State v. Van Beek

• Decision Date: 19 March 1999
• Docket Number: No. 980159,980159
• Citation: 591 N.W.2d 112,1999 ND 53
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Paul D. VAN BEEK, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 112

591 N.W.2d 112

1999 ND 53

STATE of North Dakota, Plaintiff and Appellee, v. Paul D. VAN BEEK, Defendant and Appellant.

Criminal No. 980159.

Supreme Court of North Dakota.

March 19, 1999.

Ralph A. Vinje, of Vinje Law Firm, Bismarck, N.D., for defendant and appellant.

Bruce A. Romanick, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

MARING, Justice.

¶1 Paul Van Beek appeals from an order deferring imposition of sentence for the crimes of possessing marijuana and a controlled substance. Van Beek argues the district court erred in denying his motion to suppress. We affirm.

I

¶2 On March 7, 1997, Officer Roger Becker, a veteran narcotics investigator of the Bismarck Police Department, applied for a no-knock search warrant to search the premises at 729 North 21 st Street in Bismarck. Two hearings were held on the matter, one in the morning and one in the afternoon.

¶3 During the morning hearing, Officer Becker testified he learned in mid-January 1997, from a confidential informant that the occupant of 729 North 21st Street, Kristy Felch, was using and dealing drugs out of the residence. As a follow up to the informant's tip, Becker conducted two garbage searches at the residence on February 27 and March 6, 1997. On both occasions, several discolored aluminum foil strips were found. Samples of the strips were sent to the state drug lab and proven to contain methamphetamine residue. Becker testified the discolored aluminum foil indicated personal use of methamphetamine. The garbage search on March 6 also found syringe casings, further evidence of personal use of methamphetamine.

¶4 When asked why he sought a no-knock warrant, Becker's only explanation was: "Methamphetamine could be easily disposed of, pour[ed] down the sink or a toilet." The magistrate determined there was sufficient probable cause and issued a no-knock search warrant.

¶5 The afternoon hearing was held because Becker received additional information from the informant. During that hearing, Becker requested the scope of the search warrant be extended to a detached garage at the same address. Becker testified he had learned from his informant that afternoon "that drugs are kept in a freezer in the garage ... and individuals had gone to the garage to brings drugs into the residence." The warrant was amended to include the detached garage at 729 North 21st Street.

¶6 The search warrant was executed shortly after the afternoon hearing. A surveillance team made a no-knock entry by opening an unlocked door in back of the residence. One of the officers testified at the suppression hearing that he entered the basement and found a male sitting by a bed in a bedroom, and a male standing halfway in another doorway in the bedroom. The officer testified the male standing in the doorway backed into the doorway out of sight and did not return until ordered repeatedly. This person was Van Beek, who had in his possession methamphetamine and marijuana. He was subsequently charged with possession of methamphetamine, a Class C felony, and possession of less than one half ounce of marijuana, a Class B misdemeanor.

¶7 In September 1997, Van Beek moved to suppress all evidence obtained from the search, arguing this Court's decision in State v. Herrick, 1997 ND 155, 567 N.W.2d 336, invalidated the basis given for the no-knock warrant. The district court denied the motion. Van Beek conditionally plead guilty under N.D.R.Crim.P. 11(a)(2), preserving the issues argued in his suppression motion for this appeal. The district court entered an order deferring imposition of sentence, and Van Beek timely appealed from that order.

II

¶8 Before reaching the merits of this appeal, we first address a procedural matter. On May 11, 1998, the same day he entered his conditional guilty plea, Van Beek filed his notice of appeal to this Court. In the notice of appeal Van Beek states he appeals "the judgment of conviction." The order entered by the district court on May 14, 1998, however, was an order deferring imposition of sentence, and in the record on appeal, there is no separate judgment entered, nor is there a separate verdict of guilt submitted by the court.

¶9 Thus, our initial concern is whether we have jurisdiction over an appeal from a "judgment of conviction" where no separate judgment or verdict of guilt was ever entered. Although the issue was not raised by either party, it is within the province of this Court to address whether an appeal is properly before us. See State v. Klocke, 419 N.W.2d 918, 919 (N.D.1988) (stating "[t]he right of appeal in this state is governed by statute, and is a jurisdictional matter which we will consider sua sponte ").

