State v. Winkler

• Decision Date: 17 July 1997
• Docket Number: Nos. 970001,970002,s. 970001
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Robert WINKLER, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 330

567 N.W.2d 330

1997 ND 144

STATE of North Dakota, Plaintiff and Appellee, v. Robert WINKLER, Defendant and Appellant.

Criminal Nos. 970001, 970002.

Supreme Court of North Dakota.

July 17, 1997.

Rehearing Denied Aug. 11, 1997.

Laurie A. Fontaine, Pembina County State's Attorney, Cavalier, for plaintiff and appellee.

Alan J. Larivee, Pearson, Christensen, Larivee, Clapp, Fiedler & Fischer, Grand Forks, for defendant and appellant.

VANDE WALLE, Chief Justice.

¶1 Robert Winkler appealed from the trial court's memorandum opinion, issued after remand, finding a peace officer's application for a search warrant was not based on information obtained in an illegal search. Winkler contends the illegal search prompted the search warrant application and, as a result, the evidence seized should be suppressed. We affirm.

¶2 Winkler pled guilty, conditionally under Rule 11(a)(2), N.D.R.Crim.P., to negligent homicide and leaving the scene of an accident. ¹ Winkler, while driving home from a bar, struck Gerald Carlson, who was walking along a road near Cavalier, North Dakota. Carlson died from the injuries sustained in the collision.

¶3 The police, in investigating the accident, found a headlight assembly near the accident and questioned several people who had been at bars near the scene of the accident. These people informed the police Winkler had left the bar between 6:15 and 7:00 p.m. and drove away on the road where Carlson was struck. The police also learned the headlight assembly was from a late-model pickup truck, of a type which an officer knew Winkler owned.

¶4 After acquiring this information, the police went to Winkler's residence. The garage door was open and they noticed a late-model pickup in the garage. The garage was unattached to the house. From the door the police could see the pickup had sustained some damage on the passenger-side fender, the side of the vehicle the police believed would have struck Carlson. The police, believing the vehicle was in plain view, entered the garage and found the pickup's passenger side headlight was knocked out and the fender was dented. The police applied for a search warrant. In the affidavit, the officer did not mention the entry into Winkler's garage or the detailed information the officers found in that entry alleging only they "could see with the lights from the patrol car that there was damage to the right front fender...." The warrant was issued and Winkler's pickup was seized. The headlight assembly found at the accident scene was from Winkler's pickup.

¶5 Following the trial court's denial of his motion to suppress and his conditional guilty plea, Winkler appealed. We reversed and remanded the trial court's denial of the suppression motion pertaining to the search warrant evidence. ² We determined the search warrant was supported by probable cause "derived from sources independent of the officers' unlawful entry into Winkler's garage...." State v. Winkler, 552 N.W.2d 347, 354 (N.D.1996) (Winkler I ). However, because the trial court did not "explicitly find that the officers would have sought a warrant if they had not earlier entered Winkler's garage ..." our conclusion as to the probable cause issue did not resolve the ultimate issue of "whether the search pursuant to the warrant was in fact a genuinely independent source of the information and tangible evidence." Id. at 354 (quoting Murray v. United States, 487 U.S. 533, 542, 108 S.Ct. 2529, 2536, 101 L.Ed.2d 472 (1988)). We remanded "for a determination of whether the officers' decision to seek the warrant was caused by what they saw during the unlawful entry." Winkler I, 552 N.W.2d at 354 (citations omitted).

¶6 The United States Supreme Court, in Murray, predicated its decision on the independent source doctrine, describing that principle as:

"The interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.... When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation."

Murray, 487 U.S. at 537, 108 S.Ct. at 2533 (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984)) (emphasis as original in Nix ).

