State v. West
| Decision Date | 06 April 2020 |
| Docket Number | No. 20190311,20190311 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. Frank Richard WEST, Defendant and Appellant |
| Court | North Dakota Supreme Court |
Carmell F. Mattison, Assistant State’s Attorney, Grand Forks, ND, for plaintiff and appellee.
Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant.
[¶1] Frank West appealed from a criminal judgment entered after he conditionally pled guilty to possession with intent to manufacture or deliver a controlled substance. West moved to suppress evidence alleging it was obtained during an unconstitutional search. The district court denied his motion holding the search was a valid probationary search and West lost his opportunity to seek suppression because he did not object at the time of the search. We affirm.
[¶2] West was temporarily staying at a residence in Grand Forks, which was home to an individual who was on supervised probation, the individual’s wife, and their two minor children. Law officers conducted a warrantless search of the residence. At the time of the search, the probationer was in custody serving a thirty-day sanction for violating the terms of his probation in three cases. His probation had not been revoked, and he was subject to the following search condition:
[¶3] Law enforcement received a report from a local firearms store that indicated the probationer’s wife had made "straw purchases" of firearms for him. Law enforcement also received information that the probationer was possibly involved in the sale of illegal drugs from his residence, and officers were actively investigating that information. Possession of a firearm and selling illegal drugs were both probation violations. Based on these possible violations, the supervising probation officer, along with local police department officers, conducted a warrantless search of the probationer’s residence. Law enforcement was unaware West was staying at the residence.
[¶4] When the officers entered the residence, they observed West sleeping on a couch in the living room. The officers immediately shouted commands at West to keep his hands visible. West responded by informing the officers there was a handgun located between the cushions of the couch. Officers placed West in handcuffs and began searching the residence. West remained seated on the couch and chatted with the officers. Officers observed a suitcase located in the living room near the entrance of the residence. West did not claim ownership of the suitcase. One officer reached into the suitcase and retrieved a bag of marijuana. As the officer was removing the marijuana from the suitcase, West stated it was his marijuana.
[¶5] West moved to suppress evidence arguing the warrantless search was unconstitutional. The district court denied his motion holding the search was a valid probationary search and West lost his opportunity to seek suppression because he did not object to law enforcement conducting the search. West conditionally pled guilty, reserving the right to challenge the court’s denial of his motion to suppress evidence.
[¶6] On appeal West argues there was no probationary purpose for the search and therefore the officers had no authority to enter the residence. He asserts the court erred when it held he lost his opportunity to seek suppression by not objecting to the search in this context.
[¶7] The following standard governs our review of a district court’s decision on a motion to suppress evidence:
A 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. Questions of law are fully reviewable. Whether a violation of the constitutional prohibition against unreasonable searches and seizures has occurred is a question of law.
State v. Ballard , 2016 ND 8, ¶ 6, 874 N.W.2d 61 (internal quotations and citations omitted).
[¶8] Both the Fourth Amendment to the United States Constitution and art. I, § 8, of the North Dakota Constitution protect individuals from unreasonable searches and seizures. Law enforcement may not search an individual’s home without a warrant unless the search falls within one of the recognized exceptions to the warrant requirement. State v. Kuruc , 2014 ND 95, ¶ 12, 846 N.W.2d 314. Under the exclusionary rule, evidence obtained in violation of an individual’s Fourth Amendment rights may not be used against that individual. State v. Gardner , 2019 ND 122, ¶ 7, 927 N.W.2d 84.
[¶9] West challenges the validity of the probationary search in this case. Individuals ordinarily cannot seek suppression of evidence based on the violation of a third-party’s rights. United States v. Padilla , 508 U.S. 77, 81, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993) ; see also Gardner , 2019 ND 122, ¶ 6, 927 N.W.2d 84. An individual is only entitled to the protection of the exclusionary rule when the individual has a "sufficient personal interest in the asserted violation." Gardner , at ¶ 6.
[¶10] The district court analyzed West’s expectation of privacy as a guest in the residence. "[A]n illegal search only violates the rights of those who have a legitimate expectation of privacy in the invaded place." United States v. Salvucci , 448 U.S. 83, 91-92, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Guests have a legitimate expectation of privacy in the homes of their hosts and may invoke the protections of the Fourth Amendment. State v. Gatlin , 2014 ND 162, ¶ 5, 851 N.W.2d 178. Thus we review West’s arguments in the context of his expectation of privacy as a guest in a probationer’s residence. See People v. Romeo , 240 Cal.App.4th 931, 193 Cal. Rptr. 3d 96, 116 (2015) () (citing Rakas v. Illinois , 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ).
[¶11] We interpret the North Dakota constitution as providing probationers with the same protections from unreasonable searches as the United States Constitution provides. State v. White , 2018 ND 266, ¶ 7, 920 N.W.2d 742. Probationers subject to search conditions have a diminished expectation of privacy. State v. Adams , 2010 ND 184, ¶ 12, 788 N.W.2d 619. We have held a suspicionless search of an unsupervised probationer unconstitutional. See Ballard , 2016 ND 8, ¶¶ 41-42, 874 N.W.2d 61. We have also said probationary searches based on reasonable suspicion meet constitutional muster. See White , at ¶¶ 12-14 ; see also State v. Maurstad , 2002 ND 121, ¶ 37, 647 N.W.2d 688.
[¶12] West claims the search in this case was a subterfuge for a separate criminal investigation. He argues there was no probationary purpose for the search because the probationer was in custody and not present while the officers conducted the search. Because West was not the probationer, we interpret his claim to be that the warrantless probation search of the home violated West’s expectation of privacy as a guest in the home.
[¶13] We addressed a similar argument in State v. Stenhoff , 2019 ND 106, 925 N.W.2d 429, a case where we held constitutional a probationary search of a residence that occurred while the probationer was in custody and not present. Stenhoff was on probation, the terms of which contained a search clause. Id. at ¶ 2. A petition to revoke Stenhoff’s probation was filed and he was arrested at his residence. Id. at ¶¶ 2-3. While officers were at the residence, a child made a statement alluding to the presence of illegal drugs. Id. at ¶ 3. No drugs were in plain view, and the officers on scene were unable to contact Stenhoff’s probation officer. Id. Approximately fourteen hours after Stenhoff was arrested and removed from the residence, Stenhoff’s probation officer conducted a probationary search of the residence and discovered illegal contraband. Id. at ¶ 4.
[¶14] Stenhoff moved to suppress. Stenhoff , 2019 ND 106, ¶ 5, 925 N.W.2d 429. The district court granted the motion, concluding the probation officer should have sought a warrant to search the residence. Id. The State appealed. Id. at ¶ 7. On appeal, Stenhoff argued suppression was proper because, once he was arrested, he was no longer subject to the terms of his probation. Id. at ¶ 13. We rejected his argument explaining the terms of his probation remained in effect until his probation was revoked.
Id. ¶¶ 13-14. We concluded the child’s statements alluding to illegal drugs in the residence provided law enforcement with reasonable suspicion supporting the probationary search, and therefore we reversed the suppression order. Id. at ¶ 17.
[¶15] Similar to Stenhoff , the terms of probation in this case had not been revoked and therefore the probationer remained subject to the conditions of his probation despite being in custody. West nevertheless asks us to adopt a rule requiring law enforcement to conduct probationary searches in the...
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