IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|State of North Dakota,|
|Plaintiff/Appellee,||Supreme Court No. 20120324|
|John Joseph Holly,||District Court Nos. 51-11-K-241 cts 1, 2|
|3, 4, 5, 6, & 7|
BRIEF OF PLAINTIFF AND APPELLEE STATE OF NORTH DAKOTA
APPEAL FROM THE DISTRICT COURT OF WARD COUNTY
NORTHWEST JUDICIAL DISTRICT
DISTRICT COURT NOS. 51-11-K-241, CTS. 1, 2, 3, 4, 5, 6, & 7
THE HONORABLE WILLIAM W. MCLEES
|Sean B. Kasson, ND Bar ID# 06649|
|Assistant State's Attorney|
|Ward County State's Attorney's Office|
|315 3rd St SE|
|Minot, ND 58701|
|TABLE OF CONTENTS|
|TABLE OF CONTENTS||ii|
|TABLE OF AUTHORITIES CITED||iii|
|STATEMENT OF THE ISSUES||1|
|STATEMENT OF THE CASE||2|
|STATEMENT OF FACTS||3|
|LAW AND ARGUMENT||4|
|STANDARD OF REVIEW||4|
|AFFIDAVIT OF SERVICE||24|
|TABLE OF AUTHORITIES CITED|
|Supreme Court Cases|
|Franks v. Delaware, 438 U.S. 154, 155-56 (1978)||10,11,13|
|Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 2801, 111 L.Ed.2d|
|148, 161 (1990)||9|
|United States v. Jacobsen, 466 U.S. 109, 125, 104 S.Ct. 1652, 1663 (1984)||10|
|Walter v. U.S., 447 U.S. 649, 656, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980)||9|
|Appellate Circuit Court Cases|
|United States v. Johnson, 580 F.3d 666, 670 (7th Cir. 2009)||11|
|United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993)||16|
|United States v. Neal, 528 F.3d 1069, 1072 (8th Cir. 2008)||11|
|Appellate State Court|
|Campbell v. State, 651 P.2d 696, 698 (Okla.Crim.App. 1982)||14|
|North Dakota Cases|
|Roth v. State, 2007 ND 112, 735 N.W.2d 882||14, 16|
|State v. Birk, 484 N.W.2d 834, 837 (N.D. 1992)||7|
|State v. Damron, 1998 ND 71, ¶ 9, 575 N.W.2d 912||11|
|State v. Ebel, 2006 ND 212, ¶ 13, 723 N.W.2d 375||5, 10|
|State v. Fields, 2005 ND 15, ¶ 9, 691 N.W.2d 233||13, 15|
|State v. Handtmann, 437 N.W.2d 830, 837-38 (N.D. 1989)||17|
|State v. Herrick, 1999 ND 1, ¶ 15, 588 N.W.2d 847||16|
|State v. Holzer, 2003 ND 19, ¶ 11, 656 N.W.2d 686||5, 6|
|State v. Johnson, 2001 ND 184, ¶ 10, 636 N.W.2d 391||22|
|State v. Keller, 2005 ND 86, ¶ 31, 695 N.W.2d 703||4, 21, 22|
|State v. Kesler, 396 N.W.2d 729 (N.D. 1986)||10|
|State v. Linghor, 2004 ND 224, ¶ 5, 690 N.W.2d 201||17|
|State v. Nelson, 2005 ND 59, ¶ 3, 693 N.W.2d 910||8, 11|
|State v. Pederson, 2011 ND 155, ¶ 8, 801 N.W.2d 723||4|
|State v. Poitra, 2010 ND 137, ¶ 16, 785 N.W.2d 225||10|
|State v. Rangeloff, 1998 ND 135, ¶ 22, 580 N.W.2d 593||5|
|State v. Schmalz, 2008 ND 27, ¶ 11, 744 N.W.2d 734||5|
|State v. Schmeets, 278 N.W.2d 401 (N.D. 1979)||14|
|State v. Schmidt, 2011 ND 238, ¶ 7, 807 N.W.2d 593||4|
|State v. Smith, 2010 ND 89, ¶ 8, 781 N.W.2d 650||17, 20|
|State v. Stewart, 2006 ND 39, ¶ 8, 710 N.W.2d 403||7|
|State v. Utvick, 2004 ND 36, ¶ 26, 675 N.W.2d 387||16|
|State v. Van Beek, 1999 ND 53, ¶ 25, 591 N.W.2d 112||16|
|State v. Wiedrich, 460 N.W.2d 680 (N.D. 1990)||21|
|State v. Woinarowicz, 2006 ND 179, ¶ 30, 720 N.W.2d 635||8|
|State v. Zimmerman, 529 N.W.2d 171, 174 (1995)||9|
|North Dakota Statutes|
|N.D.C.C. § 19-03.1-37||20|
|N.D.C.C. § 29-28-03||4|
|N.D.C.C. § 29-28-06||4|
|North Dakota Rules of Criminal Procedure|
|N.D.R.Crim. P. 31(c)||21|
|N.D.R.Crim.P. 41(h)(2)(B)||13, 15|
|N.D.R.Crim. P. 52(b)||22|
STATEMENT OF ISSUES
I. Was there was sufficient competent evidence presented supporting the District Court's decision to deny Appellant's motion to suppress and supplemental motion to suppress and was the District Court's decision contrary to the manifest weight of the evidence?
