State v. Tester

• Decision Date: 06 April 1999
• Docket Number: No. 980224,980224
• Citation: 1999 ND 60,592 N.W.2d 515
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Jason TESTER, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 515

592 N.W.2d 515

1999 ND 60

STATE of North Dakota, Plaintiff and Appellee, v. Jason TESTER, Defendant and Appellant.

No. 980224.

Supreme Court of North Dakota.

April 6, 1999.

Lonnie Olson, State's Attorney, Devils Lake, N.D., for plaintiff and appellee.

Tracy A. Gompf and Jeff A. Bredahl, Bredahl & Associates, Fargo, N.D., for defendant and appellant; argued by Tracy A. Gompf.

SANDSTROM, Justice.

¶1 We are asked to decide if evidence seized in a search of Jason Tester and his residence should be suppressed when the warrant listed his parents' address, and whether he was entrapped as a matter of law. We conclude the district court should have suppressed evidence seized from the search of Tester's residence. We further conclude the district court appropriately denied both suppression of evidence seized as a result of the search of Tester's person, and his motion to dismiss. We affirm in part, reverse in part, and remand.

I

¶2 A bank manager in Devils Lake contacted a Devils Lake police detective and reported Tester had exchanged a large number of small bills for hundred dollar bills. The investigations which followed involved the Devils Lake police and the United States Postal Service. During a nine-month period Tester had visited banks in Devils Lake, and on 15 different occasions exchanged small bills for larger ones. His exchanges totaled $33,500. On several occasions, a dog trained to detect controlled substances "hit" on the money exchanged by Tester. The U.S. Postal Service was investigating Tester because of the number of express mail packages he was sending to Colorado. The police and postal inspectors began exchanging information in March 1997. Based on drug dog "hits," federal search warrants were issued for packets of money going from Tester to "Sheldon Olson," to his wife "Pamela Olson," or to "The Olsons" in Colorado.

¶3 The investigation identified 27 different packages sent by Tester to Colorado. The investigation also identified a number of incoming express mail packages from the Olsons or from Colorado to Tester, all of which were delivered to 407 Fifth Street South in Devils Lake, Tester's parents' address. Tester lived at 224 Fifth Street South # 16 in Devils Lake. Many of the packages, however, included Jason Tester's phone number. The Olsons also used several different Colorado addresses on packages sent back to Tester, but there is no evidence any of these packages, except the one intercepted, contained narcotics.

¶4 The package intercepted by the Postal Inspection Service in July 1997 was addressed to Jason Tester at 407 Fifth Street South, Devils Lake. The package was tested by using a drug dog, who "hit" on the package, indicating the parcel contained controlled substances. As a result, a federal search warrant was obtained to search the parcel, and found inside were approximately 1.5 ounces of cocaine.

¶5 The following day, a district judge, acting as magistrate, found probable cause for the warrant, based on the testimony of a Devils Lake police detective. Specifically, the warrant gave the officers authority to search the "407 5 St. S. Trailer House, Lauinger's Tr. Ct." for narcotics and related paraphernalia, and to search the person of Jason Tester.

¶6 The postal inspector and local law enforcement went to Jason Tester's trailer home at 224 Fifth Street South "to assist with the delivery of the package, surveillance and arrest of Tester if he accepted the package." The inspector, posing as a postal carrier and equipped with electronic surveillance, approached Tester's residence with the parcel. Tester questioned why it was being delivered to his address, rather than to the address on the parcel. The inspector told him he was a substitute carrier and another postal employee had told him where Tester lived. Tester signed for the package.

¶7 Approximately 10 minutes later, two law enforcement officers approached Tester's home to execute the search warrant. Although the address on the warrant was incorrect, the Devils Lake police were familiar with Tester and where he lived. The officer who approached his door had been there many times for party, fight, and dog calls. When the police approached his residence, Tester's dog barked, and Tester came out of his house. The officer motioned for Tester to come toward her and stated, "Tester, come over here I need to talk to you." As the officer approached, Tester turned and went back into his house. The officer followed, and entered the residence. Tester, however, exited from a side door, and ran. A placebo had been placed in with a small portion of the drugs delivered to Tester's trailer, and while Tester was being chased, he poured the placebo and narcotics out. The officers gave chase and Tester was caught and arrested.

¶8 Following Tester's arrest, he was charged with possession of a controlled substance with intent to deliver, a class A felony, and with tampering with physical evidence, a class A misdemeanor. Tester moved to suppress the evidence seized, based on false information given by police to the magistrate, lack of probable cause, and searching the residence at an address different from that listed in the warrant. Tester moved to dismiss the charges, based on entrapment as a matter of law. The district court denied the motions to suppress and to dismiss. Under a plea agreement, the charge of tampering with physical evidence was dismissed, and Tester entered a conditional plea of guilty to possession of a controlled substance with intent to deliver. Tester appealed the judgment of conviction.

¶9 The district court had jurisdiction under N.D.C.C. § 27-05-06. Tester's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

II

¶10 Tester argues the police misled the magistrate because they told him the address the packages were sent to was Tester's, although the address was actually his parents'. To create a defective warrant by incorrect information, the police must make an intentionally false statement. State v. Rydberg, 519 N.W.2d 306, 309 (N.D.1994).

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Id. (quoting Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). "A false affidavit statement under Franks is one that misleads the neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate's evaluation of whether or not there is probable cause." State v. Rangeloff, 1998 ND 135, p 9, 580 N.W.2d 593 (citations omitted).

¶11 A defendant is required to prove a statement is false and its inclusion amounted to perjury or reckless disregard for the truth. State v. Damron, 1998 ND 71, p 9, 575 N.W.2d 912 (citing State v. Morrison, 447 N.W.2d 272, 275 (N.D.1989)). Whether the defendant demonstrates recklessness or intentional falsity is a finding of fact. We review a district court's ruling on whether a substantial preliminary showing has been made under a standard comparable to clearly erroneous, yet separate. Rangeloff, 1998 ND 135, p 10, 580 N.W.2d 593 (citing City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994)). "A trial court's findings of fact in preliminary proceedings of a criminal case will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence." Thompson, at 581.

¶12 Tester never specifically requested a Franks hearing, but a hearing on several motions to suppress evidence was held. Following the suppression hearing, the district court denied the motions and found the misinformation on the warrant harmless, saying there was no intentional deception by the police, because the location of the trailer park was so close to Tester's parents' house and because the police knew where Tester lived. The district court found no intentional act on the part of the police to mislead the magistrate about the address on the package.

¶13 We give deference to the magistrate's factual findings if there is a substantial basis for the conclusion. State v. Woehlhoff, 540 N.W.2d 162, 165 (N.D.1995); State v. Frohlich, 506 N.W.2d 729, 732 (N.D.1993). The district court found "[t]he police knew where Mr. Tester lived even though they did not know the correct address." Regarding the incorrect address, the court found "there was no intentional act on the part of the police to mislead the Court about the address." The court further found:

although police could have done some preliminary checking to find out what Mr. Tester's correct address was, considering the two addresses and their geographic locations within the City of Devils Lake it is understandable that the address would not be checked when block numbers are so close and law enforcement know where Mr. Tester lives. There has been no showing on the part of the defendant that there was a reckless disregard by police in finding out what Mr. Tester's correct address was.

¶14 We do not have a definite and firm conviction a mistake has been made, and the court...