State v. Thieling, No. 990383.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: KAPSNER, Justice.
• Citation: 2000 ND 106,611 N.W.2d 861
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Kathleen Marie THIELING, Defendant and Appellant.
• Decision Date: 25 May 2000
• Docket Number: No. 990383.

611 N.W.2d 861
2000 ND 106

STATE of North Dakota, Plaintiff and Appellee,
v.
Kathleen Marie THIELING, Defendant and Appellant

No. 990383.

Supreme Court of North Dakota.

May 25, 2000.

611 N.W.2d 862

James O. Johnson, State's Attorney, Stanton, ND, for plaintiff and appellee

Richard B. Baer, P.C., Bismarck, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Kathy Thieling appeals from a district court order denying her motion to suppress evidence. We conclude the magistrate judge did not have a substantial basis to determine there was probable cause to believe drugs or contraband would be found in Thieling's home. We thus hold the district court erred in denying Thieling's motion to suppress evidence resulting from the illegal search. We reverse and remand.

I

[¶ 2] In September 1999, a special agent for the North Dakota Bureau of Criminal Investigations applied to a magistrate judge for a warrant to search the home of Kathy Thieling and her husband. In an affidavit supporting the application, the special agent emphasized several items associated with the possession and sale of methamphetamine and cocaine, such as baggies and small pieces of plastic and tin foil, had been discovered in garbage bags taken from the curb at Thieling's home; persons who had recently visited Thieling's home were associated with drug activities or associated with other persons who were involved in drug activities; in the two weeks since the trash bags were taken, garbage had not been placed on the curb

611 N.W.2d 863

at Thieling's home; and mail discovered in the garbage bags indicated the garbage items were from Thieling and her husband. The special agent indicated he had approximately six years of law enforcement experience which included drug investigations and training

[¶ 3] The magistrate judge granted the search warrant application. During the search, illegal drugs were found and Thieling made incriminating statements. She was arrested. During a search at the jail, drugs were found on Thieling.

[¶ 4] Thieling filed a motion to suppress the drug evidence found during the home and jail searches and to suppress her statements. She argued the special agent's affidavit was insufficient to establish probable cause to issue the search warrant.

[¶ 5] The district court¹ issued an order denying Thieling's motion to suppress. The district court noted "[t]he tape recording made in chambers of the hearing on the question of probable cause was apparently erased. Thus the only question is whether the affidavit alone establishes probable cause for the issuance of the search warrant." The district court concluded the affidavit established there was a fair probability contraband or evidence of a crime would be found in Thieling's home. Thieling pled guilty to two drug charges on the condition she could appeal from the district court's order. Thieling appealed from the order.

II

[¶ 6] Arguing the affidavit is insufficient to establish probable cause for the search warrant, Thieling asserts the search was illegal under the Fourth Amendment and the evidence stemming from the illegal search, including all the drugs and her statements, must be suppressed.

[¶ 7] Probable 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. Wamre, 1999 ND 164, ¶ 5, 599 N.W.2d 268 (citation omitted). Probable cause to search exists "if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched." 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." State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912 (citations omitted).

[¶ 8] Whether probable cause exists to issue a search warrant is a question of law. Id. at ¶ 5 (citation omitted). We defer to the magistrate judge's findings if there is a substantial basis for the determination probable cause exists. Id. at ¶ 6. "We resolve doubt about the sufficiency of an affidavit in support of a request for a search warrant in favor of sustaining the search." Wamre, at ¶ 7. We also recognize "courts must take into account inferences and deductions that a trained and experienced officer makes." State v. Mische, 448 N.W.2d 415, 419 (N.D.1989). However, where there is merely information which may cause suspicion and warrant further investigation, there is not probable cause to search. State v. Lewis, 527 N.W.2d 658, 663 (N.D.1995). In Lewis, we held evidence the defendant had equipment consistent with indoor marijuana growing operations, evidence the defendant had styrofoam and fiberglass insulation on windows, and evidence of increased electrical usage was insufficient to establish

611 N.W.2d 864

probable cause. Id. We emphasized the equipment could be used for growing legal plants and the extra insulation is consistent with both "[w]eatherproofing one's home for winter" and the indoor growing of legal plants. Id. at 662-63

[¶ 9] Thieling contends the evidence found in her garbage, the baggies, plastic, and tin foil, is not probative. Conduct which is "seemingly innocent" may give rise to probable cause. Illinois v. Gates, 462 U.S. 213...