State v. Nagel

• Citation: 308 N.W.2d 539
• Decision Date: 25 June 1981
• Docket Number: No. 761,C,No. 9908,761,9908
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Monte NAGEL, Defendant and Appellee. In the Interest of G. C., a child. Crim.iv.
• Court: United States State Supreme Court of North Dakota

Page 539

308 N.W.2d 539

STATE of North Dakota, Plaintiff and Appellant, v. Monte NAGEL, Defendant and Appellee In the Interest of G. C., a child.

Crim. No. 761, Civ. No. 9908.

Supreme Court of North Dakota.

June 25, 1981.

Bruce D. Quick, Asst. State's Atty., Fargo, for plaintiff and appellant; argued by Bruce D. Quick, Fargo.

George E. Duis, Fargo, for defendant and appellee; argued by George E. Duis, Fargo.

ERICKSTAD, Chief Justice.

The appellant, State of North Dakota, appeals from orders of the District Court of Cass County granting each of the defendants' motions to suppress evidence.

The defendants, Monte Nagel, and a juvenile, Gary (a pseudonym), were arrested on November 21, 1979. Prior to their arrest drug enforcement agents had received two deliveries of methamphetamines from Jay Braaten. Agent Kim Murphy arranged for a third delivery on November 21, 1979. Braaten's movements were monitored by a surveillance team prior to the time he was supposed to meet Murphy. Braaten went to the residence of Monte and Gary at 303 North 11th Street in Fargo and remained there for two hours before going to meet Murphy. Braaten called Murphy from the residence before going to meet Murphy. Sometime between 3:30 and 4:00 p. m. Braaten met Murphy a short distance from the residence, and delivered to Murphy one-half pound of methamphetamines in exchange for $10,200. Murphy then arrested Braaten who told Murphy that Gary and Monte expected him back in 20 minutes and if he did not return within that time they would know something had gone wrong. Braaten also related that a large quantity of methamphetamines was located in an upstairs bedroom of the residence and, pursuant to an inquiry by Murphy, said he did not know if Monte and Gary were carrying weapons. Based upon this information Murphy began immediately to attempt to obtain a search warrant.

Meanwhile, back at the residence, the surveillance team was in radio contact with Murphy who told them that Monte and Gary expected Braaten back within 20 minutes and that Murphy was in the process of obtaining a search warrant. Between 4:00 and 4:15 p. m. the surveillance team decided that there was probable cause to believe Monte and Gary had committed felonies and would destroy evidence before Murphy could return with a search warrant if Braaten did not return within the 20 minutes. Accordingly, two members of the team approached the door and knocked. An officer who approached stated in an affidavit that a male individual came to the front door and when the officers announced who they were and asked to come into the house the individual ran from the door and the officers then broke down the door. Gary and Monte testified that they were sitting on the couch in the living room when the officers broke down the door without knocking and arrested them. The officers testified that only a cursory search was made to see if there were any other persons present. The defendants said the officers searched through the house although Monte testified at the hearing on the motion to suppress that he could not see whether or not they searched other rooms. The defendants also said that the officers found a bag of marijuana behind a speaker in the living room where Monte and Gary were handcuffed and seated on the couch. It is undisputed that there was a small amount of marijuana in plain view on a magazine stand in the living room.

Murphy, while in the process of securing a search warrant, was informed through a phone call that the house had been entered. Except for the actual street address of the house he was given no other information. Murphy previously knew the location of the house. The search warrant was signed by the judge at 5:45 p. m. and served by Murphy at 6:30 p. m. Pursuant to his independent search under the search warrant Murphy discovered a bag of marijuana in the living room, other small quantities of marijuana and a large amount of methamphetamines in Gary's bedroom. The defendants testified that the bag of marijuana was found by the officers prior to the service of the search warrant.

On November 21, 1979, Gary was charged with the delinquent acts of (1) possession with intent to deliver methamphetamines, in violation of Sections 19-03.1-07 and 19-03.1-23, N.D.C.C., and (2) possession of more than one ounce of marijuana in violation of Sections 19-03.1-05 and 19-03.1-23, N.D.C.C. On January 15, 1980, Gary made a motion to suppress. This motion was denied by the Honorable Norman J. Backes, District Judge, on March 19, 1980.