II. When viewing the evidence most favorable to the verdict and all reasonable inferences drawn from the evidence, is Appellant able to show evidence that there is no reasonable inference of guilt?
III. Does the District Court, when conducting a bench trial, have authority to sua sponte consider a lesser included offense when supporting evidence has been presented?
STATEMENT OF THE CASE
The Appellee has no objection to Appellant's recitation of the statement of the case. The Appellee only clarifies that Appellee responded on April 28, 2011 to Appellant's Motion to Suppress dated April 18, 2011. Appellee App. 1-23
STATEMENT OF FACTS
For the purposes of appeal, the Appellee accepts Appellant's assertion of the facts, but clarifies a few points. First, in Task Force Officer (TFO) Graham's Application and Affidavit for Search Warrant, it is relayed to the Honorable Judge Hagar that Appellant was expected to be arriving in Minot during the evening hours. Appellant App. 16. Second, Tim Marquez clarified his reasoning for providing the "six pounds" of marijuana statement to law enforcement because he wanted law enforcement to act quickly and take action as he was afraid that if illegal narcotics were present when he was at the residence, he (Tim Marquez) might be tied into the criminal activity. Tr. Hr'g. on Supplemental Mot. to Suppress 11, 12. Third, Micah Sesseman, the informant, was given a reward of $300.00 for supplying law enforcement with his information approximately one or two weeks after assisting and wasn't told about the reward until that time. Id. 29. He never requested a reward. Id. 28, 29. Finally, Appellant prefaces evidence seized and statements made with "allegedly" throughout his brief. The evidence is no longer alleged, but proven to be true.
LAW AND ARGUMENT
Standard of Review
Appellant has a right to appeal his case. N.D.C.C. §§ 29-28-03, 29-28-06. In reviewing a District Court's decision on a motion to suppress, this Court has stated it will:
defer to a District Court's findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a District Court's decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the District Court's findings, and if its decision is not contrary to the manifest weight of the evidence.
State v. Pederson, 2011 ND 155, ¶ 8, 801 N.W.2d 723. Questions of law are fully reviewable on appeal. Id. Whether findings of fact meet a legal standard is a question of law. Id.
This Court has stated that appellate review of a bench trial is the same as a trial with a jury. State v. Schmidt, 2011 ND 238, ¶ 7, 807 N.W.2d 593. When an appellant challenges the sufficiency of evidence, this Court has stated:
In an appeal challenging the sufficiency of the evidence, we look only to the evidence and reasonable inferences most favorable to the verdict to ascertain if there is substantial evidence to warrant the conviction. A conviction rests upon insufficient evidence when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt. In considering a sufficiency of the evidence claim, we do not weigh conflicting evidence, or judge the credibility of witnesses.
In reviewing lesser included offenses, this Court has applied an elements-of-the-offense analysis. State v. Keller, 2005 ND 86, ¶ 31, 695 N.W.2d 703. To be considered a lesser included offense, it must be impossible to commit the greater offense without committing the lesser. Id. The lesser included offense instruction is warranted if evidence is presented and the [District Court] could rationally find the defendant not guilty of the greater offense, but to find beyond a reasonable doubt that the defendant is guilty of the lesser. Id.
I. SUFFICENT COMPETENT EVIDENCE WAS PRESENTED TO THE DISTRICT COURT SUPPORTING ITS DENIAL OF BOTH MOTIONS TO SUPPRESS EVIDENCE, AND ITS DECISION WAS NOT CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE
A state magistrate shall issue a warrant if he is satisfied that grounds for the application exist or that there is probable cause to believe they exist. N.D.R.Crim.P. 41(c)(1)(C). Probable cause may be based upon hearsay evidence in whole or in part. Id. "Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched." State v. Schmalz, 2008 ND 27, ¶ 11, 744 N.W.2d 734. Thus, in order to establish probable cause, there must exist "a nexus between the place to be searched and the contraband sought." State v. Ebel, 2006 ND 212, ¶ 13, 723 N.W.2d 375.
