State v. Laib
| Citation | 2002 ND 95,644 N.W.2d 878 |
| Decision Date | 04 June 2002 |
| Docket Number | No. 20010206.,20010206. |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Marvin John LAIB, Defendant and Appellant. |
| Court | United States State Supreme Court of North Dakota |
Ladd Ronald Erickson, Assistant State's Attorney, Mandan, ND, for plaintiff and appellee.
Steven M. Light, Larivee & Light, Grand Forks, ND, for defendant and appellant.
[¶ 1] Marvin John Laib appealed from a criminal judgment entered on a jury verdict finding him guilty of possession of methamphetamine with intent to deliver and possession of stolen property. We conclude the trial court did not err in denying Laib's motion to suppress evidence or in sentencing him as a third-time offender to a 20-year mandatory minimum sentence. We affirm.
[¶ 2] During February 2001, law enforcement officers obtained warrants to search Laib's Mandan residence, and structures within the curtilage of the residence, for controlled substances, proceeds from and records of drug transactions, and stolen property. When the first warrant was executed on February 12, 2001, officers seized a red pen containing methamphetamine residue, a small amount of marijuana, an "owe sheet" listing drug transactions, and $2,550 in cash. During this search, one of the officers noticed in the back of a shed on the property a blue welder and welding helmet which were similar to items that had been reported stolen from a Mandan business in January 2001. Officers eventually obtained another search warrant which they executed on February 16, 2001. During this search, the officers seized a blue welder and welding helmet matching the ones recently stolen and about one ounce of methamphetamine concealed in an aluminum beer can in Laib's refrigerator. This evidence led to the issuance and execution of a third search warrant.
[¶ 3] Laib was charged with class A felony possession of a controlled substance, methamphetamine, with intent to deliver in violation of N.D.C.C. § 19-03.1-23, and class C felony possession of stolen property in violation of N.D.C.C. § 12.1-23-02. Because Laib had two prior convictions for class B felony delivery of a controlled substance, marijuana, in 1983 and in 1993, the State informed Laib it was seeking to impose a 20-year mandatory minimum sentence under N.D.C.C. § 19-03.1-23(1)(a)(2). Laib moved to suppress the evidence obtained during the February 16, 2001 search, claiming the warrant was based upon false information provided to the court by a law enforcement officer. The trial court denied the suppression motion. The jury found Laib guilty on both counts. The trial court concluded the 20-year mandatory minimum sentence under N.D.C.C. § 19-03.1-23(1)(a)(2) for possession of methamphetamine with intent to deliver applied under the circumstances, and sentenced Laib accordingly. The trial court also sentenced Laib to five years imprisonment for possession of stolen property, to be served concurrently with the 20-year sentence. Laib appealed.1
[¶ 4] Laib argues the trial court erred in denying his suppression motion because the evidence presented in support of the second search warrant included a false statement by one of the officers that the officer had seen a blue welder and welding helmet during the execution of the first search warrant.
[¶ 5] In Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held:
[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
In this case, the trial court held an evidentiary hearing on Laib's suppression motion. See State v. Duchene, 2001 ND 66, ¶ 9, 624 N.W.2d 668
.
[¶ 7] In support of the suppression motion, Laib presented an affidavit of Mark Carlson, who claimed he had borrowed the welder from Laib before the police arrived to search the premises on February 12, 2001, and did not return it to Laib until February 14, 2001, making it impossible for Officer Johnson to have observed it during the first search. At the evidentiary hearing on the suppression motion, Carlson testified he loaded the welder into the back of his pickup in the afternoon of February 12, 2001, and that he backed the pickup "all the way up" to the garage to do so. Laib presented the testimony of Dustin Patzner, who said he assisted Carlson that afternoon, but claimed Carlson's pickup was backed "30 feet in front of the garage door for purposes of loading the welder. Laib also presented the testimony of Russell Ressler, who testified Carlson and Patzner brought the welder to his shop "with the trailer." Officer Johnson testified he observed the welder and welding helmet in Laib's garage, there was snow on the ground, and there were no tire tracks leading to the garage. In denying the suppression motion, the trial court found "the officer's testimony to be truthful, and consistent with the facts as established through all the witnesses."
[¶ 8] Because the trial court has the opportunity to observe and assess the credibility of witnesses, we accord great deference to its decision on a suppression motion. City of West Fargo v. Ross, 2001 ND 163, ¶ 5, 634 N.W.2d 527. Whether a defendant establishes statements made in support of a warrant were intentionally false or made with reckless disregard of the truth is a finding of fact. State v. Schmitt, 2001 ND 57, ¶ 11, 623 N.W.2d 409. A trial court's decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court's findings, and if its decision is not contrary to the manifest weight of the evidence. State v. Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1.
[¶ 9] We conclude there is sufficient competent evidence to support the trial court's finding that Officer Johnson was truthful, and the court's decision denying the suppression motion is not contrary to the manifest weight of the evidence.
[¶ 10] Laib argues the trial court erred in ruling a 20-year mandatory minimum sentence of imprisonment was applicable under the circumstances.
[¶ 11] On April 28, 1983, Laib pled guilty to class B felony delivery of a controlled substance, marijuana, and was sentenced to two years imprisonment with one year of the sentence suspended. On January 31, 1994, Laib again pled guilty to class B felony delivery of a controlled substance, marijuana, and was sentenced to three years imprisonment with execution of the imprisonment portion of the sentence suspended for a period of three years while Laib served that time on probation. Upon Laib's conviction for class A felony possession of a controlled substance, methamphetamine, with intent to deliver, the trial court ruled a 20-year mandatory minimum sentence was required by N.D.C.C. § 19-03.1-23(1)(a)(2) and (5), which provides:
1. Except as authorized by this chapter, it is unlawful for any person to willfully, as defined in section 12.1-02-02, manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance, but any person who violates section 12-46-24 or 12-47-21 may not be prosecuted under this subsection. Any person who violates this subsection with respect to:
a. A controlled substance classified in schedule I or II which is a narcotic drug, or methamphetamine, is guilty of a class A felony and must be sentenced:
....
(2) for a third or subsequent offense, to imprisonment for twenty years.
....
5. A violation of this chapter or a law of another state or the federal government which is equivalent to an offense under this chapter committed while the offender was an adult and which resulted in a plea or finding of guilt must be considered a prior offense under subsections 1, 3, and 4. The prior offense must be alleged in the complaint, information, or indictment. The plea or finding of guilt for the prior offense must have occurred before the date of the commission of the offense or offenses charged in the complaint, information, or indictment.
We have defined the term "offense" for purposes of ...
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