State v. Handtmann, Cr. N

• Decision Date: 21 March 1989
• Docket Number: Cr. N
• Citation: 437 N.W.2d 830
• Parties: The STATE of North Dakota, Plaintiff and Appellee, v. Mark HANDTMANN, Defendant and Appellant. The STATE of North Dakota, Plaintiff and Appellee, v. Sheila FUHRMAN, Defendant and Appellant. os. 880176, 880215.
• Court: North Dakota Supreme Court

Page 830

437 N.W.2d 830

The STATE of North Dakota, Plaintiff and Appellee, v. Mark HANDTMANN, Defendant and Appellant.

The STATE of North Dakota, Plaintiff and Appellee, v. Sheila FUHRMAN, Defendant and Appellant.

Cr. Nos. 880176, 880215.

Supreme Court of North Dakota.

March 21, 1989.

Wayne D. Goter, Asst. State's Atty., Mandan, for plaintiff and appellee.

William D. Schmidt, of Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for defendant and appellant Mark Handtmann.

Donald R. Becker, Fargo, for defendant and appellant Sheila Fuhrman.

VANDE WALLE, Justice.

Mark Handtmann and Sheila Fuhrman appealed from convictions for drug-related offenses entered upon conditional pleas of guilty under Rule 11(a)(2), N.D.R.Crim.P., after the district court denied their motions to suppress evidence seized during a search of their house pursuant to a search warrant issued by the Morton County Court. We reverse and remand.

The application for the search warrant consisted of the testimony of Detective Dennis Bullinger, the deputy chief of police for the City of Mandan. Bullinger testified that at about 12:35 p.m. on July 17, 1987, he received an anonymous telephone call from a female informant who he believed was in her early or mid-twenties. The anonymous informant told Bullinger that on two separate occasions, once shortly before she had called Bullinger and once two days before the call, she had seen marijuana at a house in Mandan belonging to a family by the name of Begley; that the house was located at the top of the hill on Collins Avenue and was yellow with a red porch; that a former resident of the Bismarck-Mandan area, whose identity she did not know, was currently at the house to drop off marijuana and would be making other drug deliveries in the area; that the Begleys owned a blue Chevy automobile and a 1969 maroon pickup which were parked at the house; and that the man delivering the marijuana drove a blue car which was also parked at the house.

Bullinger testified that he immediately went to Collins Avenue and confirmed that the only yellow house with a red porch on that avenue belonged to the Begleys and was located at 811 Collins Avenue. Bullinger also confirmed that a blue Chevrolet automobile and a maroon 1969 Ford pickup were parked at the house and that a blue Honda Civic registered to Jeff Stockert of Grafton was parked in front of the house. Bullinger testified that he knew Stockert had previously lived in the Bismarck-Mandan area and had been charged with possession of a controlled substance as a juvenile in 1984, but Bullinger testified that he did not know the disposition of that charge. Officer John Bartlett, who was with Bullinger at the time, told Bullinger that Stockert and he had graduated from high school in the same year and that Stockert was a "low-life dirt bag."

Bullinger established surveillance of the Begley house, and at 12:55 p.m., he observed Stockert leave the house and followed him to the defendants' house at 509 Fourth Avenue Northeast in Mandan. Bullinger testified that the surveillance team was unable to see whether or not Stockert carried anything into or out of the defendants' house. Bullinger testified that he personally knew Handtmann and described him as "suspected of trafficking narcotics." Bullinger also related that Captain Maxon of the Mandan Police Department had told him that an informant had information about Handtmann's involvement in narcotics, but Bullinger did not otherwise elaborate on that involvement. Bullinger inaccurately stated that Handtmann had a "mini 14" automatic rifle when, in fact, Handtmann had reported that gun stolen. Bullinger also gave the following inaccurate information about Handtmann:

[Mr. Bullinger]: "He [Handtmann] has just recently, by surveillance done by the City of Bismarck just in the last two, three days, been observed at a known narcotic-dealing residence. As a matter of fact, we're in the process of getting a search warrant right now for that. Mr. Handtmann has been seen there I was told this morning.

"Q. [Mr. Goter] That's at the Burleigh County residence?

"A. The Bismarck Police Department is obtaining a search warrant for a Terry Miller residence.

"Q. It's the one where Mr. Handtmann was seen?

"A. That's correct.