A. Micah Sesseman was a citizen informant and the information furnished is presumed to be reliable.
Citizen informants are presumed to be a reliable source of information. State v. Rangeloff, 1998 ND 135, ¶ 22, 580 N.W.2d 593. It is necessary to establish reliability where an informant is a "criminal, drug addict, or even pathological liar." State v. Holzer, 2003 ND 19, ¶ 11, 656 N.W.2d 686. Appellant claims Micah Sesseman is a member of the "criminal milieu," and it is required for his credibility to be established. At no time did law enforcement officers raise any concern or been furnished with information that Sesseman was involved in the criminal activity, nor does Appellant in his brief assert such a claim. Sesseman testified that Appellant moved in to his residence following Sesseman's former roommate moving out, and that Appellant needed another roommate. Tr. of Ct. Trial 21, ll. 7-11. Sesseman testified that Appellant was good friends with E.A. so Appellant moved in to "help out." Id. Sesseman was not a co-defendant nor did he have any involvement criminal charges other than providing information to law enforcement in which he was privy to. A criminal background check of Sesseman displayed that he has had minimal contact with law enforcement, as he has a few traffic citations and an arrest for No Liability Insurance. Appellee App. 20-23. Certainly this does not rise to the level of "criminal" per Holzer. Furthermore, there is no showing that Sesseman is a drug addict or that he is a pathological liar. Neither information obtained through law enforcement nor assertions of Appellant in his briefs to the District Court indicated anything that would bring Sesseman under the scrutiny of a member of the "criminal milieu."
TFO Graham's Affidavit asserted the identity of the informant, Micah Sesseman. Appellant App. 15-18. Sesseman had no involvement in the criminal conduct other than providing information to law enforcement. Sesseman does not have a criminal history other than a few traffic citations and a No Liability Insurance charge. Sesseman is afforded the same presumption of reliability of any other citizen informant and does not fit within the definition of being a member of the "criminal milieu."
B. Alternatively, even if this Court should find that Micah Sesseman is part of the criminal milieu, reliability of Micah Sesseman was established.
The reliability of informants within the criminal milieu must be established. State v. Stewart, 2006 ND 39, ¶ 8, 710 N.W.2d 403. "Reliability of an informant can be established in numerous ways, such as corroboration through independent investigation, by the affiant's vouching or assertion that the informant is reliable, or by the informant giving detailed information overcoming any doubt." Id.
As shown in TFO Graham's Application and Affidavit for Search Warrant, Sesseman gave very detailed information pertaining to Appellant and E.A.. being involved in criminal activity. Appellant App. 15-18. Specifically, Sesseman stated that he had seen Appellant and E.A. smoking marijuana in the west bedroom; that Appellant and E.A. were driving to Whitefish, MT to purchase six (6) pounds of marijuana and prescription drugs; that Appellant and E.A. left on February 4, 2011 and would be leaving Whitefish, MT the morning of February 8, 2011 with an expected arrival during the evening hours of February 8, 2011; that E.A. would be driving the vehicle; the vehicle was described as a white Ford Ranger with Texas license plates; the vehicle would have damage to the driver's door and fender; that the vehicle was recently purchased; and that Appellant bought the vehicle from Shane Eaton, E.A.'s ex-boyfriend that recently moved out of the residence in January 2011 and moved back to Texas. Id. Finally, Sesseman met with law enforcement at the residence where law enforcement was able to see a "multi-colored smoking device" which was believed to be a bong, after Sesseman entered the shared bedroom of Appellant and E.A. See State v. Birk, 484 N.W.2d 834, 837 (N.D. 1992) (holding when law enforcement officers have verified part of the informant's information by independent investigation, the corroboration lends credence to the remaining unverified information.)
The State maintains Micah Sesseman is not part of the criminal milieu. It is undisputed that Tim Marquez provided false information as to the "six pounds" statement. However, when considering all remaining facts, there was no reason for TFO Graham to suspect that he was receiving any misleading information. Such after the fact discovery of Tim Marquez's false statement does not equate to Micah Sesseman falling within the definition of "criminal milieu."
