State v. Keilen

• Decision Date: 15 August 2002
• Docket Number: No. 20020064-20020065, No. 20020066-20020067.
• Citation: 2002 ND 133,649 N.W.2d 224
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Matthew Robert KEILEN, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee, v. Kristy Michelle Dykhoff, Defendant and Appellant.
• Court: North Dakota Supreme Court

649 N.W.2d 224

2002 ND 133

STATE of North Dakota, Plaintiff and Appellee, v. Matthew Robert KEILEN, Defendant and Appellant.

State of North Dakota, Plaintiff and Appellee, v. Kristy Michelle Dykhoff, Defendant and Appellant.

Nos. 20020064-20020065, 20020066-20020067.

Supreme Court of North Dakota.

August 15, 2002.

Trent W. Mahler, Assistant State's Attorney, Fargo, for plaintiff and appellee.

Steven M. Light, Larivee & Light, Grand Forks, for defendants and appellants.

KAPSNER, Justice.

[¶ 1] Matthew Keilen and Kristy Dykhoff appeal from their convictions for possession of a controlled substance and possession of drug paraphernalia. Each entered a conditional plea of guilty with a right to appeal the denial of the motion to suppress evidence seized as a result of entry into their apartment. Keilen and Dykhoff also argue the trial court made improper findings based on information outside of the record. The State argues any appeal was not properly preserved and the search falls within the community caretaker exception to the warrant requirement. The appeal was adequately preserved. Because the entry by officers into Keilen and Dykhoff's home violated the Fourth Amendment, the evidence should have been suppressed. We reverse and remand.

I

[¶ 2] On August 4, 2001, Fargo police officers were dispatched to an apartment building to investigate the report of a domestic dispute. A neighbor reported hearing yelling, fighting, and a loud crash. When the first officer arrived, he spoke with the neighbor. The neighbor told the officer he was afraid someone was hurt. A second officer arrived shortly after the first officer.

[¶ 3] Following his discussion with the neighbor, the officer went to the door of the apartment where the neighbor said the noises came from. After listening for any noise from within the apartment for twenty seconds, the officer knocked on the door and identified himself. He continued to knock "for a minute or two" without a response. The officer testified he heard "voices murmuring" and what he identified as someone coming to the apartment door and walking away without opening the door. The officer continued to knock on the door and identify himself after the person walked away from the door. After no response, the officer and his partner entered the apartment.

[¶ 4] Once inside, the two police officers encountered Keilen and Dykhoff. Keilen had scratches on his face. Both told the officers they were not in need of assistance. Even though both Keilen and Dykhoff refused help, the officers interviewed them about the loud noises reported from their apartment. While separately interviewing Keilen and Dykhoff, a third police officer arrived at the apartment. This officer observed marijuana and marijuana paraphernalia in plain view within the apartment.

[¶ 5] Based on the presence of the drugs and paraphernalia, a narcotics investigator was contacted. The information gained on August 4, 2001, coupled with other previously received information, allowed the narcotics investigator to secure a search warrant for the apartment. The search yielded contraband which formed the basis for the present charges.

[¶ 6] Claiming an unlawful search, Keilen and Dykhoff moved to suppress the evidence found as a result of the police officers entering their apartment, and any evidence subsequently gathered as fruit of the poisonous tree. The motion to suppress was denied. The State entered into conditional plea agreements with both Keilen and Dykhoff. The agreements, signed by both the prosecuting attorney and the trial court, conformed to N.D.R.Crim.P. 11(a)(2) and referenced the unsuccessful suppression motion. After conditionally pleading guilty, Keilen and Dykhoff "appeal[ed] the memorandum on motion to suppress and dismiss[,] and [the] order denying the motion to suppress and dismiss...." The State contends the initial search fell within the community caretaking exception to the warrant requirement. The State also contends Keilen and Dykhoff failed to preserve an appeal because their notice of appeal is not specifically from the criminal judgments.

II

[¶ 7] The right of appeal is statutory. First American Bank West v. Berdahl, 556 N.W.2d 63, 63 n. 1 (N.D.1996); Olson v. Job Service North Dakota, 379 N.W.2d 285, 287 (N.D.1985). Section 29-28-06 of the North Dakota Century Code specifies a defendant may appeal "[a] verdict of guilty; ... [a] final judgment of conviction; ... [a]n order refusing a motion in arrest of judgment; ... [a]n order denying a motion for a new trial; or ... [a]n order made after judgment affecting any substantial right of the party." "[W]hile the right to appeal is purely statutory, statutes conferring the right to appeal must be liberally construed, and that in determining appealability it is not the label which controls but, rather, the effect." State v. Jelliff, 251 N.W.2d 1, 4 (N.D.1977).

