State v. Huber, 20100209.

• Citation: 2011 ND 23,793 N.W.2d 781
• Decision Date: 08 February 2011
• Docket Number: No. 20100209.,20100209.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Jason Robert HUBER, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

793 N.W.2d 781

2011 ND 23

STATE of North Dakota, Plaintiff and Appellee

v.Jason Robert HUBER, Defendant and Appellant.

No. 20100209.

Supreme Court of North Dakota.

Feb. 8, 2011.

Jackson J. Lofgren, Assistant State's Attorney, Mandan, N.D., for plaintiff and appellee.

Kent M. Morrow, Bismarck, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Jason Huber appeals the district court's criminal judgment convicting him of manufacture and possession of a controlled substance and possession of drug paraphernalia. We affirm, concluding the discovery of evidence without a warrant was justified under the emergency exception.

I

[¶ 2] Huber was charged with manufacture and possession of a controlled substance and possession of drug paraphernalia following a warrantless search of his apartment by law enforcement. Huber moved to suppress the evidence gathered during this search, and a hearing was held on his motion. The testimony at the hearing described the events that led to the collection of evidence from Huber's apartment. During the early morning hours of December 11, 2009, Huber's landlord testified he received a call from another tenant complaining of a "terrible odor." Within ten minutes, he arrived at the building and went to the caller's unit to inspect thesource of the odor. The landlord confirmed the "ammonia smell" the caller complained of and testified he thought maybe a sewer vent was plugged in the building. Unsure of the odor's source, he contacted the Mandan Fire Department for assistance.

[¶ 3] Two firefighters responded and proceeded to check the building. Before approaching Huber's apartment, the landlord testified he and the firefighters had checked all other units and failed to find the odor's source. By this time they were joined by two Mandan police officers who were called to help identify the source of the problem, which is "routine" procedure according to firefighter Mitch Bitz. Bitz testified he and the other responders noticed Huber's window was open despite the bitterly cold weather, and speculated that he might be "airing something out." For several minutes, the police officers and the landlord knocked on Huber's door and asked him to open it, but received no response.

[¶ 4] The landlord began to unlock Huber's door with the master key to the building. Huber's lease reserved a "right of entry" to the landlord in certain situations. This provision stated in part: "Landlord has the right to enter the rental unit at any time in case of an emergency, or if landlord reasonably believes resident has abandoned the premises, or if landlord reasonably believes resident in violation of any of the provisions of this contract." According to the landlord, he felt he needed to inspect Huber's apartment because he believed there was an emergency at hand since it was extremely cold outside and the building's tenants might have to be evacuated.

[¶ 5] When the landlord began to unlock the door, Huber immediately cracked it open. The ammonia and chemical smell was immediately apparent and was "pouring" out of the apartment according to the emergency personnel. Officer Bill Stepp testified the emergency personnel explained to Huber that the firefighters needed to enter the apartment to check for explosive gases and the source of the odor, but he was unwilling to let them in. According to the testimony of all present, Huber remained insistent that nobody enter. Officer Stepp explained how they finally entered Huber's apartment:

Q So at some point then did you have to kind of take over the situation?

A Yes, I did.

Q Could you explain?

A I finally told him that he needed to back up and stand aside, that the firemen were going to come in with their meters and investigate. Officer Doolin was standing right in front of me, Mr. Huber backed up, as he did ... I heard something heavy hit the floor and thud. I couldn't see what was going on at that point.

The "thud" Officer Stepp referred to was a propane torch falling to the floor, which was lit as it hit the carpet.

[¶ 6] Huber was handcuffed and placed in a police car, though he was told he was not under arrest. In response to the fumes, the firefighters entered Huber's apartment wearing self-contained breathing equipment. Firefighter Bitz testified they discovered a glass pipe and multiple propane cylinders before finding a person lying under the blankets in a back room. According to Bitz, the police officers briefly entered to remove this person, and the firefighters then proceeded to inspect the rest of the apartment. The officers were called in again while the firefighters were continuing to inspect the apartment with their meters for the source of the odor. Officer Stepp testified the likely source was discovered in the bathroom during this inspection:

I remember seeing there was like a power cord that was hardwired to the exhaust fan that was pulled out. There was a crock-pot sitting on the counter. They showed me underneath the sink and the cabinet. There was an assembly, which I recognize like the coffee filter apparatus and the residue and stuff which I recognized. It looked like a partially dismantled meth lab apparatus. In the toilet the water was like a dark blue or black and it looked like strips of—it looked like paper, but which I recognized as being the Lithium batteries that are peeled apart to get the Lithium out in order to use in the manufacturing process. At that point again the odor was so bad in there that I backed out of the apartment.

