State v. Hughes, s. 980095

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: VANDE WALLE
• Citation: 589 N.W.2d 912
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kenneth M. HUGHES Defendant and Appellant. Criminal& 980096
• Docket Number: Nos. 980095,s. 980095
• Decision Date: 23 February 1999

Page 912

589 N.W.2d 912 1999 ND 24 STATE of North Dakota, Plaintiff and Appellee,
v.
Kenneth M. HUGHES Defendant and Appellant. Criminal Nos. 980095 & 980096 Supreme Court of North Dakota. Feb. 23, 1999.

Page 913

Robin Huseby, State's Attorney, Valley City, ND, for plaintiff and appellee.

James A. Wentz, Kropp Law Offices, Jamestown, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

¶1. Kenneth Matt Hughes appealed from a district court judgment of conviction of

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possession with intent to deliver a controlled substance and possession of cocaine with intent to distribute. Hughes contends the trial court erred in denying his motion to suppress. We affirm.

¶2. On June 14, 1996, Deputy Sheriff Kathy Murray applied for a warrant to search Hughes's apartment. A no-knock search warrant was issued to Murray based upon an affidavit she submitted. In the affidavit, Murray stated, "I wish to get a search warrant for one Kenneth Matt Hughes ... as I have reason to believe he is in possession and/or selling drugs such as Marijuana" based on information from a confidential informant, a garbage can search and Hughes's past criminal violations. The affidavit further stated a no-knock warrant was needed because "Nathan Almklov has told me in the past that this 'guy' who is selling from the apt. has a handgun and I do not want any violence in executing this search warrant."

¶3. The warrant was executed at Hughes's apartment later that day. Murray along with four other law enforcement officers broke open the apartment door with a battering ram. During their search of the apartment, the officers found cash, drug paraphernalia and drugs. Hughes was arrested and charged with possession with intent to deliver a controlled substance and possession of cocaine with intent to distribute. He moved to suppress the evidence seized, arguing the issuance and execution of the no-knock warrant violated his constitutional rights against unreasonable searches and seizures. After a hearing, the trial court concluded there were no exigent circumstances justifying the no-knock warrant, but applied the good-faith exception to the exclusionary rule and denied the motion to suppress. A jury trial was held and Hughes was convicted.

¶4. On appeal, we will 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." E.g. State v. Herrick, 1997 ND 155, p 7, 567 N.W.2d 336 [Herrick I] (quoting State v. Glaesman, 545 N.W.2d 178, 181 (N.D.1996)).

¶5. Hughes argues the use of a no-knock warrant violated his rights against unlawful search and seizure because it was unreasonable under the facts and circumstances in this case. We agree the no-knock warrant was unreasonable because there were no exigent circumstances justifying it. See, e.g., Herrick I, at p 23. But, we conclude, under federal precedent, the evidence is admissible under the good-faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Federal precedent controls in this appeal because Hughes has not properly raised or briefed the argument our State Constitution affords greater protection than the Federal Constitution. Compare State v. Herrick, 1999 ND 1, p 21, 588 N.W.2d 847 [Herrick II] (raising the argument the North Dakota...