Monte was charged in an amended information with possession of marijuana February 27, 1980. His motion to suppress the evidence was granted by the Honorable John O. Garaas, district judge, on October 14, 1980. Subsequently, Gary made a motion for continuance and renewal of his motion to suppress evidence. Judge Backes then granted both relying on the memorandum opinion and order of Judge Garaas granting Monte's motion to suppress. Judge Garaas held that the evidence should be suppressed as being obtained incident to an illegal arrest pursuant to Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

The state asserts the following issues on appeal:

"I. Does the United States Supreme Court Opinion in Payton and Riddick v. New York that prohibited law enforcement agents from making a warrantless entry into a suspect's home to make a routine felony arrest apply retroactively?

"II. Assuming retroactive application of Payton and Riddick, was the seizure of the controlled substances involved in this case pursuant to a valid search warrant the 'derivative fruit' of an unlawful entry and arrest?

"III. Did 'exigent circumstances' exist to justify the warrantless entry and arrest?"

I. Entry to Arrest

In its memorandum, the trial court relied upon the holding of Payton v. New York, supra, to determine that the evidence should be suppressed as a product of an illegal entry of a home to arrest without a warrant of arrest and that, pursuant to the guidelines in State v. Page, 277 N.W.2d 112 (N.D.1979), there were no exigent circumstances to allow such an entry. The state contends that the imminent destruction of evidence should be classified as an exigent circumstance allowing a warrantless entry to arrest.

A. Entry to Arrest

In Payton, supra, the United States Supreme Court held that a warrantless, nonconsensual entry into a suspect's home in the absence of exigent circumstances to make a routine felony arrest violated the Fourth Amendment. Section 29-06-14, N.D.C.C., permitting such entries to arrest, is therefore unconstitutional. ¹ We recognized that there was a possibility that action pursuant to Section 29-06-14 might be held violative of the Fourth Amendment when we decided State v. Page, 277 N.W.2d 112, 117 (N.D.1979). In Payton the Supreme Court indicated that the case before them did not present the question of what "sort of emergency or dangerous situation, described in our cases as 'exigent circumstances,' ... would justify a warrantless entry into a home for the purpose of either arrest or search." 445 U.S. at 583, 100 S.Ct. at 1378, 63 L.Ed.2d at 649. A plain reading of Payton reveals that the holding does not apply when officers have probable cause to believe a felony has been committed and exigent circumstances exist which justifies a warrantless entry to arrest. See Steagald v. United States, --- U.S. ----, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Therefore, we must decide whether or not the circumstances present in this case indicate that the officers had probable cause to believe a felony had been committed, and whether or not the facts show that there were exigent circumstances justifying the officers' entry into the residence.

For the purposes of determining whether or not there were exigent circumstances we will assume that Payton, which was decided April 15, 1980, should be applied retroactively and governs the November 21, 1979, search. (Retroactivity will be later discussed.).

In its memorandum the district court applied the so called Dorman guidelines. ² In State v. Page, supra, we said:

"Although our court will utilize the approach of the Dorman court, we do so with the caveat that its guidelines are not to be interpreted as cardinal maxims, rigidly applied to every case. Rather, we seek to utilize the Dorman considerations as flexible guidelines to determine under what circumstances officers may lawfully enter an individual's home without a warrant. We do not consider the guidelines to be conditions precedent to a lawful entry. See State v. Jones, 274 N.W.2d 273, 276 (Iowa 1979). All other circumstances bearing upon the exigencies of the situation must be considered in deciding whether an entry of the suspects' home was lawful. The existence of exigent circumstances must be determined in light of the facts known to the officers at the time they seek entry. People v. Ramey, supra, (16 Cal.3d 263), 127 Cal.Rptr. (629) at 637, 545 P.2d (1333) at 1341. The fundamental considerations in determining whether an entry for arrest is reasonable to satisfy the Fourth Amendment will remain: (1) is there probable cause to arrest, and (2) will the time and circumstances effectively prohibit the officers from obtaining a warrant." 277 N.W.2d at 118.

The district court, however, rigidly applied the Dorman guidelines saying: "This Court finds that three of the necessary six guidelines are absent.... Exigent circumstances did not exist and absent such exigent circumstances, the arrest and subsequent detention of the Defendant is constitutionally unlawful."

The district court erred when it determined that exigent circumstances did not exist at the time the officers entered the residence of Monte and Gary and secured the premises. The error was in treating the Dorman guidelines as prerequisites to a lawful arrest which must be met before there can be exigent circumstances. In other words, by requiring the existence of...