State v. Mische, Cr. N

CourtUnited States State Supreme Court of North Dakota
Citation448 N.W.2d 415
Docket NumberCr. N
PartiesSTATE of North Dakota, Plaintiff and Appellant, v. Brian MISCHE, Defendant and Appellee. o. 890038.
Decision Date20 November 1989

Patricia L. Burke, State's Atty., Bismarck, for plaintiff and appellant.

Michael Ray Hoffman, Bismarck, for defendant and appellee.


The State appealed from an order suppressing drugs and related evidence seized in a warrant search of Brian Mische's trailer home. The basic issues in this case are whether substantial evidence of criminal activity by a defendant at a place other than his home is sufficient probable cause to issue a warrant to search the home of the defendant and, if not, whether an affidavit of a police officer stating that in his experience and training "individuals who routinely deal or sell controlled substances normally keep a supply on hand for sale and do maintain records or other documentation of their controlled substances" is sufficient, when considered with the evidence of criminal activity of the owner unrelated to his home, to issue a warrant to search that home. Because we believe that evidence of criminal activity unrelated to a defendant's home is not alone sufficient probable cause to search that home, and because we do not believe the affidavit provides sufficient evidence of criminal activity at the defendant's home to constitute probable cause to search that home, we affirm.

Law enforcement officials, conducting undercover investigations, arranged a drug "buy" from Dion Wolbaum. Wolbaum agreed to pick up marijuana and deliver it to the buyer, an undercover agent. Wolbaum took the agent's money and drove to a Bismarck home where he met Mische. Officer Cleveland followed Wolbaum and verified that he met no one else and made no other stops. When he delivered the marijuana, Wolbaum was arrested. Wolbaum told Officer Cleveland that he had purchased the marijuana from Mische and that, about a week earlier, he had also purchased marijuana from Mische at the same place.

Because Mische had sold drugs to Wolbaum at the Bismarck home and because Mische's parents lived there, the officers believed Mische lived there, too. Using Officer Cleveland's affidavit about these criminal activities at the Bismarck home as grounds, the officers obtained a warrant to search it. During the search, the officers discovered only Inositol, a cutting agent for controlled substances, which did not belong to Mische's parents. Another container of Inositol was found in Mische's car during a search of it after he was arrested and with his consent. The officers also learned that Mische lived in a trailer in Lincoln, a town near Bismarck.

The same day, April 10, 1988, another warrant was obtained to search the trailer in Lincoln. This time the officers relied primarily on an affidavit by Officer Becker. This affidavit incorporated Officer Cleveland's affidavit, described the results of the searches of the Bismarck home and Mische's car, and added two paragraphs about Mische's trailer home in Lincoln:

"5) That your affiant believes, based on his training and experience that individuals who regularly deal in controlled substances keep controlled substances, paraphernalia and documentation (which are readily disposable) at their residence.

"6) That your affiant rec[ei]ved information from an informant that Brian Mische sells controlled substance in Lincoln, North Dakota. Other information given by that informant has been verified. This information was received April 10, 1988. In February, 1988 another confidential informant gave information that Brian Mische was selling controlled substances from his home in Lincoln, North Dakota. This informant has also supplied other information which has been verified."

This warrant sanctioned search of the trailer for "controlled substances, drug paraphernalia, [and] records, books, and other documentation of drug transactions." In the search, the officers seized drug paraphernalia, drug trafficking papers, marijuana seeds, and methamphetamine hydrochloride.

Mische was criminally charged with delivery of marijuana and with possession of methamphetamine. Mische pled not guilty and moved to suppress the evidence seized in his trailer at Lincoln. The trial court suppressed that evidence for lack of probable cause to issue the warrant, reasoning:

"The affidavit ... fails to provide any information other than suspicion and speculation that any drugs are located at [Lincoln]. Paragraphs 1 through 5 concern the affiant's background and a search conducted at another residence where Mr. Mische sometimes stayed which revealed nothing.

"The last paragraph is nothing more than conclusionary information provided by unidentified people. No knowledge of any drugs appears in the affidavit, and in addition, there would be no way to gauge their credibility.

"Under either A[g]uilar or State v. Ringquist, no threshhold [sic] is met and the warrant issued is nothing more than a general search warrant prohibited by the Fourth Amendment."

