State v. Loh

• Decision Date: 06 April 2010
• Docket Number: No. 20090098,20090099.,20090098
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Eric Wayne LOH, Defendant and Appellant.
• Court: North Dakota Supreme Court

780 N.W.2d 719

2010 ND 66

STATE of North Dakota, Plaintiff and Appellee v. Eric Wayne LOH, Defendant and Appellant.

Nos. 20090098, 20090099.

Supreme Court of North Dakota.

April 6, 2010.

Cynthia Mae Feland (argued), Assistant State's Attorney, and Christopher S. Pieske (on brief), Legal Intern and third-year law student, under the Rule on Limited Practice of Law by Law Students, Bismarck, N.D., for plaintiff and appellee.

Michael Ray Hoffman, Bismarck, N.D., for defendant and appellant.

SANDSTROM, Justice.

¶ 1 Eric Wayne Loh appeals from criminal judgments entered after he conditionally pled guilty to two counts of delivery of methamphetamine. Because we conclude the district court did not err in denying his motions to suppress evidence in each case and the court did not err in sentencing Loh to the mandatory minimum sentence of 20 years in each case under N.D.C.C. § 19-03.1-23, we affirm.

I

¶ 2 Loh was charged with two counts of delivery of methamphetamine after he sold methamphetamine to a confidential informant on August 5, 2007, and October 8, 2007. On each of those dates, Loh entered the confidential informant's car and sold the informant methamphetamine for $200. The confidential informant was wearing an audio transmitting device ("wire"), and police officers were listening to and recording the conversations between Loh and the informant. On each occasion the informant turned over to police a small bag containing methamphetamine. Loh was subsequently arrested and charged with two counts of delivery of methamphetamine. Each count was charged as a third or subsequent offense.

¶ 3 In September 2008, Loh moved to suppress evidence in both cases because no warrant was obtained for use of the wire. After a hearing, the court denied the motions, stating, "The Court finds as a matter of constitutional law that Loh had no right of privacy when he put himself in the confidential informant's vehicle for the purpose of selling the confidential informant methamphetamine. The recording of both conversations between Loh and the confidential informant do not violate the Constitution of North Dakota." Loh entered conditional guilty pleas to the charges under N.D.R.Crim.P. 11(a)(2), reserving his right to appeal the district court's denial of his suppression motions.

¶ 4 Loh also objected to imposition of the 20-year mandatory minimum sentence for each count. In his objection, Loh acknowledged he was convicted in 1996 of one count of delivery of marijuana and methamphetamine and a second count of delivery of only marijuana. Loh conceded the conviction for delivery of marijuana and methamphetamine counted as an enhancement conviction under N.D.C.C. § 19-03.1-23, but argued the conviction for delivery of only marijuana should not be considered an enhancement conviction, asserting that State v. Laib, 2002 ND 95, 644 N.W.2d 878 was wrongly decided. He claimed he should be given only a five-year minimum mandatory sentence for a second offense. The district court rejected his arguments, stating, "The Court has no choice in this matter. The legislature has set the rules. The Court has to follow those." The court sentenced Loh to 20 years of imprisonment on each count to run concurrently.

¶ 5 The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06(1). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 29-28-06. The appeal was timely under N.D.R.App.P. 4(b).

II

¶ 6 Loh argues that the district court erred in denying his motion to suppress evidence because the police did not obtain a warrant for the use of the wire.

¶ 7 Our standard of review of a district court's decision whether to suppress evidence is well-established:

In reviewing a district court's decision on a motion to suppress evidence, we defer to the court's findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. This Court will affirm a district court's decision on a motion to suppress if "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." City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). On appeal, questions of law are fully reviewable, and whether a finding of fact meets a legal standard is a question of law. Graf, at ¶ 7.

State v. Brockel, 2008 ND 50, ¶ 4, 746 N.W.2d 423.

¶ 8 The Fourth Amendment to the United States Constitution, applicable to the states under the Fourteenth Amendment, and Article I, § 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures by the government. See Brockel, 2008 ND 50, ¶ 8, 746 N.W.2d 423; State v. Gregg, 2000 ND 154, ¶ 22, 615 N.W.2d 515. "The United States Supreme Court has defined a search, within the meaning of the Fourth Amendment, as an intrusion into a person's reasonable expectation of privacy." Gregg, at ¶ 22 (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)).

When an individual reasonably expects privacy in an area, the government, under the Fourth Amendment, must obtain a search warrant unless the intrusion falls within a recognized exception to the warrant requirement. In the absence of such an exception, evidence obtained in violation of the Fourth Amendment's protections against unreasonable searches must be suppressed as inadmissible under the exclusionary rule.

Gregg, at ¶ 23 (citation and quotation omitted).

¶ 9 Chapter 29-29.2, N.D.C.C., provides the procedures for obtaining a warrant-like, ex parte court order for wiretapping or eavesdropping. However, a court order authorizing electronic surveillance under N.D.C.C. ch. 29-29.2 is not required in certain circumstances:

This chapter does not apply to the interception, disclosure, or use of a wire, electronic, or oral communication if the person intercepting, disclosing, or using the wire, electronic, or oral communication:

1. Was a person acting under color of law to intercept a wire, electronic, or oral communication and was a party to the communication or one of the parties to the communication had given prior consent to such interception; or

2. Was a party to the communication or one of the parties to the communication had given prior consent to such interception and such communication was not intercepted for the purpose of committing a crime or other unlawful harm.

N.D.C.C. § 29-29.2-05.

III

¶ 10 Loh acknowledges the United States Supreme Court has held warrantless electronic monitoring of face-to-face conversations with the consent of one party to the conversation does not constitute a search and thus does not violate the Fourth Amendment. See United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). Nonetheless, Loh asserts he moved to suppress under N.D. Const. art. I, §§ 8 and 12, and the evidence should have been suppressed because no warrant was obtained by the police for the use of the wire, asserting that our state constitution provides greater protection than the United States Constitution. Loh also states he "understands that he may be asking this Court to find" N.D.C.C. § 29-29.2-05 unconstitutional.

¶ 11 In White, 401 U.S. at 746-47, 91 S.Ct. 1122 the Supreme Court decided "whether the Fourth Amendment barred from evidence the testimony of governmental agents who related certain conversations which had occurred between the defendant and a government informant and which the agents overheard by monitoring the frequency of a radio transmitter carried by and concealed on the informant." The informant in White had conversations with the defendant in the informant's home, which were overheard by a government agent concealed in a closet with the informant's consent, and in the defendant's home, in a restaurant, and in the informant's car, which were overheard by using a concealed radio transmitter. Id. at 747, 91 S.Ct. 1122. The Supreme Court held a defendant had no reasonable expectation of privacy under the Fourth Amendment and Katz in not being electronically monitored while having conversations with a government informant regarding criminal matters. White, at 749-51, 91 S.Ct. 1122. The Court stated, "If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State's case." Id. at 752, 91 S.Ct. 1122 (citing Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963)). The Court reasoned:

Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probable informers on the one hand and probable informers with transmitters on the other. Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant's utterances would be substantially different or his sense of security any less if he also thought it possible that the suspected colleague is wired for sound. At least there is no persuasive evidence that the difference in this respect between the electronically equipped and the unequipped agent is substantial enough to require discrete constitutional recognition, particularly under the Fourth Amendment which is ruled by fluid concepts of "reasonableness."

Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times

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