State v. Ochoa, No. 20030132

• Decision Date: 25 February 2004
• Docket Number: No. 20030132, No. 20030133
• Citation: 2004 ND 43,675 NW 2d 161
• Parties: State of North Dakota, Plaintiff and Appellee v. Anthony Ochoa, Defendant and Appellant.
• Court: North Dakota Supreme Court

2004 ND 43

675 NW 2d 161

State of North Dakota, Plaintiff and Appellee v. Anthony Ochoa, Defendant and Appellant.

Nos. 20030132, 20030133

Supreme Court of North Dakota.

February 25, 2004.

Phyllis A. Ratcliffe, P.O. Box 628, Cooperstown, N.D. 58425-0628; for defendant and appellant.

H. Jean Delaney, Assistant State's Attorney, Courthouse, 230 4th Street NW, Rm. 303, Valley City, N.D. 58072-2947; for plaintiff and appellee.

Opinion of the Court by Neumann, Justice.

Neumann, Justice.

[¶1] Anthony Ochoa appeals from the criminal judgment for possession of drug paraphernalia, in violation of N.D.C.C. § 19-03.4-03, and possession of a controlled substance with intent to deliver, in violation of N.D.C.C. § 19-03.1-23(1)(a). Ochoa argues the magistrate erred in issuing the search warrant, claiming probable cause was improperly based on an unreliable informant; he was not afforded the opportunity to assist in his own defense; and he was denied his right to a speedy trial. We affirm.

I

[¶2] In July 2002, Sheree Rose began working as an informant for Deputy Mark Hendrickson, a deputy sheriff for Barnes County. Deputy Hendrickson is a narcotics investigator, assigned to the drug task force for the areas of Barnes County and Stutsman County. On July 23, 2002, Rose informed Deputy Hendrickson that she and Ochoa were renting a vehicle in Fargo, North Dakota, and traveling to California to buy methamphetamine. Deputy Hendrickson informed Rose he was not authorizing the trip. Rose continuously contacted Deputy Hendrickson while in California, reporting Ochoa had picked up a package containing two ounces of methamphetamine and placed it in the trunk of the rental car. Rose repeatedly contacted Deputy Hendrickson throughout the trip and informed him of the parties' whereabouts during their return to North Dakota. Rose informed Deputy Hendrickson of the vehicle's license plate number, make of the vehicle, and the place of rental. Deputy Hendrickson confirmed the vehicle belonged to Hertz Corporation. Rose told Deputy Hendrickson that Ochoa preferred to hide methamphetamine in his shoes. Deputy Hendrickson was aware of Rose's criminal record and knew she was a marijuana and heroine user. Law enforcement paid Rose $300 for her services.

[¶3] Based on the information Rose provided, Deputy Hendrickson applied for and was issued a search warrant to stop and search the vehicle. On July 28, 2002, a highway patrolman stopped the rental vehicle in Barnes County, North Dakota. Rose was the driver while Ochoa and a third person were passengers in the vehicle. A search of the vehicle uncovered a syringe and methamphetamine in Ochoa's shoes. Ochoa was charged with possession of drug paraphernalia and possession of a controlled substance with intent to deliver. Ochoa applied for court-appointed counsel. The trial court granted his application and appointed counsel to represent him on July 31, 2002. Ochoa's attorney moved for a speedy trial on August 28, 2002. Ochoa's attorney also moved to suppress evidence on November 14, 2002, and that motion was denied on February 10, 2003. Between July 2002 and January 2003, the trial court issued four appointments of counsel to represent Ochoa. Despite being represented by counsel, Ochoa continuously filed various motions with the court. Phyllis Ratcliffe was appointed to represent Ochoa on January 28, 2003. Ochoa repeatedly requested his trial be set as soon as possible and personally moved for dismissal on March 12, 2003, claiming a violation of his right to a speedy trial. Ochoa also informed the trial court that Ratcliffe would be out of town during his expected two-day trial when it was scheduled for April 16 and 17, 2003. Ochoa offered to proceed on his own, rather than receive a continuance, in the event Ratcliffe was unavailable for his trial. He alternatively requested yet another attorney. The trial was rescheduled to accommodate Ratcliffe's schedule.

