State v. Herrick

Decision Date06 January 1999
Docket NumberNos. 980082-84,s. 980082-84
Citation588 N.W.2d 847,1999 ND 1
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Curtis V. HERRICK, Defendant and Appellant. Criminal
CourtNorth Dakota Supreme Court

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

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

NEUMANN, Justice.

¶1 Curtis Herrick appeals the trial court's judgment reinstating his criminal convictions on remand. We affirm, holding the exclusionary remedy allows law enforcement officers who acted in good faith on a no-knock search warrant issued on a per se basis, prior to State v. Herrick, 1997 ND 155, 567 N.W.2d 336 [Herrick I ], under N.D.C.C. § 19-03.1-32(3) to validly execute the warrant.


¶2 On February 27, 1995, Officer LeRoy Gross of the Stutsman County Drug Task Force searched garbage in the alley behind Herrick's home. Gross found a paper clip with marijuana residue, a sterile marijuana seed, and a marijuana stem.

¶3 On January 2, 1996, Officer Gross and Officer Corinne Becker, also with the task force, again searched garbage behind Herrick's home. The officers found additional marijuana stems and seeds, two bent metal wires with marijuana residue, a torn check with Herrick's name on it, and handwritten notes from a book on how to grow marijuana.

¶4 Becker sought a warrant to search Herrick's home, relying on the information obtained from the garbage searches. The judge issued a no-knock warrant and a search of Herrick's home was conducted on January 2, 1996. In the home, the officers found marijuana, marijuana seeds and stems, equipment for indoor horticulture, and a book on growing marijuana indoors. The officers charged Herrick with possession of controlled drugs, possession of drugs with intent to manufacture, and possession of drug paraphernalia.

¶5 Herrick moved to suppress the evidence. He argued the issuance and execution of the no-knock warrant violated his state and federal constitutional rights against unreasonable searches and seizures. The trial court denied his motion to suppress. Herrick pled guilty, under Rule 11(a)(2), N.D.R.Crim.P., conditionally preserving the denial of suppression for appellate review. Herrick appealed his convictions.

¶6 We provisionally reversed the order denying suppression. Herrick I, at p 28. We determined there was probable cause for a search and the issuing judge was neutral and detached. Id. at pp 11, 15. We held, however, N.D.C.C. § 19-03.1-32(3) required probable cause for a no-knock entry, and a per se rule of the presence of drugs justifying the issuance of a no-knock warrant was unconstitutional. Id. at p 21. We remanded for the trial court to consider whether a good-faith exception to the exclusionary remedy should apply. Herrick I, at p 27. In the event of appeal after remand, we asked the parties to "brief the question of whether we should recognize a good-faith exception and, if so, whether it should be applied in this case." Id. at p 27.

¶7 On remand and after further hearing, the trial court did not exclude the illegally obtained evidence. The court applied the good-faith exception to the exclusionary rule formulated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The trial court reasoned:

It is significant to note that the invitation to address the good faith issue came in the same opinion in which the North Dakota Supreme Court was forced to abandon it[ ]s per se no-knock rule as result of Richards [v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) ]. Because this case was remanded back to this court to determine whether or not the good faith exception should be adopted, the discussion of the good faith exception in the previous cases and the fact that the U.S. Supreme Court adopted the good-faith exception thirteen years ago [in Leon ], it appears the North Dakota Supreme Court will adopt the good faith exception.


Officer Becker acted in good faith when she obtained and executed the search warrant because at the time it was authorized and executed it was legal in North Dakota to issue no-knock search warrants in all cases w[h]ere drugs are involved. The affidavit presented by Officer Becker to Judge Wright included evidence of drugs and drug paraphernalia. State v. Herrick, 567 N.W.2d at 340. This was sufficient under the per se rule in effect at this time for Judge Wright to issue the no-knock search warrant. The affidavit was not so lacking in indicia of probable cause to render official belief in its existence entirely unreasonable. None of the other Leon factors rendering the good faith exception not applicable would apply in this case. There is no indication that the magistrate was misled or abandoned his judicial role, nor is there evidence to indicate that the warrant was facially deficient. The good faith exception to the exclusionary rule applies to the facts in this case.

