State v. Thompson, Cr. N

Decision Date10 June 1985
Docket NumberCr. N
Citation369 N.W.2d 363
PartiesSTATE of North Dakota, Plaintiff and Appellant, v. Randy THOMPSON and Jackie Thompson, Defendants and Appellees. STATE of North Dakota, Plaintiff and Appellee, v. Randy and Jackie THOMPSON, Defendants and Appellants. o. 1045,o. 1051,o. 1046,o. 1052.
CourtNorth Dakota Supreme Court

Alan Duppler, States Atty., Stanton, for plaintiff and appellant.

Chapman & Chapman, Bismarck, for defendants and appellees; argued by Daniel J. Chapman, Bismarck.

ERICKSTAD, Chief Justice.

Our task in these appeals is to ascertain the validity of a search warrant issued by a county magistrate on the basis of the sworn affidavit of a law enforcement officer acting on an anonymous informant's tip. We hold that, under the circumstances of this case, the search warrant should not have been issued because the officer's affidavit did not provide a substantial basis to support the magistrate's finding of probable cause, and, further, that all evidence obtained in the subsequent execution of the warrant must be suppressed.

On February 15, 1984, Mercer County Deputy Sheriff Wesley J. Berg obtained a search warrant authorizing the search of the defendants' residence and their vehicle for "marijuana, other controlled substances, and related drug paraphernalia." The search warrant was issued on the affidavit of Deputy Sheriff Berg, signed and sworn to before Donna M. Buchmann, a county magistrate. This affidavit reads:

"I, Wesley J. Berg, being first duly sworn, depose and state that I am a deputy with the Mercer County Sheriff's Office. As such, one of my duties is to investigate crimes occurring in Mercer County. In that capacity I have become familiar with the below described facts.

"On February 15, 1984, at about 10:00 a.m., CST, the North Dakota Drug Enforcement Unit in Bismarck, North Dakota, received an anonymous phone call. The caller told them that Randy and Jackie Thompson, who live outside of Zap, North Dakota, presently have a large supply of marijuana in their house. According to the informant, Randy and Jackie Thompson lived inside the city of Zap until a short time ago when they moved to a farmstead. Randy Thompson was described as being heavy set, five feet ten inches tall, with dark hair and is approximately 30 years old. Jackie Thompson was described as a large woman with light hair and who is 27 or 28 years old. The informant said, further, that both Randy and Jackie Thompson work at a power plant near Beulah, North Dakota, and that Jackie Thompson, specifically, works in the office at the power plant. The Thompsons, according to the informant, drive a blue and white pickup with a camper on it.

"This informant advised the Drug Enforcement Unit that she had provided information against a Mr. Mike Stockert in May of 1983. The information she provided against Mr. Stockert proved to be correct in every detail, and Mr. Stockert is presently serving time in the North Dakota State Pennitentiary [sic] as a result of this information.

"Acting on the above information, I have verified that Randy and Jackie Thompson did live in the city of Zap until shortly before Christmas. At that time, they moved to the Edward Bauer farmstead located in the Northeast quarter of Section 14, Township 146, Range 89. Jackie Thompson works cleaning the office at the Great Plains Coal Gasification Associates. Randy and Jackie Thompson own a blue and white 1978 Ford pickup, license number TCW-499 which has a topper or camper on it.

"The anonymous informant advised the Drug Enforcement Unit that Randy and Jackie Thompson were selling marijuana in Bismarck on February 11, 1984. They were driving their blue and white pickup at the time.

"Based on the foregoing information, I hereby apply for a warrant to search the Randy and Jackie Thompson residence located at the former Edward Bauer farmstead located in the Northeast quarter of Section 14, Township 146, Range 89, in Mercer County. This application is for a warrant to cover the house, and any out buildings on the farmstead, as well as for the blue and white pickup owned by Randy and Jackie Thompson described above. The objects of the search are marijuana, any other controlled substances, and related drug paraphernalia which may be found."

