State v. Ennis, s. 885

• Decision Date: 26 May 1983
• Docket Number: Nos. 885,s. 885
• Citation: 334 N.W.2d 827
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Edward ENNIS, Defendant and Appellant. Crim., and 895 to 898.
• Court: North Dakota Supreme Court

Page 827

334 N.W.2d 827

STATE of North Dakota, Plaintiff and Appellee, v. Edward ENNIS, Defendant and Appellant.

Crim. Nos. 885, and 895 to 898.

Supreme Court of North Dakota.

May 26, 1983.

Kent Reierson, State's Atty., Williston, for plaintiff and appellee; argued by Kent Reierson.

Kurzman, Shapiro, Manahan & Partridge, Minneapolis, Minn., and Bjella, Neff, Rathert, Wahl & Eiken, Williston, for defendant and appellant; argued by Marc G. Kurzman, Minneapolis, Minn., and Richard G. Carver, Bismarck.

ERICKSTAD, Chief Justice.

Defendant/Appellant, Edward G. Ennis, was charged with and ultimately adjudged guilty in a bench trial of five separate offenses: possessing a controlled substance, five pounds of marijuana, with the intent to deliver, Sec. 19-03.1-23(1)(b), N.D.C.C., Sec. 19-03.1-05(4)(o ), N.D.C.C.; unlawfully delivering a controlled substance, hashish, to Kevin Ostberg on September 23 and 28, 1981, Sec. 19-03.1-23(1)(b), N.D.C.C., Sec. 19-03.1-05(4)(l ), N.D.C.C.; unlawfully delivering a controlled substance, marijuana, to Rene Ostberg on September 2, 1981, Sec. 19-03.1-23(1)(b), N.D.C.C., Sec. 19-03.1-05(4)(o ), N.D.C.C.; and, unlawfully delivering a controlled substance, hashish, to Rene Ostberg on September 9, 1981, Sec. 19-03.1-23(1)(b), N.D.C.C., Sec. 19-03.1-05(4)(l ), N.D.C.C. Subsequent thereto, a judgment of conviction, dated August 9, 1982, was entered by the District Court of Williams County from which Ennis now appeals. For the reasons hereinafter stated, we reverse Ennis' conviction of unlawfully possessing marijuana with the intent to deliver and affirm his convictions with regard to delivering hashish and marijuana to Rene and Kevin Ostberg.

I. SUPPRESSION MOTION

On April 7, 1982, the County Judge of Williams County issued a warrant to search Ennis' home. The sole basis for this warrant was a sworn affidavit submitted to the county judge by Jim Quickstad, a lieutenant detective in the Williams County Sheriff's office. The pertinent part of Quickstad's affidavit ¹ is paragraph four:

"4. March of 82, a Confidential informant who has given information in the past leading to under cover purchases of drugs and who has given information known by Jim Quickstad to be true and reliable about Drug Dealers told to Jim Quickstad that Ed Ennis had 10lbs [sic] of Marijuana in his home on April 7, and has been selling Marijuana from this 10 lbs. Ed Ennis told the confidential informant that the 10 lbs of marijuana were at his home at 1309 24th stW and could be bought there"

Pursuant to this warrant, the Williams County Sheriff's office searched Ennis' home and found five zip-lock bags ² containing a substance alleged to be marijuana. The Crime Laboratory Division of the State Laboratories Department subsequently determined that the plant material in these five bags was marijuana. Evidence of these facts was received in Ennis' trial.

However, prior to Ennis' trial, defense counsel filed a written motion to suppress the five bags of plant material discovered during the search of Ennis' home on the basis that the affidavit underlying the search warrant contained a number of material misrepresentations and that the information in such affidavit was stale. At a subsequent hearing on this motion, counsel orally requested an evidentiary hearing to challenge the veracity of Quickstad's affidavit. The court granted counsel's request. ³ Subsequent to these hearings, the trial court denied Ennis' motion to suppress the evidence.