C. Appellant's assertion of smoking device being used for tobacco does not nullify finding of probable cause.
To establish probable cause, the officer does not have to possess knowledge of facts sufficient to establish guilt; all that is necessary is knowledge that would furnish a prudent person with reasonable grounds for believing a violation has occurred." State v. Woinarowicz, 2006 ND 179, ¶ 30, 720 N.W.2d 635. It is not required that an officer show absolute certainty or prove beyond a reasonable doubt the commission of an offense to meet probable cause. Id. Facts necessary to show probable cause do not rise to the requisite level to sustain a conviction for criminal activities in question. Id. See also State v. Nelson, 2005 ND 59, ¶ 3, 693 N.W.2d 910 (holding probable cause exists if it is established that certain identifiable objects are probably connected with criminal activity . . . .)
In Woinarowicz, the defendant claimed officers did not possess probable cause to arrest because officers did not conduct tests on plastic wrap believed to hold methamphetamine. This Court stated, "[w]hether the plastic wrap actually contained methamphetamine is not necessary to establish probable cause." Id. Just as in the case at hand, it is not necessary for a probable cause determination for TFO Graham to show absolute certainty that the smoking device was used for marijuana. The fact that it is or isn't used for only tobacco is irrelevant in this probable cause determination. TFO Graham was contacted in regards to the trafficking of illegal substances, met with Sesseman who had indicated Appellant and E.A. smoked marijuana in their bedroom, and saw in plain view a smoking device in the bedroom which Appellant and E.A. shared. Probable cause is determined by the totality of the circumstances, and in this case, the surrounding facts, listed supra, indicate reasonable grounds for believing the device was used for illegal purposes.
D. TFO Graham's observation of the multi-colored smoking device believed to be a bong occurred while he was in common authority living space after Sesseman opened Appellant's bedroom door on his own accord.
The Fourth Amendment only applies to government action; "a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment." Walter v. U.S., 447 U.S. 649, 656, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). Common authority is based upon mutual use of the premises by persons generally having control over or joint access to the property for most purposes. State v. Zimmerman, 529 N.W.2d 171, 174 (1995). A valid consent to search may be given by parties with actual or apparent common authority, when viewed from the officer's perspective, the determination of which is judged against an objective standard. Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S.Ct. 2793, 2801, 111 L.Ed.2d 148, 161 (1990).
In this case, Sesseman, a private citizen, allowed law enforcement into the residence, where Sesseman resides and shares the rent. TFO Graham states in his affidavit that Sesseman went into the bedroom shared by Appellant and E.A. Furthermore, TFO Graham observed the smoking device when Sesseman opened the door where the device was sitting on a dresser along the west wall of the bedroom. At no time did TFO Graham or any other law enforcement official enter the bedroom of Appellant and E.A. This plain view observation was made from common authority living space that Sesseman had control over and joint access, a place where law enforcement had consent and authority to be. The "intrusion," if any, of Appellant's privacy expectation was minimal from the observation made by law enforcement. See also United States v. Jacobsen, 466 U.S. 109, 125, 104 S.Ct. 1652, 1663 (1984) (stating destruction of the material during test was not illegal seizure because of the "de minimis" impact on any protected property interest). Cf. State v. Kesler, 396 N.W.2d 729 (N.D. 1986) (holding postmaster's detention of package was minimal intrusion on possessory interest of defendant-addressee and was reasonable seizure under fourth amendment.)
As there was a lawful entry into the residence by law enforcement, and Sesseman entered Appellant's bedroom under his own accord, no basis exists in suppressing the observation of the smoking device.
E. TFO Graham had no reason to suspect the "six pounds" statement was untrue from the citizen informants, and the issuance of the search warrant does not depend on the amount of the controlled substance.
Search warrant applications alleged to have false or misleading statements are addressed in Franks v. Delaware, 438 U.S. 154, 155-56 (1978); State v. Poitra, 2010 ND 137, ¶ 16, 785 N.W.2d 225. A false statement is "one that misleads a neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate's evaluation of whether or not there is probable cause." State v. Ebel, 2006 ND 212, ¶ 21, 723 N.W.2d 375. When conducting a Franks hearing, the defendant has the burden to prove by a preponderance of the evidence that the false statements contained in the search warrant were done so intentionally or in reckless disregard for the truth. State v. Nelson, 2005 ND 59, ¶ 4, 693 N.W.2d 910. The defendant must show that absent the false information, probable cause to issue the warrant would not have been found. Franks, 438 U.S. at 156.
Tim Marquez lied to law enforcement when he stated that Appellant was going obtain six pounds of marijuana. Tr. of Hr'g on Supplemental Mot. to Suppress 14, ll. 3-10. As recited in the District Court's Supplemental Opinion of the Court, "it is not enough to show that an informant lied to the government officer, who then included those lies in the complaint." United States v. Johnson, 580 F.3d 666, 670 (7th Cir. 2009). The question to be answered is the officer's state of mind when including the false information.
