State v. Dodson

• Decision Date: 02 December 2003
• Docket Number: No. 20030042.,20030042.
• Citation: 2003 ND 187,671 N.W.2d 825
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Thomas DODSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

671 N.W.2d 825

2003 ND 187

STATE of North Dakota, Plaintiff and Appellee, v. Thomas DODSON, Defendant and Appellant.

No. 20030042.

Supreme Court of North Dakota.

December 2, 2003.

Rehearing Denied January 14, 2004.

Mark A. Flagstad, Assistant State's Attorney, Minot, ND, for plaintiff and appellee.

Michael R. Hoffman, Bismarck, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Thomas Dodson appealed district court judgments against him for possessing methamphetamine paraphernalia and possessing methamphetamine with intent to deliver. We affirm.

I

[¶ 2] On November 1, 2001, a search warrant was issued for Dodson's residence at # 23 Parkview Trailer Court in Minot, Dodson's person, his vehicle, and any other person present at the premises. The affidavit requesting the search warrant was prepared by Steve Niebuhr, a Minot police officer assigned to the Ward County Drug Task Force. The affidavit described the following surveillance activity. On October 23, 2001, a vehicle with license plate number GLJ439 ("GLJ439") was observed at 541 Valley Street, Cynthia Kness' residence. GLJ439 was registered to Cathy Ceglowski. The task force had information the vehicle was currently being used by Paul Palmer, who was on probation in Williams County and was suspected of being involved in methamphetamine labs in the Williston area. Later that afternoon, a vehicle registered to Alisia Moncada was also seen at the house. She had methamphetamine charges pending against her and had lived with John Wilkins, Jr., who had shown people in Williston and Minot how to manufacture methamphetamine. Wilkins absconded after charges were brought against him.

[¶ 3] GLJ439 was later seen at Dodson's trailer located at # 23 Parkview Trailer Court. Niebuhr stated, "Dodson is known to be involved in the drug culture in Minot since 1991." According to the affidavit, there had been numerous reports regarding Dodson, and one Shamra Campbell stated he "does more than his share of buying and selling methamphetamine." When patrol officers were sent to his trailer for a domestic call, they were not allowed inside the trailer.

[¶ 4] Palmer and an unidentified male left the trailer in GLJ439 and went to Home of Economy. The unidentified male went into the store and Palmer followed later. Officer Niebuhr followed Palmer into the store. He saw the unidentified male leave with a bag and get into GLJ439. Palmer left without buying anything. The agents followed the vehicle back to Dodson's trailer. Officer Niebuhr and another officer went back to Home of Economy and a clerk told them a man who matched the description of the unidentified male bought a 32-ounce bottle of sulfuric acid (Mr. Plumber). Sulfuric acid can be used in the production of methamphetamine.

[¶ 5] The next day a search was conducted of a garbage bag seized from the alley behind 541 Valley Street. Four tinfoil bindles with burn marks, one tinfoil bindle with no burn marks, and documents with the name Ariel Moncada were found. Alisia Moncada's vehicle was also at the house. Monte Olson, who had been apprehended with marijuana and methamphetamine, told Officer Niebuhr that he and Kness were the main distributors of methamphetamine for Moncada and Wilkins.

[¶ 6] Four days later, another garbage bag was taken and searched from the alley behind Kness' house. It contained four empty packages of Equate Suphedrine (24 per package) and eight foils with burned residue. Suphedrine contains one of the main precursors for methamphetamine, and "[t]he amount found at one time is indicia of the manufacturing methamphetamine (sic)." [¶ 7] Two days later, there was a complaint from a resident of Parkview Trailer Court regarding heavy "come and go" traffic at Dodson's trailer between 2:00 a.m. and 4:00 a.m. Two days after that, a Home of Economy employee reported the unidentified male returned and purchased Naptha, which is another precursor to manufacturing methamphetamine. The employee was shown Dodson's picture and was "95% sure." He was the unidentified male who purchased the Naptha and sulfuric acid. The employee gave Officer Niebuhr the license plate number, GTY578, of the vehicle Dodson was driving and described it as a 15-year-old blue vehicle. Dodson owns a blue 1987 Olds Cutlass with license plate number GPY578.

