State v. Mertens

• Decision Date: 12 May 1978
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. David John MERTENS, Defendant and Appellant. o. 618.
• Court: North Dakota Supreme Court

Page 446

268 N.W.2d 446

STATE of North Dakota, Plaintiff and Appellee, v. David John MERTENS, Defendant and Appellant.

Cr. No. 618.

Supreme Court of North Dakota.

May 12, 1978.

Specially Concurring Opinion July 12, 1978.

As Amended July 12, 1978.

Rehearing Denied Aug. 3, 1978.

David Garcia, Devils Lake, for defendant and appellant.

Lewis C. Jorgenson, Asst. State's Atty., Devils Lake, for plaintiff and appellee.

SAND, Justice.

The defendant, David John Mertens, was found guilty by a Ramsey County district court jury of the offense of possessing a controlled substance with intent to deliver in violation of §§ 19-03.1-05, Schedule I, paragraph 4, and 19-03.1-23, North Dakota Century Code (a felony). The district court entered a judgment of conviction, from which the defendant appealed.

The defendant, on appeal, raised several issues of error, the principal one of which is that the search warrant was improperly granted and that the evidence attained thereunder should have been suppressed.

The defendant contended that the affidavit upon which the search warrant was issued was inadequate in that it did not provide sufficient information upon which the magistrate could independently determine probable cause.

The affidavit of the special investigator upon which the search warrant was issued stated that an informer, whom he had known for several years and who had cooperated with him in the past, informed him that Mertens was going to receive a package by first-class mail containing microdot acid hits, a. k. a. blotters or LSD, from a person named "Tom" and that the package was being mailed from San Francisco, California. He (the special investigator) then contacted the Devils Lake postmaster and informed him of the package that was coming. The postmaster advised him (the special investigator) to be at the postoffice at 8:00 a. m. on 19 January 1977 to ascertain if there was such a package. The special investigator came to the Devils Lake postoffice at the specified time and in the company of the postmaster observed a package wrapped in brown paper, approximately 3 1/2 inches long, 3 1/2 inches wide, and 2 inches thick, with red electrical tape over the entire bottom, addressed to Dave Mertens, Lakeview Dairy, Devils Lake, North Dakota, with a return address of "T. Mack" San Francisco, California. The postmaster informed him (the special investigator) that the package in question would be delivered to Dave Mertens in the normal course of mail delivery on 20 January 1977 at the Lakeview Dairy. He (the special investigator) was aware from his own personal knowledge that Dave Mertens was employed at Lakeview Dairy and was involved in the use and distribution of controlled substances.

The resolution of the validity of the search warrant in this instance will for all practical and legal purposes resolve the suppression issue because both depend upon the same factual situation.

In determining whether or not the affidavit establishes the required probable cause for a search warrant, we apply practical rather than abstract concepts. The magistrates and the courts interpret the affidavits in a commonsense and realistic fashion. Usually such affidavits are drawn by non-lawyers and seldom under ideal conditions. Technical common law pleadings are no longer desirable or required, and likewise neither should technical language be required in an affidavit for a search warrant. Observations and investigations of officers prompted by information received from an informant and recited in an affidavit are a valid basis for establishing probable cause for search warrants. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

"Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." United States v. Ventresca, supra, 380 U.S. at 109, 85 S.Ct. at 746.

In this case, as disclosed by the suppression hearing, the special investigating officer who received the information from an informant and who made the investigation "gave the information to the assistant state's attorney . . . and he dictated it to his secretary." This statement apparently refers to the preparation of the affidavit for the search warrant. The suppression hearing also disclosed that the magistrate, before issuing the search warrant, inquired of the officer about the credibility and reliability of the informant upon whom the investigator relied.

In determining the validity of a search based upon a warrant issued by a magistrate, as distinguished from a search without a warrant on the officer's own determination of probable cause, "the reviewing courts will accept evidence of a less 'judicially competent or persuasive character than would have justified an officer acting on his own without a warrant.' " Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The different standard is justified on the grounds that the magistrate is neutral and detached, whereas the officer is actively involved.

"Although the reviewing court will pay substantial deference to judicial determinations of probable cause (by a magistrate), the court must still insist that the magistrate perform his 'neutral and detached' function and not serve merely as a rubber stamp for the police." Aguilar v. Texas, supra.

Also, hearsay evidence may be used to establish probable cause for a search warrant. Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735, 4 L.Ed.2d 697, 708 (1960).

The North Dakota Supreme Court, in State v. Dove, 182 N.W.2d 297 (N.D.1970), observed that the United States Supreme Court established certain guidelines for the courts to follow in determining whether an affidavit given in support of an application for a search warrant was sufficient to show probable cause. This court then said:

"Although an affidavit may be based on hearsay information it need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was 'credible' or his information 'reliable.' " (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).)

In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), the United States Supreme Court had under consideration the probable cause requirement to make an arrest without a warrant and a search incident to the warrant. The evidence upon which the officer relied:

". . . established that one Marsh, a federal narcotic agent with 29 years' experience, was stationed at Denver; that one Hereford had been engaged as a 'special employee' of the Bureau of Narcotics at Denver for about six months, and from time to time gave information to Marsh regarding violations of the narcotic laws, for which Hereford was paid small sums of money, and that Marsh had always found the information given by Hereford to be accurate and reliable. On September 3, 1956, Hereford told Marsh that James Draper (petitioner) recently had taken up abode at a stated address in Denver and 'was peddling narcotics to several addicts' in that city. Four days later, on September 7, Hereford told Marsh 'that Draper had gone to Chicago the day before (September 6) by train (and) that he was going to bring back three ounces of heroin (and) that he would return to Denver either on the morning of the 8th of September or the morning of the 9th of September also by train.' Hereford also gave Marsh a detailed physical description of Draper and of the clothing he was wearing, and said that he would be carrying 'a tan zipper bag,' and that he habitually 'walked real fast.'

"On the morning of September 8, Marsh and a Denver police officer went to the Denver Union Station and kept watch over all incoming trains from Chicago, but they did not see anyone fitting the description that Hereford had given. Repeating the process on the morning of September 9, they saw a person, having the exact physical attributes and wearing the precise clothing described by Hereford, alight from an incoming Chicago train and start walking 'fast' toward the exist. He was carrying a tan zipper bag in his right hand and the left was thrust in his raincoat pocket. Marsh, accompanied by the police officer, overtook, stopped and arrested him. They then searched him and found two 'envelopes containing heroin' clutched in his left hand in his raincoat pocket, and found the syringe in the tan zipper bag."

The Court, in determining whether or not the foregoing facts satisfied the probable cause requirements, noted that Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, held that the evidence to determine probable cause need not meet the admissibility test in a criminal trial. It quoted from Brinegar, 338 U.S. at 175, 69 S.Ct. at 1310, as follows "In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."

The Court then concluded that the officer had probable cause and reasonable grounds under the facts presented earlier to make the arrest and search and stated that:

"Probable cause exists where 'the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been...