State v. Maurstad

• Decision Date: 16 July 2002
• Docket Number: No. 20010293., No. 20010292
• Citation: 2002 ND 121,647 N.W.2d 688
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Brent Gary MAURSTAD, Defendant and Appellant.
• Court: North Dakota Supreme Court

647 N.W.2d 688

2002 ND 121

STATE of North Dakota, Plaintiff and Appellee, v. Brent Gary MAURSTAD, Defendant and Appellant.

Nos. 20010292, 20010293.

Supreme Court of North Dakota.

July 16, 2002.

Rehearing Denied August 15, 2002.

Barbara L. Whelan, State's Attorney, Cavalier, for plaintiff and appellee.

Robin L. Olson, Olson Johnston Law Office, Grand Forks, for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Brent Maurstad appeals from two Northeast Judicial District Court judgments of conviction, one for possession of methamphetamine with intent to deliver and one for manufacturing a controlled substance. The district court had denied his motion to suppress evidence seized during a probationary search of him and his vehicle and a search of his father's place of business. We affirm, concluding the search of Maurstad and his vehicle was a valid probationary search, and he abandoned the issue of the validity of the search of his father's place of business.

I

[¶ 2] At the time of the search, Maurstad was on probation as a result of a drug-related offense. One condition of his probation required him to "submit to search of [his] person, vehicle, or place of residence by any probation [officer] at any time of the day or night, with or without a search warrant."

[¶ 3] A few weeks prior to the search, a law enforcement officer with the Grand Forks Narcotics Task Force informed Maurstad's probation officers that the task force suspected Maurstad was manufacturing methamphetamine at his father's tree service shop. Maurstad was working for his father at the time. Maurstad's probation officers, along with law enforcement officers, began surveillance of the father's shop. They were unable to identify Maurstad at the shop outside of regular business hours, but observed people at the shop between one and two o'clock in the morning, unloading items from a car trunk and moving them into the shop. The probation officers directed local law enforcement officers to stop Maurstad and search him and his vehicle if they saw Maurstad leaving the shop outside of regular business hours.

[¶ 4] On the evening of May 17, 2001, one of Maurstad's probation officers received a telephone call from a law enforcement officer informing him that Maurstad was at his father's shop and asking him whether he wanted Maurstad stopped. The probation officer told the law enforcement officer to stop Maurstad when he left the shop and to wait until he, the probation officer, arrived. The probation officer attempted to contact Maurstad's other probation officer, but she was not available. The probation officer arrived at the father's shop just as Maurstad was leaving, about 8:45 p.m. Maurstad's vehicle was stopped a few blocks away and searched.

[¶ 5] During the search of Maurstad's vehicle, the law enforcement officers found a container with white residue that tested positive for amphetamine, a cooler with a lid secured by duct tape, and lithium battery strips. The officers identified these items as consistent with the manufacture of methamphetamine. Maurstad was arrested and transported to the local sheriff's office. The officers then went to the father's shop to secure it and gather information for a search warrant. Maurstad's father arrived at the shop shortly thereafter, and the officers obtained his permission to search the shop. The officers found additional evidence of methamphetamine manufacturing.

[¶ 6] Maurstad was charged with two felony offenses: possession of methamphetamine with intent to deliver, and manufacturing a controlled substance. Maurstad moved to suppress the evidence obtained from the searches.

[¶ 7] At the suppression hearing, Maurstad argued the search of him and his vehicle was not the type of search authorized by the terms of his probation because it was not done for a probationary purpose. Rather, he argued, the search was conducted to assist an ongoing criminal investigation. Maurstad also challenged the legality of the search of his father's shop, alleging his father's consent was fraudulently obtained because the law enforcement officers told his father a search warrant was on the way. Maurstad's father testified he would have consented to the search of his shop regardless of whether the law enforcement and probation officers had obtained a warrant.

[¶ 8] The district court denied Maurstad's motion to suppress, stating, in part:

[The father's] testimony was apparently different at the hearing on the Motion to Suppress than what defense counsel understood prior to trial. Part of the defendant's motion was that all items found in the Gary's Tree Service Building should be suppressed because [the father's] consent was fraudulently obtained.

