IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| State of North Dakota, | ||||||||
| Plaintiff/Appellee, | ||||||||
| Supreme Court No. 20120324 | ||||||||
| vs. | ||||||||
| John Joseph Holly, | District Court Nos. 51-11-K-241, cts. 1, 2, | |||||||
| 3, 4, 5, 6 & 7 | ||||||||
| Defendant/Appellant. | ||||||||
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
APPELLANT'S BRIEF
| Eric P. Baumann |
| ND Bar ID #05690 |
| ND Public Defenders' Office--Minot |
| Attorneys for Defendant/Appellant |
| 11 First Ave. S.W. |
| Minot, ND 58701 |
| (701) 857-7750 |
| TABLE OF CONTENTS | ||||||||||||
| Page or | ||||||||||||
| Section | Paragraph #'s | |||||||||||
| Table of Authorities . | p. iii | |||||||||||
| Issues Presented | p. vii | |||||||||||
| Statement of the Case | ¶ 1 | |||||||||||
| Statement of Facts .. | ¶ 10 | |||||||||||
| Law and Argument ... | ¶ 28 | |||||||||||
| I. Holly has the Right of Appeal to the Supreme Court | ¶ 29 | |||||||||||
| II. Standards of Review . | ¶ 31 | |||||||||||
| III. | The Trial Court Erred in Denying Defendant's Motion to Suppress | |||||||||||
| and Supplemental Motion to Suppress | ¶ 35 | |||||||||||
| A. | Insufficient Probable Cause .. | ¶ 37 | ||||||||||
| 1. | Unreliability of Informant # 1 | ¶ 40 | ||||||||||
| 2. | The Assertions of Informant # 1 were not | |||||||||||
| Adequately Supported . | ¶ 48 | |||||||||||
| a. The Observation of the Hookah Should have been Suppressed | ||||||||||||
| ¶ 50 | ||||||||||||
| b. Omissions and Characterization of the Hookah Make the Application Misleading ... | ||||||||||||
| ¶ 57 | ||||||||||||
| c. Reasons why Observation of the Hookah, | ||||||||||||
| Regardless of its Characterization or | ||||||||||||
| Admissibility, does not Adequately Support | ||||||||||||
| Probable Cause ... | ¶ 61 | |||||||||||
| 3. | Conclusion of the Insufficient Probable Cause Argument .. | ¶ 65 | ||||||||||
| B. | Insufficient Cause for and Inappropriate Obtaining and Issuance | |||||||||||
| of Nighttime Warrant .. | ¶ 68 | |||||||||||
| C. | The "Six Pounds" Statement Should be Stricken .. | ¶ 80 | ||||||||||
| D. | Address to State's Potential Arguments .... | ¶ 89 | ||||||||||
| 1. | Holly was Awake | ¶ 90 | ||||||||||
| 2. | Good Faith . | ¶ 93 | ||||||||||
| 3. | Inevitable Discovery .. | ¶ 109 | ||||||||||
| IV. | The Trial Court Erred in Denying Defendant's Motion for Judgment of | |||||||||||
| Acquittal and in Finding Holly Guilty | ¶ 116 | |||||||||||
| V. | The Trial Court Erred in Finding Holly Guilty of Class "C" Felony | |||||||||||
| Possession of Marijuana in an Amount More than One Ounce as a | ||||||||||||
| Lesser Included Offense of the Charge of Possession of Marijuana | ||||||||||||
| with Intent to Deliver.... | ¶ 126 | |||||||||||
| Conclusion . | ¶ 132 | |||||||||||
| TABLE OF AUTHORITIES | ||||||||||
| Cases: | Paragraph #"s | |||||||||
| City of Jamestown v. Dardis, 2000 ND 186, | ||||||||||
| 618 N.W.2d 495 (N.D. 2000) . | 95 | |||||||||
| Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, | ||||||||||
| 57 L.Ed.2d 667 (1978) | 44. 66, 81 & 82 | |||||||||
| Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, | ||||||||||
| 101 L.Ed.2d 472 (1988) . | 55 | |||||||||
| State v. Ballweg, 2003 ND 153, 670 N.W.2d 490 (N.D. 2003) . | 44 | |||||||||
| State v. Berger, 285 N.W.2d 533 (N.D. 1979) .. | 76 | |||||||||
