State v. Morrison, Cr. N

• Decision Date: 24 October 1989
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Edward A. MORRISON, Defendant and Appellant. o. 880310.
• Court: North Dakota Supreme Court

Page 272

447 N.W.2d 272

STATE of North Dakota, Plaintiff and Appellee, v. Edward A. MORRISON, Defendant and Appellant.

Cr. No. 880310.

Supreme Court of North Dakota.

Oct. 24, 1989.

Rolf P. Sletten, Bismarck, for defendant and appellant.

Lewis C. Jorgenson, States Atty., Devils Lake, for plaintiff and appellee.

GIERKE, Justice.

This is an appeal by Edward A. Morrison from a district court judgment finding him guilty of the crime of robbery, a class A felony, in violation of Section 12.1-22-01 of the North Dakota Century Code. We reverse and remand.

In the early morning hours of August 20, 1987, a robbery was reported at the Artclare Motel in Devils Lake, North Dakota. The police, upon arriving at the scene, interviewed the night clerk who was on duty at the time of the robbery. The night clerk described the robber as a white male, of small-medium build, with blond hair and approximately 5 feet, 4 inches tall. The night clerk further stated that the robber wore a white mask partially covering his face and used a knife.

Upon further investigation at the scene, the police found what was identified by the night clerk as the mask worn by the robber. The mask contained several strands of blond hair. The officers also found shoe prints in the mud which they believed were made by tennis shoes with a wavy pattern on the sole. One of the officers at the scene indicated that earlier in the evening he had seen an individual named Morrison wearing tennis shoes with a wavy pattern similar to that found at the robbery scene.

The night clerk was subsequently shown a photographic line-up. The four photos that were shown to the night clerk had a portion of the faces covered as if a mask was worn. The night clerk determined that the picture of Morrison was the photograph which most closely described the person who had robbed him.

The officers obtained a search warrant based upon an affidavit by Officer Barnett for the house located at 108 14th Avenue in Devils Lake, the residence of Morrison's mother where he was currently residing. The officers conducted a search of the residence, seized certain items of personal property and arrested Morrison for the robbery.

A preliminary hearing was held on November 3, 1987, and Morrison was bound over to district court. Counsel for Morrison filed motions to suppress the evidence obtained pursuant to the search warrant and to suppress the identification of Morrison. Morrison's motions to suppress were denied and a jury trial was held on August 22-23, 1988. The jury returned a verdict finding Morrison guilty of the offense of robbery. Judgment was entered by the district court on September 14, 1988, and Morrison was sentenced to serve a term of eight years in the State Penitentiary. This appeal followed.

Morrison raises three issues on appeal. Initially, Morrison contends that the trial court erred in failing to suppress the evidence obtained through the search warrant. Next, Morrison contends that the trial court erred in failing to suppress the out-of-court identification and trial court identification. Finally, Morrison contends that the trial court erred in finding that the mandatory minimum sentencing provisions under Section 12.1-32-02.1 of the North Dakota Century Code apply in this case.

Because it is dispositive of this appeal, our review focuses on whether or not the trial court erred in denying the motion to suppress the evidence obtained through the search warrant.

Morrison argues that the search warrant was issued as a result of false statements made in reckless disregard of the truth. Accordingly, Morrison claims that without the false material in the affidavit there was insufficient evidence to show probable cause to issue the search warrant and therefore the evidence obtained pursuant to the search warrant must be excluded.

In State v. Padgett, 393 N.W.2d 754, 756 (N.D.1986), this Court cited with approval the following guidelines set forth in Franks v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978), regarding suppression of evidence obtained pursuant to a search warrant issued as a result of a false statement:

" '... [W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.' "

In applying the test enunciated in Franks v. Delaware, supra, a false affidavit statement is one which misleads the neutral and detached magistrate into believing that the stated facts exist, which facts in turn affect the magistrate's evaluation of whether or not there is probable cause. State v. Ennis, 334 N.W.2d 827, 831 (N.D.), cert. denied, 464 U.S. 992, 104 S.Ct. 484, 78 L.Ed.2d 681 (1983).

In the instant case, a single affidavit by Officer Barnett was presented in the application for a search warrant. The affidavit of Officer Barnett provided as follows:

"John Barnett, being first duly sworn, deposes and says:

"That he is a member of the Devils Lake Police Department and at approximately 5:25 A.M., August 20, 1987 the police received a report of a robbery of the night clerk of the Artclare Motel. The night clerk reported that the robber wore a white mask partially covering his face, was approximately 5'4"' tall, slight build, blond hair and used a knife, and after tying up the clerk took approximately $400 in cash. That upon investigation of the scene police officers found a white mask with numerous blondish hairs in the knot and several shoe prints which were similar to shoe prints seen at another breakin on this date. That further earlier in the evening another officer had seen Eddy Morrison with similar type shoes.

"That the night clerk was shown photos of several individuals with partially covered faces and identified one Eddy Morrison in one of the pictures as closely describing the person that had robbed him.

"That affiant has personal knowledge of the said Eddy Morrison and knows that he is currently on probation for burglary and the instant case closely follows the said Morrison's M.O. That the said Eddy Morrison is currently residing with his mother at 108 14th Avenue, Devils Lake, North Dakota.

"That affiant has probable cause to believe that the said Eddy Morrison was involved in the aforesaid incident and prays the Court for a search warrant of the said residence at 108 14th Avenue, Devils Lake for mask material, knife, money, shoes, clothes and other fruits of the crime and an exemplar of the said Eddy Morrison's hair, and the warrant include any outbuildings and vehicles used by the said Eddy Morrison."

We note that the trial court properly held a hearing on the motions to suppress. ¹ The trial court, in denying the motion to suppress all the evidence obtained pursuant to the search warrant, stated as follows:

"Since ... you raised the issue of whether there was a falsehood in the statements that were sent forth and placed in the affidavit which obtained the Search Warrant and this Court believes you may have raised that burden and that's why the inquiry was made of the officer that there was some sense of your allegation of false statements within that affidavit. However, based upon all the evidence as well...