State v. Frohlich

• Decision Date: 29 September 1993
• Docket Number: Cr. N
• Citation: 506 N.W.2d 729
• Parties: The STATE of North Dakota, Plaintiff and Appellant v. Jason FROHLICH, Defendant and Appellee. o. 930058.
• Court: North Dakota Supreme Court

Page 729

506 N.W.2d 729

The STATE of North Dakota, Plaintiff and Appellant v. Jason FROHLICH, Defendant and Appellee.

Cr. No. 930058.

Supreme Court of North Dakota.

Sept. 29, 1993.

Allen M. Koppy (argued), State's Atty., Mandan, for plaintiff and appellant. Appearance by Janice Lawhead, Asst. State's Atty.

Wayne D. Goter (argued), Bismarck, for defendant and appellee.

MESCHKE, Justice.

The State appealed from an order suppressing all evidence seized during a search of Jason Frohlich's residence, and all statements made by Frohlich to officers during and after the search. We reverse the suppression order.

On July 23, 1992, the Morton County Court issued a warrant to search "116 East Main Street, Apartment A, in ... Mandan ... and/or ... [a] 1979 gold Pontiac bearing North Dakota license BHL 472 ... [for] [a] Remington 223 caliber, model 788 rifle with a Swift 6x scope...." Mandan Police Detective Gary Malo testified in support of the search warrant.

According to Malo, Herman Muhlbradt reported to the Bismarck Police Department on July 21, 1992, that the previous evening, a rifle with a scope attached to it and his wife's purse containing credit cards, a checkbook, and her driver's license were stolen from Muhlbradt's unlocked garage in Bismarck. On July 22, Julie Haibeck, a beautician employed at the Golden Comb in Mandan, discovered a suitcase protruding from a garbage dumpster in an alley between the Bookstore at 116 East Main and the Golden Comb at 118 East Main. Haibeck opened the suitcase and found Herman Muhlbradt's driver's license, hip waders, and work boots. She notified Muhlbradt, who went to the Mandan Police Department and the Golden Comb and identified his property.

According to Haibeck, while she and Muhlbradt were looking in the dumpster for more of Muhlbradt's stolen property, she noticed that "everybody from the apartment was coming out and watching ... every move they were making, what they were doing." Haibeck then contacted Brad Pfliger, who works at Rent To Own, a neighboring business, and "told him to keep an eye out for the individuals that are living above the Bookstore." Haibeck was suspicious of these "[y]oung adults" because "they sleep all day, you don't see any movement all day, and there's anywhere from 20 to 50 people there in the evening, and that's when they come out and ... start moving around." Pfliger was also informed that Muhlbradt's rifle had not been recovered.

At approximately 2 p.m. on July 22, 1992, Pfliger saw two individuals leave the apartments above the Bookstore carrying a garbage bag that appeared to be covering a rifle with a scope. According to Pfliger, the young men "were holding it like a rifle, kind of picked it up like they were aiming at something. Even though it was wrapped ... it looked like a rifle with a scope on it and they were holding it in that fashion." Pfliger saw the men carry the garbage bag from the building and place it in the trunk of a gold Pontiac with license number BHL 472. Malo discovered that the car was registered to Donald and Doris Schmidt of Solen.

Malo learned from Kyle Grosz, the manager of the Bookstore and of the two apartments located above it, that apartment A was leased to Jason Frohlich and Joe Glas, but that several other people had been staying with them. Grosz reported that "most of the activity that goes on is out of Apartment A," and Malo testified that he personally observed that there was "always something going on" in apartment A during the evenings. The garbage dumpster used by the apartment tenants is located in an alley 20 feet from the back access door to the apartment building and is shared by some of the businesses in the area. Grosz told Malo that at 8 a.m. on July 23, 1992, he saw two young men carry "a good size" garbage bag out of the apartment building and place it in the trunk of a gold Pontiac. Grosz, Haibeck, and Pfliger confirmed that the gold Pontiac "is there all the time."

Malo testified that Tony and Brad Schmidt are the sons of Donald and Doris Schmidt. The magistrate, concerned over whether Tony or Brad Schmidt resided at apartment A, recessed the probable cause hearing to allow Malo to phone Donald and Doris Schmidt. Malo testified that Brad Schmidt answered the telephone.

