State v. Woinarowicz

• Decision Date: 16 August 2006
• Docket Number: No. 20060032.,20060032.
• Citation: 720 N.W.2d 635,2006 ND 179
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Jami Erin WOINAROWICZ, Defendant and Appellant.
• Court: North Dakota Supreme Court

720 N.W.2d 635

2006 ND 179

STATE of North Dakota, Plaintiff and Appellee v. Jami Erin WOINAROWICZ, Defendant and Appellant.

No. 20060032.

Supreme Court of North Dakota.

August 16, 2006.

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Tracy Jo Peters, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.

Robin L. Olson, Grand Forks, N.D., for defendant and appellant.

MARING, Justice.

[¶ 1] Jami Woinarowicz appeals from her conviction entered upon a conditional plea of guilty to charges of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. Woinarowicz claims evidence discovered during a search of the hotel room should have been suppressed, and the district court erred in allowing hearsay testimony at the suppression hearing. We affirm Woinarowicz's conviction.

I

[¶ 2] On April 25, 2005, Fargo Police Officer Robert Stanger and two other officers were dispatched to the Holiday Inn after employees reported "suspicious activity" in one of the rooms. Hotel employees told the officers that a female, who they believed was under the influence of drugs, paid cash to rent a room at 11:30 p.m. The employees noticed a lot of activity coming and going from the room, including someone bringing a 22 inch PVC pipe and a gas can into the room.

[¶ 3] The officers knocked on the door to the hotel room. Woinarowicz and Randy Novak were the only people in the hotel room at that time. Officer Stanger testified Novak answered the door, Officer Stanger asked for the woman the room was registered to and Novak told him she had returned to Grand Forks. According to Officer Stanger, he asked Novak if the officers could enter the room and Novak said "yes." Woinarowicz disputed Officer Stanger's version of the events; she testified the officers knocked on the door, Novak opened it and the officers pushed their way in. She also claimed Novak told the officers they could not enter the room.

[¶ 4] According to Officer Stanger, after the officers entered the room, he asked if he could search the room and Novak said "yes." Officer Stanger searched the bathroom and found some burned plastic in the bottom of the trash can. Officer Stanger testified he believed the burned plastic was a methamphetamine "bindle," which drug users make by placing a small amount of methamphetamine in a piece of plastic and then burning the plastic so it shrivels into a small ball encasing the drug.

[¶ 5] Officer Stanger informed the room's occupants that he found what he believed was evidence of methamphetamine activity. The officers blocked the door, and Novak and Woinarowicz were informed that they were being detained pending further investigation. Officer Stanger handcuffed and searched Woinarowicz and Novak. While searching Woinarowicz's purse, Officer Stanger found a large purple cloth bag and heard the sound of metal or glass clinking. Officer Stanger opened the purple bag and found a pipe containing methamphetamine residue. Officer Stanger informed Woinarowicz she was under arrest for possession of the pipe. Officer Stanger continued searching Woinarowicz's purse and found five ounces of methamphetamine.

[¶ 6] Woinarowicz was charged with possession of drug paraphernalia and possession of a controlled substance with intent to deliver. She moved to suppress the evidence seized during the search of the hotel room arguing the officers illegally entered the hotel room, the officers illegally seized her without probable cause, and the officers illegally searched her and her purse. The district court denied her motion to suppress, concluding the officers had consent to enter and search the hotel room, the officers had probable cause to arrest Woinarowicz, and the officers searched her purse incident to a lawful arrest. Woinarowicz conditionally pled guilty to the charges, reserving her right to appeal the denial of her motion to suppress.

II

[¶ 7] Woinarowicz argues Officer Stanger's testimony at the suppression hearing about Novak giving the officers consent to enter the hotel room was hearsay and the district court erred in admitting that testimony. Relying on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), she also argues that she was denied her Sixth Amendment right to confront the witness because Novak was not available to testify at the suppression hearing.

