State v. Schmeets

• Decision Date: 30 April 1979
• Docket Number: No. 661,661
• Citation: 278 N.W.2d 401
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Ronnie SCHMEETS, Defendant-Appellant. Crim.
• Court: North Dakota Supreme Court

Page 401

278 N.W.2d 401

STATE of North Dakota, Plaintiff-Appellee, v. Ronnie SCHMEETS, Defendant-Appellant.

Crim. No. 661.

Supreme Court of North Dakota.

April 30, 1979.

Clifford C. Grosz, State's Atty., Fessenden, for plaintiff and appellee.

Michael N. Steffan, New Rockford, for defendant and appellant.

PAULSON, Justice.

The defendant, Ronnie Schmeets ("Schmeets"), has appealed to this court from the judgment of conviction in the Wells County District Court on a charge of possession of a controlled substance. Schmeets was charged with the possession of a controlled substance after police officers discovered cocaine in his apartment during a search that was conducted with a search warrant. Schmeets brought a motion to suppress the evidence obtained during the search of his apartment on the grounds that the search warrant had been improperly executed at night in violation of Rule 41(c) of the North Dakota Rules of Criminal Procedure and that the affidavit upon which the search warrant was based was insufficient to establish probable cause. The district court denied Schmeets' motion to suppress the evidence, Schmeets was convicted, and he has appealed. We reverse.

During the afternoon and evening of December 15, 1977, two juvenile girls visited an apartment in Harvey, North Dakota, that was occupied by Schmeets and two other men. ¹ The girls went to Schmeets' apartment at approximately noon and did not attend their afternoon school classes. Schmeets, the two girls, and others drank alcohol and smoked marijuana throughout the afternoon and evening. Testimony indicated that during the afternoon some people came to the apartment, requested to purchase cocaine, and did purchase from Schmeets a substance that appeared to be cocaine. Testimony at the suppression hearing also indicated that other drugs, including LSD and hashish, were on the premises.

That evening Barry Weigel, a police officer for the city of Harvey, was notified by the girls' parents that the girls were missing and had not been in school that afternoon. Officer Weigel then went to Schmeets' apartment to look for the girls and was told that they were not there.

At approximately ten o'clock that evening, Officer Barry Weigel located the girls walking down a street in Harvey. From their actions and speech he determined that they were under the influence of alcohol or drugs. The girls told Officer Weigel that they had been drinking and smoking marijuana at Schmeets' apartment and that they had observed the sale of some cocaine at the apartment. After he took the girls to the home of one of the girls' parents, Officer Barry Weigel notified the Harvey Chief of Police and Wells County Deputy Sheriff David Weigel, Barry Weigel's brother, of the incident. Deputy Sheriff David Weigel, who was at Fessenden at the time, was notified by telephone.

Deputy Sheriff David Weigel testified at the suppression hearing that Barry Weigel had told him that the girls were under the influence of alcohol or drugs; that the girls had admitted to Barry Weigel that they had been drinking and had been using drugs at Schmeets' apartment; that the girls stated to Barry Weigel that they had witnessed a sale of cocaine at the apartment that afternoon; and that additional drugs were still in the apartment. Deputy Sheriff David Weigel then relayed this information by telephone to Wells County State's Attorney Clifford C. Grosz, who was in Harvey. State's Attorney Grosz prepared an affidavit for a search warrant and drove thirty miles to Fessenden to obtain the search warrant from Judge Samuel D. Krause. Deputy Sheriff David Weigel and State's Attorney Grosz met with Judge Krause at his home after twelve o'clock midnight on December 16, 1977. Deputy Sheriff Weigel signed the affidavit for a search warrant and Judge Krause issued a warrant to search the apartment of Ronnie Schmeets. The search warrant was issued based upon Deputy Sheriff David Weigel's affidavit which states, in pertinent part:

"That the Harvey Police had picked up to (sic) juveniles near the Harvey Grade school and that the said girls are under the influence of drugs and that they had obtained the drugs from a Terry Hager and a Ronnie Schmeets and that they were at the place of the above two individuals and they had stated that concaine (sic), hashish oil and Marijuana were at the place of 309 Adams, Ave., Harvey, N.Dak."