"Q. Has Mr. Handtmann's name come up in recent drug manufacturing charges that were brought here in Morton County?

"A. Yes.

"Q. In what relationship?

"A. Mr. Handtmann is a friend of Clifford Zearley, and Richard Orvedal with Mr. Handtmann placed chemical in Mark Handtmann's mother's residence. He had placed it there for Clifford Zearley.

"Q. Did Mr. Orvedal--Richard Orvedal tell you that?

"A. Kenneth Kleinsasser told me." ¹

Stockert left the defendants' house at 1:58 p.m., and Bullinger followed him to a gas station in Mandan where Stockert stopped for three to four minutes. Stockert then left the gas station in his automobile and was followed by a person in a green Ford pickup that was registered to Roger Miller. Although Bullinger did not specifically identify the driver of the pickup as Miller, Bullinger testified that the police dispatcher had graduated from high school with Miller and had described Miller as a "cowboy-doper" who hung around with people that used narcotics in high school. Stockert and the person in the pickup both proceeded to a house located at 1003 4th Street Southwest in Mandan where they stayed for about thirty minutes. Bullinger testified that he did not know who lived at that location, but he knew that the owner was trying to sell the house and that search warrants for controlled substances previously had been issued to search that house.

When Stockert left that house, Bullinger followed him to Memorial Highway and stopped him. When Bullinger approached Stockert's automobile, he detected the odor of marijuana and observed paper and burnt plant material in the ashtray and green plant material that appeared to be marijuana on the dash. Stockert told Bullinger that he had marijuana that he had purchased in the car. Stockert was arrested for both possession and delivery of a controlled substance.

Bullinger testified that Stockert had money in two separate pockets when he was arrested but that, in order to preserve fingerprints, the money had not been counted at the time of the application for the search warrant. Bullinger further testified that another police officer related that Stockert had said that he had "approximately $300." However, when the money was counted after the search warrant was issued and the search was conducted, it was determined that Stockert had only $78 instead of "approximately $300."

Bullinger told the county court that he had fourteen years of experience with the Mandan Police Department and previously had been involved with a number of surveillances of suspected drug activities, including the delivery of controlled substances. Bullinger described Stockert's pattern of short visits as the type he would expect from someone who was making deliveries of controlled substances. However, Bullinger also testified that the surveillance team could not see whether Stockert took anything into or out of any of the houses he had visited. Bullinger testified that Stockert did not say anything about marijuana being at any of the houses where he had stopped; however, Bullinger testified that Stockert's eyes "lit up" when Bullinger mentioned those addresses.

The county court issued a search warrant for the Begley house, the defendants' house, the house at 1003 4th Street, and Stockert's automobile. According to Bullinger the searches of Stockert's automobile and the three houses were begun simultaneously. While the defendants' house was being searched, the police learned that a small amount of marijuana had been found at the Begley residence, in Stockert's car, and at the house at 1003 4th Street. The search of the defendants' house uncovered drug paraphernalia, marijuana, and over $14,000 in cash.

Handtmann and Fuhrman were both charged with possession of drug paraphernalia, possession of a controlled substance, and possession of a controlled substance with intent to deliver. The defendants moved to suppress the evidence seized from their residence, contending that there was insufficient evidence to establish probable cause to search their house and that law-enforcement officials presented false evidence about Handtmann in support of the search warrant. The State resisted, contending that there was sufficient evidence to support the search warrant and that the seized evidence would have been inevitably discovered.

After an evidentiary hearing, the district court denied the defendants' motion to suppress the evidence. The court concluded that even excluding the false statements about Handtmann, there was sufficient evidence presented to the county court to establish probable cause for the issuance of the search warrant. The court further concluded that even if there was not probable cause for the issuance of the search warrant, the police had not acted in bad faith to accelerate the discovery of the evidence and that it would have been inevitably discovered.

Handtmann then entered conditional pleas of guilty to all the charges, and Fuhrman entered conditional pleas of guilty to possession of drug paraphernalia and possession of a controlled substance. ² The district court accepted the defendants' conditional guilty pleas, and they have appealed.

The defendants contend that insufficient evidence was presented to the county court to establish probable cause for the issuance of a search warrant to search their house, and therefore the search violated the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Sec. 8, of the North Dakota Constitution. They argue that the county court was not presented with sufficient evidence to establish the anonymous informant's veracity or basis of knowledge and that none of the...