State v. Wamre

• Decision Date: 25 August 1999
• Docket Number: No. 980240., No. 980239
• Citation: 1999 ND 164,599 N.W.2d 268
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Jerrod Dean WAMRE, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee, v. Burnette Marvin Wamre, Defendant and Appellant.
• Court: North Dakota Supreme Court

599 N.W.2d 268

1999 ND 164

STATE of North Dakota, Plaintiff and Appellee, v. Jerrod Dean WAMRE, Defendant and Appellant.

State of North Dakota, Plaintiff and Appellee, v. Burnette Marvin Wamre, Defendant and Appellant.

Nos. 980239, 980240.

Supreme Court of North Dakota.

August 25, 1999.

Brett M. Shasky, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.

Chad R. McCabe (argued), Vinje Law Firm, Bismarck, N.D., on behalf of Brian W. Nelson, Fargo, N.D., for defendant and appellant Jerrod Dean Wamre.

Donald R. Becker (argued), Linton, N.D., for defendant and appellant Burnette Marvin Wamre.

KAPSNER, Justice.

[¶ 1] Jerrod Wamre and Burnette Wamre appealed the denial of their suppression and severance motions. We conclude there was probable cause for the searches and the trial court did not abuse its discretion in denying the severance requests. We affirm. [¶ 2] Jerrod Wamre, Burnette Wamre, and Michael David Morton¹ were charged with numerous counts of burglary; possession of stolen property; sale of stolen property; theft of property; and removing or altering engine, serial, or identification numbers. Jerrod and Burnette Wamre each moved to suppress evidence obtained in the execution of two search warrants on May 8, 1996. They also moved to sever the trials of the defendants and to sever trial of some of the counts charged. After a hearing, the district court denied the motions. Wamres each entered conditional pleas of guilty to several counts.

[¶ 3] The first warrant, which was issued at 8:20 a.m. on May 8, 1996, authorized officers to search "the premises located at 770—36th Street SW, Fargo, North Dakota," and seize the following items:

Keys for businesses, tv's, stereo equipment, 8 mm cameras and recorders, video surveillance cameras, electrical supplies, notes, ledgers, indicia, address books, lawn tractors, lap top computer, Arctic Cat snowmobiling clothing, helmet and accessories.

While executing that warrant, officers requested another warrant. The second warrant, which was issued at 11:45 a.m. on May 8, 1996, authorized officers to search the same premises and seize the same items as the first warrant, plus the following additional items:

Tools, welders, speed rooter model 90, car tires, home air conditioning units, wood cabinets, home heating units, motor [vehicle] winter blade attachments, vehicle parts including new automobile windshields.

[¶ 4] Wamres contend on appeal: (1) There was no probable cause for the first search warrant; (2) Officers improperly conducted an exploratory search while executing the first warrant; (3) All search evidence should have been suppressed, because there was no probable cause for the first warrant and the second warrant was issued on incomplete information and omissions; and (4) The trial court abused its discretion by denying their severance requests.

I

[¶ 5] Wamres contend there was no probable cause for the first search warrant issued on May 8, 1996. We recently addressed probable cause:

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. Whether there is probable cause to issue a search warrant is a question of law. [State v.] Damron, 1998 ND 71, ¶ 5, 575 N.W.2d 912; State v. Hage, 1997 ND 175, ¶ 10, 568 N.W.2d 741; State v. Mische, 448 N.W.2d 415, 417 (N.D.1989). The totality-of-the-circumstances test is used to review whether information before the magistrate was sufficient to find probable cause, independent of the trial court's findings. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912; Hage, 1997 ND 175, ¶ 11, 568 N.W.2d 741; State v. Herrick, 1997 ND 155, ¶ 12, 567 N.W.2d 336.

The magistrate should make a practical, common sense decision on whether probable cause exists to search that particular place. Damron, 1998 ND 71, ¶ 6, 575 N.W.2d 912; Hage, 1997 ND 175, ¶ 10, 568 N.W.2d 741; Rydberg, 519 N.W.2d at 308. We give deference to the magistrate's factual findings in determining probable cause if there is a substantial basis for the conclusion. State v. Woehlhoff, 540 N.W.2d 162, 165 (N.D.1995); State v. Frohlich, 506 N.W.2d 729, 732 (N.D.1993).

State v. Rangeloff, 1998 ND 135, ¶¶ 16-17, 580 N.W.2d 593. See also State v. Olson, 1998 ND 41, ¶ 19, 575 N.W.2d 649. In Rangeloff, we explained the test for probable cause:

"The proper inquiry is whether the magistrate, in considering the nature of the crime, the criminal, the thing to be seized, and the place to be searched, could reasonably believe that evidence of criminal activity was probably at the described location." Hage, 1997 ND 175, ¶ 13,568 N.W.2d 741. While each piece of information alone may not be sufficient to establish probable cause, the sum total layers of information and the synthesis of what the police know, have heard, and observed as trained officers, weighed in a "laminated total" may amount to probable cause. Damron, 1998 ND 71, ¶ 7,575 N.W.2d 912 (citing Ringquist, 433 N.W.2d at 215-16) (other citations omitted).