Judge Krause testified at the suppression hearing that he had also relied upon certain unrecorded statements of Grosz and David Weigel that were not made under oath. No recorded, sworn testimony, other than the affidavit, was taken by Judge Krause before he issued the search warrant at 12:10 a.m. on December 16, 1977.

The search warrant was executed by law enforcement officers at approximately 1:30 a.m. on December 16, 1977. Schmeets was arrested and was charged with possession of a controlled substance. Following a preliminary hearing, Schmeets was bound over to district court for trial. On April 10, 1978, he was arraigned in district court, pleaded not guilty to the charge of possession of a controlled substance, and moved to suppress the evidence obtained in the search of his apartment. Schmeets' motion to suppress was denied on April 28, 1978, after a hearing. On September 7, 1978, Schmeets was convicted of possession of a controlled substance after a trial without a jury and was sentenced to two years in the State Penitentiary. At the trial, his attorney properly preserved his objection to the district court's denial of Schmeets' motion to suppress evidence.

The following issues have been raised on appeal:

(1) Was the search warrant invalid because the evidence upon which it was based was insufficient to establish probable cause?

(2) Was the search warrant improperly executed at night in violation of Rule 41(c), N.D.R.Crim.P.?

We will first determine whether or not the search warrant was issued without probable cause in violation of the United States Constitution or the North Dakota Constitution. We must first consider what evidence was relied upon by Judge Krause in determining probable cause.

In the present case, Judge Krause testified at the suppression hearing that he had issued the search warrant based upon the information contained in Deputy Sheriff David Weigel's affidavit and in the unrecorded, unsworn, oral statements made by State's Attorney Grosz and Deputy Sheriff Weigel. Rule 41(c), N.D.R.Crim.P., provides, in pertinent part:

"(c) Issuance and contents. A warrant shall issue only on an affidavit or affidavits sworn to or sworn recorded testimony taken before a state or federal magistrate and establishing the grounds for issuing the warrant. . . . Before ruling on a request for a warrant the state or federal Magistrate may require the affiant or other witnesses to appear personally and May examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the proceedings. . . ." (Emphasis added.)

The Rule specifically states that a search warrant may only be issued based upon sworn affidavits or sworn recorded testimony taken before the magistrate. As stated in the Explanatory Note to Rule 41(c), N.D.R.Crim.P., in pertinent part:

" . . . The requirement that the testimony be recorded by a reporter, if available, and if no reporter is available, then by use of a recording device at the direction of the magistrate, is to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if a motion to suppress is later filed." (Criminal Rules Manual, N.D.R.Crim.P.)

Because the oral statements of Deputy Sheriff David Weigel and State's Attorney Grosz were not given under oath and were not recorded as required by Rule 41(c), N.D.R.Crim.P., the statements could not be used to provide probable cause for the issuance of the search warrant. Therefore, David Weigel's sworn affidavit provided the only basis for Judge Krause's determination that probable cause existed for the issuance of the search warrant.

The Fourth Amendment to the United States Constitution, Section 18 of the North Dakota Constitution, and Rule 41(c), N.D.R.Crim.P., require that no warrant shall be issued until probable cause for its issuance has been established. In Berger v. State of New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040 (1967), the United States Supreme Court stated:

"Probable cause under the Fourth Amendment exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); Husty v. United States, 282 U.S. 694, 700-701, 51 S.Ct. 240, 241-242, 75 L.Ed. 629 (1931); Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879 (1949)."

See State v. Spoke Committee, University Ctr., etc., 270 N.W.2d 339 (N.D.1978); State v. Mertens, 268 N.W.2d 446 (N.D.1978); Iverson v. State of North Dakota, 480 F.2d 414 (8th Cir. 1973), Cert. den. 414 U.S. 1044, 94 S.Ct. 549, 38 L.Ed.2d 335 (1973); and State v. Dove, 182 N.W.2d 297 (N.D.1970).

The problem of determining the existence of probable cause to issue a search warrant is increased when the affiant has obtained his information through an informant. In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court developed the basic framework for determining the existence of probable cause when it is based on hearsay information given to the affiant by an informant. The United States Supreme Court's analytical framework, now known as the Aguilar Two-pronged Test, ² provides:

"Although an affidavit may be based on hearsay information...