State v. Schmitt, 20000037.

Decision Date20 March 2001
Docket NumberNo. 20000037.,20000037.
Citation2001 ND 57,623 N.W.2d 409
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Matthew Byron SCHMITT, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Brett M. Shasky, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

William Kirschner, Kirschner Law Office, Fargo, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Matthew Byron Schmitt appealed from convictions entered upon conditional guilty pleas under N.D.R.Crim.P. 11(a)(2) to manufacturing a controlled substance and possession of a controlled substance with intent to deliver. We remand for further proceedings.

I

[¶ 2] Schmitt lived with Lester Holbrook in a house at 502 Morrison Street in West Fargo. In May 1999, a district judge, acting as a magistrate, issued a warrant to search the house. The search warrant was based on a May 26, 1999 sworn affidavit of Special Agent Brent Slade of the North Dakota Bureau of Criminal Investigations. As a result of evidence seized during the search, the State charged Schmitt with manufacturing a controlled substance, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia.

[¶ 3] Schmitt moved to suppress evidence seized during the search under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), claiming Agent Slade's affidavit included false statements which were made intentionally, or with reckless disregard for the truth, and after redacting those false statements, there was not probable cause to support the search warrant.

[¶ 4] After an evidentiary hearing, the trial court denied Schmitt's motion to suppress, concluding there was "[n]o showing... that Agent Slade included any false statement in the affidavit `knowingly and intentionally, or with reckless disregard for the truth,'" and "even redacting the questionable statements from the warrant affidavit, there remains sufficient credible evidence to withstand a probable cause challenge." Schmitt entered conditional pleas of guilty under N.D.R.Crim.P. 11(a)(2) to manufacturing a controlled substance and possession of a controlled substance with intent to deliver, and he appealed from the convictions.

II

[¶ 5] Schmitt argues the trial court erred in finding there was no showing Agent Slade's affidavit included any false statements which were made intentionally or with reckless disregard for the truth. Schmitt argues there were numerous false statements in Agent Slade's affidavit involving information provided to law enforcement officers by Donald Hurst, Tonya Paeper, and Ray Gross, and those statements were included in the affidavit intentionally or with reckless disregard for the truth. Schmitt argues, without those false statements, there was not probable cause to support the search warrant.

[¶ 6] Agent Slade's affidavit described his seven years of work and training as a law enforcement officer and narcotics investigator, and provided:

Your affiant has information that during the month of July, 1998, Special Agent Duane Stanley and Detective Mitch Burris conducted an interview of Donald Hurst. During the interview, Hurst stated that Hurst knew Lester Holbrook to be involved with dealing methamphetamine and marijuana. Hurst stated that Holbrook would receive large amounts of methamphetamine on a regular basis through UPS. Hurst also stated that Holbrook would sell the methamphetamine out of his residence. Hurst stated that Hurst would be able to purchase methamphetamine or marijuana from Holbrook. Hurst stated that Hurst was related to Holbrook and was upset by the fact that Holbrook had been selling drugs for a long time and had not been caught.