[¶ 7] Huber was arrested and taken to the Mandan law enforcement center. He was read his Miranda rights and then interviewed. According to law enforcement testimony, Huber admitted while in custody that his apartment contained components of a methamphetamine lab, and he consented to a search of his apartment. The Mandan narcotics unit obtained a search warrant and seized the evidence from Huber's apartment.

[¶ 8] The district court denied Huber's motion to suppress, concluding the entry of law enforcement into his apartment was justified by an emergency situation and exigent circumstances. The court further made "positive note" of the right of entry retained by the landlord in emergency situations, as well as the efforts of the personnel present to secure the tenants' safety without pausing to thoroughly search the apartment. Huber conditionally pled guilty to the charges, reserving his right to appeal the district court's denial of his motion to suppress, and was sentenced to twenty years in prison with eight years suspended.

[¶ 9] On appeal, Huber argues there was no emergency or exigent circumstances justifying law enforcement's entry into his apartment without a search warrant.

[¶ 10] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Huber's appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 11] Huber argues the events on the night he was arrested did not constitute exigent circumstances necessitating law enforcement's entry into his apartment without a warrant.

[¶ 12] We will affirm the district court's decision on a suppression motion if the evidence is fairly capable of supporting the court's findings and the decision is not contrary to the manifest weight of the evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). The right to be secure in one's home against unreasonable searches and seizures is guaranteed in the United States Constitution. U.S. Const. amend. IV. When a search or seizure is within the protection of the Fourth Amendment, a warrant generally must be obtained. State v. Hammer, 2010 ND 152, ¶ 11, 787 N.W.2d 716. Exigent circumstances and emergencies, however, may present an exception to the warrant requirement. See Hoover v. Director, N.D. Dep't of Transp., 2008 ND 87, ¶ 15, 748 N.W.2d 730 ("Consent and exigent circumstances are exceptions to the warrant requirement."); City of Fargo v. Ternes, 522 N.W.2d 176, 178 (N.D.1994) ("The emergency doctrine allows police to enter a dwelling without a warrant...."). "Exigent circumstances" are "an emergency situation requiringswift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence." State v. DeCoteau, 1999 ND 77, ¶ 15, 592 N.W.2d 579. We have explained our standard of review in reviewing a district court's finding of exigent circumstances, which applies equally to the emergency doctrine:

The district court's findings of fact are reviewed giving " 'due weight to the inferences drawn from those facts by ... judges and law enforcement officers.' " United States v. Cooper, 168 F.3d 336, 338 (8th Cir.1999) (citing United States v. Ball, 90 F.3d 260, 262 (8th Cir.1996) (quoting Ornelas v. United States, 517 U.S. 690 [116 S.Ct. 1657, 134 L.Ed.2d 911] (1996))). "A de novo standard of review is applied to the ultimate determination of whether the facts constitute exigent circumstances...." Id. at 339. This is similar to our review of probable cause. See State v. Kitchen, 1997 ND 241, ¶¶ 12-13, 572 N.W.2d 106 (we defer to a trial court's findings of fact in the disposition of a motion to suppress, but whether findings of fact meet a legal standard is a question of law which is fully reviewable).

Id.

[¶ 13] An exigent circumstances analysis is analogous to applying the emergency exception. State v. Nelson, 2005 ND 11, ¶ 11, 691 N.W.2d 218. Because the testimony of the landlord and emergency responders focused on the perceived danger to the residents and not on a concern for destruction of property or evidence, this case is more appropriately evaluated in the context of the emergency exception. "Unlike exigent circumstances, the emergency exception does not involve officers investigating a crime; rather, the officers are assisting citizens or protecting property as part of their general caretaking responsibilities to...