State v. Herrick

• Citation: 567 N.W.2d 336,1997 ND 155
• Decision Date: 11 August 1997
• Docket Number: Nos. 970019-970021,s. 970019-970021
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Curtis v. HERRICK, Defendant and Appellant. Criminal
• Court: United States State Supreme Court of North Dakota

Page 336

567 N.W.2d 336

1997 ND 155

STATE of North Dakota, Plaintiff and Appellee, v. Curtis v. HERRICK, Defendant and Appellant.

Criminal Nos. 970019-970021.

Supreme Court of North Dakota.

Aug. 11, 1997.

Frederick R. Fremgen, Assistant State's Attorney, Jamestown, for plaintiff and appellee.

Robin L. Olson, Olson Law Office, Grand Forks, for defendant and appellant.

VANDE WALLE, Chief Justice.

¶1 Curtis Herrick appealed from the trial court's judgment and conviction following his conditional plea of guilty to possession of a controlled substance with intent to manufacture, possession of a controlled substance, and possession of drug paraphernalia. Herrick contends the trial court erred in denying his motion to suppress. We reverse and remand.

¶2 In February 1995, Officer LeRoy Gross of the Jamestown, North Dakota, Police Department searched garbage cans located near a service alley at the back of Herrick's property. Gross was a member of the Department's Drug Task Force. The cans were placed near the alley, roughly three feet from the alley's edge, on Herrick's property. There were foot prints between the house and the cans. In searching the cans, Gross discovered a paper clip with residue on it, a seed, and a stem. It was later determined the stem, seed, and residue were all marijuana, but the seed was incapable of germination.

¶3 Gross and Corrinne Becker of the Stutsman County Narcotics Task Force conducted a subsequent search of Herrick's garbage can in January 1996. This time, the cans were about four feet from the alley and there were two plastic bags tied in the can. In one bag, Gross found bent metal wires, two stems, and four seeds. Gross also found a handwritten note describing ways to grow marijuana.

¶4 Using the information from the two searches, Becker applied for a warrant to search Herrick's house. In applying for the warrant, the magistrate asked Becker if she wanted a "no-knock," nighttime warrant, to which Becker responded yes. When questioned during an evidentiary hearing on the motion to suppress why she wanted a no-knock warrant, Becker stated a no-knock warrant was needed because "[m]arijuana is an easily disposed of item when it's dry, when it's processed. It could easily be flushed down a toilet. We had evidence that there was marijuana inside of his house based on the garbage we found, leading me to believe that there was marijuana inside the house...."

¶5 The no-knock warrant was executed at Herrick's house on January 2, 1996. Officer Gross knocked on the door, waited three seconds, and then broke the door open with a battering ram. Herrick was in the house at the time. In searching Herrick's house, the officers found marijuana, marijuana seeds and stems, equipment used for indoor horticulture, a book entitled Indoor Marijuana Horticulture, and several items of drug paraphernalia.

¶6 Herrick moved to suppress the evidence, claiming the search of his garbage cans and the issuance of the no-knock warrant violated his right against an unreasonable search and seizure. Herrick also argued the warrant was issued without probable cause and was signed by a biased magistrate. The trial court denied the motion, and Herrick entered a conditional guilty plea while preserving the issues argued in his motion to suppress for this appeal.

¶7 We do not reverse a trial court's decision to deny a motion to suppress if " 'after conflicts in testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence.' " State v. Erbele, 554 N.W.2d 448, 450 (N.D.1996) (quoting State v. Glaesman, 545 N.W.2d 178, 181 (N.D.1996)).

Garbage Can Search

¶8 Herrick argues the search of his garbage cans violated the Fourth Amendment of the United States Constitution and Article I Section 8 of the North Dakota Constitution. Herrick argues the garbage cans were on his property and not set out for pickup, and thus, he still had an expectation of privacy as to the contents of these cans.

¶9 In State v. Rydberg, 519 N.W.2d 306, 310 (N.D.1994), we stated "placing ... garbage [cans] on or against [a] public alley, where it [is] exposed to the general public, and with the express purpose of abandoning it to the trash collector ... waive[s] any privacy interest ... in the garbage." Under the North Dakota Constitution, Herrick must have a " 'subjective expectation of privacy in [his] garbage that society accepts as objectively reasonable' " for his garbage to be protected. State v. Carriere, 545 N.W.2d 773, 775 (N.D.1996) (quoting Rydberg, 519 N.W.2d at 309). See California v. Greenwood, 486 U.S. 35, 40-41, 108 S.Ct. 1625, 1629, 100 L.Ed.2d 30, 36-37 (1988) (warrantless searches of garbage cans set out for disposal are constitutionally valid under the Fourth Amendment of the United States Constitution); State v. Ronngren, 361 N.W.2d 224, 228 (N.D.1985) (defendant had no reasonable expectation of privacy in garbage after a dog carried garbage onto a neighbor's property).

