State v. Dove
| Decision Date | 23 December 1970 |
| Docket Number | Cr. N |
| Citation | 182 N.W.2d 297 |
| Parties | The STATE of North Dakota, Plaintiff and Respondent, v. Mark Jay DOVE, Defendant and Appellant. o. 400. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. The constitutional requirement that no warrant shall issue but upon probable cause, supported by oath or affirmation, applies to both search warrants and arrest warrants.
2. The affidavit for a search warrant may be based upon hearsay information and need not reflect direct personal observations of the affiant. But the magistrate must be informed of some of the underlying circumstances from which the informant drew his conclusions that the things being sought were where he claimed they were and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was credible or that his information was reliable.
3. Where a search warrant was based upon an insufficient affidavit, any evidence obtained as a result of the search is inadmissible.
4. While there may be some constitutional error in a conviction which, in a particular case, is so unimportant and insignificant that it may be deemed harmless, before such error can be held to be harmless the reviewing court must be able to declare a belief that it was harmless beyond a reasonable doubt.
Helgi Johanneson, Atty. Gen., and Dale H. Jensen, State's Atty., Bismarck, for plaintiff and respondent.
C. J. Schauss, Mandan, for defendant and appellant.
STRUTZ, Judge, on reassignment.
This case presents questions regarding the constitutional requirements for obtaining a search warrant. Jerold Hoirup, a detective sergeant in the Bismarck Police Department, applied to the Honorable W. J. Austin, as magistrate, for a warrant to search for narcotics on certain premises known as '115 North Washington Street, North main floor apartment and basement.' In support of his application, the officer submitted an affidavit which stated that he had reason to believe that on the premises described there was concealed marijuana, LSD, and narcotic drugs. He further stated in such affidavit that the facts tending to establish the foregoing grounds for issuance of a search warrant were as follows:
A second affidavit was presented by the same officer for a warrant to search premises known as 'A Green V.W. Bus N.D. lic. number 261--778,' located in the County of Burleigh and State of North Dakota, on the ground that said affiant had reason to believe that there was being concealed on said premises certain property, namely, marijuana, LSD, and narcotic drugs, in the possession of a person with intent to use it as a means of committing a public offense. The affidavit then stated that the facts tending to establish grounds for the issuance of a search warrant were:
'That the affiant has received reliable information from a reliable source who has provided information before.'
Two search warrants were issued, one on each application. However, the only search warrant at issue in this case involves the search of the premises at 115 North Washington Street, and only the validity of that search warrant will be considered in this opinion.
In executing the warrant for search of the premises at 115 North Washington Street, the Bismarck police officers found and confiscated five pipes, three empty plastic bottles, two cigarette-type holders, one plastic bag with a brown item inside, one bottle containing a white item, one bottle of Anacin, one bottle containing a red pill, one bottle containing nine blue pills, one white can containing pills, and one-half pill which was white in color.
No marijuana was found at the defendant's residence, but a scraping of the pipes and cigarette holders which were found showed traces of a substance which laboratory tests disclosed to be marijuana.
The defendant thereafter was charged with possession of marijuana on the basis of the items found at 115 North Washington Street. Prior to trial, the defendant moved to suppress the evidence discovered and seized at 115 North Washington Street, on the grounds that the search had been unlawful and in violation of the constitutional rights of the defendant and that the search warrant issued for a search of the premises at 115 North Washington Street was invalid. The motion to suppress was denied, and the defendant was tried and convicted of illegal possession of marijuana. He now appeals to this court, urging a number of specifications of error.
We first will consider whether the trial court erred in denying the defendant's motion to suppress the evidence which was obtained by a search of the premises occupied by the defendant, pursuant to the search warrant based upon the affidavit of the police officer.
On matters involving the validity of a search of a private dwelling under the Fourth Amendment to the United States Constitution, the United States Supreme Court has held that where the search warrant is based upon an insufficient affidavit, any evidence obtained as the result of such search is inadmissible. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We therefore must determine whether the affidavit which was given in support of the application for a search warrant in this case was insufficient, as contended by the appellant.
The United States Supreme Court has laid down certain rules for determining the validity of a search warrant, which State courts are bound to observe. The Fourth Amendment to the United States Constitution, which provides that no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and persons or things to be seized, applies to both warrants of arrest and search warrants. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). The purpose of the affidavit in support of a search warrant is to enable the magistrate who issues the warrant to determine whether 'probable cause,' required to support the warrant, in fact exists. The magistrate should not accept the mere conclusion of the person who makes application for a warrant, to the effect that grounds for the issuance of a warrant exist.
The affidavit upon which the magistrate issued the search warrant in this case stated that the affiant had reason to believe that, on the described premises,
'* * * there is now being concealed certain property, namely, Marijuana, L.S.D. and Narcotic Drugs.'
It further stated that the facts tending to establish grounds for issuance of a search warrant were:
The record does not reveal, nor does the State contend, that any information other than as set forth above was brought to the attention of the magistrate. We now must decide whether this was sufficient to enable the magistrate to determine whether probable cause existed for the issuance of a search warrant.
The situation facing us in this matter is almost identical to that which faced the United States Supreme Court in Aguilar v. State of Texas, Supra. In that case, the affidavit stated:
'Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.'
The United States Supreme Court not only held this affidavit insufficient to enable the magistrate to determine whether there was probable cause to believe that the law had been violated, but it laid down certain guidelines for us to follow in determining whether an affidavit given in support of an application for a search warrant was sufficient to show probable cause. The court said:
'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying...
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