During the hearing, Appellant conceded that TFO Graham's actions were not necessarily intentional. THSMS 68, ll. 9-12. Appellant also concedes in his brief that his focus is upon recklessness. Appellant Br. ¶ 82. Thus, the analysis pertains to whether or not TFO Graham's actions were reckless. See United States v. Neal, 528 F.3d 1069, 1072 (8th Cir. 2008) (holding recklessness occurs when analyzing all evidence available to the officer, the officer 'must have entertained serious doubts as to the truth of the statements or had obvious reason to doubt the accuracy of said information.') Negligence or innocent mistake are insufficient. Franks, 438 U.S. at 171; State v. Damron, 1998 ND 71, ¶ 9, 575 N.W.2d 912.
The following information had been provided to law enforcement either and TFO Graham over the phone or in person: 1) description of the vehicle (white Ford Ranger pickup with Texas plates including damage to the driver's door and fender and that there would be a female driver); 2) Sesseman had observed Appellant and E.A. smoking marijuana in the residence; 3) Appellant and E.A. had driven to Whitefish, Montana and would be returning that evening; 4) TFO Graham had observed a glass device that is commonly used for smoking marijuana in Appellant's bedroom; 5) Appellant would also be obtaining unknown prescription pills; 6) Although Tim Marquez admitted to making the false statement of "six pounds", Micah Sesseman never corrected the inaccuracy of the statement. THSMS 31, ll. 9-14.
At most, TFO Graham's included statements in his affidavit were innocent mistake. But again, TFO Graham had no reason to suspect that any information being provided was false, and therefore, the State doesn't even concede that TFO Graham made a mistake; a mistake in these circumstances would have to include some knowledge giving rise to suspicion. A phone call was placed to law enforcement where Tim Marquez got on the phone and made the "six pounds comment." Micah Sesseman also participated in the phone call. THSMS 31, ll. 1-4. Specific details were given pertaining to the method of transportation, the description of the vehicle, who would be with Appellant and who would be driving, destination, the date of departure and date of arrival, that Appellant had been observed smoking marijuana in the residence, and TFO Graham had observed a multi-colored glass smoking device in Appellant's bedroom, commonly referred to as a "bong." Based upon all the information provided and obtained by TFO Graham, there was no reason for him to doubt the truthfulness of the informant. Appellant's contention that the "six pounds" statement should be stricken is without merit and is submitted with no supporting case law; the inquiry is with the officer and his state of mind, not the actual truthfulness of the information. For the sake of argument, the "six pounds" comment is superfluous and even if it had not been said, it was still relayed that Appellant was going to be transporting illegal controlled substances across state lines. TFO Graham testified that the amount is of no significance, and this Court should find the same. THSMS 59, ll. 2-5. This Court should find that the District Court properly rejected Appellant's Franks hearing argument.
Probable cause existed for the issuance of a nighttime search warrant.
Issuance of a search warrant, as it pertains to the time of day, requires that the warrant be served in the daytime, unless the magistrate, "by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime." N.D.R.Crim.P. 41(c)(1)(E). The term, "daytime" is defined as between the hours of 6:00 a.m. to 10:00 p.m. local time. N.D.R.Crim.P. 41(h)(2)(B). Reasonable cause for a nighttime search requires a separate showing of probable cause. State v. Fields, 2005 ND 15, ¶ 9, 691 N.W.2d 233. Furthermore, N.D.R.Crim.P. 41(c)(1)(E) is meant to protect North Dakota citizens "from being subjected to the trauma of unwarranted nighttime searches." Id. Finally, this Court has stated that a per-se rule is not justified in the issuance of nighttime search warrants in drug cases. Fields, at ¶ 10.
In the affidavit in support of obtaining the search warrant, TFO Graham specifically states that Holly and E.A. were expected to arrive in Minot during the evening hours after transporting illegal drugs from Whitefish, MT. Appellant App. 15-18. Thus, Judge Hagar was given specific information in the affidavit justifying the execution of the nighttime search warrant and thus was not granted pursuant a "per-se rule". It can be reasonably inferred that the execution of the nighttime search warrant was justified as evidence to be seized would be arriving during the nighttime hours and would be in the white Ford Ranger possessed by Holly, and that evidence may or may not be present in the Ford Ranger if the search warrant was executed during the daytime hours. The issuing judge considered the matter, found reasonable cause for a night search, and affirmatively authorized it. State v. Schmeets, 278 N.W.2d 401 (N.D. 1979). See Campbell v. State, 651 P.2d 696, 698 (Okla.Crim.App. 1982) (holding judge's discretion in allowing a nighttime search warrant was proper because the affiant received particularized information that manufacturing of drugs would begin at midnight).
