State v. Mitzel

• Decision Date: 04 August 2004
• Docket Number: No. 20030359.,20030359.
• Citation: 685 N.W.2d 120,2004 ND 157
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Ryan C. MITZEL, Defendant and Appellant.
• Court: North Dakota Supreme Court

685 N.W.2d 120

2004 ND 157

STATE of North Dakota, Plaintiff and Appellee v. Ryan C. MITZEL, Defendant and Appellant.

No. 20030359.

Supreme Court of North Dakota.

August 4, 2004.

Cynthia M. Feland, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Tom P. Slorby and Eric P. Baumann, Slorby Law Office, Minot, ND, for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Ryan Mitzel is appealing from a South Central Judicial District Court criminal judgment and conviction upon a conditional plea of guilty for possession of marijuana with intent to deliver, a class B felony, and possession of drug paraphernalia, a class A misdemeanor. Mitzel argues the district court erred in denying his motion to suppress evidence that he claims was obtained in violation of his Fourth and Fifth Amendment rights. We reverse and remand, concluding the district court erred in denying Mitzel's motion to suppress.

I

[¶ 2] On February 15, 2003, Bismarck Police Officers Mike McMerty and Jason Stugelmeyer went to Mitzel's apartment to investigate a report of a domestic dispute. While in the apartment, Officer McMerty followed Mitzel down the hall toward a back bedroom and observed the odor of marijuana. Mitzel later admitted to smoking marijuana. Officer McMerty asked Mitzel for permission to search the bedroom of the apartment, but Mitzel denied the request. Mitzel was arrested for possession of marijuana. He later consented to a search of the bedroom, and officers found marijuana and marijuana paraphernalia.

[¶ 3] On February 16, 2003, Mitzel was charged with possession of drug paraphernalia and with possession of marijuana with intent to deliver within 1000 feet of a school. On May 15, 2003, Mitzel moved to suppress the evidence found in his apartment. On July 8, 2003, a suppression hearing was held. At the hearing, Officer McMerty testified he was called to respond to a domestic disturbance. He testified he spoke with a neighbor who informed him that people in Mitzel's apartment had been yelling and that he had heard banging noises in the apartment. He testified he knocked on Mitzel's door and explained he was there to investigate a domestic disturbance. He testified that he asked whether Mitzel minded if he came inside and that Mitzel let him in. He testified Mitzel said that he was arguing with his girlfriend and that both of them were all right. He testified Mitzel asked him whether he would like to talk to his girlfriend, and he said he would. He testified that Mitzel began walking to the back bedroom and that when he took a step, Mitzel said, "I'll go get her." He testified he told Mitzel, "For my safety going back in the bedroom where there has been a domestic I don't know what's back there. I'll come with you." He testified that Mitzel shrugged and began walking toward the back bedroom.

[¶ 4] The officer testified that as he was walking toward the bedroom, he detected the odor of marijuana. He stated that when Mitzel opened the bedroom door, the odor of marijuana was strong and distinguishable. The officer testified that a female in the room yelled, "You can't be here!" He testified that the bedroom door was slammed shut and that he pushed the door back open and told the girl to come out. He testified that he instructed Mitzel and the girl to go with Officer Stugelmeyer. He testified he did a quick check for people and returned to the living room.

[¶ 5] The officer testified that he told Mitzel he believed there was marijuana in the back bedroom. He testified Mitzel admitted to smoking marijuana, and he asked Mitzel for consent to search the bedroom, but Mitzel denied the request. He testified that he left to apply for a search warrant after Officer Stugelmeyer arrested Mitzel and the girl for possession of marijuana. The officer testified he did not obtain a search warrant, because he was informed that Mitzel had decided to consent to a search.

[¶ 6] Officer Kenan Kaizer, a detective with the Bismarck Police Department, testified that he volunteered to assist with the case and that he went to Mitzel's apartment. He arrived after Officer McMerty had left to obtain a search warrant. Officer Kaizer testified he explained to Mitzel and the girl that "it might be awhile; that the State's Attorney was busy, and that we were trying to contact someone else to issue the Search Warrant for us, but we were just going to have to wait." He testified that Mitzel said he did not want to wait any longer and that Mitzel and the girl gave consent for a search. He testified he went through a written consent form with them, "had them both read it and sign it, then went through their Miranda rights, had them read that and sign that form also."

