State v. Lunde
| Decision Date | 21 July 2008 |
| Docket Number | No. 20070159.,20070159. |
| Citation | 752 N.W.2d 630,2008 ND 142 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Marcus Steven LUNDE, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Gary E. Euren, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.
Lorelle A. Moeckel (argued) and Steven M. Light (on brief), Larivee & Light, Fargo, ND, for defendant and appellant.
[¶ 1] Marcus Lunde appealed from a criminal judgment entered upon his conditional guilty plea to possession of marijuana with intent to deliver, possession of a controlled substance, and two counts of possession of drug paraphernalia. Because we conclude the district court erred in applying the good faith exception to the exclusionary rule, we reverse and remand to allow Lunde to withdraw his guilty plea.
[¶ 2] In August 2006, Officer Jason Hicks of the West Fargo Police Department applied for a search warrant for Lunde's apartment in West Fargo. In support of the application, Officer Hicks submitted an affidavit detailing information he had received from other law enforcement officials.
[¶ 3] Officer Hick's affidavit stated that on August 3, 2006, Officer Hicks spoke to Special Agent Donald Burns of the Central Minnesota Drug Task Force. Officer Hicks stated he learned that Special Agent Burns and Detective Chuck Anderson of the Clay County Sheriff's Department had spoken to a confidential informant whose name and identity were known to Burns and Anderson. The confidential informant stated that the informant had become involved in a drug trafficking organization in December 2005 and associated with two individuals, one who was a suspect in a large federal narcotics case in Minnesota and another known as "Slim." The affidavit states the confidential informant later identified "Slim" from a photograph as Lunde. The confidential informant described Slim's apartment as being off the "Horace" road, now know as Sheyenne Street in West Fargo, but that the informant had not been in Slim's apartment. The confidential informant had met Slim in the parking lot of Slim's building. The confidential informant stated that when the informant met with Slim, the informant would transfer "money-grams receipts" from drug transactions to Slim and would on occasion collect currency from Slim for "money-gram transfer." According to the affidavit, the confidential informant was aware that Slim was involved in the wholesale selling of marijuana and methamphetamine, that the informant often collected drug debts for Slim and would return the money collected to Slim at Slim's apartment. The confidential informant also stated that the informant kept a ledger for Slim to keep track of moneys paid and owed for drug debts, commonly referred to as "pay/owe sheets."
[¶ 4] Officer Hick's affidavit also states that on August 2, 2006, Officer Hicks spoke to Detective Charles Anderson of the Clay County Sheriff's Department as Detective Anderson was attempting to identify the person known as "Slim" who lived off of "Horace" road. The affidavit states Officer Hicks knew of a person living in the area who could possibly be "Slim." Officer Hicks knew that on July 21, 2006, the West Fargo Police Department had assisted the Moorhead Police Department in attempting to locate "CJ," who was wanted on narcotics violations, and that Moorhead Police Department detective Jeff Larson had received an anonymous tip that "CJ" was staying with Lunde at the apartment in West Fargo. The affidavit states that Lunde allowed the officers to check the apartment for CJ and, further, that Lunde told the officers he had not seen CJ since Sunday, July 16.
[¶ 5] The affidavit states that on July 20, 2006, Special Agent Burns conducted an interview of a "cooperating individual," who had been "fully identified" by Special Agent Burns and who wished to remain anonymous. The affidavit states that the cooperating individual was not seeking any monetary gain or special consideration in any ongoing investigation in exchange for the information. The cooperating individual had stated that he or she had lived with a person "for a short period of time" who regularly associated with the suspect in a large federal narcotics case and two other people, one of whom was known to the cooperating individual only as "Slim from Fargo." The cooperating individual believed all the subjects were involved in trafficking controlled substances and had seen the person with whom he or she had lived in possession of a large amount of marijuana and what the individual believed to be either cocaine or methamphetamine. Officer Hick's affidavit states that Special Agent Burns "was able to verify much of the information provided by this [cooperating individual] threw [sic] independent means."
[¶ 6] The affidavit also states Special Agent Burns had "reviewed the electronic telephone book in a cellular telephone taken by [the suspect in a large federal narcotics case] at the time of his arrest." The affidavit states that there was a cell phone number for Slim. Officer Hicks's affidavit states that Special Agent Burns had reviewed telephone calls placed by the federal narcotics suspect while he was in custody at the Todd County Detention Center and that during several of these calls the suspect "was attempting to have people contact Slim and advise him of his arrest."
[¶ 7] On the basis of Officer Hicks's affidavit, the magistrate found probable cause existed and issued the search warrant for Lunde's West Fargo apartment. On August 3, 2006, Lunde was charged with various drug crimes resulting from the law enforcement officers' execution of the search warrant at his residence.
