State v. Schmalz, 20070127.

• Decision Date: 21 February 2008
• Docket Number: No. 20070127.,No. 20070128.,20070127.,20070128.
• Citation: 2008 ND 27,744 N.W.2d 734
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Steven R. SCHMALZ, Defendant and Appellant.
• Court: North Dakota Supreme Court

744 N.W.2d 734

2008 ND 27

STATE of North Dakota, Plaintiff and Appellee v. Steven R. SCHMALZ, Defendant and Appellant.

No. 20070127.

No. 20070128.

Supreme Court of North Dakota.

February 21, 2008.

Lloyd C. Suhr (argued), Burleigh County Assistant State's Attorney, and Matthew Ramage-White (on brief), appearing under the Rule on the Limited Practice of Law by Law Students, Bismarck, ND, and Allen M. Koppy (appeared), Morton County State's Attorney, Mandan, ND, for plaintiff and appellee.

Jodi L. Coiling (argued), Dickson Law Office, Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Steven Schmalz appeals from two criminal judgments following his conditional guilty pleas for possession of marijuana in both Burleigh and Morton counties, arguing the trial court erred in denying his motion to suppress evidence. We affirm the criminal judgments.

I

[¶ 2] Burleigh County Sheriffs Deputy Simon Scheett received "intel," allegedly indicating Schmalz "had involvement with narcotics." Based on this information, Deputy Scheett began an investigation of Schmalz. As part of the investigation, Deputy Scheett, along with another officer, searched trash that had been placed on the sidewalk in front of Schmalz's home. During their search of the trash, the officers found a paper towel with dark residue, which Deputy Scheett believed to be burnt marijuana residue, packaging tape, which Deputy Scheett said smelled of marijuana, and cellophane packaging, which Deputy Scheett said smelled of marijuana also. Along with these items, the trash contained mail addressed to Schmalz.

[¶ 3] The day after the trash can search, Deputy Scheett and an Assistant Burleigh County State's Attorney requested a warrant to search Schmalz's home from a Burleigh County district court judge. At the hearing on the application for a search warrant, Deputy Scheett testified about the "intel" he received, allegedly providing Schmalz was involved with drugs. He did not disclose the names of the informants or the sources of the information, nor did, he attempt to deliver any detailed information regarding what had been communicated to the police in the intelligence.

[¶ 4] In the application for the search warrant, Deputy Scheett testified this intelligence prompted him to conduct further investigation of Schmalz. He testified he and another officer went to the sidewalk in front of Schmalz's home, where trash was regularly placed for pick-up and disposal, to conduct a search. He testified the search of the trash in front of Schmalz's residence uncovered a paper towel with what appeared to be burnt marijuana residue, packaging tape that carried the scent of marijuana, and a cellophane wrapper that also smelled of marijuana. Along with this trash, the officers found mail addressed to Schmalz. Deputy Scheett did not, however, testify how many trash cans were placed on the sidewalk for disposal, whether this trash disposal drop-off point was typically used as the disposal point for the entire trailer park, nor did his testimony explicitly provide whether the mail addressed to Schmalz was found in the same trash container as the material containing marijuana or smelling of marijuana. Based on Officer Scheett's testimony, the judge issued a warrant to search Schmalz's home.

[¶ 5] A few days later, Deputy Scheett contacted Schmalz, telling Schmalz he had a warrant to search his home and requested he and Schmalz meet in Mandan so that Schmalz could accompany the police to his home for the search. Schmalz met with Deputy Scheett and another officer in a parking lot in Mandan, where he left his car and then rode to his home with the officers. During the search of Schmalz's home in Bismarck, the police found marijuana.

[¶ 6] After finding the drugs in Schmalz's home, the officers asked Schmalz if he had any marijuana in his vehicle, which, was parked in Mandan. Schmalz stated he did not. The officers asked Schmalz to consent to a search of his vehicle, and after some hesitation, Schmalz consented. During the search of Schmalz's vehicle, the police found a small quantity of marijuana.

