State v. Erickson

• Decision Date: 23 February 1993
• Docket Number: No. 920195,920195
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Orlynn Mark ERICKSON, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 555

496 N.W.2d 555

STATE of North Dakota, Plaintiff and Appellee, v. Orlynn Mark ERICKSON, Defendant and Appellant.

Crim. No. 920195.

Supreme Court of North Dakota.

Feb. 23, 1993.

Patrick F. Leier, Williston, for defendant and appellant.

Peter H. Furuseth, State's Attorney, Williston, for plaintiff and appellee.

LEVINE, Justice.

Orlynn Mark Erickson appeals from a judgment of conviction of unlawful possession of drugs entered upon a conditional plea of guilty under Rule 11(a)(2), NDRCrimP, after his motion to suppress evidence was denied. We hold that there was probable cause to issue the search warrant but that the officers exceeded the scope of that warrant in conducting their search. Accordingly, we reverse and remand.

At the time of his arrest, Erickson resided at 503 10th Street West in Williston. He occupied the west side of a ranch-style duplex. The east side of the duplex contained a separate apartment with a different address, 501 10th Street West. On March 14, 1992, police officers, investigating Erickson's possible role in local drug trafficking, removed and inspected a 250-gallon garbage dumpster, located in an alley behind the duplex. In the trash, the police found a small zip-lock bag, containing what appeared to be marijuana, cigarette packages and an envelope addressed to Erickson. The officers conducted another search of the dumpster the next day and found several plastic bags that smelled of marijuana, several marijuana cigarettes, a small amount of plant material and seeds, and a traffic citation issued to Erickson. ¹

On March 17, the officers sought a search warrant for Erickson's home and automobile. Dallas L. Carlson, a special agent for the North Dakota Bureau of Criminal Investigation, submitted an affidavit, stating:

"1. That pursuant to an ongoing investigation of Orlynn Mark Erickson concerning his involvement in transactions involving controlled substances information has been obtained that the above-referenced individual is and continues to be involved in the trafficking of controlled substances.

"2. Evidence has been obtained which illustrates the above-referenced individual possesses controlled substances, paraphernalia, records of transactions, money, and other items used in transactions of controlled substances. Said evidence consists of bags, marijuana cigarettes, and a white plastic cup with marijuana residue. Said evidence is indicative of the above-referenced activities.

"3. Evidence found was located in the garbage dumpster behind Orlynn Erickson's home. This was known to be his garbage because a traffic citation with his name on it was located with these materials. Also found in the garbage was a letter addressed to Mr. Erickson."

Prior to signing the search warrant, the magistrate took statements from Agent Carlson and Sergeant Scott Busching of the Williams County Sheriff's Department. Carlson essentially reiterated the information in his affidavit. Busching told the magistrate:

"I have received information from people that I know who have been involved in drug trafficking and Orlynn Mark Erickson's name has come up to me more than once as being one who deals to subdealers in Williston and the surrounding area.

"I've also had information that Mr. Erickson is armed. I have seen where he has purchased a 9-millimeter hand-gun. I have information that he has a shotgun with him pretty much all of the time. This leads me to believe that he has something that he is hiding, or it is also indicative of somebody that may be dealing in illegal substances."

On March 17, 1992, the officers executed the search warrant on 503 10th Street West. After entering Erickson's residence, Sergeant Busching descended a stairway that led to Erickson's basement. At the bottom of the stairway, he found a door with a hasp and padlock along a wall that separated Erickson's basement from 501's basement. The door was unlocked, as the hasp was unscrewed from the door. Sergeant Busching opened the door and entered a room in the southeast portion of the duplex located under the main floor of the neighboring apartment at 501 10th Street West. In that room, he discovered a safe and a scale. The safe contained cash, a book on how to grow marijuana and a small film canister, containing marijuana residue. He also found marijuana in a tool box, located in the southeast basement room. The officers found additional marijuana in other portions of Erickson's residence as well as on Erickson.

