State v. Valles, No. 20180320

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: Tufte, Justice.
• Citation: 925 N.W.2d 404
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Joseph Franklin VALLES, Defendant and Appellant
• Decision Date: 11 April 2019
• Docket Number: No. 20180320

925 N.W.2d 404

STATE of North Dakota, Plaintiff and Appellee
v.
Joseph Franklin VALLES, Defendant and Appellant

No. 20180320

Supreme Court of North Dakota.

Filed April 11, 2019

Kari M. Agotness, Ramsey County State’s Attorney, Devils Lake, N.D., for plaintiff and appellee; submitted on brief.

Ulysses S. Jones, Devils Lake, N.D., for defendant and appellant.

Tufte, Justice.

¶1] Joseph Franklin Valles appeals from a criminal judgment and an order denying his motion to suppress. Valles conditionally pled guilty, preserving the right to appeal the order denying his motion to suppress. Valles argues his cell phone was searched without a warrant in violation of the Fourth Amendment. The State argues the cell phone was abandoned and therefore no warrant was required to search the phone. We reverse the suppression order and criminal judgment and remand to allow Valles to withdraw his conditional plea of guilty.

I

[¶2] On the evening of April 5, 2018, a cell phone was found in a Devils Lake apartment parking lot. It was brought to the police station the next morning. Officer John Mickelson examined the phone, which was locked with a grid lock. He guessed the unlock pattern by trying patterns convenient to right-handed users and quickly unlocked the phone. Officer Mickelson then opened the photos application and looked at the stored photos, intending to identify the owner from "selfies" and other photos stored in the phone. He was able to identify both Valles and Jessica Bear from photos and a video. Officer Mickelson knew there was a restraining order against Valles from Bear. Officer Mickelson also saw in the photos what appeared to be drugs and drug paraphernalia.

[¶3] Officer Mickelson showed the photos and video to another officer. He then gave the phone and a description of its contents to Officer Richard Juarez of the Lake Region Narcotics Task Force. Officer Juarez examined the phone’s photos, video, Facebook Messenger application, text messages and call log. He found evidence of drug activity and applied for a search warrant for Valles’ house, which he recognized from the photos. While executing the search warrant, officers found marijuana and marijuana paraphernalia.

II

[¶4] We review a trial court’s ruling on a motion to suppress as follows:

The trial court’s disposition of a motion to suppress will not be reversed if, after 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. That standard of review recognizes the importance of the trial court’s opportunity to observe the witnesses and assess their credibility, and we accord great deference to its decision in suppression matters.

State v. Montgomery , 2018 ND 20, ¶ 4, 905 N.W.2d 754 (quotation marks omitted). "Whether findings of fact meet a legal standard is a question of law. While we do

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not conduct a de novo review of the findings of fact, questions of law are fully reviewable." Id. Further, "[t]his Court reviews constitutional rights violations under the de novo standard of review." State v. Williams , 2015 ND 103, ¶ 5, 862 N.W.2d 831. "Whether law enforcement violated constitutional prohibitions against unreasonable search and seizure is a question of law." State v. Lark , 2017 ND 251, ¶ 12, 902 N.W.2d 739.

[¶5] The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Fourth Amendment, as applied to the states through the Fourteenth Amendment, "prohibits unreasonable searches and seizures." City of Devils Lake v. Grove , 2008 ND 155, ¶ 8, 755 N.W.2d 485 (citing Dunaway v. New York , 442 U.S. 200, 207, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) ). "Warrantless searches and seizures are unreasonable ..., subject to a few well-delineated exceptions." Williams , 2015 ND 103, ¶ 7, 862 N.W.2d 831 ; Riley v. California , 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). "Evidence discovered during a warrantless search when no exception exists must be suppressed under the exclusionary rule." Williams , at ¶ 7 ; State v. Biwer , 2018 ND 185, ¶ 13, 915 N.W.2d 837. The burden falls initially on the defendant to support his motion to suppress with specific factual allegations supporting a finding of an illegal search or seizure. State v. Zacher , 2015 ND 208, ¶ 7, 868 N.W.2d 847 (citing State v. Glaesman , 545 N.W.2d 178, 182 n.1 (N.D. 1996) ). The State then bears the burden to justify a warrantless search or seizure. State v. Pogue , 2015 ND 211, ¶ 10, 868 N.W.2d 522.

[¶6] Valles argued in his motion to suppress that his cell phone had been searched by Devils Lake police officers without a warrant. The State then carried the ultimate burden to justify the warrantless search by demonstrating Valles abandoned his cell phone or the phone was otherwise outside the protection of the Fourth Amendment. The State points to Valles’ failure to present evidence showing he preserved his possessory right in either the phone itself or its contents. However, the State may not satisfy its affirmative burden by relying on a lack of evidence presented by Valles. See Nickel , 2013 ND 155, ¶ 22, 836 N.W.2d 405 ; United States v. Hawkins , 249 F.3d 867, 872 (9th Cir. 2001). The State relies on evidence that Valles’ phone was found one-half mile away from his home and that Valles did not report the phone missing or stolen. This is the only evidence identified by the State which was known to the officer at the time of the first search. See United States v. Crumble , 878 F.3d 656, 659 (8th Cir. 2018), and United States v. Tugwell , 125 F.3d 600, 602 (8th Cir. 1997) (analyzing abandonment under the facts known to the officers at the time of the search).

[¶7] A warrantless search of abandoned property does not violate the Fourth Amendment. Crumble , 878 F.3d at 659 ; Tugwell , 125 F.3d at 602 ; State v. Adams , 2018 ND 18, ¶ 10, 905 N.W.2d 758 ; State v. Dunn , 2002 ND 189, ¶ 8, 653 N.W.2d 688 ; State v. Huether , 453 N.W.2d 778, 780 (N.D. 1990). By abandoning property, the owner forfeits his possessory interest and the right to object to a search or seizure. Abel v. United States , 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) ("So far as the record shows, petitioner

925 N.W.2d 408

had abandoned these articles. He had thrown them away. So far as he was concerned, they were bona vacantia [ownerless property].") (citing Hester v. United States , 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898 (1924) ); Adams , at ¶ 10. Abandonment is not viewed strictly as a matter of property rights, but it depends on whether the defendant has relinquished his right to protection from unreasonable searches and seizures by denying ownership or giving up physical possession of the property subject to search. Tugwell , 125 F.3d at 602. It is a question of "whether the owner has ‘voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question.’ " Adams , at ¶ 10 (quoting 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.3(f), at 286-88 (5th ed. 2012 & Supp. 2018) ). Abandonment "is primarily a question of intent which may be inferred from words, acts and other objective facts." Dunn , at ¶ 8. We have stated that if the defendant "intends to retain his ... interest in that property, there has been no abandonment." Huether , 453 N.W.2d at 781. However, this intent is determined solely from the...