State v. Wacht

• Decision Date: 18 July 2013
• Docket Number: No. 20120320.,20120320.
• Citation: 833 N.W.2d 455,2013 ND 126
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Daniel Evan WACHT, Defendant and Appellant.
• Court: North Dakota Supreme Court

833 N.W.2d 455

2013 ND 126

STATE of North Dakota, Plaintiff and Appellee

v.Daniel Evan WACHT, Defendant and Appellant.

No. 20120320.

Supreme Court of North Dakota.

July 18, 2013.

Marina Spahr (argued), Assistant State's Attorney, Carrington, ND, and Jonathan R. Byers (appeared), Assistant Attorney General, Office of Attorney General, Bismarck, ND, for plaintiff and appellee.

Steven D. Mottinger, Fargo, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Daniel Evan Wacht appealed from a criminal judgment entered after a jury found him guilty of murder. We affirm.

I.

A.

[¶ 2] Kurt Douglas Johnson was reported missing to Griggs County Sheriff Robert Hook on January 4, 2011 by his cousin, Murray Stokka. After determining that Johnson was last seen on December 31, 2010 with Daniel Evan Wacht, Sheriff Hook obtained a search warrant to search Wacht's van on January 5, 2011 at 12:25 a.m. The evidence presented to the district judge to obtain the search warrant was contained in affidavits from Sheriff Hook and Bureau of Criminal Investigation Agent Arnie Rummel.

[¶ 3] Sheriff Hook's affidavit set forth the events leading up to the night Johnson was reported missing. Murray Stokka, Johnson's cousin, contacted Hook to report that Johnson was missing. The last time anyone had seen Johnson was at the Oasis bar in Cooperstown on December 31, 2010. Johnson appeared to be drunk and was causing a disturbance at the bar. The bartender threatened to call the sheriff. Wacht was also at the Oasis, and offered to give Johnson a ride home. Tim Vincent, later identified as a patron of the Oasis bar on December 31, 2010, told the sheriff that he helped Wacht get Johnson out of the bar, and Wacht proceeded to throw Johnson into the van. Johnson was never seen again. Johnson's family thoroughly searched his house for him, including inside the cupboards, but did not find him. Sheriff Hook also searched Johnson's house and did not find him. The person who does Johnson's snow removal said there were no footprints in the snow when he came to shovel on January 1, 2011. Wacht is employed by Sheyenne Tooling in Cooperstown, and Tim James, his supervisor, stated Wacht had not reported for work since December 23, 2010 because his mother had died in California. An informant said Wacht told the informant he was shopping in Fargo. Sheriff Hook called Wacht's cell phone and it sounded like Wacht was driving. Wacht stated that he dropped Johnson off at the Fish Bowl bar in Cooperstown at 11:30 p.m. on December 31, 2010, and “[n]o one saw me do it.” Ron Berge Jr. stated that Wacht told him Wacht took Johnson to Wacht's own home and was there for some time while Johnson was passed out in Wacht's van, then dropped Johnson off at the Fish Bowl bar. No one saw Johnson at the Fish Bowl bar that night. Sheriff Hook spoke with his deputies and they stated they received a call requesting assistance because Wacht was stuck in a ditch. Wacht reported he had been at his buddy's place, gesturing toward the Richard Sutcliffe farm. Wacht adamantly refused to allow the deputies anywhere near his van, which was the same van where Johnson was last seen. The deputies gave Wacht a ride home.

[¶ 4] Agent Rummel's affidavit recited Wacht's criminal background since 2001, including charges of grand theft auto, burglary, force with a dangerous weapon, use of a firearm or animal during a theft, taking a vehicle without owner's consent, possession and transport of a controlled substance, parole and probation violations, felon in possession of a firearm, willful discharge of a firearm with gross negligence, and manufacture or possession of a dangerous weapon. Agent Rummel also stated Wacht had an outstanding warrant in California for probation violation, and that he believed Wacht has violent tendencies.

B.

