State v. Ringquist, Cr. N

• Citation: 433 N.W.2d 207
• Decision Date: 06 December 1988
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Richard Allen RINGQUIST, Defendant and Appellee. os. 870361, 870362.
• Court: United States State Supreme Court of North Dakota

Page 207

433 N.W.2d 207

STATE of North Dakota, Plaintiff and Appellant, v. Richard Allen RINGQUIST, Defendant and Appellee.

Cr. Nos. 870361, 870362.

Supreme Court of North Dakota.

Dec. 6, 1988.

Owen K. Mehrer (argued), States Atty., Dickinson, for plaintiff and appellant.

Freed, Dynes, Reichert & Buresh, P.C., Dickinson, for defendant and appellee; argued by Eugene F. Buresh.

GIERKE, Justice.

This is an appeal by the State of North Dakota from a district court order suppressing evidence obtained during a search of Richard Allen Ringquist's apartment pursuant to a search warrant issued by the Stark County Court. We reverse and remand.

The evidence presented to the county court to obtain the search warrant consisted of the testimony of two Dickinson police officers, Chuck Rummel and Darrel Haag. Rummel testified that at about 5:30 a.m. on July 27, 1987, he received an anonymous telephone call from an informant who furnished information relating to drug traffic on the previous night at apartment number 5 above D.J.'s Bar at 1 East Villard in Dickinson. The anonymous informant declined to reveal his identity and indicated that he had never made a report to the police before but that he was doing so now because of the large amount of marijuana involved and "something should be done with it."

Officer Rummel testified that the anonymous informant indicated that on the previous afternoon friends of his had told him that if he wanted to buy some marijuana he should go to apartment number 5 at 1 East Villard and see "Little Richard"; that at about 8:30 p.m. that evening he and some friends went to apartment number 5 and purchased some marijuana; that while he was at apartment number 5, he went into a back bedroom that faced south on Villard and saw about six pounds of what he recognized as marijuana covered with a plastic sheet on a table by the bedroom door; that he observed the occupants of the apartment weighing the marijuana on a scale and selling it for between $40 and $45 a quarter ounce; that while he was in the living room, several people walked in and out of the apartment and went to the back bedroom; that "Little Richard" was a "shorter, older man" who drove a green 1966 to 1968 Ford Galaxie two-door that was usually parked in front of D.J.'s; and that Bob Kitchen also lived at apartment number 5.

Officer Haag testified that, based on the information supplied by the anonymous informant, he conducted an independent investigation and confirmed that a cable television outlet registered to Richard Ringquist had recently been disconnected at apartment number 5. Haag also contacted the North Dakota Motor Vehicle Department and confirmed that a green 1968 Ford two-door car parked near the apartment building with license number ASP 505 was registered to "Richard A. Ringquist, Box 1495, Dickinson," and that Ringquist's description with the Motor Vehicle Department listed him as being five-foot-four-inches tall, 140 pounds, with birthdate of October 1, 1937. Haag also testified that Ringquist's apartment had been under surveillance on the afternoon of July 27, 1987, and that Ringquist was observed leaving the apartment and driving the green Ford two-door car with license number ASP 505. Haag testified that the surveillance team observed Ringquist and an unknown female go to the Spur Bar for a considerable amount of time and thereafter Ringquist and two other females left the Spur Bar and went to "East Mon-Dak" where one of the females made a phone call, after which they returned to the Spur Bar.

Haag also testified that he knew that Kitchen had pled guilty to possession of marijuana in 1981 and that from a previous check of Ringquist's record, Haag recalled that Ringquist had been arrested in California in the late 1960's or early 1970's "on delivery and/or possession charges ... related to LSD and/or heroin."

