State v. Roth, No. 20030102.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: NEUMANN, Justice.
• Citation: 2004 ND 23,674 N.W.2d 495
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Todd ROTH, Defendant and Appellant.
• Docket Number: No. 20030102.
• Decision Date: 28 January 2004

674 N.W.2d 495
2004 ND 23

STATE of North Dakota, Plaintiff and Appellee,
v.
Todd ROTH, Defendant and Appellant

No. 20030102.

Supreme Court of North Dakota.

January 28, 2004.

Rehearing Denied February 25, 2004.

674 N.W.2d 496

674 N.W.2d 497

674 N.W.2d 498

Steven Balaban, Bismarck, for defendant and appellant

Cynthia M. Feland, Assistant State's Attorney, Bismarck, for plaintiff and appellee.

NEUMANN, Justice.

[¶ 1] Todd Roth appeals the criminal judgment and the trial court's decision denying his motion to suppress evidence seized during a search of his residence. The trial court found probable cause did not support a no-knock provision in the authorized search warrant, but the officers acted reasonably when they executed the search warrant without utilizing the no-knock provision. Roth contends the trial court erred in denying his motion to suppress evidence because probable cause did not exist, the trial court improperly relied on a confidential informant's tip, and the information supporting probable cause was stale. We affirm.

I

[¶ 2] Metro Area Narcotics Task Force member and Morton County Sheriff's Deputy Dion Bitz applied for a no-knock search warrant for Todd Roth's Bismarck, North Dakota, residence on August 20, 2002. Deputy Bitz presented an affidavit alleging Roth's involvement with persons

674 N.W.2d 499

suspected of drug trafficking. The affidavit also set forth Roth's previous conduct. On May 3, 2002, Roth's vehicle was searched and officers found marijuana, methamphetamine, and a loaded .45 caliber magazine clip, which belonged to a gun that Roth informed the officers was at his residence. On May 7, 2002, officers searched Roth's residence and uncovered a scale and mirror containing residue. The warrant application contained tips from a confidential informant who allegedly witnessed Roth cooking methamphetamine at Roth's residence. According to the application, the informant had previously provided reliable information that resulted in both state and federal prosecutions

[¶ 3] The magistrate issued the search warrant containing the no-knock authorization on August 20, 2002. Law enforcement executed the search warrant on August 28, 2002. The executing officer knocked and announced his presence before executing the search warrant, despite the no-knock authorization. Roth was subsequently arrested and charged with possession of methamphetamine, possession of drug paraphernalia, and manufacture of methamphetamine.

[¶ 4] Roth moved to suppress evidence seized during the search. The trial court determined the no-knock authorization was unsupported by exigent circumstances. However, the trial court applied the good-faith exception to the exclusionary rule because the no-knock provision was not used in executing the search warrant. The trial court found the officers executing the search warrant realized the no-knock provision was invalid and therefore knocked and announced their presence. Roth appeals.

II

[¶ 5] On appeal, we review the sufficiency of information before the magistrate independent of the trial court's decision and use the totality-of-the-circumstances test. State v. Rydberg, 519 N.W.2d 306, 308 (N.D.1994).

"Although each bit of information ..., by itself, may not be enough to establish probable cause and some of the information may have an innocent explanation, `probable 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. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912 (citations omitted). "Whether probable cause exists to issue a search warrant 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.

[¶ 6] We generally defer to a magistrate's determination of probable cause if a substantial basis for the conclusion exists, and doubtful or marginal cases should be resolved in favor of the magistrate's determination. State v. Ballweg, 2003 ND 153, ¶ 12, 670 N.W.2d 490. This Court defers to the trial court's findings of fact and resolves conflicts in testimony in favor of affirmance. State v. Haverluk, 2000 ND 178, ¶ 7, 617 N.W.2d 652.

[¶ 7] "[P]robable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place." State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988). "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

674 N.W.2d 500

particular place." Rydberg, 519 N.W.2d at 308

III

[¶ 8] Roth argues probable cause did not exist to support the issuance of the search warrant. Specifically, Roth argues the trial court erroneously relied on Deputy Bitz's conclusory statements regarding the informant's tip. According to Roth, the informant's tip should have been disregarded because Deputy Bitz failed to independently verify the informant's reputation for truthfulness or verify the accuracy of the informant's tip through corroboration or independent investigation.

[¶ 9] We have previously identified three types of informants with varying degrees of reliability: citizen, confidential, and anonymous. "[A] magistrate must take into account the status of an informant in judging his credibility or reliability." State v. Ronngren, 361 N.W.2d 224, 227 (N.D.1985).

[¶ 10] A citizen informant is "someone who volunteer[s] information, [does] not want anything in return for the information, and [is] not at risk or in fear of going to jail." State v. Rangeloff, 1998 ND 135, ¶ 4, n. 3, 580 N.W.2d 593. "We have recognized that citizen informants are presumed reliable, and that their reliability should be evaluated from the nature of their report, their opportunity to hear and see the matters reported, and the extent to which it can be verified by independent police investigation." State v. Frohlich, 506 N.W.2d 729, 733 (N.D.1993) (citations omitted).

[¶ 11] Generally, a confidential informant is known to the police officer, but his or her identity is concealed from the magistrate. See, e.g., State v. Dymowski, 458 N.W.2d 490, 496 (N.D.1990) (noting, "[t]he informant ... is confidential, unknown to the magistrate issuing the warrant, but known by [the agent], who could and did vouch for his reliability and veracity"). Id. "A named `citizen informant' differs significantly from a ... confidential informant whose identity is being protected." Ronngren, 361 N.W.2d at 227. However, while a confidential informant does not enjoy the same presumed reliability as a citizen informant, he or she is still considered more reliable than an anonymous informant. Indeed, we have previously stated that "[t]he most reliable tip is... one relayed personally to the officer." State v. Miller, 510 N.W.2d 638, 640 (N.D. 1994).

[¶ 12] An anonymous informant is one unknown to both the investigating officer and the magistrate. We have stated within the context of anonymous informants that an "`informant must supply information from which one may conclude that the informant is honest and his information is reliable, or from which the informant's basis of knowledge can be assessed.'" State v. Hage, 1997 ND 175, ¶ 17, 568 N.W.2d 741 (quoting Woehlhoff v. State, 487 N.W.2d 16, 18 (N.D.1992)) (citing State v. Thompson, 369 N.W.2d 363, 367 (N.D. 1985)).

[¶ 13] Roth incorrectly applies the standard for evaluating an anonymous informant's tip when he argues the tip should have been disregarded because Deputy Bitz failed to independently verify the informant's reputation for truthfulness or verify the accuracy of the informant's tip through corroboration or independent investigation. In this case, if the informant were anonymous, corroboration might have been required:

"If the informant does not supply the information necessary to evaluate the tip, the police must, through independent investigation, corroborate the tip or develop other sources of information

674 N.W.2d 501

leading to the conclusion that evidence of a crime will probably be found in a particular place."

Hage, at ¶ 17 (quoting Woehlhoff, 487 N.W.2d at 18). However, because the informant was confidential, i.e. known to the officer, a higher degree of reliability attaches. This case is similar to Dymowski, in which we upheld the magistrate's finding of probable cause based on a confidential informant's tip because the police officer "could and did vouch for [the confidential informant's] reliability and veracity." Dymowski, 458 N.W.2d at 496. Here, Deputy Bitz effectively vouched for the confidential informant's reliability and veracity in his supporting affidavit. The informant's veracity and reliability were evaluated in light of his past contact with law enforcement....