Erickson was arrested and charged with possession of a controlled substance with intent to deliver. The intent to deliver portion of the charge was based upon the items found in the southeast basement room. Erickson moved the district court to suppress the evidence obtained from the search on the grounds that there was insufficient probable cause to issue the warrant and that the search warrant failed to adequately describe the place to be searched. Erickson also sought to suppress any statements he made in police custody and any evidence found on his person, on the ground that the evidence was the fruit of an unconstitutional search. The district court denied the motion on May 8, 1992. Erickson then offered, and the district court accepted, a conditional plea of guilty to the charge of the unlawful possession of a controlled substance. On appeal, Erickson contends there was insufficient evidence to support the issuance of a search warrant, that the warrant was defective, and that any statements made by him or any evidence found on his person should be suppressed.

"Probable cause to search does not require the same standard of proof necessary to establish guilt at trial; rather, probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place." State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988). We use the totality-of-the-circumstances test for reviewing probable cause, under which "[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Ringquist, supra at 211. Our duty is "simply to ensure that the magistrate had a 'substantial basis for ... concluding' that probable cause existed." Id. at 211, citing Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983). "Sufficient information, rather than a 'bare bones' affidavit, must still be presented to the magistrate to allow that official to determine probable cause. That determination cannot be a mere ratification of the bare conclusion of others." Ringquist, supra, at 213.

Erickson contends that paragraph one of Agent Carlson's affidavit is a bare conclusion with no supporting facts about the credibility and reliability of the agent's information. We agree that the characterization in paragraph one of Erickson as a drug dealer is "nothing more than conclusionary information provided by unidentified people." State v. Mische, 448 N.W.2d 415, 421 (N.D.1989). Conclusions alone are insufficient for probable cause. Id. Only when reputation is demonstrated by specific underlying circumstances, may it be used to support a finding of probable cause. State v. Handtmann, 437 N.W.2d 830 (N.D.1989). But here, no circumstances are presented that would allow the magistrate to consider the reliability of the statement. We have "consistently required more than mere statements of reputation or unsupported conclusions and allegations to establish probable cause." Id. at 835.

In addition to paragraph one of the affidavit, Sergeant Busching testified he knew Erickson had purchased a nine-millimeter handgun. He added that he had been informed that Erickson often carried a shotgun, which led Busching to believe that Erickson had something to hide. But, again, we do not know the veracity or basis of knowledge of the hearsay information. Accordingly, it is "bare bones" information that is insufficient to support probable cause. However, the magistrate was presented with evidence of criminal activity in the form of the marijuana and plastic bags found in the dumpster. In State v. Ronngren, 361 N.W.2d 224 (N.D.1985), this court concluded that evidence of marijuana found in a trash bag, reported by a neighbor to have been dragged from the defendant's property to the neighbor's yard, was sufficient to establish that the garbage bag originated at the defendant's residence. The question here is whether the incriminating items discovered in the dumpster can reasonably be connected to Erickson. We conclude they can be.

The citation and envelope found in the dumpster had Erickson's name on them. The location of the dumpster, behind Erickson's place of residence, fortified the implication that the dumpster was used by Erickson and that the trash was Erickson's. This evidence supplies a nexus between Erickson and the contraband as well as between the home to be searched and the evidence sought. State v. Metzner, 338 N.W.2d 799, 804 (N.D.1983). In State v. Ronngren, supra, there was additional evidence contributing to the determination of probable cause, which is not present in this case. But, we conclude that the direct evidence, in the form of marijuana and plastic bags, combined with the circumstantial link between the contraband, Erickson, and his home, support a determination of probable cause. We believe these facts warrant our cautious but considered application of the principle that "a doubtful or marginal case should be resolved in favor of [the magistrate's] determination of probable cause." State v. Metzner, supra at 804.

Erickson claims paragraph three of the affidavit is a false statement by...