State v. Ronngren, s. 1023

• Decision Date: 16 January 1985
• Docket Number: 1024,Nos. 1023,s. 1023
• Citation: 361 N.W.2d 224
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. James RONNGREN and Judy Ronngren, Defendants and Appellants. Crim.
• Court: North Dakota Supreme Court

Page 224

361 N.W.2d 224

STATE of North Dakota, Plaintiff and Appellee, v. James RONNGREN and Judy Ronngren, Defendants and Appellants.

Crim. Nos. 1023, 1024.

Supreme Court of North Dakota.

Jan. 16, 1985.

Charles J. Gilje, State's Atty., (argued), Jamestown, and Robert Udland, Asst. Atty. Gen., Bismarck, for plaintiff and appellee.

Cecelia Ann Wikenheiser, of Hjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, for defendants and appellants.

VANDE WALLE, Justice.

James and Judy Ronngren have appealed from judgments of conviction on charges of possession of a controlled substance with intent to deliver. We affirm.

For several days in October 1983, State and local law-enforcement officers conducted a surveillance of the Ronngren residence in Jamestown. Some of the surveillance activities were conducted from the home of the Ronngrens' neighbors, the Kollmans. On October 20, 1983, the Stutsman County State's Attorney and members of the surveillance team sought a search warrant from the county court. Following the hearing, during which the court viewed a video tape of activities at the premises and heard testimony from the officers, the court issued the warrant. The warrant authorized the officers to search James, the Ronngren residence, and the Ronngrens' vehicle for various items relating to "evidence of an operation to sell controlled substances...."

When the officers executed the warrant, James was the only person at the residence. The search of the residence produced bags of marijuana, drug paraphernalia, a scale, and $1,835 in cash. Judy and the Ronngren vehicle were later located and she was placed under arrest. The vehicle and Judy's purse were subsequently searched.

The Ronngrens were charged with possession of a controlled substance with intent to deliver pursuant to Sec. 19-03.1-23(1), N.D.C.C. They moved to suppress "any and all evidence gathered by law-enforcement officers while executing a search warrant obtained from the Stutsman County Court on the 20th day of October, 1983." The trial court suppressed all evidence obtained from the search of the vehicle and Judy's purse, but refused to suppress the evidence obtained from the search of the Ronngren residence.

The Ronngrens were found guilty in a bench trial. On appeal, the Ronngrens assert that the evidence seized from their residence should not have been admitted at trial because the search warrant was issued without probable cause and because the officers failed to comply with the "knock and announce" rule while executing the warrant. They also assert that their convictions should be reversed because the State "deliberately" violated the trial court's sequestration order during the suppression hearing.

PROBABLE CAUSE

The Ronngrens attack the legal validity of various types of information presented by the officers to the county court during the search-warrant hearing and assert that without this "incompetent and illegally obtained data" the evidence was insufficient to establish probable cause.

A substantial portion of their argument centers on the assertion that hearsay testimony regarding the reputations of several people who visited their residence during the surveillance is entitled to no weight in the probable-cause determination. The officers observed a number of short-term visitors at the Ronngren residence. The agents recorded the license numbers on the visitors' vehicles and the names of the owners were obtained through the State Radio Communications System. At the search-warrant hearing, the officers essentially testified that, from what they had heard from people in the community, the vehicle owners had reputations of being drug users. The Ronngrens assert that this testimony fails to meet the test set forth in The Ronngrens also assert that a binocular surveillance of their residence, through an uncurtained window, constituted an illegal search; that a garbage bag, which had been removed from their property by a dog, was illegally searched; and that some of the testimony offered during the search-warrant hearing was "stale or false or untrustworthy" and could not be considered by the county court in its probable-cause determination.

Aguilar v. 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). They recognize that the United States Supreme Court, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), rejected the Aguilar-Spinelli two-pronged test in favor of a more general "totality of the circumstances" approach, but urge that we retain the Aguilar-Spinelli requirements under the North Dakota Constitution, and argue, in the alternative, that this information does not meet the requirements of Gates.

It is unnecessary to reach all of these issues because we conclude that the evidence obtained from the search of the garbage bag, when considered with the unusual amount of traffic at the Ronngren residence and the testimony regarding the reputations of the vehicle owners, was sufficient to support a determination of probable cause.

During the search-warrant hearing, the following colloquy occurred between State's Attorney Gilje and agent Sohm:

"SOHM: At the evening hours or the afternoon hours yesterday, the 19th, I was informed by an individual that he had in his possession a garbage bag from the Ronngren residence.