Officer Haag also testified that on March 31, 1987, he had interviewed a confidential informant who indicated that Bob Kitchen usually sold cocaine and could normally be found at D.J.'s Bar, and that Ringquist was "very much into the selling of controlled substances ... [and] prescription drugs, Percodan, Delauded and Valium." Haag further testified that the confidential informant contacted him in early July 1987 with information that Ringquist "was waiting for some dope to come in so that he could make considerable amount of money so that he could get out of Dickinson because he was concerned that the police department had already ... what we call tap into them, as a seller of drugs." The informant also informed Officer Haag that Ringquist "drove approximately a 1967 Ford green two-door, with a white vinyl top ... that ... [was] normally always parked in front of D J's Bar on Sims--or on East Villard, or in the lot immediately to the east of the Burlington Northern Railroad." Haag testified that he considered this confidential informant reliable because he had previously supplied information enabling drug agents to purchase controlled substances from individuals in Dickinson, and he had been a prosecution witness in a case resulting in a conviction on a burglary and theft charge.

Officer Haag also testified that he received information on April 2, 1987, from a second confidential informant about Ringquist. According to the second confidential informant, Ringquist and another person had stopped him in the street on April 2, 1987, after an armed robbery at a Dickinson pharmacy which resulted in the theft of prescription drugs, including Percodan, Percost, Delauded, and Valium, and Ringquist told that informant that he wanted to track down the robbers because he "wanted some of the dope to sell. And to utilize themselves." Haag also testified that this informant told him that Ringquist had said that the robbers had been at a house on the south side prior to the robbery; a tip that the police subsequently confirmed with an occupant of the house. Haag also testified that the robbers had given statements to South Dakota police in which they admitted robbing the Dickinson pharmacy and that Stark County was in the process of extraditing them.

Based on the testimony of Rummel and Haag, the county court determined that, under the totality of the circumstances, there was probable cause to issue a search warrant for the search of apartment number 5 for marijuana, paraphernalia or other evidence pertaining to the possession, purchase, or sale of marijuana, and the court issued a search warrant.

During the search, law enforcement officers seized cocaine and marijuana, and Ringquist was charged with one count of possession of marijuana and one count of possession of cocaine. The cases were consolidated, and Ringquist moved to suppress the evidence obtained during the search upon the grounds that the evidence presented to the county court to support the issuance of the search warrant was insufficient to establish probable cause under the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 8 of the North Dakota Constitution. ¹

The district court granted Ringquist's motion to suppress the evidence, stating that the only evidence corroborated by the police was Ringquist's residence, ownership of the 1968 car, and general physical characteristics. The district court stated the "information of two additional confidential informants, one furnished in February, 1987 and the other in March, 1987, [were] ... conclusory statements that the Defendant was 'selling drugs' ... [and] that Detective Haag 'believed each confidential informant to be reliable'." The district court observed that the "offering of stale informational conclusions furnished by confidential informants adds nothing in the attempted corroboration" and concluded

"[t]hat under the Aguilar two-pronged test, the information furnished to the magistrate was lacking in veracity. That under the Gates 'totality of circumstances' test, the magistrate was not furnished with a substantial basis for determining the existence of probable cause ...; [and that under the Leon good-faith exception to the exclusionary rule] the information furnished to the magistrate was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."

The State contends that the search warrant was supported by probable cause under the two-prong test of Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Alternatively, the State argues that the evidence supporting the warrant established probable cause under the totality-of-circumstances test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Finally the State argues that even if the search warrant was issued without probable cause, the good-faith exception to the exclusionary rule developed in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), should be applied.

Ringquist responds that we should not adopt Gates and Leon as a matter of state constitutional law and that the standard for determining probable cause for a search warrant under our state constitution is Aguilar-Spinelli which, he argues, has not been met. Alternatively Ringquist argues that even if we adopt Gates or Leon as a matter of state constitutional law, neither standard enunciated in those cases has been satisfied in this case.

In analyzing this issue, we briefly trace the United States Supreme Court decisions dealing with the sufficiency of information to establish probable cause for the issuance of a search warrant. Before Aguilar, the United States Supreme Court held that a search warrant could not be issued upon purely conclusory statements that probable cause existed. Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933) [warrant based upon customs agent's statements that he had cause to suspect and...