I asked him who I was speaking to and he told me it was Brad. I said, "Is your father Donald J. Schmidt?" and he said, "Yes." I says, "Do you know where Tony is at?" "You mean my brother?" I said, "Yes." He says, "He's in Mandan somewhere." I said, "Do you know where he is staying?" He says, "Yeah, but they don't have a phone." I said, "Well, I need to kind of get ahold of him. Could you tell me where he's living?" He said, "On Main Street above the Bookstore, Apartment A."

This testimony connected apartment A to the gold Pontiac, and also thereby linked the rifle with scope, wrapped in a garbage bag, to both the car and the apartment.

The magistrate determined that probable cause existed and issued the search warrant. Malo and other officers searched apartment A on July 24, 1992, and found Muhlbradt's stolen rifle and other stolen property. Frohlich confessed to police. Frohlich was charged with four class C felony counts of theft of property.

Frohlich moved to suppress the evidence, including all statements made to law enforcement officers during and after the search, on the basis that there was no probable cause for the search warrant. The trial court granted the motion, determining that there was no evidence presented at the probable cause hearing "which connected the crime with the individuals involved," and that the warrant was based on "mere[ ] suspicion." The prosecution appealed.

Probable cause to search does not require absolute proof of criminal activity or the same standard of proof necessary to establish guilt at trial. State v. Erickson, 496 N.W.2d 555, 558 (N.D.1993); State v. Berger, 285 N.W.2d 533, 536 (N.D.1979). Rather, under the Fourth Amendment, 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, where " '[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " Ringquist, 433 N.W.2d at 211 [quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) ]. As we said in State v. Mische, 448 N.W.2d 415, 418 (N.D.1989), all information for probable cause must be considered together, rather than analyzed on a piecemeal basis.

A trial court's decision on the validity of a search warrant is a determination only of whether the information before the magistrate established probable cause. State v. Metzner, 338 N.W.2d 799, 804 (N.D.1983). The question is one of law and, on appeal, we review the sufficiency of the information before the magistrate independent of the trial court's decision. Metzner. We give deference to a magistrate's factual findings in determining whether probable cause exists. Metzner. If there is a substantial basis for the magistrate's conclusion that probable cause exists, we will not disturb that conclusion on appeal. State v. Dymowski, 458 N.W.2d 490, 498 (N.D.1990). On this record, we conclude that the magistrate had a substantial basis for determining that probable cause existed to issue a search warrant for apartment A.

We reject the trial court's evident conclusion that this search warrant was invalid because there was no "testimony given which connected the crime with the individuals involved." Generally, "a search warrant, unlike an arrest warrant, may issue, without the slightest clue to the identity of the criminal, if there is probable cause to believe that fruits, instrumentalities or evidence of criminal activity are located at the place to be searched." United States v. Webster, 750 F.2d 307, 318 (5th Cir.1984). In 1 LaFave, Search and Seizure Sec. 3.1(b), at p. 546 (2d ed. 1987), Professor LaFave explains:

"There is no constitutional requirement that [a search] warrant name the person who owns or occupies the described premises * * *. The specificity required by the Fourth Amendment is not as to the person against whom the evidence is to be used, but rather as to the place to be searched and the thing to be seized." Indeed, "probable cause might well be established to suspect that illegal activity, evidence thereof or contraband, was at a given location without implicating any particular person." And this of course means that probable cause to search a particular place may exist without there also being probable cause to arrest a person who occupies that place. Consequently, a search warrant is not rendered invalid because of a lack of grounds to arrest any particular person....

[Footnotes omitted]. See also Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1976-1977, 56 L.Ed.2d 525 (1978) ("The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought."); United States v. Taketa, 923 F.2d 665, 674 (9th Cir.1991); United States v. Tehfe, 722 F.2d 1114, 1117-1118 (3d Cir.1983); United States v. Melvin, 596 F.2d 492, 495-496 (1st Cir.1979); United States v. Besase, 521 F.2d 1306, 1308 (6th Cir.1975); State v. Doyle, 336 N.W.2d 247, 250 (Minn.1983). The lack of evidence connecting "the crime with the individuals involved" did not render the search warrant invalid.

Frohlich argues that the State failed to show any nexus between the items found in the dumpster and his...