State v. Metzner

• Decision Date: 29 September 1983
• Docket Number: No. 931,931
• Citation: 338 N.W.2d 799
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Russell METZNER, Defendant and Appellee. Crim.
• Court: North Dakota Supreme Court

Page 799

338 N.W.2d 799

STATE of North Dakota, Plaintiff and Appellant, v. Russell METZNER, Defendant and Appellee.

Crim. No. 931.

Supreme Court of North Dakota.

Sept. 29, 1983.

Gail H. Hagerty, State's Atty., Bismarck, for plaintiff and appellant.

James J. Coles, Bismarck, for defendant and appellee.

Bruce D. Quick, Exec. Director, North Dakota States Attys. Ass'n, Fargo, amicus curiae.

PAULSON, Surrogate Justice. ^*

This is an appeal by the State from an order suppressing evidence entered in the District Court of Burleigh County. We reverse. ¹

On October 22, 1982, the defendant, Russell Metzner [Metzner], was arrested and charged with possession of more than one ounce of marijuana, a class C felony. Following a preliminary hearing and arraignment in district court, Metzner entered a plea of not guilty and filed a motion to suppress "all evidence obtained by the state as a result of a search conducted on or about October 21, 1982, at the residence of the defendant". A hearing on the motion was held on March 29, 1983, in the District Court of Burleigh County. On April 5, 1983, the judge issued an order suppressing evidence. It is from this order that the State now appeals.

On October 21, 1982, John P. Burkel, a special agent of the Bureau of Alcohol, Tobacco and Firearms stationed in Fargo, obtained a search warrant authorizing the search of Metzner's residence for a firearm and documents evidencing the purchase or possession of the firearm. In seeking the search warrant, as well as a warrant for Metzner's arrest for a violation of the federal firearms law involving the possession of a firearm by a felon, Burkel prepared an affidavit which was signed and sworn to before a United States magistrate. This affidavit alleged, in relevant part, as follows:

"JOHN P. BURKEL, Special Agent, Bureau of Alcohol, Tobacco and Firearms, Fargo, North Dakota, being first duly sworn, deposes and says:

"I

"Your affiant, Special Agent John P. Burkel, has been a Special Agent with the Bureau of Alcohol, Tobacco and Firearms, United States Treasury Department, for approximately 11 years, and during that time has investigated numerous violations of the Federal Firearms Laws and is familiar with the laws and regulations promulgated thereunder.

"II

"An arrest warrant for Russell D. Metzner and a search warrant is being sought for the residence of Russel [sic ] D. Metzner, a white, with blue trim, Holly Park brand name, mobile home, located in Block number 2, lot 7, of the Acres-of-Plenty [sic ] Trailer Park, rural Bismarck, North Dakota. It is believed probable cause exists that Russell D. Metzner is in possession of a Remington Model 788, 22/250 caliber rifle, Serial number A6032846, in the above residence, in violation of the Federal Firearms Laws, to-wit: Title 18, United States Code Appendix, Section 1202(a)(1).

"III

"On October 5, 1982, I was contacted by James Zimmerman, Detective, Bismarck Police Department, Bismarck, North Dakota. He related that on October 1, 1982, an individual, who identified himself as Steve L. Metzner, purchased a Remington Model 788, 22/250 caliber rifle from Arrowhead Scheels, Bismarck, North Dakota. Pursuant to this sale, the purchaser completed an ATF form 4473 on which he provided personal information identifying himself as Steve L. Metzner, date of birth of August 9, 1958, with an address of 700 South 12th Street, Bismarck, North Dakota. The purchaser answered 'No' to the question: 'Have you ever been convicted in any Court of a crime punishable by imprisonment exceeding one year?' and signed the form 'Steve Metzner'. Detective Zimmerman stated that his investigation reveals Steve Metzner to be a convicted felon. Detective Zimmerman further related that he subsequently conducted an interview with the seller of the firearm, Gary Kurtz. Mr. Kurtz observed the purchaser leave the store, with the rifle, in an older model, lime green, Audi four-door vehicle, North Dakota license AJA 111. Detective Zimmerman stated he found this license number to be registered to: Penny Metzner, 87 Pheasant Street, Acres-A-Plenty, Bismarck, North Dakota.

"IV

"On October 14, 1982, Detective Zimmerman related to me that on October 8, 1982, Steven Joseph Metzner was interviewed by Lt. Horiup, Bismarck Police Department, concerning the aforementioned rifle purchase. Detective Zimmerman related that Steven Joseph Metzner denied purchasing the rife [sic ] from Arrowhead Scheels Store on October 1, 1982. During this interview, Lt. Horiup observed that the physical description of Steven Metzner did not meet the description, provided by Gary Kurtz, the seller of the firearm, of the purchaser of the firearm on October 1, 1982.