[¶4] On March 14, 2003, Ratcliffe moved for clarification of her role as Ochoa's attorney. In her supporting brief, Ratcliffe informed the trial court that Ochoa wanted to represent himself in various portions of the trial and would need an attorney to act as "standby counsel." Though Ratcliffe used the phrase "standby counsel," it was clear from the motion that a form of hybrid counsel or co-counsel was being requested. The trial court effectively denied Ratcliffe's motion, stating the relationship between Ratcliffe and Ochoa is the same as any other relationship between counsel and a defendant. The day before trial, Ratcliffe again requested Ochoa be allowed to represent himself during various portions of the trial. The trial court again denied her request. Ochoa's jury trial began March 31, 2003. The jury returned verdicts of guilty. Ochoa appeals.

II

[¶5] Ochoa argues the magistrate improperly issued the search warrant, contending there was no probable cause because Rose was not sufficiently reliable as an informant. We disagree.

[¶6] We review a finding of probable cause under the totality-of-the-circumstances test and consider the sufficiency of information before the magistrate independent of the trial court's decision. State v. Roth, 2004 ND 23, ¶ 5. "[P]robable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers . . . which is not weighed in individual layers but in the `laminated' total." State v. Ballweg, 2003 ND 153, ¶ 12, 670 N.W.2d 490 (citations omitted). Whether probable cause to issue a search warrant exists is a question of law. State v. Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861. Questions of law are fully reviewable. State v. Wanzek, 1999 ND 163, ¶ 5, 598 N.W.2d 811.

[¶7] "The task of the issuing magistrate is to make a practical, commonsense decision whether, given all the information considered together, there is a fair probability contraband or evidence of a crime will be found in a particular place." Roth, 2004 ND 23, ¶ 7. This Court generally defers to the magistrate's probable cause determination if a substantial basis exists for the magistrate's conclusion, and we resolve doubtful or marginal cases in favor of the magistrate's determination. Ballweg, 2003 ND 153, ¶ 12, 670 N.W.2d 490. We defer to the trial court's findings of fact, and we resolve any conflicts in testimony in favor of affirmance. State v. Haverluck, 2000 ND 178, ¶ 7, 617 N.W.2d 652.

[¶8] Ochoa contends the information Rose provided did not support the magistrate's finding of probable cause because Deputy Hendrickson could not independently verify information about the California trip. According to Ochoa, the information Rose provided linked only Rose to the rental vehicle because she had paid for the rental with her employer's credit card and the vehicle was rented in her name. Ochoa also asserts that, although Deputy Hendrickson stated in the search warrant application that Rose had previously supplied reliable information, he failed to provide any details of this information and Rose was paid $300 for her services in this case.

[¶9] Rose is classified as a confidential informant, which is generally defined as an informant "known to the police officer, but his or her identity is concealed from the magistrate." State v. Roth, 2004 ND 23, ¶ 11. While confidential informants do not hold the highest degree of presumed reliability, confidential informants do enjoy more reliability than anonymous informants. See Roth, at ¶ 11 (explaining the differences among citizen informants, confidential informants, and anonymous informants). We have previously said, "`the most reliable tip is . . . one relayed personally to the officer.'" Roth, at ¶ 11, (quoting State v. Miller, 510 N.W.2d 638, 640 (N.D. 1994)). Anonymous informants must supply information that allows one to deduce the information is reliable, and independent investigation may be required when the informant does not supply the information necessary to evaluate the tip. Roth, at ¶¶ 12, 13. However, corroboration is not always necessary when a confidential informant is involved. See Roth, at ¶ 13.

[¶10] Ochoa contends Deputy Hendrickson's testimony when applying for the search warrant regarding Rose's previous relaying of reliable information to him was misleading. Deputy Hendrickson did not previously verify the information Rose gave regarding Ochoa's link to stolen bank portfolios and a drug shipment. Deputy Hendrickson later testified at the suppression hearing that Rose had given previous reliable information to Jamestown law enforcement officers. Although Ochoa did not directly address this issue in his appellate brief, a Franks issue is involved when "`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.'" State v. Schmitt, 2001 ND 57, ¶ 10, 623 N.W.2d 409 (quoting Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). This issue is not properly before us because it was not properly raised before the lower court. See Owens v. State, 1998 ND 106, ¶ 50, 578 N.W.2d 542, cert. denied, 532 U.S. 1057 (2001) (stating, "[i]t is well settled an issue not raised in the trial court cannot be raised for the first time on appeal"). Ochoa personally submitted a motion to suppress, asserting Deputy "Hendrickson intentionally or negligently misled the issuing magistrate. . . ." The trial court indicated it would not consider motions Ochoa raised pro se because he was represented by counsel.

[¶11] Even if the issue had been properly raised, there would be no violation under Franks. Under Franks, "`[if] the allegation of perjury or reckless disregard is established by the defendant . . . and, with the affidavit's false material set to one side, the affidavit's remaining...