State v. Johnson, s. 980173

• Decision Date: 23 February 1999
• Docket Number: 980174,Nos. 980173,s. 980173
• Citation: 590 N.W.2d 192
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Jerry Jerome JOHNSON, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 192

590 N.W.2d 192

1999 ND 33

STATE of North Dakota, Plaintiff and Appellee, v. Jerry Jerome JOHNSON, Defendant and Appellant.

Nos. 980173, 980174.

Supreme Court of North Dakota.

Feb. 23, 1999.

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

James A. Wentz, Jamestown, N.D., for defendant and appellant.

SANDSTROM, Justice.

¶1 Jerry Johnson appealed from the district court's judgment of conviction and sentence for possession of drug paraphernalia and two counts of possession of a controlled substance. Johnson contends the district court erred in denying his motion to suppress. We affirm.

I

¶2 On April 9, 1997, a Barnes County deputy sheriff applied to a district court judge, acting as a warrant-issuing magistrate, for various search warrants. A 26-page affidavit supported the application for the search warrants, detailing a large conspiracy to manufacture, sell, buy, and use narcotics such as methamphetamine and marijuana. The affidavit also stated Johnson possessed guns, and some of Johnson's associates were considered dangerous and also possessed guns. The district court issued "no-knock" warrants.

¶3 On April 12, 1997, the deputy and other law enforcement officers executed some of the search warrants, including the warrant for Johnson and his residence. As a result of the execution of the warrant, criminal charges were filed against Johnson. He was charged with "Possession of Drug Paraphernalia," a class A misdemeanor, and two counts of "Possession of a Controlled Substance," both class C felonies.

¶4 Johnson left North Dakota in violation of federal probation and was apprehended by federal marshals in June 1997 and taken to Bismarck. In August 1997, Johnson was moved to the Stutsman County correctional center, and requested counsel. Johnson's attorney moved to suppress evidence and to dismiss the charges. The district court denied the motions by memorandum opinion.

¶5 In February 1998, the charges against Johnson were tried to a jury. The jury found him guilty on all counts. The court sentenced him to the North Dakota Department of Corrections for three years without probation on the two felony charges, and to one year on the misdemeanor charge. The sentences were to run concurrently. Johnson appealed.

¶6 The district court had jurisdiction under N.D.C.C. § 27-05-06. Johnson's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

¶7 We do not reverse a district court's denial of 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)).

A

¶8 Johnson argues the no-knock warrants were issued "per se" in violation of recent North Dakota and United States Supreme Court decisions; that is, allowing forcible entry to execute a warrant in any case where narcotics are present, on the grounds that narcotics violators normally are on the alert to destroy the easily disposable evidence at the first sign of police officers and that narcotics violators are often armed and dangerous. Where mere probable cause was present to search for narcotics, warrants were issued allowing police to forego the knock-and-announce requirement. See State v. Herrick, 1997 ND 155, p 21 n. 1, 567 N.W.2d 336. "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." State v. Herrick, 1997 ND 155, p 17, 567 N.W.2d 336 (citing Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995)). The rule of reasonableness is flexible, however, and does not always require officers to knock and announce prior to entry when law enforcement interests such as the safety of officers and integrity of evidence could be jeopardized. Id. (citing Wilson, at 934-36, 115 S.Ct. 1914; State v. Knudson, 499 N.W.2d 872, 876 (N.D.1993)).

¶9 Prior to the decision in Herrick, but following the issuance of the warrant in this case, the United States Supreme Court clarified the application of no-knock warrants in drug cases. Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997). The Wisconsin Supreme Court had held "police are not required to adhere to the rule of announcement when executing a search warrant involving felonious drug delivery." State v. Richards, 201 Wis.2d 845, 549 N.W.2d 218, 227 (1996). Agreeing with the rationale of Wilson, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976, the United States Supreme Court recognized no-knock warrants may be necessary in drug cases because the cases frequently involve the threat of physical violence and the likelihood of the destruction of evidence. Richards, 117 S.Ct. at 1420. The Court did not, however, agree with Wisconsin's per se rule, allowing the issuance of no-knock warrants in all narcotics cases. Id. at 1421. The Court held "in each case, it is the duty of a court confronted with the question to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement." Id.