[¶ 8] In January 2007, Lunde moved the district court to suppress the evidence because the search warrant for Lunde's residence was not supported by probable cause in violation of U.S. Const. amend. IV and N.D. Const. art. I, § 8. At a February 2007 motion hearing, the district court issued its opinion denying Lunde's motion. The court held there was no probable cause for the search warrant, but that the good faith exception applied. During the hearing, the court stated:
THE COURT: Okay. Well, as far as probable cause goes to issue a search warrant there's a lot about that that was lacking in that affidavit. There was no controlled buy, there was no garbage search, there was no views of the coming and going. No indication as to the reliability of these confidential informants. It came very much second, third, and fourth hand.
The police officers were actually in the apartment itself a week prior to the application for the search warrant. Nothing from their previous entry into that apartment was used to support probable cause for the application for the search warrant. Given that the informant was a member of the criminal milieu there was need to ascertain that these people were in fact reliable, and they were not.
So as far as that portion of the motion to suppress I will find that there is not probable cause.
Now, we're going to go on to the good faith exclusion here.... I think there is a good faith exception to the exclusionary rule on this matter. I think that there was—and he did point out those circumstances, those exceptions, to the rule. Those 4 circumstances.
Certainly there was no intention or— to give false information. The information, we don't know if it was true or false that looked like it was still observed in a neutral manner by the magistrate and there was indicia of probable cause. That on a real serious examination of the submissions of the parties and their arguments I found that there was not probable cause but there certainly was indicia in that affidavit and it was reasonable for law enforcement to rely on that affidavit.
So I'm not going to apply the exclusionary rule, I'm going to deny the motion to suppress and since I have found that there was not probable cause I'm also going to deny the motion to compel the disclosure of the confidential informant because I found that there is no showing that the informant was in fact reliable.
So the motion to suppress is denied on the grounds that there was a good faith exception to the exclusionary rule.
[¶ 9] On March 16, 2007, the district court entered its order denying Lunde's motion to suppress and to compel disclosure of the state's confidential informant. In May 2007, Lunde entered a conditional guilty plea, reserving his right to appeal from the denial of his motion to suppress. See N.D.R.Crim.P. 11.
[¶ 10] Generally, in reviewing a district court's ruling on a motion to suppress, this Court defers to the district court's findings of fact and resolves conflicts and testimony in favor of affirmance. State v. Albaugh, 2007 ND 86, ¶ 8, 732 N.W.2d 712 (quoting State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578). However, "we will reverse the district court's denial of a suppression motion where the decision lacks sufficient competent evidence fairly capable of supporting its findings, and the decision is contrary to the manifest weight of the evidence." State v. Demars, 2007 ND 145, ¶ 7, 738 N.W.2d 486. "Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law." Albaugh, at ¶ 8 (internal quotation omitted).
The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment State v. Ressler, 2005 ND 140, ¶ 10, 701 N.W.2d 915 (citation omitted), protects "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; see also N.D. Const. art. I, § 8. To protect against unreasonable searches and seizures, "[p]robable cause is required for a search warrant under the Fourth Amendment to the United States Constitution and Article I, Section 8 of our state constitution." State v. Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861 (citing State v....
To continue reading
Request your trial
-
State v. Holly
...... [¶ 53] Because we conclude the good-faith exception does not apply to federal exclusionary rule in this case, we need not address whether the state's exclusionary rule under the North Dakota Constitution recognizes a good-faith exception. See State v. Lunde, 2008 ND 142, ¶ 25, 752 N.W.2d 630. b. [¶ 54] The inevitable-discovery doctrine “establishes that evidence derived from information obtained in an unlawful search is not inadmissible under the fruit-of-the-poisonous-tree doctrine where it is shown that the evidence would have ......
-
Chatman v. Sayler
...by the informant giving detailed information overcoming any doubt." State v. Weinmann, 2015 ND 213, ¶ 8, 868 N.W.2d 828 (quoting State v. Lunde, 2008 ND 142, ¶ 11, 752 N.W.2d 630). The informant provided a first-hand account of recently witnessing Chatman dealing heroin and of her trip with......
-
State v. Hayes
......Mitzel, 2004 ND 157, ¶ 11, 685 N.W.2d 120. Evidence seized in violation of the Fourth Amendment must be suppressed under the exclusionary rule. Wong Sun v. United States, 371 U.S. 471, 484–85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Lunde, 2008 ND 142, ¶ 15, 752 N.W.2d 630. [¶ 38] There are, however, a few well-delineated exceptions to the warrant requirement. State v. DeCoteau, 1999 ND 77, ¶ 7, 592 N.W.2d 579. One exception is consent. Id. at ¶ 9. A district court must “determine whether the consent ......
-
State v. Chatman
......Weinmann, 2015 ND 213, ¶ 8, 868 N.W.2d 828 (quoting State v. Lunde, 2008 ND 142, ¶ 11, 752 N.W.2d 630 ). The informant provided a first-hand account of recently witnessing Chatman dealing heroin and of her trip with Chatman to Chicago to pick up heroin and cocaine, including detailed information about when Chatman would arrive with the drugs, what vehicle they ......