¶10 The record shows the cans were roughly between two and six feet from the edge of the public alley. We will not engage in measuring expectations of privacy with a ruler. It is apparent Herrick placed the cans near the alley in an area where unknown garbage collectors picked them up and where other unknown people could rummage through the cans. Moreover, it appears when Herrick placed items in the garbage cans, he considered these items as trash and intended them to be picked up by the garbage collectors. Under Rydberg, Herrick's expectation of privacy is not objectively reasonable and he waived any expectation of privacy he had in the garbage.

Neutral and Detached Magistrate

¶11 Herrick contends the magistrate, in issuing the search warrant, demonstrated bias when he asked Becker if she wanted a no-knock, nighttime warrant. A warrant must be issued by a detached, neutral magistrate. Rule 41, N.D.R.Crim.P.; United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 3416, 82 L.Ed.2d 677 (1984); Ronngren, 361 N.W.2d at 229. From the testimony and warrant application form, it appears the issuing magistrate was merely trying to move the application process along when he asked Becker if she wanted a no-knock warrant. There is nothing on this record demonstrating the magistrate was biased or prejudiced against Herrick.

Probable Cause

¶12 Whether there is probable cause to issue a warrant is a question of law. State v. Winkler, 552 N.W.2d 347, 353 (N.D.1996). We review whether a warrant is issued with probable cause under the totality-of-the-circumstances approach. Id. at 353 (citing Rydberg, 519 N.W.2d at 308). The task of the issuing magistrate "is to make a practical, commonsense decision whether, given all the information considered together, there is a fair probability contraband or evidence of a crime will be found in a particular place." Rydberg, 519 N.W.2d at 308.

¶13 Herrick maintains probable cause did not exist to issue the warrant. He states it is possible someone else could have dropped the seeds and stems into his garbage on both occasions. Furthermore, he argues while items found in his garbage indicate use, it would be mere speculation on the officer's part to believe any drugs or drug paraphernalia would be found in Herrick's home. But,

" '[p]robable 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.' "

Rydberg, 519 N.W.2d at 308 (quoting State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988)).

¶14 In State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995), we thought it "reasonable for the magistrate to have concluded, from the presence of marijuana seeds in [defendant's] garbage bag, that more marijuana was probably located inside his house."

¶15 Becker, in applying for the search warrant, stated probable cause for the search was based on the stems, seeds, and paraphernalia during the two searches of Herrick's garbage cans. The application for the search warrant was made on the same day as the second search. The officers had probable cause for applying for the search warrant under the standard described in Ringquist.

No-Knock Warrant

¶16 Herrick argues the use of the no-knock warrant violated his right against unlawful search and seizure because it was not reasonable to issue a no-knock warrant under the circumstances.

¶17 Both the Fourth Amendment of the United States Constitution and Article I Section 8 of the North Dakota Constitution require all searches and seizures be reasonable. An element of this rule is officers entering a dwelling must knock and announce their presence. Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 1918, 131 L.Ed.2d 976 (1995). However the rule of reasonableness is flexible, and, for law enforcement interests, such as the safety of law enforcement officers and the integrity of evidence, may not require officers to knock and announce prior to entry. Id. at 934-36, 115 S.Ct. at 1918; State v. Knudson, 499 N.W.2d 872, 876 (N.D.1993). In situations where a threat of physical violence or possible destruction of evidence may exist, officers may validly execute a no-knock warrant. Wilson, 514 U.S. at 934-36, 115 S.Ct. at 1918-1919; Knudson, 499 N.W.2d at 876.

¶18 Subsequent to the issuance of the warrant in this case, the United States Supreme Court again considered the application of no-knock warrants in drug cases. Richards v. Wisconsin, --- U.S. ----, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). The case was appealed from the Wisconsin Supreme Court, which held

"exigent circumstances are always present in the execution of search warrants involving felonious drug delivery. The public interests in these...