Rangeloff, 1998 ND 135, ¶ 28, 580 N.W.2d 593.

[¶ 6] Probable cause to search does not require the same standard of proof necessary to establish guilt at trial. State v. Olson, 1998 ND 41, ¶ 28, 575 N.W.2d 649; State v. Frohlich, 506 N.W.2d 729, 731 (N.D.1993). "[P]robable cause to search exists `if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place.'" Frohlich, 506 N.W.2d at 731-32, quoting State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988). Circumstantial evidence may alone establish probable cause to support a search warrant. Olson, at ¶ 22. The information available for a probable cause determination is considered together, not separately. Id. at ¶ 23; Frohlich, 506 N.W.2d at 732.

[¶ 7] Whether or not the information before the magistrate established probable cause to issue a search warrant is a question of law, and, on appeal, we review the sufficiency of the information before the magistrate independent of the trial court's decision. "If there is a substantial basis for the magistrate's conclusion that probable cause exists, we will not disturb that conclusion on appeal." Frohlich, 506 N.W.2d at 732. We do not reverse a trial court's decision to deny a suppression motion if it is not contrary to the manifest weight of the evidence. State v. Winkler, 1997 ND 144, ¶ 8, 567 N.W.2d 330. "This standard recognizes the significance of the trial court's position in determining the credibility of witnesses." Id. We resolve doubt about the sufficiency of an affidavit in support of a request for a search warrant "`in favor of sustaining the search, and the judgment of the magistrate.'" Olson, 1998 ND 41, ¶ 28, 575 N.W.2d 649, (quoting State v. Metzner, 338 N.W.2d 799, 805 (N.D.1983)). "[W]hen reviewing a magistrate's determination of probable cause, we resolve doubtful or marginal cases in favor of the magistrate's determination." Rangeloff, 1998 ND 135, ¶ 29, 580 N.W.2d 593.

[¶ 8] In Exhibit B to his affidavit in support of the request for the first search warrant, Detective Budd Warren said, among other things: (1) On April 29, 1996, Fargo police officers arrested Michael Morton at W.W. Wallworks, where officers observed in Morton's pickup leather seats later found to have been stolen; (2) Officers searching Morton's vehicle found stolen keys, including keys to D & M Industries, a manufacturer of keys for many Fargo businesses; keys to businesses reporting stolen cash, a lap top computer, tire books, four Hoosier tires, and Square D circuit breakers; (3) A search of a home believed to be Morton's residence led officers to Richard Nelson, who admitted possessing the four Hoosier tires from OK Tire, and interviews with him uncovered a burglary and theft ring involving Nelson and Morton; (4) Richard Nelson admitted he and Michael Morton had burglarized construction sites in the Fargo area, and property from some of those construction sites was recovered in executing search warrants at Nelson's and Michael Morton's residences; (5) Officers recovered a large number of Square D circuit breakers and other electrical components in a search of Nelson's residence on May 7, 1996; and (6) In executing a May 7, 1996, search warrant at Mike Morton's Moorhead residence, officers found electrical components, including Square D circuit breakers, belonging to Dakota Electric Supply Company, camera equipment, a 35 millimeter camera, and evidence Morton was in possession of a Sony 8 millimeter camera stolen from a Highway Patrol vehicle being repaired at Wallworks.

[¶ 9] Warren averred: (1) Mike Morton's brother, Craig Morton, and Craig's wife, Jennifer, indicated Mike Morton and Jerrod Wamre had snowmobile clothing and accessories, including Arctic Cat helmets, stolen from McLaughlin Sales; (2) Craig and Jennifer Morton indicated Mike Morton was involved in stealing auto parts from area auto wrecking yards; they said they knew Mike Morton had keys to local businesses; they said Mike Morton told them he had obtained a new 35" black JVC television set from a warehouse that had recently changed the front locks, but not the rear locks, and he could get them one if they wanted; and (3) Investigators learned that warehouse belonged to Northern Plains Distributing, whose manager indicated it was missing four or five 35" JVC television sets and also learned someone with keys "had obtained a general brand sewer sucking machine, or speed router, valued at $1,000.00," belonging to Westburn Supply Corporation.

[¶ 10] Warren further averred: (1) Bernard Wamre and Jerrod Wamre have a business, Triple A Auto Leasing and Rental, located in a metal structure at 777 North 36th Street SW in Fargo; Even Auto rents space from Triple A, as does Michael Morton; "These businesses are all attached and some have walk through doors adjoining each other ... which...