with the intent to manufacture or deliver.

Prior to trial, Dahl moved the court for an order suppressing all evidence obtained by reason of the search on the grounds that the warrant was issued without probable cause. The motion was denied and Dahl was subsequently convicted.

Dahl appeals from the jury verdict finding her guilty, asserting that the court erred in denying her motion to suppress. Dahl argues that, as the informant was a member of the criminal milieu, the veracity requirements of Aguilar-Spinelli ¹ should have been strictly applied. She further contends that Sheriff Barglof's failure to advise the magistrate that the informant was currently an inmate and that the informant had been promised immunity constitutes an intentional omission equivalent to a false statement and the exclusionary rule should be applied to all evidence obtained as a result of the search warrant.

In determining whether or not sufficient evidence was presented to the county court to establish probable cause, we are guided by the following standard:

"Probable cause to search does not require the same standard of proof necessary to establish guilt at trial; rather, probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place."

State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988); see also State v. Handtmann and Fuhrman, 437 N.W.2d 830, 834 (N.D.1989).

In State v. Ringquist, we adopted the totality-of-the-circumstances test for reviewing probable cause under Article 1, Sec. 8, of the North Dakota Constitution. See State v. Ringquist, supra, 433 N.W.2d at 211. Our standard is now the same as that required under the Fourth Amendment of the United States Constitution as set forth in Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983):

"The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed."

We recognize that "the guidelines provided by Aguilar-Spinelli have been, and still will be, helpful for an informed decision by a magistrate; ...." State v. Ringquist, supra, 433 N.W.2d at 213. However, because we have adopted the totality-of-the-circumstances test, we are no longer governed by the veracity requirements of Aguilar-Spinelli, supra.

The reliability of an informant remains pertinent to a determination of whether or not probable cause exists for the issuance of a warrant based upon that informant's statement, particularly when that informant is a member of the "criminal milieu." In order to be privy to information regarding criminal activity, the informant himself "is likely to be someone who is himself involved in criminal activity or is, at least, someone who enjoys the confidence of criminals." W. LaFave, Search and Seizure, Sec. 3.3, p. 611 (2d ed. 1987); see also United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). "Frequently, informants are themselves criminals, drug addicts, or even pathological liars.... Obviously, such people give information for reasons other than the call of civic duty." Rebell, The Undisclosed Informant and the Fourth Amendment: A Search for Meaningful Standards, 81 Yale L.J. 703, 712-713 (1972...