State v. Krous
| Decision Date | 30 June 2004 |
| Docket Number | No. 20030372,20030372 |
| Citation | 2004 ND 136,681 NW 2d 822 |
| Parties | State of North Dakota, Plaintiff and Appellee v. Susan K. Krous, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Susan Schmidt, 411 N. 4th Street, P.O. Box 2155, Bismarck, N.D. 58502-2155, for defendant and appellant.
Julie Ann Lawyer, Assistant State's Attorney, Burleigh County Courthouse, 514 East Thayer Avenue, Bismarck, N.D. 58501-4413, for plaintiff and appellee.
[¶1] Susan Krous appeals a second amended criminal judgment entered when her probation for a drug related conviction was revoked. She also appeals the trial court's order denying her motion to suppress. We affirm, concluding the search of Krous's residence was a valid probationary search.
[¶2] Krous pled guilty to two counts of Delivery of a Controlled Substance and one count of Conspiracy to Deliver a Controlled Substance. She was sentenced to imprisonment and probation. Once released and on probation, she was subject to the following conditions:
Upon meeting with her probation officer, Krous initialed next to each condition of probation.
[¶3] Krous's initial probation officer was Brian Weigel. However, she was transferred to another probation officer, Sheila Schaefer. Around May 2003, an anonymous caller informed Weigel that Krous was altering her urinalysis in violation of condition (2)(g) of her probation. On April 29, 2003, Detective Kenen Kaizer of the Bismarck Police Department notified Weigel that Krous had been seen in a car with Shawn Barth in the late hours of April 28, 2003, or early hours of April 29, 2003. Detective Kaizer told Weigel that Krous had hindered the capture of Barth by stating that no one had been in the vehicle with her, when Barth had actually gotten out of the car and fled on foot. The next day, a witness positively identified Barth as the man in the car with Krous. At the time, Barth was a known drug user and drug trafficker and was wanted on warrants. After hearing Krous was seen with Barth, Weigel called Schaefer who informed him that Krous had not reported, that she could not get in contact with Krous, and that Krous was not returning her calls. Weigel took Krous's file back from Schaefer.
[¶4] The same morning Krous was seen with Barth, Weigel and the detective conducted a probation search of Krous's residence using the Special Incidents Unit of the Bismarck Police Department because of Barth's history of violence and weapons and because he was a fugitive from justice. Parked outside Krous's residence was the car in which Krous was seen with Barth. Weigel attempted to telephone Krous, but she would not answer the call. The special incidents team knocked on Krous's door. When she answered the door, they "took her to the ground" and verified no one else was in the home. They did not ask her for permission to search her residence. Krous was then allowed up. An extensive search was conducted, and illegal drugs and drug paraphernalia were found.
[¶5] Based on the evidence discovered in the search and Krous's probation violations, the State petitioned to revoke Krous's probation. Under N.D.R.Ct. 3.2, Krous moved to suppress the evidence obtained in the search, arguing officers must first ask her permission to search and if she withheld that permission to search, her probation could be revoked. She argues that officers had no authority to perform a warrantless search of her residence if she denied them permission to search.
[¶6] The State failed to respond to Krous's motion to suppress. Due to that failure, Krous sent a letter to the trial court requesting that it cancel the hearing and grant her motion to suppress. She argued that according to Rule 3.2, the evidence should have been suppressed because the State failed to provide a timely brief in opposition to her motion.
[¶7] The trial court chose to discuss Krous's request to cancel the hearing at the beginning of the hearing on the motion to suppress. The trial court allowed each side to present an argument regarding the Rule 3.2 issue. Ultimately, the trial court allowed the State to present its case opposing the motion to suppress and assured the parties it would decide the Rule 3.2 issue after doing further research. In its Memorandum Opinion and Order, the trial court concluded that while a non-response is acknowledgment that the motion is meritorious, it does not mean the motion must be granted. Based on the merits of the pleadings and the hearing, the trial court denied Krous's motion to suppress. Krous appeals that order, the subsequent second amended criminal judgment, and the order revoking her probation for a drug related conviction.
[¶8] On appeal, Krous argues the evidence obtained in the probationary search of her residence should have been suppressed.
[¶9] Krous argues that because the State failed to provide a timely brief in opposition to her Rule 3.2 motion to suppress, her motion should have been granted. We disagree.
N.D.R.Ct. 3.2(a)-(b) (emphasis added). Our Court specifically amended N.D.R.Ct. 3.2 to include the discretionary language underlined above. See Memo to Joint Procedure Committee 93-97 (January 16, 1996); Memo to Joint Procedure Committee 34-39 (March 23, 1984). Effectively, the decision to allow a hearing on a Rule 3.2 motion is discretionary even if the opposing party failed to file a brief. Therefore, the issue in this case becomes whether the trial court abused its discretion when it allowed the State to put on evidence at the motion to suppress hearing and when it considered the merits of that evidence after the State failed to file a brief. A trial court judge "may require oral argument and may allow or require testimony on" a Rule 3.2 motion. N.D.R.Ct. 3.2(a).
[¶11] The trial court heard arguments from both sides as to whether the State should be allowed to present evidence at the hearing. In addition, the trial court deferred its decision until it could do more research regarding Rule 3.2. Failure to file a brief in response to a Rule 3.2 motion does not automatically grant the relief requested in the motion. Hartman v. Hartman, 466 N.W.2d 155, 156 (N.D. 1991). It is within the trial court's discretion whether to allow the State to put on evidence during the motion to suppress hearing and whether to consider the State's evidence when deciding the merits of the motion to suppress. We conclude the trial court did not abuse its discretion.
[¶12] Krous argues the word "submit" in condition (2)(h) of her conditions of probation requires a person conducting a probationary search to first ask the probationer's permission to search. She argues that if a probationer denies permission to search, probation may be revoked, but she argues that the person conducting a probationary search may not then execute a warrantless search. Therefore, she argues that because no one asked her permission to search, the evidence obtained in this warrantless search should be suppressed. We disagree.
[¶13] Condition (2)(h) of Krous's conditions of probation states that she "shall submit to search of her person, vehicle, or place of residence by any probation officer at any time of the day or night, with or without a search warrant." Section 12.1-32-07(4)(n), N.D.C.C., expressly provides that the conditions of probation may require the probationer to "[s]ubmit the defendant's person, place of residence, or vehicle to search and seizure by a probation officer at any time of the day or night, with or without a search warrant."
[¶14] On appeal Krous requests this Court to interpret the word "submit" in her condition of probation and in N.D.C.C. § 12.1-32-07(4)(n). Issues of interpretation and application of statutes are questions of law fully reviewable by this Court. State v. Norman, 2003 ND 66, ¶ 14, 660 N.W.2d 549 (quoting Overboe v. Farm Credit Servs., 2001 ND 58, ¶ 9, 623 N.W.2d 372). Krous does not argue in the alternative, that the underlying search was unconstitutional even if we disagree with her interpretation of the word "submit." Therefore, interpretation of her condition of probation is a question of law.
[¶15] Krous requests that we adopt Oregon authority supporting her argument. See State v. Gulley, 921 P.2d 396 (Or. 1996); State v. Hindman, 866 P.2d 481 (Or. Ct. App. 1993); State v. Davis, 891 P.2d 1373 (Or. Ct. App. 1995). Oregon courts hold that the word submit "leaves in the hands of the probationer the power to resist a search that the probation officer may wish to make," but that the probationer then risks potential probation revocation. Gulley, 921 P.2d at 398; ...
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