Based on [the father's] testimony any evidence discovered at the business location will be admitted and the Motion to Suppress will be denied.

....

In the present case Mr. Maurstad was already on probation for drug related offenses. The probation officer received information the defendant was suspected of engaging in the manufacturing of methamphetamine. The probation officer after verifying through police surveillance that the defendant was at his fathers work building and that people known to be involved with controlled substances were coming to this place, directed officers to stop and search him if he left.

The Court concludes this probationary search was reasonably conducted to determine whether the defendant was in compliance with the law. The mere fact the search results in new charges is not unusual, in fact it is commonly the case.

The Court concludes this probationary search was not a subterfuge for a criminal investigation.

Maurstad entered a conditional plea of guilty and then appealed the district court's denial of his motion to suppress the evidence seized.

[¶ 9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

[¶ 10] On appeal, Maurstad argues the evidence seized should be suppressed.

A

[¶ 11] "A trial court's disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, 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." State v. LaFromboise, 542 N.W.2d 110, 112 (N.D.1996). "This standard of review acknowledges the significance of the trial court's opportunity to assess the credibility of witnesses and to weigh their testimony." State v. Smith, 1999 ND 9, ¶ 10, 589 N.W.2d 546. Whether a violation of the constitutional prohibition against unreasonable searches and seizures has occurred is a question of law. LaFromboise, at 112. When reviewing the constitutionality of probationary searches, we have interpreted the North Dakota Constitution to provide the same protections for probationers as provided by the United States Constitution. Smith, at ¶ 24 (search performed in a reasonable manner did not violate either the state or federal constitution); LaFromboise, at 111-14 (challenge to search based on both the state and federal constitutions upheld on the same grounds).

B

[¶ 12] Maurstad argues the probationary search of him and his vehicle was subterfuge to advance a criminal investigation and was a violation of the Fourth Amendment.

[¶ 13] The authority for imposing conditions of probation is created by N.D.C.C. § 12.1-32-07(4), which provides, in part:

When imposing a sentence to probation, probation in conjunction with imprisonment, or probation in conjunction with suspended execution or deferred imposition of sentence, the court may impose such conditions as it deems appropriate and may include any one or more of the following:

....

n. Submit 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] In State v. Perbix, this Court set forth the framework for reviewing the constitutionality of probationary searches. 331 N.W.2d 14 (N.D.1983). The probationer in Perbix was on probation following his conviction for possession of a controlled substance. The terms of his probation included "the search of his person, place of residence and motor vehicle, at any time, day or night, by any police officer or probation officer, with or without a search warrant and with or without probable cause." Id. at 15. Local law enforcement officers decided to search the probationer's residence "because the search provision had not been previously implemented." Id. The search revealed marijuana and hashish, and he was charged with two counts of felony possession of a controlled substance. Id. at 16. The probationer attempted to suppress the evidence from the search by arguing the search clause was invalid because it authorized law enforcement officers as well as probation officers to conduct searches, contrary to N.D.C.C. § 12.1-32-07, which did not mention law enforcement officers. Id. at 17. The probationer also argued the search violated the Fourth Amendment. Id. at 16.

[¶ 15] Maurstad confuses the specific probation clause at issue in Perbix with the history of N.D.C.C. § 12.1-32-07. The probation clause in Perbix allowed probationary searches by police officers, but N.D.C.C. § 12.1-32-07 has never included language specifically permitting or prohibiting police officers from conducting probationary searches. Section 12.1-32-07 became effective July 1, 1975, and although the subsections have been renumbered, the language allowing for searches and seizures of probationers, their residences, or vehicles has not changed. See 2001 N.D. Sess. Laws ch. 139, § 1; 1997 N.D. Sess. Laws ch. 133, § 1; 1995 N.D. Sess. Laws ch. 138, § 1; 1993 N.D. Sess. Laws ch. 130, § 1; 1989 N.D. Sess. Laws ch. 158, § 4; 1973 N.D. Sess. Laws ch. 116, § 31.

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