State v. Dymowski

• Decision Date: 06 July 1990
• Docket Number: Cr. N
• Citation: 458 N.W.2d 490
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Wayne DYMOWSKI, Defendant and Appellant. o. 890334.
• Court: North Dakota Supreme Court

Page 490

458 N.W.2d 490

STATE of North Dakota, Plaintiff and Appellee, v. Wayne DYMOWSKI, Defendant and Appellant.

Cr. No. 890334.

Supreme Court of North Dakota.

July 6, 1990.

Robert J. Woods (argued), Forest River, for defendant and appellant.

Thomas H. Falck, Jr. (argued), Asst. States Atty., Grand Forks, for plaintiff and appellee.

ERICKSTAD, Chief Justice.

Wayne Dymowski appeals from a jury verdict in District Court for Grand Forks County finding him guilty of possession of a controlled substance. Prior to trial, Wayne moved the court for an order suppressing evidence obtained as the result of a search warrant. The motion was denied. Thus, Wayne also appeals the denial of his motion for suppression. We affirm.

On July 16, 1989, Agent Thomas Parker of the United States Customs Service received information from a confidential informant as to a possible drug transaction in Grand Forks, North Dakota. Based upon that information, Agent Parker, in his car, followed two individuals, identified by the informant as those discussing the drug transaction, in another car. The individuals drove to 1101 2nd Avenue North in Grand Forks, which was later identified as Wayne's residence, ¹ where Agent Parker observed one of the individuals enter the house. The individual returned to the car a short time later, carrying what appeared to be a brown paper bag about the size of a baseball. Agent Parker followed, in his car, the individuals, in their car, for a short distance further before breaking off surveillance.

After discussion with other Grand Forks law enforcement authorities, Agent Parker filed the following affidavit in application for a search warrant for the house located at 1101 2nd Avenue North, Grand Forks, North Dakota:

"I.

"That your Affiant is an agent with the United States Treasury Department, U.S. Customs Service, presently stationed in the Grand Forks, North Dakota district.

"II.

"That your Affiant has been a law enforcement officer for approximately 14 years.

"III.

"That your Affiant has attended a four month police training academy in Plainfield, Indiana. Your Affiant has further received four months training at the Federal Law Enforcement Training Center at Glynco, Georgia for initial training with the United States Treasury Department. This program provided training in all forms of law enforcement and specifically dealt with criminal investigations. Your Affiant has received training in drug enforcement and has had previous experience in the State of Indiana working on narcotics cases. Your Affiant has previously been assigned to a DEA Task Force on narcotics in the Miami, Florida area for approximately two years.

"IV.

"That your Affiant has been working with a confidential informant in the Grand Forks area who has been providing information relative to violations of federal law. The confidential informant has provided reliable information relative to the use and distribution of a prohibited product within this area. He has assisted your Affiant by making telephone calls to parties trafficking in the prohibited substance on behalf of your affiant. The information provided by the confidential informant will result in the arrest of several individuals relative to importation and distribution of the prohibited substance.

"V.

"Your Affiant advises that on July 16, 1989, the confidential informant contacted your Affiant and advised that he was having car trouble at the Short Stop convenience

store located on DeMers Avenue in Grand Forks, North Dakota. Upon your Affiant's arrival, the confidential informant advised that while waiting at the store, the confidential informant overheard a telephone conversation between two men at the store and an unknown third party. The one party talking at the Short Stop convenience store on the telephone indicated that he was unable to purchase an entire O.Z. of snow, but that he would be able to take a half ounce and that they could resume their business transactions on a regular basis. The party further indicated that he owed the unknown party on the telephone money from previous transactions and would be attempting to pay that money back.

"VI.

"Your Affiant advises that he was on his way out to the Short Stop to pick up the confidential informant as the confidential informant overheard the telephone conversation. Your Affiant advises that he observed the two individuals in question leaving the area of the Short Stop store as he picked up the confidential informant. They were driving a newer model red four-door car, possible [sic] a TEMPO with Minnesota license RLK 399. The confidential informant advised your affiant that the two individuals leaving in the motor vehicle were the individuals who had made the telephone conversation relative to the half ounce of snow. Your Affiant is familiar with the term 'snow' being used as another word for cocaine or coke. The confidential informant also advised that the individual on the telephone had told the unknown third party that they would be at the house in approximately two minutes to pick up the snow.

