State v. Utvick

• Decision Date: 25 February 2004
• Docket Number: No. 20030103.,20030103.
• Citation: 2004 ND 36,675 N.W.2d 387
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Ryan Dean UTVICK, Defendant and Appellee.
• Court: North Dakota Supreme Court

675 N.W.2d 387

2004 ND 36

STATE of North Dakota, Plaintiff and Appellant, v. Ryan Dean UTVICK, Defendant and Appellee.

No. 20030103.

Supreme Court of North Dakota.

February 25, 2004.

Mark Rainer Boening, Assistant State's Attorney, and Birch Peterson Burdick, State's Attorney (argued), Fargo, N.D., for plaintiff and appellant.

Steven M. Light and Lindsey D. Haugen (argued) of Larivee & Light, Grand Forks, N.D., for defendant and appellee.

NEUMANN, Justice.

[¶ 1] The State appeals from a trial court decision granting Ryan Utvick's motion to suppress evidence. We reverse and remand, concluding the trial court erred in determining the good-faith exception to the exclusionary rule did not apply and improperly granted Utvick's motion to suppress evidence.

I

[¶ 2] On July 8, 2002, Fargo police officer Glen Hanson applied for a no-knock search warrant to search a hotel room registered to Utvick. He believed Utvick's hotel room contained methamphetamine, marijuana, drug paraphernalia and items indicating Utvick was selling drugs. In his search warrant application with a supporting affidavit, Officer Hanson alleged drug use with the possibility of gun possession would jeopardize officer safety, if officers were required to announce their presence before entering the room. Officer Hanson also stated he believed contraband might be destroyed if the officers announced their presence. Based on those reasons, Officer Hanson requested a no-knock search warrant. Officer Hanson further supported his request by articulating his belief that proving ownership of contraband would also be easier if officers were not required to knock and announce their presence. Officer Hanson alleged he and hotel employees smelled a marijuana-like odor emanating from Utvick's hotel room on July 8, 2002. Officer Hanson also listed several prior incidents involving Utvick at other hotels in Fargo. In May 2002, a hotel cleaning crew entered a room Utvick had recently vacated. The cleaning crew found drug paraphernalia including numerous pieces of burned tin foil, a straw used to snort powdered drugs, empty baggies containing small amounts of marijuana, a roach clip, and additional empty baggies. They also found a handgun clip.

[¶ 3] In the supporting affidavit, Officer Hanson alleged he executed a search warrant at a hotel room on June 1, 2002, that was registered to Utvick and one other person. According to Officer Hanson, Utvick and five other people were present when he searched the room and they attempted to dispose of contraband when Officer Hanson knocked and announced his presence. The search revealed a handgun and two separate amounts of methamphetamine, totaling approximately seven grams. A person not registered to the room was charged with possession of the methamphetamine. Officer Hanson also alleged Utvick and two others were listed as suspects in an aggravated assault at a Fargo hotel on June 6, 2002. The victim of the assault was referred to as a "drug informant." Police searched a hotel room registered to one of the suspects and found marijuana and a scale.

[¶ 4] A magistrate approved Officer Hanson's application on July 8, 2002. Officer Hanson was granted the search warrant with a provision authorizing him to enter without knocking and announcing his presence. Utvick was arrested on July 8, 2002, after Officer Hanson executed the no-knock search warrant and found marijuana and drug paraphernalia in Utvick's hotel room. The contraband was seized. Utvick was charged with possession of a controlled substance with intent to deliver, possession of drug paraphernalia, possession of one half to one ounce of marijuana, and possession of marijuana paraphernalia.

[¶ 5] Utvick moved to suppress the seized contraband as evidence, arguing issuance of the search warrant and the no-knock provision violated his right against an unreasonable search and seizure. Utvick argued the warrant was issued without probable cause. The trial court granted the motion, finding no probable cause existed for the no-knock provision of the search warrant but declined to address whether probable cause existed for the underlying search warrant. The trial court concluded the good-faith exception to the exclusionary rule did not apply because probable cause was so lacking that it was entirely unreasonable for a law enforcement officer to reasonably believe it existed. The State appealed.