Believing that the trial court had overlooked Officer Cleveland's affidavit because Mische's criminal activities were not mentioned in the trial court's brief memorandum, the State moved for reconsideration. Without comment, the trial court denied reconsideration. The State appealed.

On appeal, the State argued that probable cause had been shown in the combined affidavits of Officer Cleveland and Officer Becker and that, if not, the "good-faith" exception to the exclusionary rule should permit use of the evidence acquired in the search. Mische countered that probable cause was lacking and suppression was proper. Mische also opposed the adoption of the "good-faith" exception but, if adopted, he argued that it should not apply in this case because the police acted in bad faith and the search was unreasonable.

Emphasizing the "personal knowledge" and "veracity" of Officer Cleveland and of Officer Becker and stressing their training and experience in law enforcement, the State argued that these circumstances "provide[d] a more than sufficient basis for a finding of probable cause" to search Mische's trailer home. Recognizing that the trial court "appeared to focus in on the last paragraph of Officer Becker's affidavit," the State argued that this paragraph "only enhance[d] the information given previously."

Mische argued that "[t]here was no factual, credible link of contraband to [Mische's] residence," that the officers' conclusions that suspected items were located at the Lincoln trailer "did not rise to the level of probability," and that the "warrant, therefore, was a general warrant which should not be upheld...."

Our constitutions command that "no warrant[s] shall issue but upon probable cause, ..." Fourth Amendment, United States Constitution; Article I, Section 8, North Dakota Constitution. Probable cause is a question of law. State v. Metzner, 338 N.W.2d 799 (N.D.1983). We recently adopted the "totality-of-the-circumstances" standard for reviewing probable cause. State v. Ringquist, 433 N.W.2d 207 (N.D.1988). Under the totality-of-the-circumstances test, hearsay can be considered. The basis of knowledge of an informant and the veracity of an informant are still relevant, but are more flexibly evaluated so that strength in one aspect can balance deficiencies in the other. Ringquist, supra, at 211-12. When we adopted this more flexible standard of review, we again warned that information, not conclusions, must be submitted to the issuing magistrate:

"In State v. Ringquist, we cautioned that '[s]ufficient information, rather than a "bare bones" affidavit, must still be presented to the magistrate to allow that official to determine probable cause. That determination cannot be a mere ratification of the bare conclusions of others.' State v. Ringquist, supra, 433 N.W.2d at 213; see also State v. Handtmann and Fuhrman, supra, 437 N.W.2d at 834." State v. Dahl, 440 N.W.2d 716, 718 (N.D.1989).

Conclusions alone are insufficient for probable cause.

We recently summarized the essential inquiry for probable cause to search:

"[P]robable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place." State v. Ringquist, 433 N.W.2d, at 212.

The magistrate's duty was to determine whether the affidavits established that evidence of criminal activity would probably be found at Mische's trailer home in Lincoln.

We agree with the trial court that Officer Becker's affidavit gave no information as to the basis of knowledge of either of his unidentified informants and vouched for their veracity only in a most conclusional way. We have often emphasized that an affidavit expressed in conclusions without detailing underlying information is insufficient for probable cause. State v. Schmeets, 278 N.W.2d 401, 407 (N.D.1979); State v. Thompson, 369 N.W.2d 363 (N.D.1985); State v. Ringquist, supra; State v. Handtmann, 437 N.W.2d 830, 834 (N.D.1989); and State v. Dahl, supra. Officer Becker's affidavit furnished no details to the magistrate to show how his informants knew about criminal transactions at Mische's place in Lincoln. No details reinforced Becker's claim that other information from the informants had been verified. At best, as the State recognized, the paragraph about informants' descriptions of Mische's activities at his Lincoln trailer home, "only enhances the information" in Officer Becker's affidavit. Clearly, standing alone, Becker's paragraph 6 is not sufficient for probable cause. Nevertheless, we may consider it in the "laminated total" of the layers of information employed by the issuing magistrate. All information for probable cause should be taken together, not analyzed piecemeal.

In doing so, we are not confined to Officer Becker's affidavit alone. Though somewhat indirectly, Officer Becker incorporated...

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