[¶ 8] "We have previously held that an attempted appeal from an order for judgment or a memorandum decision will be treated as an appeal from a subsequently-entered consistent judgment, if one exists." Kaiser v. State, 417 N.W.2d 175, 177 (N.D.1987). This Court has also held "when the memorandum opinion contains an order which was intended to be a final order and the order is one from which an appeal may be taken pursuant to statute, we will treat the appeal as an appeal from the order." Id.

[¶ 9] The State entered into conditional plea agreements with both Keilen and Dykhoff in which it consented to the reservation of a right to appeal. While the wording used by Keilen and Dykhoff in their notice of appeal is less than precise, the effect of the attempted appeal from the memorandum opinion on the motion to suppress the evidence and dismiss the charges is the same as if the appeal was from the subsequently-entered consistent judgment of conviction. See id. Because the record contains a subsequently-entered judgment consistent with the "memorandum on motion to suppress and dismiss," and because the State consented to the reservation of an appeal, this Court will treat the appeal as an appeal from a final judgment of conviction.

III

[¶ 10] We affirm the decision of a trial court on a motion to suppress, after resolving conflicting evidence in favor of affirming the decision, unless we conclude there is insufficient evidence to support the decision or the decision goes against the "manifest weight of the evidence." State v. Loh, 2000 ND 188, ¶ 4, 618 N.W.2d 477. "While the court's legal conclusions are fully reviewable, we defer to its factual findings." State v. Huffman, 542 N.W.2d 718, 720 (N.D.1996). "Recognizing the importance of the trial court's opportunity to observe witnesses and assess their credibility, we accord great deference to the trial court's decision in suppression matters." Loh, at ¶ 4.

[¶ 11] An individual is protected from unreasonable searches and seizures in their home by the Fourth Amendment to the United States Constitution, and by Article I, section 8 of the North Dakota Constitution. The United States Supreme Court has recognized a "`physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). "[T]he Fourth Amendment has drawn a firm line at the entrance to the house." Id. at 590, 100 S.Ct. 1371, 63 L.Ed.2d 639. "Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id. As the Supreme Court recently reiterated, "police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home." Kirk v. Louisiana, ___ U.S. ___, 122 S.Ct. 2458, ___ L.Ed.2d ___ (2002). Under Payton, "[w]arrantless searches and seizures inside a home are presumptively unreasonable." City of Fargo v. Lee, 1998 ND 126, ¶ 8, 580 N.W.2d 580. See also State v. Kitchen, 1997 ND 241, ¶ 13, 572 N.W.2d 106

.

[¶ 12] In a suppression motion, the defendant has the initial burden of establishing a prima facie case that the evidence was illegally seized. City of Jamestown v. Jerome, 2002 ND 34, ¶ 6, 639 N.W.2d 478. After the prima facie burden is met, the burden shifts to the prosecution. Id. "The government has the burden to show a warrantless search falls within an exception to the warrant requirement." Lee, at ¶ 8. Without an exception, "evidence gained in violation of the Fourth Amendment's protections against unreasonable searches and seizures is inadmissible under the exclusionary rule and must be suppressed." Kitchen, at ¶ 9. Evidence subsequently gained as a result of the initial illegally acquired evidence is "fruit of the poisonous tree" and must be suppressed, unless an exception to the warrant requirement exists. Id.

[¶ 13] In this instance, the trial court denied the motion to suppress because it was "of the opinion that the officers' conduct was justifiable under the community caretaker exception" to the warrant clause of the Fourth Amendment.¹ Keilen and Dykhoff argue the doctrine does not apply to dwellings. They contend the police officers entrance into their apartment "to check to see if everyone was all right," when the officers had not heard or observed any signs of a disturbance does not justify the application of the community caretaker doctrine. The State contends the community caretaker exception to the warrant clause is applicable to residences under North Dakota case law, and exclusion of the evidence at issue would discourage law enforcement from fulfilling its recognized community caretaker function.

[¶ 14] "Law enforcement officers frequently act in the role of community caretaker." Lapp v. Department of Transportation, 2001 ND 140, ¶ 14, 632 N.W.2d 419. "Officers' actions under the community caretaker role differ from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Id. "This Court has recognized...