"VII.

"Your Affiant followed the 1985 red Ford RLK 399, Minnesota to an address at 1101 2nd Avenue North in Grand Forks, North Dakota. Your Affiant observed the passenger in the vehicle who was identified by the confidential informant as the party making the telephone call from the Short Stop convenience store, leave the motor vehicle and enter the residence. He did not appear to be carrying anything with him when he entered the residence. A short time later the same male exited 1101 2nd Avenue North with an unknown female. The male passenger was at that time carrying a brownish object, approximately the size of a baseball in his hand.

"VIII.

"Your Affiant advises that the male subject re-entered the motor vehicle along with the unknown female and the vehicle departed the area and drove into East Grand Forks, Minnesota where surveillance was halted. This above incident took place between approximately 6:30 p.m. and 7:00 p.m. on July 16, 1989. Your Affiant later ran a motor vehicle check on RLK 399, Minnesota and determined that the owner of the vehicle is a Gerald Duane Ralston of 207 65th Avenue North, Brooklyn Center, Minnesota.

"IX.

"Your Affiant then turned over the above information to the Grand Forks Police Department and Attorney General's Drug Enforcement Units. Your Affiant believes that the confidential informant in this case has provided accurate information and has never in the past attempted to mislead your Affiant."

Agent Thomas Dahl, after surveillance of Wayne's residence, filed the following affidavit along with Agent Parker's affidavit in application for the search warrant of Wayne's residence:

"I.

"That your Affiant is a law enforcement officer with the Attorney General's Drug Enforcement Unit and has been so employed for four years. Your Affiant has approximately 13 years in law enforcement experience.

"II.

"That your Affiant has received general and specialized training in the field of criminal investigation through the North Dakota Peace Officers Academy and the North Dakota Attorney General's Office. Your Affiant has received specialized training in the area of drug enforcement through courses provided by the North Dakota Law Enforcement Council, the United States Drug Enforcement Administration and the Minot Police Department. This training has included the observation and identification of substances listed as being controlled substances and training in the field of investigation relative to narcotics violations.

"III.

"Your Affiant advises that on July 17, 1989, Thomas W. Parker, United States Customs agent contacted your affiant relative to an incident that took place in the early evening hours of July 16, 1989 at the Short Stop convenience store on DeMers Avenue in Grand Forks, North Dakota. Your Affiant has reviewed the matter with Thomas W. Parker and has reviewed his attached Affidavit. Your Affiant can provide the following information relative to this incident.

"IV.

"Your Affiant has observed the house in question at 1101 2nd Avenue North in Grand Forks, North Dakota on July 17, 1989 at approximately 12:30 p.m. and observed an individual recognized by your Affiant to be Wayne Dymowski. Your Affiant has previously had contact with Wayne Dymowski during an investigation by the North Dakota Attorney General's Drug Enforcement Unit in the Grafton, North Dakota area. Mr. Dymowski was charged with Possession with the Intent to Deliver approximately nine pounds of marijuana. That case is presently pending in Walsh County, North Dakota. Your Affiant believes that the individual at 1101 2nd Avenue North is the same Wayne Dymowski involved in the Walsh County case.

"V.

"Your Affiant, through the assistance of Officer Richard Duquette of the Grand Forks Police Department has observed a 1971 Chevrolet truck at the residence with North Dakota license CBE 845, which is registered to Gary Dymowski, brother of Wayne Dymowski.

"VI.

"Your Affiant advises that the North Dakota Attorney General's Drug Enforcement Unit has had intelligence and information from confidential informant's previously indicating that Gary Dymowski and Wayne Dymowski, both have been involved in the trafficking of controlled substances within the State and in East Grand Forks, Minnesota.

"VII.

"Your Affiant has received information from Vern Rasmusson of the East Grand Forks Police Department, that Gerald Duane Ralston may be in the East Grand Forks, Minnesota area and that there has been intelligence received which indicates Ralston may be involved in controlled substance violations.

"VIII.

"Your Affiant believes that there is probable cause to believe that violations of the North Dakota Controlled Substances Act may be taking place at 1101 2nd Avenue North in Grand Forks, North Dakota, and that such residence may contain controlled substances, cash obtained as a result of controlled substances transactions and...