State v. Rangeloff

Decision Date30 June 1998
Docket NumberNo. 980019,980019
Citation580 N.W.2d 593
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Brook RANGELOFF, Defendant and Appellant. Criminal
CourtNorth Dakota Supreme Court

Thomas E. Merrick (argued), of Paulson and Merrick, Jamestown, for defendant and appellant.

Frederick R. Fremgen (argued), Assistant State's Attorney, Jamestown, for plaintiff and appellee.

MARING, Justice.

¶1 Brook Rangeloff appeals from a criminal judgment entered following a conditional plea of guilty to the charge of possession of a controlled substance with intent to deliver. Rangeloff's conviction stems from evidence seized during the search of three mobile homes on November 28, 1995. Rangeloff entered his guilty plea after the trial court denied both a request for a Franks 1 hearing and a motion to suppress evidence. We affirm the trial court's judgment, because Rangeloff failed to make a substantial preliminary showing of a false statement, and because there was probable cause to support the search warrants issued by the magistrate.

I. Facts

¶2 On November 28, 1995, Jamestown Drug Task Force Officer LeRoy Gross and Agent Arnie Rummel of the North Dakota Bureau of Criminal Investigation applied for search warrants to search mobile homes located at 1803, 1817, and 1416 Western Park Village in Jamestown. The search warrant applications were supported by the officers' testimony.

¶3 At the time of the applications for the search warrants, the officers provided the following information on the mobile home at 1803 Western Park Village [hereinafter 1803], which was the residence of Dale Schlosser. In January and February of 1995, law enforcement conducted two garbage searches at 1803 and found mail with Schlosser's name on it and marijuana seeds and stems. In March, April, and May 1995, three separate informants told Officer Gross of Schlosser's dealing in marijuana. On November 28, 1995, the same day the officers applied for the search warrants, law enforcement arranged a controlled buy through an informant to purchase marijuana at 1803. Schlosser left 1803 during the buy and went to 1416 Western Park Village [hereinafter 1416] for a few minutes. He then returned to 1803 and completed the transaction, weighing out approximately two ounces of marijuana on a scale for the informant. 2

¶4 The officers also informed the magistrate about the mobile home at 1817 Western Park Village [hereinafter 1817], which was the residence of Brook Rangeloff. In January 1995, law enforcement conducted a garbage search at 1817 and found five marijuana seeds. An informant told them Brook Rangeloff was dealing from his trailer. In June 1995, a citizen informant 3 provided the officers with a "complete layout" of Rangeloff's dealings, both from his residence at 1817 and from 1416. In June 1995, the citizen informant told the police Rangeloff stated he knew the "cops" were on to him so he no longer was putting controlled substances in his garbage, but disposing of them in his fireplace. Officer Gross told the magistrate he had seen Rangeloff at 1817 and that is the address he uses.

¶5 The officers revealed the following information with regard to the mobile home at 1416, which was the residence of J.C., Rangeloff's girlfriend. According to the citizen informant, Rangeloff stayed at 1416 part of the time, and was dealing in marijuana from there. On October 30, 1995, Agent Rummel gave money to a suspect who purchased and smoked marijuana at 1416. The suspect then delivered marijuana from this transaction to Agent Rummel. Also, Schlosser visited 1416 for a few minutes during the controlled buy on November 28, 1995.

¶6 The magistrate considered the information presented, determined probable cause existed, and issued search warrants for the three mobile homes. During the searches, the officers seized two one-pound bags of marijuana, several smaller plastic bags of marijuana, drug paraphernalia, cash, and a number of other documentary pieces of evidence such as address books and bank receipts.

¶7 Rangeloff moved to suppress evidence arguing the magistrate did not have probable cause to issue warrants for 1416 and 1817. Rangeloff also sought a Franks hearing, claiming false testimony had been used to support the warrant applications. After a preliminary hearing on the matter, the trial court denied Rangeloff's request for a Franks evidentiary hearing. The trial court found Rangeloff had failed to meet his burden of making a substantial preliminary showing of falsehoods made by the officers. The trial court also denied Rangeloff's motion to suppress, finding the magistrate had sufficient probable cause to issue the search warrants.

¶8 Rangeloff raises two issues on appeal: (1) whether he made a substantial preliminary showing entitling him to a Franks hearing; and, (2) whether probable cause existed to search the mobile homes at 1416 and 1817 Western Park Village.

II. Franks Hearing

¶9 The standard set forth by the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672 (1978), governs allegations that law enforcement made false statements in the affidavit supporting a search warrant.

[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.

State v. Rydberg, 519 N.W.2d 306, 308-09 (N.D.1994). A false affidavit statement under Franks is one that misleads the neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate's evaluation of whether or not there is probable cause. State v. Morrison, 447 N.W.2d 272, 274 (N.D.1989) (relying on State v. Ennis, 334 N.W.2d 827, 831 (N.D.1983)). The standard set out in Franks may also apply to statements that are deliberately false or misleading by omission. See State v. Winkler, 552 N.W.2d 347, 352 n. 1 (N.D.1996) (discussing the extension of Franks analysis to omissions of information, but not applying the extension when the omission does not cast doubt on the existence of probable cause); see also State v. Erickson, 496 N.W.2d 555, 559-60 (N.D.1993) (holding trial court's finding omission of information was not intentional or with reckless disregard for truth was not clearly erroneous). However, "for an omission to serve as the basis for a hearing under Franks, it must be such that its inclusion in the affidavit would defeat probable cause." 2 W. LaFave, Search and Seizure, § 4.4(c) (3d ed.1996) (quoting United States v. Colkley, 899 F.2d 297 (4th Cir.1990)).

¶10 Under Franks, an evidentiary hearing is only required if:

(1) a defendant makes a substantial preliminary showing, accompanied by an offer of proof, that false statements were made in support of a search warrant, either knowingly and intentionally or with reckless disregard for the truth, and (2) the allegedly false statements are necessary to a finding of probable cause. No evidentiary hearing is required if there remains sufficient evidence to support a finding of probable cause without the allegedly false statements, and allegations that false statements were negligently or innocently made are insufficient to necessitate an evidentiary hearing.

State v. Handtmann, 437 N.W.2d 830, 836 n. 3 (N.D.1989) (referring to State v. Padgett, 393 N.W.2d 754, 756 (N.D.1986)). The allegations should clearly delineate the statements claimed to be false and they should be accompanied by a statement supporting the reasons the statements are believed to be false. Id. Affidavits or other reliable nonconclusory statements of witnesses should be furnished, or the absence of such support satisfactorily explained. Id. The burden of proof necessary to make a threshold showing is something less than a preponderance of the evidence. 2 W. LaFave, Search and Seizure, § 4.4(d) (3d ed.1996). We have not previously articulated our standard for reviewing a trial court's ruling on whether a defendant has made substantial preliminary showing for a Franks evidentiary hearing. We have applied the clearly erroneous standard to review whether a defendant has met his burden to establish recklessness or deliberate falsity, considering such ruling to be a finding of fact. State v. Damron, 1998 ND 71, p 10, 575 N.W.2d 912; Padgett, 393 N.W.2d at 757. We consider the trial court's ruling on whether a substantial preliminary showing has been made to be a finding of fact, but, we review a trial court's findings of fact in a preliminary criminal proceeding under a separate, but comparable, standard. 4 City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). "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." Id.

¶11 Rangeloff claimed several statements of sworn testimony made by the police officers in seeking the warrant were untruthful. On appeal, he concedes he failed to substantiate two of his claims, but he argues he met his burden to show the testimony surrounding the October 30, 1995, drug buy at 1416 was...

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