¶7 Several federal courts, in applying Murray, affirmed the denial of suppression motions when "untainted information supporting the warrant, considered alone, [was] sufficient to establish probable cause [notwithstanding the illegal entry]." United States v. Markling, 7 F.3d 1309, 1316 (7th Cir.1993), cert. denied, 514 U.S. 1010, 115 S.Ct. 1327, 131 L.Ed.2d 206 (1995) (citing United States v. Restrepo, 966 F.2d 964, 968-71 (5th Cir.1992), cert. denied, 506 U.S. 1049, 113 S.Ct. 968, 122 L.Ed.2d 124 (1992) and United States v. Herrold, 962 F.2d 1131, 1137-38 & 1140-43 (3d Cir.1992), cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992)). Other Circuit Courts of Appeal agreed and evidence viewed during a prior illegal search will not always be excluded. United States v. Mithun, 933 F.2d 631, 635-36 (8th Cir.1991) cert. denied, 502 U.S. 869, 112 S.Ct. 201, 116 L.Ed.2d 161 (1991). See also United States v. Reed, 15 F.3d 928, 933-34 (9th Cir.1994) (holding warrant application which included tainted evidence still provided a magistrate with probable cause once tainted evidence was excised); United States v. Perrone, 936 F.2d 1403, 1413 (2nd Cir.1991) (evidence viewed during a protective sweep of a house following a drug arrest was the probable-cause basis for a search warrant application and should be admitted); United States v. Salas, 879 F.2d 530, 538 (9th Cir.1989) (officers' discussion regarding whether a warrantless entry should be attempted, based on prior information revealed during drug investigation, demonstrates the officers' belief they had probable cause to search), cert. denied, 493 U.S. 979, 110 S.Ct. 507, 107 L.Ed.2d 509 (1989).

¶8 We do not reverse a trial court's decision to deny a suppression motion 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. Erbele, 554 N.W.2d 448, 450 (N.D.1996) (quoting State v. Glaesman, 545 N.W.2d 178, 181 (N.D.1996)). This standard recognizes the significance of the trial court's position in determining the credibility of witnesses. State v. LaFromboise, 542 N.W.2d 110, 112 (N.D.1996).

¶9 Here, officer Calvin Cluchie testified he and the other officers:

"[D]iscussed it amongst ourselves that since it was an unattached garage and the pickup was in plain view that I could still enter as a part of an investigative stage to either confirm that I needed to get a search warrant to seize the vehicle, or to eliminate the vehicle so that we [could] continue looking for another vehicle."

The State also asked Cluchie if he would have sought the warrant if he had not entered the garage. Cluchie responded:

"Yes, I would have.... Based on the evidence that--or, the information we had obtained up to the point that I entered the garage. That would be the vehicle parts at the scene, the injuries stated by the doctor, the extreme head trauma, the information that we collected from the two barmaids, at Sammy's, and the one at Stu's, the fact that Mr. Winkler lives west of town and that he--to my knowledge, he had [sic] drove a newer type vehicle, and the fact that once I arrived out there I could see a dent or damage to the right front ... passenger side."

Furthermore, Cluchie, on cross-examination, stated, "[the damage to the truck observed while inside the garage] didn't prompt me [to seek the warrant], it just added to the case that I was building [against] the vehicle." Throughout his testimony, Cluchie repeatedly stated he believed he could search the vehicle because it was "in plain view."

¶10 Cluchie's testimony was supported by Deputy Sheriff James Martindale, another officer who was present at Winkler's garage. Martindale also stated the reason they investigated Winkler's garage was to eliminate him as a suspect, so the investigation could proceed. On remand, the trial court found:

"[T]hat before the officers entered the garage they believed they had sufficient independent information which in fact they did have for a magistrate to make a probable cause determination to issue a search warrant. ... The reason [the officers] entered the garage was that they were under the mistaken belief that the plain view doctrine applied."

¶11 The trial court determined the officers "failed to factor into their analysis ... the reasonable expectations of privacy that an individual would have in a garage just outside the home. If they would have considered that factor they would not have entered the garage and would have left to seek a warrant." The court recognized the search of the garage was confirmatory and the officers omitted information about the search in the warrant application because they were concerned the entry was possibly illegal. However, the court concluded "Officer Cluchie's observation of the front end of the pickup was not the determining factor that compelled him to seek a search warrant. He had sufficient independent information in his own mind to justify the issuance of a search warrant by a magistrate before he entered the garage ...." (emphasis added).

¶12 In Winkler I, relying on Murray, we stated if an illegal entry occurred prior to seeking a warrant, the search pursuant to the warrant, in order to be valid, had to be based upon a source independent of the illegal entry. 552 N.W.2d at 353 (citing Murray, 487 U.S. at 542, 108 S.Ct. at 2535-36). To make this determination, a two-step analysis is required. First, the...