State v. Scholes

• Decision Date: 21 July 2008
• Docket Number: No. 20070316.,20070316.
• Citation: 2008 ND 146,753 N.W.2d 377
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Michael SCHOLES, Sr., Defendant and Appellant.
• Court: North Dakota Supreme Court

753 N.W.2d 377

2008 ND 146

STATE of North Dakota, Plaintiff and Appellee v. Michael SCHOLES, Sr., Defendant and Appellant.

No. 20070316.

Supreme Court of North Dakota.

July 21, 2008.

James M. Vukelic, Acting State's Attorney, Bismarck, ND, for plaintiff and appellee.

Jessica J. Ahrendt, Valley City, ND, for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Michael William Scholes, Sr., appeals a criminal judgment entered on a conditional plea of guilty to four counts of class AA felony gross sexual imposition, one count of class A felony gross sexual imposition, and four counts of class B felony use of a minor in a sexual performance. We conclude the district court did not err in denying Scholes's motion to suppress evidence because probable cause existed to issue a search warrant for his residence, because the State's failure to comply with the literal terms of N.D.R.Crim.P. 41 does not require suppression of the evidence under the circumstances and because Scholes failed to establish that the State intentionally or recklessly omitted facts material to the issuance of the search warrant. We affirm.

I

[¶ 2] Scholes is the father of two sons, M.S., born in 1994, and R.S., born in 1995. Scholes also has a stepson, M.A., and a stepdaughter, A.A., who were both born in 1994. The family lived in Carson.

[¶ 3] In 2006, Dickinson attorney Kelly Armstrong was appointed to represent the children in a juvenile court action brought by the director of the Grant County Social Service Board against Scholes and the other parents to gain custody of the children. On December 7, 2006, during the course of his investigation in the juvenile court action, Armstrong prepared the following affidavit:

2. That on December 6, 2006, at approximately 4 p.m. MT, I conducted an interview with 3 of my 4 clients, [R.S.], [A.A.], and [M.A.] at Michael Scholes, Sr.'s residence. I have permission from both Michael Scholes, Sr., and his attorney to conduct these interviews. I spoke briefly with all 3 of my clients while Michael Scholes, Sr. was in the room. I then interviewed each of my clients separately.

3. I spoke with [R.S.] first. [R.S.] was visibly agitated and upset. When I asked him questions, he would start talking in a very low tone. He told me he did not want to testify at the hearing scheduled for next Thursday, December 14, 2006. I asked [R.S.] numerous questions about the case which he answered. He then asked if he could write the Judge a letter. I told him he could. He asked if his Dad and his Grandmother would be able to see this letter, I asked why, [R.S.] then told me that he was very scared of his father and grandmother. Throughout this conversation he was whispering in a very low tone. He was obviously afraid of being overheard.

4. I then interviewed [M.A.] and [A.A.]. They were both in good moods and the interviews were short. [R.S.] came back up from the basement and said he had to talk to me again. He told me that ... "I know why Dad likes [A.A.] better." He was whispering very quietly and I could barely hear him. [R.S.] informed me that recently [M.A.] had found videos of Michael Scholes, Sr. and [A.A.]. I asked what kind of videos and he told me they were naked. I asked where they were, he told me they were in Dad's big brown dresser in his bedroom. [R.S.] then handed me a note, a copy of which is attached, saying that his dad might be taping the conversation. At this point, I decided to terminate the interview.

5. As I was leaving the house, [R.S.] walked me out to my car. When I explained to [R.S.] how serious the situation was and that I may have to report it to the police, he started crying and shaking uncontrollably. He said he was very scared of his father and grandmother and begged me not to tell the police. I told [R.S.] I would call him immediately the next day at school and that I would not do anything until I spoke to him again. Before I left, [R.S.] stated, "Please, just get me out of here. I'm thinking about killing myself." I spoke with [R.S.] a little more until he calmed down and got him to promise to not do anything until I talked to him tomorrow. He agreed.

6. This morning, at approximately 8:30 a.m. MT, I called [R.S.] at school. I spoke with him again about what he had told me the night before. He explained that there were 2 videos, a normal VHS and a small camcorder video in Michael Scholes, Sr.'s big brown dresser. I asked him to describe in detail how he knew this. [R.S.] told me that recently when [A.A.] was sick and Michael Scholes, Sr. took her to the hospital, he [R.S.] was taking a bath. When he got done with his bath, he walked into the living room and [M.A.] was watching a video of [A.A.] and Michael Scholes, Sr. [R.S.] said the videos were located in the big brown dresser in Michael Scholes, Sr.'s bedroom. I informed [R.S.] again that we may have to report this to the police and he freaked out. I then decided to drive to Carson and speak to [R.S.] personally.