The case of Roth v. State, 2007 ND 112, 735 N.W.2d 882 is analogous to the case at hand. In Roth, this Court found that a nighttime search warrant was based on probable cause based on the following: that Roth was likely manufacturing methamphetamine in his home at nighttime; that in order for law enforcement to catch Roth in the process of manufacturing methamphetamine, the search needed to be conducted at nighttime rather than in the daytime; it was reasonably probable that much of the evidence of the manufacturing process, including the methamphetamine itself, would have been removed from the premises; the evidence isn't as convincing when the actual manufacturing is not in process. This Court pointed out that section 19-03.1-23.1 of the North Dakota Century Code provides an increased penalty for the manufacture or distribution of a controlled substance within one thousand feet of a school, but not for possession with intent. Therefore, law enforcement officers had a legitimate interest in catching a suspect in the act of manufacturing drugs.
Just as in Roth, there was a substantial need for the Task Force Officers to execute the search warrant when they did. Law enforcement officers were provided with information which indicated that Appellant would be bringing in a large amount of marijuana into the Minot area from Whitefish, MT. Thus, in order for law enforcement to obtain evidence of the actual delivery/transportation of the marijuana into Minot, it is imperative that they act at the time of arrival. If law enforcement were to wait until morning, evidence indicating that Holly had brought illegal substances back from Whitefish, MT would not have been as convincing and further, left open questions relating to the reliability of the reporting party, Sesseman. Furthermore, Appellant was subsequently charged with Unlawful Possession of Marijuana with Intent to Delivery or Manufacture. Evidence showing Holly's arrival from Whitefish, MT give more credence to said charge, by showing the means employed by Appellant in obtaining the marijuana and the trafficking involved crossing state lines.
Second, Task Force Officers made contact with Appellant immediately upon his arrival at the residence, before he even enters the residence. Tr. of Ct. Trial 34, ll. 3-14. The search warrant is executed at 10:14 p.m. Id. The basis for increased scrutiny involved in issuing a nighttime search warrant is due to individuals being "subjected to the trauma" of a nighttime search. Fields, at ¶ 9. However, in this case, no "trauma" could have occurred that is associated with a nighttime search. Officers did not wake the subjects during the middle of the night while they were in the privacy of their home. In this case, officers stopped Appellant and E.A. upon their arrival while still outside and just minutes after what is considered "daytime" per N.D.R.Crim.P. 41(h)(2)(B). Deputy Graham had spoken with Micah Sesseman later in the day of February 8, 2011 and confirmed that Appellant was on his way back [to Minot]; that he had stopped in Williston, North Dakota; and that [Appellant] will be back in Minot in a short time. THSMS 52, ll. 12-21. The purpose of having procedural protections in obtaining nighttime searches and what they are designed to protect are not present in this case, and the District Court found the same.
F. Alternatively, the Exclusionary Rule does not apply as the Good Faith Exception is applicable.
Under the good faith exception to the exclusionary rule, suppression is not the appropriate remedy for an illegal search if an officer's reliance on the search warrant was objectively reasonable. State v. Utvick, 2004 ND 36, ¶ 26, 675 N.W.2d 387. The good faith inquiry focuses upon whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization. State v. Van Beek, 1999 ND 53, ¶ 25, 591 N.W.2d 112. There are four specific situations when the good faith exception does not apply because the officer's reliance on the warrant is not objectively reasonable:
(1)When the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned [his] judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.
State v. Herrick, 1999 ND 1, ¶ 15, 588 N.W.2d 847. However, if there is no police misconduct to deter by suppressing evidence, the good faith exception applies and suppression of the evidence is not the proper remedy. Utvick, at ¶ 26. When reviewing the officer's reliance upon the warrant, the court must determine whether the underlying documents are devoid of factual support, not merely whether the facts they contain are legally sufficient." Roth v. State, 2007 ND 112, ¶ 32, 735 N.W.2d 882 (citing United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993).
In this case, there is no evidence that Judge Hagar was misled by false information intentionally or negligently; TFO Graham had probable cause to believe the smoking device was a smoking device commonly known as a bong. There is no showing that Judge Hagar failed to act in a neutral and detached manner. The warrant itself was not facially deficient. TFO Graham presented particularized facts in the supporting affidavit, specifically that Appellant and E.A. would be returning in the evening hours, which he gathered from Sesseman. TFO Graham's affidavit was not so lacking in indicia of probable cause that the Task Force Officers belief in its existence was entirely unreasonable. Thus, law enforcement's reliance on Judge Hagar's issuance of a nighttime search warrant was justified.