A

[¶ 8] The Confrontation Clause of the U.S. Const. amend. VI, states, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." The Confrontation Clause provides two protections to criminal defendants: the right to physically face someone who testifies against them, and the right to cross examine. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). In Crawford, the United States Supreme Court held, "[w]here testimonial evidence is at issue, ..., the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford, 541 U.S. at 68, 124 S.Ct. 1354; see also Davis v. Washington, ___ U.S. ___, ___, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006). Woinarowicz argues Novak's statement to law enforcement officers giving them consent to enter the hotel room is a testimonial statement, and therefore her Sixth Amendment right to confront the witness was violated because she did not have a prior opportunity to cross examine Novak.

[¶ 9] Although Woinarowicz argues that Crawford applies to suppression hearings, the United States Supreme Court has said, "the process due at a suppression hearing may be less demanding and elaborate than the protections accorded the defendant at the trial itself." United States v. Raddatz, 447 U.S. 667, 679, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). "[T]he right of confrontation does not apply to the same extent at pretrial suppression hearings as it does at trial." United States v. Boyce, 797 F.2d 691, 693 (8th Cir.1986). "[T]he right to confrontation is a trial right,...." Ritchie, 480 U.S. at 52, 107 S.Ct. 989 (emphasis in original). See also Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). In McCray v. Illinois, the United States Supreme Court held a defendant's Sixth Amendment rights were not violated when, at a pretrial hearing, the court allowed officers to testify to what a confidential informant told them, even though the confidential informant was not testifying at the pretrial hearing and the informant's identity was not disclosed. McCray v. Illinois, 386 U.S. 300, 312-13, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). The Court said the prosecution did not need to call a confidential informant at the pretrial hearing to satisfy the defendant's confrontation rights; it was enough that the officers testified, under oath, and were subject to cross examination. Id.

[¶ 10] In the past we have applied the Sixth Amendment's Confrontation Clause to suppression hearings saying, "a hearing on a motion to suppress is a critical stage of the prosecution, and that the Confrontation Clause of the Sixth Amendment guarantees an accused the right to confront witnesses against him at a hearing." State v. Mondo, 325 N.W.2d 201, 203 (N.D.1982). However, the United States Supreme Court has held, "the question whether a particular proceeding is critical to the outcome of a trial is not the proper inquiry in determining whether the Confrontation Clause has been violated." Kentucky v. Stincer, 482 U.S. 730, 744 n. 17, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). We overrule Mondo to the extent it applies the Confrontation Clause to suppression hearings.

[¶ 11] In Crawford, the United States Supreme Court did not indicate it intended to change the law and apply the Confrontation Clause to pretrial hearings. In Crawford the Court considered the admission of testimonial statements against an accused at trial, not at a suppression hearing. We conclude Crawford does not apply to suppression hearings. The Sixth Amendment right to confrontation is a trial right, which does not apply to pretrial suppression hearings.

[¶ 12] We conclude Woinarowicz's Sixth Amendment confrontation rights were not violated by Officer Stanger's suppression hearing testimony that Novak gave the officers consent to enter and search the hotel room.

B

[¶ 13] Although Woinarowicz's Sixth Amendment confrontation rights were not violated, we must also consider whether the court erred in admitting Officer Stanger's testimony about the consent. Woinarowicz objected to Officer Stanger's testimony arguing that it was inadmissible hearsay because Novak was not available to testify at the hearing. The district court initially overruled the objection, then sustained the objection, and later allowed the answer after finding it was not hearsay. Woinarowicz argues the district court erred in allowing Officer Stanger's testimony.

[¶ 14] We generally review a district court's evidentiary ruling under an abuse-of-discretion standard. State v. Ramsey, 2005 ND 42, ¶ 8, 692 N.W.2d 498. "A [district] court abuses its discretion in evidentiary rulings when it acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law." Id.

[¶ 15] The district court is not bound by the rules of evidence at a suppression hearing, under N.D.R.Ev. 104(a), which states, "[p]reliminary questions concerning ... the admissibility of evidence, shall be determined by the court,.... In making its determination it is not bound by the rules of evidence except those with respect to privileges." Rule 1101(d)(1), N.D.R.Ev., states, "[t]he rules, other than those with respect to privileges, do not apply in ... [t]he determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104." These rules are patterned after and use the same language as the Fed.R.Evid. 104(a) and 1101(d)(1), and...