¶10 N.D.C.C. § 12.1-32-02(4) provides in part: "[a]n order deferring imposition of sentence is reviewable upon appeal from a verdict or judgment." The statute does not allow a direct appeal from the order itself, and neither does our precedent. See State v. Himmerick, 499 N.W.2d 568, 570 (N.D.1993) (citing State v. Kottenbroch, 319 N.W.2d 465, 471 (N.D.1982); State v. Coutts, 364 N.W.2d 88, 89, n. 1 (N.D.1985)). In a more recent case, however, we held an order deferring imposition of sentence, for purposes of appeal, "complies with the requirements of N.D.R.Crim.P. 32(b) for criminal judgments, and therefore serves as the judgment of conviction." See State v. Trosen, 547 N.W.2d 735, 737 n. 1 (N.D.1996). We similarly conclude the order deferring imposition of sentence entered on May 14, 1998, complies with the requirements of N.D.R.Crim.P. 32(b) for purposes of appeal. ¹ Thus, Van Beek's appeal is properly before us.

III

¶11 We are again faced with the validity of a no-knock search warrant issued at a time when our "prior rhetoric" approved a per-se rule justifying the issuance of no-knock warrants in drug cases.

¶12 In our state, law enforcement may make a no-knock entry provided the issuing magistrate has probable cause to believe, if proper notice is given, evidence will be destroyed or the officers will be in danger. See N.D.C.C. § 19-03.1-32(3). Van Beek argues the no-knock warrant was issued in violation of N.D.C.C. § 19-03.1-32(3) and the state and federal constitutions. The State argues probable cause existed to issue the no-knock warrant. We, therefore, begin our analysis with the magistrate's determination of probable cause for this no-knock warrant.

¶13 Whether probable cause exists to issue a search warrant is a question of law. State v. Olson, 1998 ND 41, p 19, 575 N.W.2d 649. When a trial court reviews a search warrant's validity it must determine whether the information before the magistrate established probable cause as a matter of law. State v. Hage, 1997 ND 175, p 10, 568 N.W.2d 741. The task of the issuing magistrate is to make a common sense decision whether, given all the information he or she is provided, there is a fair probability contraband or evidence of a crime will be found in a particular place. Id. (citing State v. Rydberg, 519 N.W.2d 306, 308 (N.D.1994)). In the case of a no-knock warrant, the magistrate must decide whether there is a fair probability evidence will be destroyed or law enforcement will be in danger by knocking and announcing their presence. N.D.C.C. § 19-03.1-32(3).

¶14 On appeal, we review the search warrant independent of the trial court's review, using the "totality-of-the-circumstances" approach. Hage, at p 11. We consider all the information before the magistrate together, not in a piecemeal or hypertechnical manner, giving deference to the magistrate's factual findings on probable cause. Id. (citing State v. Birk, 484 N.W.2d 834, 837 (N.D.1992)). The magistrate's conclusion will not be disturbed if there is a substantial basis for the conclusion that probable cause exists. Id. (citing State v. Frohlich, 506 N.W.2d 729, 732 (N.D.1993); State v. Lewis, 527 N.W.2d 658, 661-62 (N.D.1995)). Here, the district court concluded "the specific information provided to the magistrate regarding the existence of methamphetamine within the residence and the ease of destructibility of meth" provided sufficient probable cause for a no-knock warrant. We disagree.

¶15 Prior to our decision in State v. Herrick, 1997 ND 155, 567 N.W.2d 336, probable cause to obtain a general search warrant for drugs in a residence effectively supplied the probable cause required under N.D.C.C. § 19-03.1-32(3) for the issuance of a no-knock warrant. See id. at p 21 ("our prior rhetoric approve[d] a per-se rule in drug cases justifying the issuance of no-knock warrants"); State v. Knudson, 499 N.W.2d 872, 876 (N.D.1993) (applying our per-se rule); State v. Loucks, 209 N.W.2d 772, 777-78 (N.D.1973) (adopting a per-se rule which allowed courts to "take judicial notice ... that drugs may be easily disposed of"). In April 1997, the United States Supreme Court found unconstitutional a similar per-se rule which had been adopted by the Wisconsin Supreme Court. See Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 1421, 137 L.Ed.2d 615 (1997) (rejecting Wisconsin's "blanket rule" that when police have a search warrant supported by probable cause to search a residence for evidence of felonious drug delivery, they necessarily have reasonable cause for a no-knock entry). Four months later we similarly overruled our per-se rule. See Herrick, 1997 ND 155, p 21, 567 N.W.2d 336 ("Insofar as our prior rhetoric approves a per-se rule in drug cases justifying the issuance of no-knock warrants, they are overruled."). Probable cause for a no-knock warrant, therefore, can no longer be established merely because of the presence of drugs in a suspect's residence. Id. ("[m]ere allegations that drugs are present" will no longer "result in the issuance of a no-knock warrant"). Rather, probable cause for a no-knock warrant must be determined based on the facts presented in a particular case.

A

¶16 Turning to the facts in this case, Van Beek argues under Herrick, 1997 ND 155, 567 N.W.2d...