¶10 To justify the use of a no-knock warrant, law enforcement officers must have a reasonable suspicion the announcement of their presence would likely lead to their harm or to the destruction of evidence. Id. This requires the balancing of legitimate law enforcement interests and the privacy interests of the individual.

¶11 The standard in North Dakota, however, is higher for no-knock warrants.

[T]he clear language of section 19-03.1-32(3), N.D.C.C., requires "probable cause" for the issuance of a no-knock warrant. Our decisions on the issuance of no-knock warrants speak in terms of probable cause. See, e.g., State v. Borden, 316 N.W.2d 93, 96 (N.D.1982); State v. Loucks, 209 N.W.2d 772, 776-77 (N.D.1973). Rule 41(c), N.D.R.Crim.P., which together with section 19-03.1-32(2), N.D.C.C., govern[s] the issuance of nighttime warrants, uses the term "reasonable cause shown" and we have construed this term synonymously with probable cause for the purpose of issuing a nighttime warrant under section 19-03.1-32(2). Knudson, 499 N.W.2d at 875. Insofar as there may be a conflict between section 29-29-08, N.D.C.C., a more general statute governing no-knock warrants, and section 19-03.1-32, N.D.C.C., the latter prevails with respect to offenses involving controlled substances. Loucks, 209 N.W.2d at 777. It is now axiomatic that the state may grant greater but not lesser protections than the United States Constitution. State v. Matthews, 216 N.W.2d 90, 99 (N.D.1974). Our legislature has done so. Probable cause is required for issuance of a no-knock warrant under section 19-03.1-32, N.D.C.C.

Herrick, 1997 ND 155, p 19, 567 N.W.2d 336.

¶12 The evidence presented to the issuing magistrate established probable cause to issue the no-knock warrants. The 26-page affidavit supporting the warrant request contained extensive evidence of drug activity and gun possession. Generally, a reasonable belief firearms are present within a residence, standing alone, is not enough to justify a no-knock warrant. United States v. Murphy, 69 F.3d 237, 244 (8th Cir.1995) (citation omitted). Where officers are aware of more than the mere presence of firearms, however, dispensing with the knock and announce requirement may be justified. Id. The police officers involved in this case relied on information provided by reliable confidential informants and upon their own knowledge of dangerous activities of Johnson and others. Intelligence information gathered by police found Jerry Johnson always carried a .357 Blackhawk pistol, Dawn Van Eaton (Wagner), Johnson's girlfriend, was reported to have been trying to buy M-16 machine guns, and garbage can searches at Johnson's house revealed a "guns for sale" ad.

¶13 The district court was well aware of drug activity and propensity for violence of some of the individuals listed in the warrants. See also United States v. Bates, 84 F.3d 790, 795 (6th Cir.1996) ("criminal record reflecting violent tendencies, or a verified reputation of a suspect's violent nature can be enough to provide law enforcement officers with justification to forego the necessity of knocking and announcing their presence"). All this information gave the police officers reasons to fear for their safety; therefore, the no-knock warrants were not issued "per se," and thus did not violate Richards and Herrick.

B

¶14 Johnson contends the warrant-issuing magistrate cannot act as the reviewing judge on a no-knock warrant. In support of his position, Johnson cites State v. Hage, 1997 ND 175, p 9 n. 1, 568 N.W.2d 741: "[W]e are concerned that the same judge served as both the issuing magistrate and the reviewing trial judge. We encourage a judge in this situation to diligently attempt to have another judge review the issue of probable cause." Johnson did not make this objection in the district court.

¶15 A warrant must be issued by a detached and neutral magistrate. N.D.R.Crim.P. 41; United States v. Leon, 468 U.S. 897, 104 S.Ct. 3430, 82 L.Ed.2d 677 (1984). In State v. Rydberg, 519 N.W.2d 306, 308 (N.D.1994), we said "[t]he 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."

¶16 A district court reviewing the validity of a search warrant decides whether the information before the magistrate established probable cause to search. Rydberg, 519 N.W.2d at 308.

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