G. Alternatively, the Exclusionary Rule does not apply as the Inevitable Discovery doctrine is applicable.
Inevitable discovery requires that the evidence in question would have been discovered without the unlawful action. State v. Linghor, 2004 ND 224, ¶ 5, 690 N.W.2d 201. The inevitable discovery doctrine provides that evidence obtained from information procured in an unlawful search or seizure is admissible under the fruit-of-the-poisonous-tree doctrine if the evidence would inevitably have been discovery without the unlawful conduct. State v. Smith, 2005 ND 21, ¶ 31, 691 N.W.2d 203. A two part test for analyzing the inevitable discovery doctrine must be applied. State v. Handtmann, 437 N.W.2d 830, 837-38 (N.D. 1989)
First, use of the doctrine is permitted only when the police have not acted in bad faith to accelerate the discovery of the evidence in question. Second, the Stat must prove that the evidence would have been found without the unlawful activity and must show how the discovery of the evidence would have occurred. . . . . A showing that discovery might have occurred is entirely inadequate.
Id. at 838. In this case, law enforcement officers did not act in bad faith to accelerate discovery of evidence. Appellant asserts in his brief that TFO Graham misled Judge Hagar in the affidavit in regards to the "multi-colored smoking device called a bong." However, as previously discussed, TFO Graham inserted into the affidavit what he had seen in plain view and what he had probable cause to believe was a bong based on his training and experience. There was no bad faith on his part to deceive Judge Hagar in issuing the search warrant. Second, law enforcement officials would have discovered the evidence in question regardless had the nighttime provision not been granted. Law enforcement officers would have secured the residence until daytime, subsequently executed the search warrant and discovered the same evidence. Therefore, as both prongs of the inevitable discovery have been shown, the Exclusionary Rule is not applicable.
I. WHEN VIEWING THE EVIDENCE MOST FAVORABLE TO THE VERDICT AND ALL REASONABLE INFERENCES DRAWN FROM THE EVIDENCE, APPELLANT IS UNABLE TO SHOW EVIDENCE THAT THERE WAS NO REASONABLE INFERENCE OF GUILT
The District Court found Appellant guilty on all counts as charged in Amended Information, except that the District Court acquitted on Possession with Intent to Deliver, a class B felony, and instead found Appellant guilty of the lesser included offense of Possession of Marijuana Greater than One Ounce, a class C felony. Upon considering all evidence presented by the State, the District Court was satisfied that the State had proven the elements of the charges beyond a reasonable doubt.
At trial, there was no dispute that Appellant was in possession of all the items as charged. The State presented evidence that Appellant had made the following statements: that he admitted to paying $250.00 for an ounce of marijuana; that Appellant made an observation to the number of officers, stating "nine task force officers to come for two ounces of weed, and [the officers] were going to save the world"; that he had found the Clonazepam "along the roadway somewhere"; and that the Testosterone Propionate was a Schedule I drug and that it allowed a "165 [or 180] pound man [to] be able to lift 600 pounds; and that when notified about his additional charge of Psilocyn (hallucinogenic mushrooms), he commented "so, I'm being charged with something that grows legally here thirty miles away." Tr. of Ct. Trial 35, 36, 37, 38, 59.
The State also presented evidence of paraphernalia for the Testosterone Propionate in that unused syringes were located as well as the substance itself in aluminum foil. Tr. of Ct. Trial 43, ll. 13-15. Cotton seed oil was also found, which Appellant had explained that he used for dissolving the powder (Testosterone Propionate). Tr. of Ct. Trial 50, ll. 7-14. The State questioned Deputy Graham if Appellant had ever stated or presented a valid prescription for any of the narcotics and clarified, Klonopin/Clonazepam, and Deputy Graham stated he had not. Tr. of Ct. Trial 43, ll. 24-25; 44, ll. 1-5.
Appellant argues that the State failed to show that Appellant didn't have a valid prescription. In other words, Appellant is arguing that the State must prove the non-existence of a prescription. This argument has already been addressed through the legislative adoption of the Uniform Controlled Substance Act. The burden of proof for such claim is addressed as follows:
1. It is not necessary for the state to negate any exemption or exception in this chapter in any complaint, information, indictment, or other pleading or in any trial . . .
