State v. Rydberg, Cr. N

• Court: United States State Supreme Court of North Dakota
• Citation: 519 N.W.2d 306
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Teresa Ranae RYDBERG, Defendant and Appellant. o. 930281.
• Decision Date: 18 July 1994

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519 N.W.2d 306 STATE of North Dakota, Plaintiff and Appellee,
v.
Teresa Ranae RYDBERG, Defendant and Appellant. Cr. No. 930281. Supreme Court of North Dakota. July 18, 1994.

Page 307

Thomas K. Schoppert of Schoppert Law Firm, Minot, for defendant and appellant.

Timothy C. Wilhelm, Asst. State's Atty., Minot, for plaintiff and appellee.

SANDSTROM, Justice.

Teresa Ranae Rydberg appeals her criminal conviction for possession of a controlled substance with intent to deliver. Rydberg claims the trial court erred in denying her motion to suppress evidence seized from her home under a search warrant. Rydberg challenges the validity of the warrant claiming: (1) the investigating officer, in the affidavit in support of the warrant, withheld vital information from the magistrate; and (2) the warrant was based on evidence gathered illegally during a warrantless search of her garbage.

We affirm. The "vital" information allegedly "withheld" from the magistrate was neither vital nor withheld. Although the North Dakota Constitution may provide more protection than the Fourth Amendment of the United States Constitution, in this case, we conclude the result is the same. Rydberg had no reasonable expectation of privacy in her garbage, and therefore, the warrantless search of her garbage did not violate her rights under either the Fourth Amendment of the United States Constitution or Article I, Sec. 8 of the North Dakota Constitution.

I

In July 1990, an agent of the Bureau of Criminal Investigation Drug Enforcement Unit received information from a confidential informant that Rydberg was a cocaine supplier. According to the informant, Rydberg was supplying cocaine for resale to co-employees of a Minot bar. Based on the informant's tip, the Minot Police Department began an investigation of Rydberg. Officers conducted drive-by surveillance of Rydberg's home and searched Rydberg's garbage three times.

The first search of Rydberg's garbage uncovered no evidence of illegal drug trafficking. During the second search of Rydberg's garbage, on April 4, 1991, a Minot police detective, along with an agent of the Drug Enforcement Unit, found two folded "sno-seals" and a discarded letter addressed to Rydberg. Sno-seals are triangular shaped pieces of paper folded into an envelope, commonly used to transport cocaine. On April 11, 1991, the officers conducted a third search of Rydberg's garbage and found sno-seals, three plastic baggies containing a white powder residue, and a letter addressed to Rydberg.

On April 12, 1991, the detective delivered the evidence found in Rydberg's garbage to the State Laboratory for analysis. Also on April 12, at approximately 3:00 p.m., the detective went to the Ward County State's Attorney's Office to prepare an affidavit in support of a search warrant. While at the State's Attorney's Office, the detective received telephone confirmation from the director of the Forensic Science Division of the State Laboratory that the baggies found in

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Rydberg's garbage contained residue of cocaine. At 3:30 p.m., the director sent to the Minot Police Department a facsimile of his written report on the Rydberg evidence. The written report confirmed the residue in the baggies was cocaine, but stated the sample was "insufficient for confirmatory analysis."

In his affidavit in support of the search warrant, the detective included the information from the Drug Enforcement Unit's confidential informant, a listing of the items found in Rydberg's garbage, and the State Laboratory telephone confirmation of cocaine residue. The detective also included information gathered by the Drug Enforcement Unit that Rydberg's car had been seen twice at the residence of a recently convicted drug offender. The detective did not inform the magistrate the cocaine sample was insufficient for confirmatory analysis. Based on the affidavit, the magistrate issued a search warrant and the detective and other officers searched Rydberg's residence. The officers seized cocaine and other drug paraphernalia. Rydberg was charged with possession and intent to deliver cocaine, a class A felony, and possession with intent to use drug paraphernalia, a class A misdemeanor.

Rydberg moved to suppress the evidence seized during the search of her home claiming: (1) the search warrant was invalid because the detective failed to inform the magistrate the residue identified as cocaine was insufficient for confirmatory analysis; (2) the search warrant was based on evidence illegally seized from her garbage; and (3) the search warrant was not based on probable cause. The trial court denied Rydberg's motion.

Rydberg entered a conditional plea of guilty to possession of a controlled substance with intent to deliver, under Rule 11(a)(2), N.D.R.Crim.P. ¹ A criminal judgment and commitment was entered and this appeal followed. This Court has jurisdiction under Art. VI, Sec. 6, N.D. Const., and N.D.C.C. Sec. 29-28-06. The appeal is timely under Rule 4(b), N.D.R.App.P.

II

A trial court reviewing the validity of a search warrant decides if the information before the magistrate established probable cause to search. State v. Frohlich 506 N.W.2d 729, 732 (N.D.1993); State v. Metzner, 338 N.W.2d 799, 804 (N.D.1983).

"Probable cause to search does not require the same standard of proof necessary to establish guilt at trial; rather, probable 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...