On April 6, 1999, your affiant was contacted by Officer Terry Styf from the West Fargo Police Department. Officer Styf told your affiant that an informant that was working with the West Fargo Police Department had arranged to purchase marijuana from Lester Holbrook. Officer Styf asked your affiant to assist with the preparation and execution of the transaction.
On April 6, 1999, your affiant met with Officer Styf. Officer Styf explained to your affiant that the informant was Donald Hurst and that Hurst had arranged to purchase an ounce of marijuana from Holbrook. The deal was to take place at Holbrooks residence, 502 Morrison Street, West Fargo, North Dakota. A short time later, Hurst arrived and your affiant met with Hurst. Hurst stated to your affiant that the deal with Holbrook was already arranged and that Hurst had to call Holbrook on the telephone and let Holbrook know that Hurst was coming over to buy the marijuana. Your affiant instructed Hurst to call Holbrook. Hurst placed a telephone call to Holbrooks residence and received no answer. Your affiant asked Hurst to state what Hurst knew about Holbrooks drug dealing. Hurst stated that Holbrook had been selling drugs for many years. Hurst stated that Holbrook could get any amount of marijuana that he wanted and that Holbrook would also sell methamphetamine. Your affiant instructed Hurst to make another telephone call to Holbrook. Hurst placed a telephone call to Holbrooks residence and received no answer. Your affiant instructed Hurst to go home and continue trying to make contact with Holbrook. Your affiant instructed Hurst to arrange a time with Holbrook to do the deal and then contact your affiant.
On April 7, 1999, your affiant contacted Officer Styf. Your affiant asked Officer Styf to verify that Holbrook was residing at 502 Morrison Street, West Fargo, North Dakota. Officer Styf called your affiant back a short while later and stated that Holbrook was the resident of 502 Morrison Street, West Fargo, North Dakota. Officer Styf stated that West Fargo Police Department records and power records indicate that Holbrook currently resides at 502 Morrison Street, West Fargo, North Dakota.
On April 9, 1999 Officer Styf conducted an interview of Tonya Paeper. During the interview, Paeper stated that Paeper had been at Holbrooks residence, 502 Morrison Street, West Fargo, North Dakota within the last five months. Paeper stated that while Paeper was present at Holbrooks residence, Paeper observed Holbrook selling marijuana to other individuals.
On April 19, 1999, your affiant met with Task Force Officer Pat Claus. TFO Claus stated that on April 14, 1999, Ray Gross had contacted TFO Claus. Gross stated that Gross had overheard Holbrook and another male named Phil talking about Holbrooks indoor marijuana grow in the basement of his residence, near Hardees in West Fargo, North Dakota. Your affiant knows that the address 502 Morrison Street, West Fargo, North Dakota is near the West Fargo Hardees.

On May 24, 1999, your affiant contacted Detective Gordy Olson at the Fargo Police Department. Your affiant asked Detective Olson to look Holbrook up in the Fargo Police Department computer. Detective Olson gave your affiant the following information. On May 15, 1997, Holbrook was a suspect in a possession of marijuana case. In September, 1997, Holbrook was mentioned in an investigation for selling marijuana. On June 21, 1998, Holbrook was arrested for possession of marijuana and paraphernalia.

Detective Olson also told your affiant that the Fargo Police Department had the following intelligence reports on Holbrook. On February 13, 1995 during an interview of a confidential informant, the confidential informant stated that Holbrook sold marijuana. Other information that this confidential informant gave has been corroborated. On April 6, 1995, the Cass County Sheriff's Office conducted an interview of David Schweer. During the interview, Schweer stated that Schweer had been selling marijuana to Holbrook. On December 3, 1997 during an interview, a reliable confidential informant stated that Holbrook had been doing marijuana dealings with Clark Longie. Longie is known by law enforcement to be involved with dealing drugs to include marijuana. On March 23, 1999, during an interview of David Wald, Wald stated that Holbrook was selling marijuana, cocaine and methamphetamine. Wald stated that Wald had purchased methamphetamine from Holbrook approximately six months prior to this date.
On May 25, 1999, your affiant spoke with Officer Styf. Officer Styf stated that Officer Styf had spoken with Donald Hurst and that Hurst had given the following information. Hurst stated that Hurst had spoken with Holbrook on May 20, 1999. Hurst stated that at this time Holbrook said that he had marijuana for sale. Hurst stated that Holbrook intended to sell one ounce of the marijuana to Nathan Almklov within the next few days. Hurst stated that Holbrook was always in possession of marijuana and would be able to sell almost any amount of marijuana on short notice.
Based upon your affiants training and experience, your affiant knows that individuals involved in the sale and use of controlled substances often store the controlled substances and paraphernalia related to controlled substances in their residences.
Based upon the aforementioned information regarding Lester Holbrooks continued involvement with the use and sale of controlled substances, it is your affiant's belief that evidence of controlled substance violations may be found in the residence of 502 Morrison Street, West Fargo, North Dakota.

[¶ 7] Schmitt argues the uncontradicted testimony of Hurst, Paeper, and Gross established that statements in the affidavit which were attributed to them were significantly different than information they actually provided law enforcement officers.

[¶ 8] At the evidentiary hearing, Hurst denied that he told law enforcement officers Holbrook was "involved with dealing methamphetamine"; "Holbrook would receive large amounts of methamphetamine on a regular basis through UPS"; "Holbrook would sell the methamphetamine out of his residence"; and Hurst "would be able to purchase methamphetamine" from Holbrook. Although Hurst testified he unsuccessfully tried to call Holbrook twice on ...

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