"V

"On October 19, 1982, I checked the records of a Morton County District Court, Mandan, North Dakota, and found that Russell D. Metzner had been convicted on October 29, 1975, for the crime of burglary, a felony in the State of North Dakota. He was sentenced to four to seven years in the State Penitentiary. I subsequently obtained a photograph numbered 11957 from the North Dakota State Bureau of Criminal Identification. This was an identification, 'mug shot' photograph from the official BCI file of Russell D. Metzner, which reflected him as having been convicted of burglary in 1975.

"VI

"On October 20, 1982, I interviewed Gary Kurtz, Assistant Manager of Arrowhead Scheels, Bismarck, North Dakota. I displayed a photograph layout of six identification, 'mug shot' photographs including that of Russell D. Metzner, numbered 11957. Mr. Kurtz identified that photograph, of Russel [sic ] D. Metzner, as a photograph of the individual who purchased a Remington rifle 22/250 caliber, serial number A6032846, on October 1, 1982, and who at that time identified himself as Steve Metzner. Mr. Kurtz stated that he observed Metzner leave his store in a green Audi bearing North Dakota license number AJA 111, with a aforedescribed rifle. Mr. Kurtz further stated that his check with the Bismarck Police Department, at the time of the sale, revealed the drivers license number orally provided by the purchaser, Metzner, as proof of identification, was fictitious. He stated that Metzner left the store during the drivers license check. Mr. Kurtz stated he immediately notified the Police Department of the transaction upon learning of the fictitious drivers license number.

"VII

"On October 20, 1982, I interviewed Barb Mosner at Acres-A-Plenty Trailer Park, rural Bismarck, North Dakota. Mrs. Mosner stated that she and her husband, Larry, are current manager [sic ] of the trailer park and have been managers since October 1, 1982. She stated her records revealed that Russell Metzner lived at Block No. 2, Lot No. 7, in a mobile home which would be located on Pheasant Street, the seventh trailer on the right-hand side, on Pheasant Street, coming from Quail Street. Her record revealed Metzner has lived in that trailer longer than one year.

Later that same day, I interviewed Larry Mosner who stated he has observed Russell Metzner on several occasions since October 1, 1982, at or around the trailer, lived in by him. He identified the photograph number 11957, from a photo spread of six identification photographs, as a photograph of Russell Metzner.

"VIII

"On October 20, 1982, I viewed the residence of Russell D. Metzner, as previously described to me by the Mosner's. [sic ] I found this residence to be a white with blue trim mobile home, with the brand name, Holly Park, on the front of the trailer, and a red steel building setting adjacent to the trailer, which faces Pheasant Street in the Acres-of-Plenty [sic ] Trailer Park in rural Bismarck, North Dakota. This trailer is the seventh trailer on the right-hand side of Pheasant Street as you drive east from the intersection of Pheasant and Quail Street. At this time, I observed a lime green Audi Station wagon, four-door, bearing North Dakota license number AJA 111, parked at the above-described mobile home.

"IX

"On October 21, 1982, I was furnished information by the Clerk of the Burleigh County Court, Bismarck, North Dakota, that Russell D. Metzner and Penny Hoffman were married on February 7, 1979.

"X

"Based upon over 11 years of experience investigating the Federal Firearms Laws and training as a Special Agent of the Bureau of Alcohol, Tobacco and Firearms, I know that persons who purchase firearms generally maintain these firearms in their residences along with receipts, invoices, sales slips, or other papers evidencing the purchase and transfer of these firearms.

"XI

"That the information herein is derived from known and identified law enforcement officials, public officials, named citizen informants and first-hand knowledge of the affiant. That all of the citizen informants are non-professional."

Upon obtaining the search warrant, Burkel contacted the Burleigh County Sheriff's Department and the Bismarck Police Department, and requested assistance in serving the search warrant. Burkel and five other law enforcement agents then proceeded to Metzner's residence.

Metzner was stopped in his vehicle some distance from his home. He was placed under arrest and handcuffed. The arrest occurred pursuant to an arrest warrant which was issued at the same time as the search warrant. The officers then transported Metzner to his home where they were going to execute the search warrant.

Upon entering the residence, the officers located three firearms, including the rifle described in the search warrant. In addition, they located several bags of a substance which, based upon their experience and training, they concluded was marijuana. Some of the marijuana was found in plain view when the officers entered a bedroom where two of the firearms were located. Other bags were discovered throughout the residence as the officers searched for sales receipts and other documents evidencing the purchase of the firearm.

In suppressing the marijuana, the district court...