"GILJE: Wasn't it Kollman that told you that?

"SOHM: Yes sir, Mr. Kollman. He had informed me during a casual of [sic] conversation that the garbage bag had been placed outside of the Ronngren residence a few days ago. That this bag had been drug across to his yard by a dog, and that he had secured the bag and placed it in his trash container for removal by the sanitation service. At this time I requested that Mr. Kollman give me that bag and I took custody of the bag in the evening hours of the 19th.

"GILJE: That bag had been opened and [sic] examined the contents?

"SOHM: Ah, the bag had been opened, appeared to have been torn open and some of the product in the bag had been spilled out.

* * *

"GILJE: Now what, was it ah, the bag itself, was it of a black color?

"SOHM: It was a white trash bag, color plastic, similar to those that are present outside the Ronngren residence at this time.

"GILJE: Kollman was satisfied that that belonged to Ronngren, is that right?

"SOHM: He stated to me that it was from the Ronngren residence.

"GILJE: Okay. What did you find in that insofar as any marijuana or marijuana paraphernalia?

"SOHM: In a small section of the plastic bag we found numerous amounts of marijuana seeds, a small quantity of marijuana stems and sticks and a used marijuana cigarette, commonly referred to as a roach. It was a small corner of a white paper with burned edges on it."

The Ronngrens first claim that this information was not trustworthy because no showing was made that Kollman saw the dog drag the bag from the Ronngren residence and no facts were presented to show how Kollman knew that the bag once belonged to the Ronngrens. The Ronngrens concede that Kollman was a "citizen informant." A named "citizen informant" differs significantly from a paid police "tipster" or confidential informant whose identity is being protected and we have noted that a magistrate must take into account the status of an informant in judging his credibility or reliability. See State v. Klosterman, 317 N.W.2d 796 (N.D.1982); In this case, Kollman was the next-door neighbor of the Ronngrens. The information was corroborated by the agent's testimony that the garbage bag searched was similar to those present outside the Ronngren residence at the time of the search-warrant hearing. The circumstances were such that the county court could properly conclude that the garbage bag originated at the Ronngren residence.

                State v. Schmeets, 278 N.W.2d 401 (N.D.1979).  The reliability of a citizen informant "should be evaluated from the nature of his report, his opportunity to hear and see the matters reported, and the extent to which it can be verified by independent police investigation."    State v. Paszek, 50 Wis.2d 619, 631, 184 N.W.2d 836, 843 (1971).  See generally 1 W. LaFave, Search and Seizure, Sec. 3.4 (1978)
                

The Ronngrens contend that they had a reasonable expectation of privacy in the items deposited in the trash bag and that the subsequent search of the bag was unconstitutional because Kollman "was obviously acting as an agent of the police, even if a dog originally seized the bag." They rely primarily upon the California Supreme Court decisions in People v. Edwards, 71 Cal.2d 1096, 80 Cal.Rptr. 633, 458 P.2d 713 (1969), and People v. Krivda, 5 Cal.3d 357, 96 Cal.Rptr. 62, 486 P.2d 1262 (1971), vacated, 409 U.S. 33, 93 S.Ct. 32, 34 L.Ed.2d 45 (1972), reaffirmed, 8 Cal.3d 623, 105 Cal.Rptr. 521, 504 P.2d 457, cert. denied, 412 U.S. 919, 93 S.Ct. 2734, 37 L.Ed.2d 145 (1973), which essentially hold that a person discarding trash has a reasonable expectation that his trash will not be rummaged through and picked over by police without a search warrant, and therefore that a warrantless search of one's trash violates the Fourth Amendment. However, many courts have held that no reasonable expectation of privacy exists once trash has been deposited for collection in a public area, in close proximity to a public way, or in an outdoor communal trash container serving an apartment building. E.g., United States v. Michaels, 726 F.2d 1307 (8th Cir.1984), and cases cited therein; Smith v. State, 510 P.2d 793 (Alaska), cert. denied, 414 U.S. 1086, 94 S.Ct. 603, 38 L.Ed.2d 489 (1973); Stone v. State, 402 So.2d 1330 (Fla.Dist.Ct.App.1981); see generally Annot., 28 A.L.R. 4th 1219 (1984).

The cases discussing this issue have generally involved circumstances where either law-enforcement officers search garbage containers located on or near the defendant's property or where officers make arrangements with...