[¶ 5] After staking out Wacht's home and work, law enforcement arrested Wacht pursuant to the California warrant outside Sheyenne Tooling on the morning of January 5, 2011. When Wacht was arrested, he was in possession of a stolen Glock 9mm handgun. Wacht was interviewed by Agent Rummel, and he admitted Johnson was in his van on New Year's Eve. Wacht also stated that he believed he had a Second Amendment right to possess firearms regardless of his probation conditions. The police towed Wacht's van to a local body shop and sealed it to preserve the evidence. When they searched the van, they found an envelope containing five spent rifle shells and ammunition for a rifle. Agent Rummel then applied for a search warrant to search Wacht's home for firearms, weapons, and ammunition. His affidavit stated they found ammunition for a rifle in Wacht's van, that Wacht had told officers he believed he had a constitutional right to possess firearms despite his criminal convictions and probation conditions, and that an informant told Rummel about an incident in which Wacht had shot through a coffee table inside Wacht's house. The affidavit also stated that Wacht was under surveillance from the time he left his home to the time he arrived at work, and that Wacht admitted that he brought a gun to work on a regular basis. The search warrant was granted.

C.

[¶ 6] Law enforcement searched Wacht's house, discovering more firearms and ammunition. They also found a blood stained couch cushion in a garbage bag in Wacht's laundry room. Law enforcement applied for and obtained another warrant to search the house for evidence of Johnson. That search uncovered Johnson's decapitated head buried in the crawl space under Wacht's house, as well as a bullet casing, bloody pillow, and several items with Johnson's DNA on them. Wacht was charged with the murder of Kurt Johnson.

[¶ 7] Before trial Wacht moved to suppress the fruits of the search of his van and home, arguing the warrants were not based on probable cause. The district court found Ron Berge Jr.'s statement was false because he had not actually spoken to Wacht, and the claim that Wacht had not let the deputies go anywhere near his van was misleading. The district court also found paragraph 27 of Sheriff Hook's affidavit, stating “That Daniel Evan Wacht also told your affiant without being prompted that ‘No one saw me do it’ ” was false and misleading. The district court struck these three statements from the affidavit, and considered whether probable cause existed to search Wacht's van without them. From the affidavit for the first warrant to search Wacht's house, the district court struck the paragraph describing Wacht shooting a coffee table in his house. The district court denied the motion to suppress, finding all three search warrants were based on probable cause.

D.

[¶ 8] The State filed a notice of its intention to introduce several pieces of evidence including: testimony about Wacht's involvement in a gang as well as his comments on December 18, 2010 that he would kill someone or blow something up to make a statement for the gang; an incident where Wacht asked a person to hold a gun to his head and become a gang member; Wacht's statements about the idea of shooting a police officer during a traffic stop; evidence that Wacht had repairs and maintenance performed on his Glock 9mm handgun in the month before Johnson's murder; and evidence of Wacht's previous convictions in California. The district court allowed the statements about Wacht's gang membership and wanting to kill someone, as well as the evidence of the work done on Wacht's handgun. Evidence of holding a gun to a person's head was excluded, as well as Wacht's criminal record unless Wacht testified. The discussion about shooting the police officer was allowed, but was not presented at trial. The State and the defense agreed that evidence of the warrant on which Wacht was ultimately arrested was admissible.

[¶ 9] Wacht was tried before a jury and convicted of the murder of Kurt Johnson. He was sentenced to life in prison.

II.

[¶ 10] Wacht argues evidence obtained in the search of his van should be suppressed because the warrant to search his van was not based on probable cause. “This Court will affirm a district court's decision on a motion to suppress evidence if 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.” State v. Sommer, 2011 ND 151, ¶ 8, 800 N.W.2d 853 (internal quotations omitted). Determining whether the facts found by the district court meet a legal standard is a question of law fully reviewable on appeal. Id.

[¶ 11] The right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, Section 8 of the North Dakota Constitution. “If an individual has a reasonable expectation of privacy, the government must acquire a search warrant unless the search fits within a recognized exception to the warrant requirement.” Sommer, 2011 ND 151, ¶ 9, 800 N.W.2d 853.

[¶ 12] “When determining whether there is probable cause, the evidence should not be considered individually, but as a collective whole.” State v. Doohen, 2006 ND 239, ¶ 13, 724 N.W.2d 158.

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.

Id. (quoting State v. Nelson, 2005 ND 11, ¶ 21, 691 N.W.2d 218).

[¶ 13] “ ‘A grudging or negative attitude by reviewing courts toward warrants' is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant.” Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (quoting U.S. v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)). “[C]ourts...