II

[¶ 6] Probable cause is required for a search warrant under the Fourth Amendment to the United States Constitution and Article I, Section 8 of the North Dakota Constitution. State v. Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861. "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.'" Id. (quoting State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995)). "The task of the issuing magistrate is to make a practical, commonsense decision whether, given all the information considered together, there is a fair probability contraband or evidence of a crime will be found in a particular place." State v. Rydberg, 519 N.W.2d 306, 308 (N.D.1994).

[¶ 7] "Whether probable cause exists to issue a search warrant is a question of law." Thieling, 2000 ND 106, ¶ 8,611 N.W.2d 861. Questions of law are fully reviewable. State v. Wanzek, 1999 ND 163, ¶ 5, 598 N.W.2d 811. On appeal, we review the sufficiency of information before the magistrate independent of the trial court's decision and use the totality-of-the-circumstances test. Rydberg, 519 N.W.2d at 308.

"Although each bit of information ..., by itself, may not be enough 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... which is not weighed in individual layers but in the "laminated" total.'"

State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912 (citations omitted). We generally defer to a magistrate's determination of probable cause if there was a substantial basis for the conclusion, and doubtful or marginal cases should be resolved in favor of the magistrate's determination. State v. Ballweg, 2003 ND 153, ¶ 12, 670 N.W.2d 490 (relying on Damron, 1998 ND 71, ¶ 6, 575 N.W.2d 912). We also defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Haverluk, 2000 ND 178, ¶ 7, 617 N.W.2d 652.

[¶ 8] Utvick argues the information presented to the magistrate did not support a finding of probable cause. He states the information presented to the magistrate is conclusory and lacks any reasonable specificity as to Utvick's alleged criminal activity. Utvick also argues the information presented to the magistrate was stale. We find it necessary to address this issue, even though the trial court failed to rule on whether probable cause existed for the search warrant.

[¶ 9] Officer Hanson noted in his affidavit that, in the previous two months, Utvick had twice been the registered guest of a hotel room where drugs, paraphernalia, and weaponry were found.¹ The magistrate was also presented with information that Utvick was a suspect in the aggravated assault of an alleged drug informant at another hotel. After the assault, police found marijuana and a scale in one of the other suspect's hotel room. According to the affidavit, Utvick was the registered guest of the hotel room on July 8, 2002.

[¶ 10] The magistrate was also presented with information that hotel employees observed the odor of marijuana emanating from Utvick's hotel room, and Officer Hanson later independently investigated and confirmed their observations. Utvick argues the odor of marijuana was the only reasonable evidence presented to the magistrate that indicated Utvick may have been presently breaking the law. Utvick contends the hotel staff member could not tell if the odor was marijuana, leaving only Officer Hanson's allegation that marijuana was emanating from the hotel room. We have said a citizen informant is "`someone who volunteer[s] information, [does] not want anything in return for the information, and [is] not at risk or in fear of going to jail.'" State v. Roth, 2004 ND 23, ¶ 10, 674 N.W.2d 495 (quoting State v. Rangeloff, 1998 ND 135, ¶ 4, n. 3, 580 N.W.2d 593). We have presumed the reliability of citizen informants and said their reliability should be evaluated from the nature of their opportunity to observe and the extent to which it can be verified by independent investigation. State v. Hage, 1997 ND 175, ¶ 16, 568 N.W.2d 741. See also State v. Roth, 2004 ND 23, ¶¶ 9-12, 674 N.W.2d 495 (explaining the differences among the three recognized types of informants, including the variations in presumed reliability of each type). In addition, even if Officer Hanson was the only person able to identify the odor, "`the courts must take into account inferences and deductions that a trained and experienced officer makes.'" State v. Guthmiller, 2002 ND 116, ¶ 15, 646 N.W.2d 724 (quoting State v. Olson, 1998 ND 41, ¶ 24, 575 N.W.2d 649).

[¶ 11] We do not address whether the odor of marijuana alone provides probable cause for a search warrant. Here, the odor of marijuana was only one piece of information presented to the magistrate. "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.'" Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861 (quoting Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912).

[¶ 12] We disagree with Utvick's contention that the affidavit provided speculative information and...