[¶ 7] Schmalz was charged with possession of marijuana in both Burleigh and Morton counties. Before the date set for trial, he moved to suppress evidence gathered in both searches. He argued there was insufficient evidence to support the issuance of the warrant, and the officers should not have searched his trash based only on the information received from an informant. For these reasons, Schmalz argued the evidence derived from the search of his home should be suppressed. He further argued the search of his vehicle was unconstitutional, because the search of the vehicle was a product of the allegedly unconstitutional search of his home, and therefore the evidence acquired as a result of the vehicle search should have been suppressed" under the fruit-of-the-poisonous-tree doctrine. The district court denied Schmalz's motion to suppress. Schmalz entered conditional guilty pleas to both possession charges.

[¶ 8] Schmalz appeals, arguing his convictions should be overturned and he should be allowed to withdraw his conditional guilty pleas because his Fourth Amendment right against unreasonable searches and seizures was violated.

II

A. Sufficiency of the Warrant

[¶ 9] When reviewing a district court's decision to grant or deny a motion to suppress, this Court gives deference to the district court's findings of fact, and conflicts in testimony are resolved in favor of affirmance. State v. Albaugh, 2007 ND 86, ¶ 8, 732 N.W.2d 712 (citing State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578); State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. While the district court's factual determinations are given great deference, questions of law are fully reviewable on appeal. Albaugh, at ¶ 8 (citing Goebel, at ¶ 11).

[¶ 10] The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, State v. Ressler, 2005 ND 140, ¶ 10, 701 N.W.2d 915 (citation omitted), protects "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; see also N.D. Const. art. I, § 8. To protect against unreasonable searches and seizures, "[p]robable cause is required for a search warrant under the Fourth Amendment to the United States Constitution and Article I, Section 8 of our state constitution." State v. Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861 (citing State v. Wamtre, 1999 ND 164, ¶ 5, 599 N.W.2d 268).

[¶ 11] Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched. Thieling, at ¶ 7 (citing State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995)). "Although each piece of information may not alone be sufficient 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.'" Thieling, at ¶ 7 (quoting State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912). "We also recognize `courts must take into account inferences and deductions that a trained and experienced officer makes.'" Thieling, at ¶ 8 (quoting State v. Mische, 448 N.W.2d 415, 419 (N.D.1989)). However, when information presented to the judge who issues the warrant causes only suspicion and warrants further investigation, probable cause does not exist. Thieling, at ¶ 8 (citations omitted). "Barebones" information is not sufficient to satisfy the probable cause requirement for a warrant. Damron, at ¶ 7 (citing State v. Woehlhoff, 540 N.W.2d 162, 166 (N.D. 1995)).

[¶ 12] The determination of whether probable cause exists to issue a search warrant is a question of law. Thieling, at ¶ 8 (citing Damron, at ¶ 5). Deference is given to the magistrate judge's findings if there is a substantial basis to determine probable cause exists. Thieling, at ¶ 8 (citations omitted). "`We resolve doubt about the sufficiency of an affidavit in support of a request for a search warrant in favor of sustaining the search."' Id. (quoting Wamre, at ¶ 7); see also State v. Roth, 2004 ND 23, ¶ 6, 674 N.W.2d 495 (citing State v. Ballweg, 2003 ND 153, ¶ 12, 670 N.W.2d 490) ("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.").

[¶ 13] This Court's review of the validity of a search warrant is independent of the trial court's determination. State v. Hage, 1997 ND 175, ¶ 11, 568 N.W.2d 741. In making this independent determination as to the existence of probable cause, the reviewing court may not look beyond the four corners of the affidavit or application for issuance, of the warrant. Roth, at ¶ 25 (citations omitted).

[¶ 14] Deputy Scheett testified during the warrant application hearing that he had received "intel," allegedly providing Schmalz was involved with drugs. Deputy Scheett did not disclose the names of the informants or the sources of the information, nor did he attempt to deliver any detailed information regarding what exactly had been communicated to the police in the "intel." Schmalz properly notes this information does not sustain a finding of probable cause. See, e.g., Roth, at ¶ 12 (quoting Hage, at ¶ 17) ("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.'"); Franks v. Delaware, 438 U.S. 154, 165...