At the evidentiary hearing, Quickstad testified that he had no knowledge as to how the informant concluded that "... Ed Ennis had 10lbs [sic] of Marijuana in his home on April 7, and has been selling Marijuana from this 10 lbs." Quickstad admitted that he did not question the informant as to whether he obtained his information by either seeing the marijuana or hearing of the marijuana firsthand from Ennis. Upon scrutinizing the record, we are of the opinion that Quickstad had worked with the informant on prior occasions, believed him to be reliable, and consequently accepted his conclusory statement that Ennis had marijuana in his home which was for sale without inquiring as to the basis of the informant's knowledge.

The questions presented by this factual situation are:

Whether or not the affiant's statement in the search warrant affidavit with regard to how the informant obtained his information should be set aside; and, if so, whether or not the affidavit's remaining content is sufficient to establish probable cause.

The veracity of an affiant's statements in a warrant affidavit can be challenged pursuant to the guidelines set forth in Franks v. Delaware :

"[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672 (1978).

For the purpose of applying the test enunciated in Franks, a false affidavit statement is a statement which misleads the neutral and detached magistrate into believing that the stated facts exist, which facts in turn affect his evaluation of whether or not there is probable cause. State v. Groff, 323 N.W.2d 204, 210 (Iowa 1982).

Upon reviewing the record in the case at bar, we believe Quickstad's testimony at the evidentiary hearing reveals that he knowingly and intentionally asserted that his informant told him that Ennis had told the informant that Ennis had marijuana for sale when in fact Quickstad had failed to ask the informant how he obtained such information. Specifically, Quickstad testified as follows:

"BY MR. KURZMAN:

"... What do you claim the informant told you the morning of April 7?

"A. Since I didn't write the conversation down verbatim, I can only speculate that he came in and told me, 'Mr. Ennis has ten pounds for sale. He has it at his house.'

"Q. And you, of course, then said, 'How do you know that information?' Right?

"A. I don't recall whether I did or not.

* * *

* * *

"BY MRS. SCHMITZ:

"Q. What was the conversation, Mr. Quickstad?

"A. Again, as far as I can recollect, he said that Ed Ennis had the ten pounds of marijuana for sale. I don't recall asking him or whether he had seen it or whether Mr. Ennis had told him personally. He said, 'Mr. Ennis has the ten pounds for sale.' "

Thus, the statement in question which Quickstad attributed to the informant was merely an assumption on his part and not a statement by the informant. This statement is false because it is a bald assertion devoid of factual support which mislead the magistrate into believing that he knew the underlying circumstances from which the informant concluded that "... Ed Ennis had 10lbs [sic] of Marijuana in his home on April 7, and has been selling Marijuana from this 10 lbs." Hence, in accordance with the dictates of Franks, we are required to set this statement aside and ascertain whether or not the remainder of the affidavit is sufficient to establish probable cause.

In making this determination, we will not consider affidavit paragraphs (1), (2), and (3) inasmuch as the information presented in such paragraphs was approximately six months old at the time the warrant was issued and, therefore, stale. Upon eliminating both the stale information and the false information, the sole statement remaining in the affidavit is:

"March of 82, a Confidential informant who has given information in the past leading to under cover purchases of drugs and who has given information known by Jim Quickstad to be true and reliable about Drug Dealers told to Jim Quickstad that Ed Ennis had 10lbs [sic] of Marijuana in his home on April 7, and has been selling Marijuana from this 10 lbs."

The foregoing statement consists of information relayed to Quickstad by his informant. When an affidavit is based on hearsay information as in this instance, probable cause must be determined in accordance with the dictates of Aguilar v. Texas :

"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 circumstances from which the informant concluded that the narcotics 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, see Rugendorf v. United States, 376 U.S. 528 [84 S.Ct. 825, 11 L.Ed.2d 887], was 'credible' or his information 'reliable.' " (Footnote omitted). 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964).

The Basis of Knowledge Prong of this analytical framework, known as the Aguilar Two-pronged Test, requires that the magistrate be informed of how the informant obtained his information. State v. Schmeets, 278 N.W.2d 401, 406 (N.D.1979).

It is evident that the statement which we found to be false and eliminated from the search warrant affidavit details the circumstances from which the informant concluded that Ennis had marijuana in his home which was for sale. Without this statement, the affidavit fails to satisfy the Aguilar Basis of Knowledge Test. As the magistrate was mislead, the warrant was not issued upon probable cause and, accordingly, the...