7. I met with [R.S.] at Grant County Junior High School in Carson. He informed me that there were also naked pictures of [A.A.] in the little white dresser in Michael Scholes, Sr.'s bedroom. [R.S.] informed me that when Michael Scholes, Sr. took [A.A.] to the hospital, he forgot to lock his bedroom door. While [R.S.] was in the bath, [M.A.] took one of the videos and began watching it. Upon leaving the room, [M.A.] accidentally locked the door. When [R.S.] got out of the bath and saw the video, [M.A.] and [R.S.] decided to put them away so they would not get into trouble. [R.S.] picked the lock to his father's bedroom door and they replaced the videos. [R.S.] also told me that [A.A.] still sleeps in Michael Scholes, Sr.'s room every night. [R.S.] also told me that Michael Scholes, Sr. may have hid these items in the attic. [R.S.] is adamant that these items are still in the house.

8. [R.S.] is terrified of his father and grandmother. Several times during the course of this interview, he cried and begged me to get him out of the house. In my experience as an attorney, I have conducted numerous cross-examinations. Throughout the course of these interviews with [R.S.], I attempted to trip up [R.S.'s] answers. With regard to the videos and pictures, [R.S.'s] answers were very consistent. When I left the school, I informed [R.S.] that I had no choice but to report this. He was so visibly shaken and upset that school staff kept him in the office.

9. Upon receipt of this information, I am extraordinarily worried about my clients' health and safety. [R.S.'s] affirmation that he is thinking of killing himself and his numerous emotional outbursts lead me to believe that it is imperative that he be removed from his father's home immediately. I have no reason to doubt what [R.S.] told me. My concern is that if the items that [R.S.] swears are located in Michael Sr.'s home have been moved, destroyed, or not found, and [R.S.] is told that he has to return to the home, that he may harm himself. [R.S.'s] only concern is about not going back to the home.

10. I believe I am legally and ethically obligated to report this information, as my client has informed me that there is a crime being committed. Also, as I represent [A.A.] as well, obvious risk to her safety compels me to file this affidavit.

[¶ 4] The affidavit contained the caption for the juvenile court case and was notarized by the Grant County Clerk of Court. Because the Grant County State's Attorney was out of the state at the time, Armstrong gave the affidavit to the Grant County Sheriff. The Grant County State's Attorney was contacted, and he contacted the Morton County State's Attorney, who presented the affidavit to a district court judge. The district court judge found probable cause existed and issued the warrant to search Scholes's residence. Law enforcement officers discovered incriminating evidence during the search, and Scholes was charged with the crimes.

[¶ 5] Scholes moved to suppress the evidence claiming no probable cause existed to issue the search warrant. Scholes also requested and was given a Franks hearing, see Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to consider his allegation that the State omitted relevant facts in obtaining the warrant. The district court denied the suppression motion. The court found there was probable cause to issue the search warrant and found "Scholes did not demonstrate that there were any omissions of facts that would have been material to [the district court judge's] determination" of probable cause. Scholes entered a conditional plea of guilty to the criminal charges under N.D.R.Crim.P. 11(a)(2), reserving his right to appeal from the denial of his motion to suppress evidence.

II

[¶ 6] Scholes argues the district court erred in denying his suppression motion because probable cause did not exist to issue the search warrant.

[¶ 7] "[A] district court's decision ... [on] a motion to suppress [evidence] will not be reversed [on appeal] if there is sufficient competent evidence capable of supporting the district court's findings, and ... if its decision is not contrary to the manifest weight of the evidence." State v. Fischer, 2008 ND 32, ¶ 10, 744 N.W.2d 760 (quoting State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578). "Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law." State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578. "Whether probable cause exists to issue a search warrant is a question of law which is fully reviewable on appeal." Roth v. State, 2007 ND 112, ¶ 18, 735 N.W.2d 882.

[¶ 8] The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. State v. Proell, 2007 ND 17, ¶ 8, 726 N.W.2d 591. A search warrant may be issued only upon a showing of probable cause. State v. Ebel, 2006 ND 212, ¶ 12, 723 N.W.2d 375. Probable cause to issue a search warrant exists "when the...