State v. Ebel

• Decision Date: 17 October 2006
• Docket Number: No. 20050440.,No. 20050442.,No. 20050443.,No. 20050441.,20050440.,20050441.,20050442.,20050443.
• Citation: 723 N.W.2d 375,2006 ND 212
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Todd Lance EBEL, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 375

723 N.W.2d 375

2006 ND 212

STATE of North Dakota, Plaintiff and Appellee, v. Todd Lance EBEL, Defendant and Appellant.

No. 20050440.

No. 20050441.

No. 20050442.

No. 20050443.

Supreme Court of North Dakota.

October 17, 2006.

COPYRIGHT MATERIAL OMITTED

Ronald W. McBeth, Assistant State's Attorney, Law Enforcement Center, Wahpeton, N.D., for plaintiff and appellee.

Steven M. Light (argued) and Lorelle A. Moeckel (appeared), Larivee & Light, Fargo, N.D., for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Todd Ebel appeals from a criminal judgment and commitment entered upon his conditional guilty plea to one count of possession of a controlled substance and two counts of possession of drug paraphernalia. We conclude probable cause existed to support the issuance of the search warrant and the district court did not err in denying Ebel a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

I

[¶ 2] On December 29, 2004, Police Officer Dustin Hill contacted a district court judge via telephone to obtain a search warrant for Ebel's residence in Hankinson. Officer Hill requested the warrant because he believed Ebel's residence was the site of a methamphetamine lab.

[¶ 3] Officer Hill testified via telephone, offering information supporting his application for a search warrant of Ebel's residence. Officer Hill provided information he had received from Richland County Deputy Sheriff Shane Orn, that Deputy Orn had received several complaints of come-and-go traffic, loud parties and strange activity at the residence. Officer Hill testified that he had observed two vehicles making short stops at the residence earlier that day and that Deputy Orn had seen come-and-go traffic, specifically three vehicles in a matter of ten minutes the same day. Officer Hill indicated others had observed come-and-go traffic over the last several months.

[¶ 4] Officer Hill offered statements from Joseph O'Meara, who is Hankinson's mayor and Ebel's neighbor. Officer Hill stated, "[O'Meara] said it's just non-stop. He said it's just cars are coming and going at all hours of the night. He specifically stated that people would leave the house at eleven o'clock at night . . . or they would get there at eleven o'clock at night and be coming and going until four or five in the morning." Hill testified O'Meara stated he specifically observed that within the last two weeks, a female ran into the house, came out, held up her hand, "[h]ad a small package and then hopped in the car and took off." Based upon his training and experience, Officer Hill testified he believed O'Meara had witnessed a drug transaction.

[¶ 5] Hill also offered an account of a recent confrontation between O'Meara and Ebel that occurred at four o'clock in the morning, stating: "[Ebel] was in his underwear, standing outside in the cold, singing with his dog and [O'Meara] stated that [Ebel] could not look in his eyes. He was jittery. He had all the signs of what was described to him through his training of an individual being under the influence of methamphetamine." Hill testified that O'Meara, as a member of the fire department, had received training within the last year from officers on identifying possible methamphetamine labs, including what to look for and observe.

[¶ 6] Officer Hill also testified as to information provided by Ron Hubrig, the city water and sewer supervisor. Hill testified the city had experienced a problem with drains clogging in the city sewer system, and they worked with the mayor to figure it out, "slowly traced it back over a year's time to, within the last two weeks, . . . that shop towels and rubber gloves have been coming into the pump station." Hill testified the city traced these items "directly back to a manhole cover" near Ebel's residence. Officer Hill testified, "[t]his is a closed sewer system . . . [and] . . . [t]he only other individual [other than Ebel] who has access to that is across the street, the Mayor." Officer Hill asserted that the shop towels and rubber gloves, indicating the potential presence of a methamphetamine laboratory, could only have come from the mayor's house or Ebel's house.

[¶ 7] Officer Hill testified that O'Meara also stated that O'Meara's wife had observed Ebel bringing "cylindrical tanks into the residence," further indicating potential illicit manufacturing of methamphetamine. Specifically, Hill testified the tanks could be holding anhydrous ammonia, which is used in methamphetamine production. Hill also testified that the mayor and his wife had observed several doors and windows in the home open in cold weather, further indicating "to officers through their training and experience that they are airing the residence out. This happened several times . . . this happens during the production of methamphetamine due to the release of noxious chemicals and gases, during the chemical process."