[¶ 8] Based upon the information provided, a search warrant was issued and Dodson was arrested as a result of the evidence seized during the search. Dodson moved to suppress the evidence. The district court denied his motion because it found the affidavit established probable cause, and even if it did not, the good faith exception to the exclusionary rule applied. Dodson entered conditional guilty pleas, reserving his right to appeal.

II

[¶ 9] Dodson contends the evidence discovered while conducting the search should have been suppressed because there was no probable cause to issue the warrant. The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, § 8 of the North Dakota Constitution require searches and seizures to be reasonable and warrants to be issued only upon a showing of probable cause. The existence of probable cause is a question of law. State v. Rangeloff, 1998 ND 135, ¶ 16, 580 N.W.2d 593. "Probable cause to search exists `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.'" State v. Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861 (quoting State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995)).

[¶ 10] The totality-of-the-circumstances test is used to determine whether sufficient evidence was presented to a magistrate to establish probable cause, independent of the trial court's findings. State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912.

"Although each bit of information ..., by itself, may not be enough to establish probable cause and some of the information may have an innocent explanation, `"probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers ... which is not weighed in individual layers but in the `laminated' total."'"

Id. (citations omitted). The magistrate evaluates all the evidence and makes a practical, common sense decision whether probable cause exists to search a particular place. Id. at ¶ 6. We generally defer to a magistrate's determination of probable cause if there was a substantial basis for the conclusion, and doubtful or marginal cases should be resolved in favor of the magistrate's determination. Id.

A.

[¶ 11] There must be a nexus between the place to be searched and the contraband sought. State v. Lewis, 527 N.W.2d 658, 662 (N.D.1995). In this case, the contraband sought by the warrant was:

Unlawful controlled substances including but not limited to marijuana, methamphetamine, drug paraphernalia, documents reasonably associated with drug trafficking, methamphetamine manufacturing, residency and U.S. currency reasonably associated with drug trafficking, electronic equipment used for storing recipes for manufacturing, equipment and ingredients commonly used for manufacturing and/or drug trafficking activity, which may constitute evidence of a criminal offense.

The affidavit stated GLJ439, which was being used by Paul Palmer, was located at 541 Valley Street and Dodson's trailer on the same day Dodson purchased sulfuric acid; burnt bindles and Equate Suphedrine were found in the garbage at 541 Valley Street; individuals charged with drug-related offenses were associated with 541 Valley Street; and Monte Olson stated he and the owner of 541 Valley Street distributed methamphetamine. This information does not establish a sufficient nexus between # 23 Parkview Trailer Court and the contraband sought.

[¶ 12] Circumstantial evidence may establish the nexus between a place to be searched and the contraband sought. State v. Hage, 1997 ND 175, ¶ 20, 568 N.W.2d 741. However, the fact GLJ439 was at 541 Valley Street and # 23 Parkview Trailer Court on the same day, which was prior to any evidence of drug activity being discovered at 541 Valley Street, does not provide a sufficient link between the two locations from which conduct occurring at 541 Valley Street can cast a degree of suspicion upon # 23 Parkview Trailer Court. See State v. Mische, 448 N.W.2d 415, 421 (N.D.1989)

(finding that ample evidence the defendant was involved in criminal activity at one location was not enough to establish probable cause to search his residence). The evidence regarding 541 Valley Street would not lead a person of reasonable caution to believe the contraband sought would be located at # 23 Parkview Trailer Court. See id. at 420 (citing State v. Metzner, 338 N.W.2d 799, 804 (N.D.1983)). Therefore, the evidence discovered during the garbage bag searches, the association evidence regarding Alisia Moncada and John Wilkins, Jr., and the information provided by Monte Olson, while creating suspicion of drug activity, do not together establish probable cause regarding # 23 Parkview Trailer Court. As a result, we consider whether the other evidence provided in the affidavit established probable cause to issue the search warrant for # 23 Parkview Trailer Court.

B.

[¶ 13] The affidavit contained information that Palmer and Dodson went to Home of Economy, where Dodson purchased a 32-ounce container of Mr. Plumber, which can be used in the process of manufacturing methamphetamine. It stated Palmer was on probation in Williams County and suspected to be involved in methamphetamine labs in Williston. Officer Niebuhr also stated Dodson was known to be involved in the drug culture in Minot and numerous reports regarding him had been received, including a report from Shamra Campbell that Dodson "does more than his share of buying and...