The trial court reinstated Herrick's convictions, and Herrick appealed.


¶8 The North Dakota Legislative Assembly has provided greater protections in the no-knock forum than the Fourth Amendment. Section 19-03.1-32(3), N.D.C.C., requires a law enforcement officer have probable cause in suspecting evidence may be destroyed or that the officer may be in danger if he or she knocks and announces their presence before entering in order to justify a no-knock warrant. Herrick I, at p 21 (emphasis added).

¶9 In Wilson v. Arkansas, 514 U.S. 927, 936, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), the Supreme Court held the common-law knock and announce rule formed a part of the Fourth Amendment reasonableness inquiry. Subsequently, in Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the Supreme Court found the Fourth Amendment does not permit a blanket exception to the knock and announce rule in drug cases, rather the Fourth Amendment requires a reasonable suspicion by the law enforcement officer that knocking and announcing would be dangerous or futile. Id., at 1421 (emphasis added).

¶10 In light of the recent Supreme Court cases concerning the knock and announce rule and no-knock warrants it cannot be disputed N.D.C.C. § 19-03.1-32(3), while providing greater protections than announced in those cases, implicates a substantial right under the Fourth Amendment. The Legislative Assembly when enacting N.D.C.C. § 19-03.1-32(3) did not specify any remedy for violations of the statute. In this instance, when a violation of N.D.C.C. § 19-03.1-32(3) is so closely associated with Fourth Amendment and Article I, Section 8, rights, it is appropriate, and arguably necessary for us to consider similar remedies for this statutory violation as granted for constitutional violations. See Wayne R. Lafave, Search & Seizure § 1.5(b), 132-36 (1996).

¶11 Professor Lafave notes if there is no pertinent legislative history, as is the case with N.D.C.C. § 19-03.1-32(3), then it is appropriate to use suppression as a remedy when the statute "concerns the quality of evidence needed for issuance of the warrant ... without concern for whether the rule or statute exceeds the requirements of the Fourth Amendment." Id. at 136.

¶12 If the exclusionary remedy is what we must look to when a statute implicating substantive constitutional rights is violated, and the source of the exclusionary remedy in this state is the Fourth Amendment, then we must also consider the application of the good-faith exception delineated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See State v. Manning, 134 N.W.2d 91, 98 (N.D.1965) (holding the state rule of allowing illegally obtained evidence at trial has been overruled by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)).

¶13 Responding to our request in Herrick I, both parties submitted well-developed arguments and briefs on the reasons for and against applying a good-faith exception to the exclusionary remedy in this case. The landmark precedent first recognizing a good-faith exception to the federal exclusionary rule was United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Leon also carved out four categories when good faith does not override the exclusionary remedy. Id. at 923, 104 S.Ct. 3405.

¶14 In Leon, the trial court suppressed evidence of drugs found with a facially valid warrant issued without probable cause. Id. at 903, 104 S.Ct. 3405. The court of appeals refused to apply a good-faith exception and affirmed suppression. Id. at 905, 104 S.Ct. 3405. In his concurrence, Justice Blackmun aptly summarized the holding of the six-member majority:

[E]vidence obtained in violation of the Fourth Amendment by officers acting in objectively reasonable reliance on a search warrant issued by a neutral and detached magistrate need not be excluded, as a matter of federal law, from the case in chief of federal and state criminal prosecutions.

Id. at 927, 104 S.Ct. 3405. Thus, the good-faith exception became federal doctrine.

¶15 The Leon Court reasoned that "marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." Id. at 922, 104 S.Ct. 3405. As noted, an officer's reliance on the particular probable cause for the warrant must be objectively reasonable. Id. "Accordingly, our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." Id. at 922 n. 23, 104 S.Ct. 3405. Leon identified four situations when police reliance on a warrant cannot be objectively reasonable: (1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally...

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