[¶ 8] Based upon the information provided to the district court in Officer Hill's telephone testimony, the court issued a warrant to search Ebel's residence. In issuing the warrant, the district court stated:

There is probable cause to search based on the open windows during the winter in combination with the tanks going into the house recently and the rubber gloves and the shop towels being found in the sewer that can be traced only to Mr. Ebel's residence. The other information also is corroborative of a possible methamphetamine lab and distribution. So based on that I will find probable cause.

In January 2005, law enforcement searched Ebel's residence and seized drug paraphernalia and controlled substances. Ebel was arrested for possession of drug paraphernalia and subsequently charged with two counts of possession of drug paraphernalia and two counts of possession of a controlled substance.

[¶ 9] In March 2005, Ebel moved to suppress the evidence seized during the execution of the search warrant, claiming the warrant was issued without probable cause. On May 31, 2005, the district court denied his motion, explaining in its memorandum opinion and order:

The primary basis for . . . finding that there was probable cause to believe that methamphetamine was being manufactured at Ebel's residence was that rubber gloves and shop towels found in the sewer system could be traced to Ebel and Ebel was witnessed carrying acetylene tanks into his home. Testimony indicated that these types of gloves and towels are commonly used in the manufacturing of methamphetamine. Officer Hill also testified that acetylene tanks may be used to hold anhydrous ammonia, an ingredient of methamphetamine. In addition to this "primary evidence," [the district court] also acknowledged that other corroborative evidence, such as the stop and go traffic in front of Ebel's home and the windows being open during the winter, indicated drug activity.

[¶ 10] After the district court's denial of his motion to suppress, Ebel raised the potential of a Franks issue at an October 2005 status conference and was thereafter permitted to file a motion seeking a Franks hearing and a request for reconsideration of his motion to suppress. Under Franks, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667, the Fourth Amendment requires a hearing be held at the defendant's request, if a defendant makes a substantial preliminary showing that a false statement knowingly and intentionally or with reckless disregard for the truth, was included in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause. On October 26, 2005, the district court denied Ebel's motion to reconsider probable cause and denied Ebel's request for a Franks hearing. Ebel ultimately entered a conditional guilty plea to two counts of possession of drug paraphernalia and one count of possession of a controlled substance. The State dismissed with prejudice one charge for possession of a controlled substance. Ebel appeals from the judgment and commitment for three of those counts.

II

[¶ 11] Ebel asserts the district court erred in denying his motion to suppress, arguing there was insufficient information to support probable cause for issuance of the search warrant.

[¶ 12] The Fourth Amendment of the United States Constitution, as applicable to the states by the Fourteenth Amendment, and N.D. Const. art. I, § 8, require searches and seizures to be reasonable and warrants to be issued only upon a showing of probable cause. Whether probable cause exists to issue a search warrant is a question of law. State v. Stewart, 2006 ND 39, ¶ 6, 710 N.W.2d 403; State v. Hage, 1997 ND 175, ¶ 10, 568 N.W.2d 741. "The standard of proof necessary to establish guilt at trial is not necessary to establish probable cause." State v. Ballweg, 2003 ND 153, ¶ 18, 670 N.W.2d 490. "We defer to a magistrate's determination of probable cause so long as a substantial basis for the conclusion exists, and we resolve doubtful or marginal cases in favor of the magistrate's determination." Stewart, at ¶ 6.

[¶ 13] This Court uses the totality-of-the-circumstances test in reviewing the sufficiency of information before the magistrate, independent of the court's decision. State v. Nelson, 2005 ND 59, ¶ 16, 693 N.W.2d 910; State v. Rydberg, 519 N.W.2d 306, 308 (N.D.1994). To establish probable cause, there must be a nexus between the place to be searched and the contraband sought. Nelson, at ¶ 17. Circumstantial evidence may be used to establish that nexus. Id. (citing State v. Dodson, 2003 ND 187, ¶¶ 11-12, 671 N.W.2d 825). "Probable cause exists when `there is a fair probability contraband or evidence of a crime will be found in a particular place.'" State v. Corum, 2003 ND 89, ¶ 27, 663 N.W.2d 151 (quoting State v. Guthmiller, 2002 ND 116, ¶ 10, 646 N.W.2d 724).

[¶ 14] Mere suspicion criminal activity is taking place, which may warrant further investigation, does not rise to a level of probable cause to search. See State v. Thieling, 2000...