2. In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this chapter, the person is presumed not to be the holder of the registration or form. The burden of proof is upon the person to rebut the presumption.
N.D.C.C. § 19-03.1-37. In this case, it would be impractical, illogical and impossible to prove the non-existence; the proof is in the absence. When the prescription hasn't been presented, it is proof that non-existence holds true. No form was presented at any hearing disproving the non-existence of the prescription or order of a practitioner. If such prescription did exist, it would be expected to at least be shown at the preliminary hearing: a tool to "ferret out groundless and improvident prosecutions." State v. Smith, 2010 ND 89, ¶ 8, 781 N.W.2d 650. Similarly, following Appellant's argument, in a charge involving no liability insurance, it would be necessary for the State to prove the non-existence of liability insurance for the driver of a motor vehicle, thus requiring the State to contact every insurance provider to confirm the absence of the driver's policy. The proof is in the absence, and that is what the State proved, and the Appellant failed to show otherwise.
Finally, Appellant argues that the State didn't prove that the illegally possessed narcotics were a controlled substance and their respective schedules. Appellant's argument is a question of law, not a question of fact. In essence, Appellant would argue that if this case were presented to a jury, it would be the state's burden to produce and submit evidence of the criminal code depicting that the alleged controlled substance is found under the respective schedule. The trier of facts does not resolve disputes of law. If Appellant wished to contest the appropriateness of the controlled substance to its respective schedule, it would be appropriately raised at the preliminary hearing or by pretrial motion.
Based upon the foregoing, the State respectfully requests that this Court find that Appellant has failed to meet his burden, showing there was no reasonable inference of guilt.
I. THE DISTRICT COURT, WHEN CONDUCTING A BENCH TRIAL, DOES HAVE AUTHORITY TO SUA SPONTE CONSIDER A LESSER INCLUDED OFFENSE WHEN SUPPORTING EVIDENCE HAS BEEN PRESENTED
A defendant may be found guilty of an offense necessarily included in the offense charged . . . . N.D.R.Crim. P. 31(c). For an offense to be a lesser included offense, it must be impossible to commit the greater offense without committing the lesser. Keller, 2005 at ¶ 31. The court may, on its own, give a lesser included instruction, regardless of the request made by the prosecution or defense. Id. (citing State v. Wiedrich, 460 N.W.2d 680 (N.D. 1990).
In the case at hand, it is impossible, under the facts presented, for the lesser included offense of Possession of Marijuana in an Amount More Than One Ounce, a class C Felony, to have not been committed for the charge of Possession of Marijuana With Intent to Deliver, a class B felony. The evidence presented to the District Court indicated that Appellant was in possession at the time of his arrest of 40.81 grams (approximately 1.4 ounces) of marijuana. Thus, as there is no dispute as to the amount of marijuana which Appellant possessed, the District Court only had to decide whether or not it was Appellant's intention to deliver the marijuana or had the State failed to prove that intent, to find it was only for his own personal use. At trial, defense advanced argument through Micah Sesseman that Appellant was a heavy marijuana user; that he may very well smoke the entire amount of marijuana within a short period of time; and that he smoked five to ten "joints" of marijuana per day. Tr. of Ct. Trial 25, ll. 13-25; 26, ll. 1-12. The District Court acquitted Appellant of the greater offense and found him guilty of the lesser. The State does agree with Appellant that should the amount have been less than one ounce in his possession, the lesser included offense would not support a class C felony. More concisely, mere possession (of proven amount) is always a lesser offense of possession (of proven amount) with intent to deliver.
Appellant claims that it was in err for the District Court to consider the lesser included offense absent a request from either party. First, Appellant even cites in his brief at ¶ 129, not only the case, but the exact paragraph where this Court addresses that such sua sponte action of the District Court is proper; State v. Keller, 2005 ND 86, ¶ 31, 695 N.W.2d 703. Second, an alternative approach to considering whether or not a District Court may give a lesser included instruction absent a request, is that this Court reviews an appellant's failure to request (or object to) jury instructions for obvious error under N.D.R.Crim. P. 52(b). State v. Johnson, 2001 ND 184, ¶ 10, 636 N.W.2d 391. Therefore, this Court reviews a District Court's failure to give a jury instruction when it should have been given, thus mandating that a District Court must take such action even when the defendant fails to make a request.
Based upon the foregoing, the State respectfully requests that this Court affirm the District Court's orders and finding of guilt.
|Dated this ____ day of December, 2012.|
|Sean B. Kasson ID# 06649|
|Assistant State's Attorney|
|Ward County State's Attorney's Office|
|Minot, ND 58701|