[¶ 7] On August 11, 2003, an order denying Mitzel's motion to suppress was filed. On August 13, 2003, Mitzel entered a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2) to amended charges, reserving the right to appeal the denial of his motion to suppress. On November 17, 2003, Mitzel was convicted of possession of marijuana with intent to deliver and possession of drug paraphernalia.

[¶ 8] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. §§ 29-01-12 and 29-28-06.

II

[¶ 9] Mitzel argues the district court erred in denying his motion to suppress evidence found during the search of his apartment, because he did not give his consent for police to follow him to the rear of his apartment, because there were no exigent circumstances to justify the search, and because his later consent to a search was obtained in violation of his Miranda rights and was involuntary.

[¶ 10] A trial court's findings of fact in preliminary proceedings of a criminal case will not be reversed if, after the 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.

City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994); State v. Bollingberg, 2004 ND 30, ¶13, 674 N.W.2d 281 (motion to suppress). This standard recognizes the importance of the district court's opportunity to observe the witnesses and assess their credibility, and great deference is given to the district court in suppression matters. State v. Matthews, 2003 ND 108, ¶8, 665 N.W.2d 28. Questions of law are fully reviewable on appeal. State v. Ova, 539 N.W.2d 857, 858 (N.D.1995); Bollingberg, at ¶13. Whether a finding of fact meets a legal standard is a question of law. City of Jamestown v. Dardis, 2000 ND 186, ¶7, 618 N.W.2d 495.

[¶ 11] The Fourth Amendment provides protection from unreasonable searches and seizures. U.S. Const. amend. IV. A search and seizure has occurred if a person has a reasonable expectation of privacy in an area searched or in materials seized. Matthews, 2003 ND 108, ¶10, 665 N.W.2d 28. Warrantless searches inside a person's home are presumptively unreasonable. Id. (citing Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Searches inside a home are not unreasonable, however, if the search falls under one of the exceptions to the search warrant requirement. Id.

[¶ 12] When no exception exists, the evidence obtained must be suppressed as inadmissible under the exclusionary rule. State v. Gregg, 2000 ND 154, ¶23, 615 N.W.2d 515. It is the State's burden to show that a warrantless search falls within an exception to the warrant requirement. State v. Avila, 1997 ND 142, ¶16, 566 N.W.2d 410.

A

[¶ 13] One of the exceptions to a warrantless search is consent. State v. DeCoteau, 1999 ND 77, ¶9, 592 N.W.2d 579. The existence of consent is a question of fact to be determined from the totality of the circumstances. United States v. Patacchia, 602 F.2d 218, 219 (9th Cir.1979); United States v. Miller, 589 F.2d 1117, 1130 (1st Cir.1978). The scope of consent is measured objectively by what a reasonable person would have understood by the exchange between the police and the suspect. State v. Guthmiller, 2004 ND 100, ¶5, 680 N.W.2d 235.

[¶ 14] In cases involving consent to enter a home, we have held, "`to sustain a finding of consent, the State must show affirmative conduct by the person alleged to have consented that is consistent with the giving of consent, rather than merely showing that the person took no affirmative actions to stop the police....'" City of Jamestown v. Dardis, 2000 ND 186, ¶11, 618 N.W.2d 495 (quoting DeCoteau, 1999 ND 77, ¶ 11,592 N.W.2d 579 (citation omitted)). Outside the context of consent to enter a home, it has been found that if police do not request consent, expressly or impliedly, consent cannot reasonably be implied from silence and failure to object. See United States v. Jaras, 86 F.3d 383, 390-91 (5th Cir.1996) (consent to search suitcase could not be implied). Although it has been held that consent cannot be implied from silence or failure to object, consent can be implied. Judge James Cissell, Federal Criminal Trials § 2-5(h) (6th ed. 2003). Failing to object to the continuation of a consent search makes the continued search objectively reasonable. 1 William E. Ringel, Searches & Seizures, Arrests and Confessions § 9.3 (2d ed. 2004); United States v. Alcantar, 271 F.3d 731, 738 (8th Cir.2001).

[¶ 15] In this case, it is undisputed that the police were invited in by the defendant. The trial court found that when the defendant went to the back bedroom, the police officer advised him that he would need to accompany him if he was going to another part of the house. The trial court found that "the officer could follow the defendant in the absence of an express statement denying him that privilege by the defendant. The defendant in this case had voluntarily let the officer in."

[¶ 16] Although the findings of fact are...