The search warrant was executed at approximately 6:00 p.m. on February 15, 1984, by Deputy Berg and other law enforcement officers, including two special agents of the North Dakota Drug Enforcement Unit. As a result of the search, charges were filed in the District Court of Mercer County against Randy and Jackie Thompson for possession of a controlled substance with intent to deliver (288.96 grams of marijuana), a class B felony. The Thompsons were also charged in Mercer County Court with possession of drug paraphernalia, a class A misdemeanor.

On April 13, 1984, the Thompsons filed in county court, and on April 26, 1984, filed in district court, motions to suppress "any and all evidence, including personal observation of any person, made as the result of the search warrant" issued by the county magistrate. Following the submission of briefs by the parties, the county court, the Honorable O.A. Schulz, issued a memorandum opinion and order dated May 23, 1984, denying the motions. The district court, the Honorable Dennis A. Schneider, issued a memorandum opinion and order dated July 7, 1984, granting the motions.

The district court concluded that the affidavit of Deputy Berg did not comply with the standards set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and further explicated in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). 1 The district court recognized that the United States Supreme Court, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), abandoned the two-pronged Aguilar-Spinelli test in favor of a "totality of circumstances" approach for determining whether or not an informant's tip suffices to establish probable cause for the issuance of a warrant. The district court concluded, however, that Gates was inapplicable, reasoning that Gates did not "ipso facto" change North Dakota case law "which is grounded in our [State] Constitution, Article I, Section 8." In addition, the district court concluded that the affidavit failed to satisfy the "totality of circumstances" analysis of Gates. In so holding the court said:

"The informant's story and the surrounding facts possess no internal coherence that give weight to the whole of her story. Her story carries no more credence than that told by any person with or without motive and lacks any significant attributes of verification, nor is that verification supplied in the affidavit by any other source."

The county court concluded that the search warrant was valid under Gates. In a bench trial had on August 20, 1984, the county court found Randy and Jackie Thompson guilty of the crime of possession of drug paraphernalia. Their convictions were based entirely on the use in evidence against them of drug paraphernalia that had been seized during the search of their residence and vehicle.

The State appeals from the district court's order suppressing evidence. 2 Although it concedes "that much of officer Berg's affidavit is merely a restatement of the word of an anonymous informant," and that the Thompsons are "probably correct" in asserting that the affidavit does not satisfy the basis of knowledge and veracity prongs of the Aguilar-Spinelli test, the State asserts that under the "totality of circumstances" analysis of Gates, the affidavit of Deputy Berg provides a substantial basis for the magistrate's determination that probable cause existed to search the Thompsons' residence and vehicle.

Randy and Jackie Thompson appeal from judgments of conviction entered in the county court. They contend in part, that the affidavit of Deputy Berg does not establish probable cause under the requirements of either Gates or Aguilar-Spinelli.

I

It is our view that even under the more flexible "totality of circumstances" standard of Gates, the affidavit does not provide a substantial basis for the magistrate's conclusion that probable cause existed to support the issuance of the search warrant.

In Gates, the Police Department of Bloomingdale, Illinois, a suburb of Chicago, received an anonymous letter which informed them that the defendants, husband and wife, "strictly make their living on selling drugs," and had "over $100,000.00 worth of drugs in their basement." The letter detailed the typical modus operandi of the couple's drug operation, to wit: the wife would drive their car to Florida, leave it "to be loaded up with drugs" and then fly back, after which the husband would fly down and drive the car back. The letter predicted that on May 3, the wife would be driving down to Florida and that the husband would be flying down in a few days, which would result in "over $100,000.00 in drugs" being brought back in the trunk of the car.

Acting on the tip, the police determined the defendants' address and confirmed that the husband had made a reservation to fly to West Palm Beach, Florida, on May 5. Through surveillance it was established that the husband made the flight, checked into a hotel room registered in the wife's name, and left the following morning, accompanied by an unidentified woman, in an automobile bearing Illinois license plates registered to him, heading north on an interstate highway used by travelers to the Chicago area. A search warrant was issued by a state circuit judge for the Gates' residence and automobile upon an affidavit which set forth the foregoing facts and a copy of the anonymous letter. 103 S.Ct. at 2325-26.

Gates holds that the task of a magistrate in viewing an affidavit in support of a search warrant is simply to make a practical, common-sense decision whether or not, given all the circumstances set forth in the affidavit, including the...

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