| State v. Dahl, 440 N.W.2d 716 (N.D. 1989) . | 41 & 42 | |||||||||
| State v. Donovan, 2004 ND 201, 688 N.W.2d 646 (N.D. 2004) | 42 | |||||||||
| State v. Fields, 2005 ND 15, 691 N.W.2d 233 (N.D. 2005) | 70, 73, 78, 85, 92, 96, 98, 103 & 111 | |||||||||
| State v. Handtmann, 437 N.W.2d 830 (N.D. 1989) .. | 91, 110, 113 & 114 | |||||||||
| State v. Hatlewick, 2005 ND 125, 700 N.W. 717 (N.D. 2005) | 33 | |||||||||
| State v. Herrick, 1999 ND 1, 588 N.W.2d 847 (N.D. 1999) . | 94 & 106 | |||||||||
| State v. Hughes, 1999 ND 24, 589 N.W.2d 912 (N.D. 1999) . | 102 | |||||||||
| State v. Keller, 2005 ND 86, 695 N.W.2d 703 (N.D. 2005) .. | 129 | |||||||||
| State v. Kitchen, 1997 ND 241, 572 N.W.2d 106 (N.D. 1997) .. | 32 & 34 | |||||||||
| State v. Lunde, 2008 ND 142, 752 N.W.2d 630 (N.D. 2008) | 94 & 108 | |||||||||
| State v. Matthews, 216 N.W.2d 90 (N.D. 1974) | 94 | |||||||||
| State v. Morris, 316 N.W.2d 80 (N.D. 1982) | 128 | |||||||||
| State v. Nelson, 2005 ND 59, 693 N.W.2d 910 (N.D. 2005) .... | 81 | |||||||||
| State v. Phelps, 297 N.W.2d 769 N.D. 1980) | 110 | |||||||||
| State v. Plentychief, 464 N.W2d 373 (N.D. 1990) ... | 122 | |||||||||
| State v. Ringquist, 433 N.W.2d 207 (N.D. 1988) | 94 | |||||||||
| State v. Roth 2004 ND 23, 674 N.W.2d 495 (N.D. 2004) | 43 | |||||||||
| State v. Schill, 406 N.W.2d 660 (N.D. 1987) . | 33 | |||||||||
| State v. Schmeets, 278 N.W.2d 401 (N.D. 1979) . | 38, 66, 72 & 84 | |||||||||
| State v. Scholes, 2008 ND 146, 753 N.W.2d 377 (N.D. 2008) | 44 | |||||||||
| State v. Utvick, 2004 ND 36, 675 N.W.2d 386 (N.D. 2004) | 102 | |||||||||
| State v. Van Beek, 1999 ND 53, 591 N.W.2d 112 (N.D. 1999) | 97 | |||||||||
| State v. Vantreece, 2007 ND 126, 736 N.W.2d 428 (N.D. 2007) . | 123 | |||||||||
| State v. Wahl, 450 N.W.2d 710 (N.D. 1990) .. | 67, 77 & 87 | |||||||||
| State v. Winkler, 552 N.W.2d 347 (N.D. 1996) .. | 55 | |||||||||
| State v. Zimmerman, 529 N.W.2d 171 (N.D. 1995) . | 52 | |||||||||
| United States v. Decker, 956 F.2d 773 (8th Cir. 1992) .. | 107 | |||||||||
| United States v. Jacobsen, 466 U.S. 109,104 S.Ct. 1652, | ||||||||||
| 80 L.Ed.2d 85 (1984) | 53 | |||||||||
| United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, | ||||||||||
| 82 L.Ed.2d 677 (1984) .. | 106 | |||||||||
| Constitutional Provisions: | ||||||||||
| Fourth Amendment of the United States Constitution | 54, 67, 77 & 87 | |||||||||
| Fifth Amendment to the United States Constitution | 128 | |||||||||
| Fifth Amendment to the United States Constitution | 128 | |||||||||
| Fourteenth Amendment to the United States Constitution .. | 128 | |||||||||
| Article I, Section 8 of the North Dakota Constitution .. | 54, 67, 77 & 87 | |||||||||
| Article I § 12 of the North Dakota Constitution | 128 | |||||||||
| Statutes: | ||||||||||
| N.D.C.C. § 12.1-01-04(15) .. | 129 | |||||||||
| N.D.C.C. Chapter 12.1-05 | 118 | |||||||||
| N.D.C.C. Chapter 19-03.1 . | 118 | |||||||||
| N.D.C.C. § 19-03.1-09(7) | 125 | |||||||||
| N.D.C.C. § 19-03.1-23(6) | 7 & 8 | |||||||||
| N.D.C.C. § 19-03.1-23(7) | 7, 8, 118 & 119 | |||||||||
| N.D.C.C. § 19-03.4-02 .. | 58 | |||||||||
| N.D.C.C. § 19-03.4-03 | 7 & 118 | |||||||||
| N.D.C.C. § 29-28-03 | 30 | |||||||||
| N.D.C.C. § 29-28-06 . | 30 | |||||||||
| Rules: | ||||||||||
| N.D.R.Crim.P. 31(c) ... | 129 | |||||||||
| N.D.R.Crim.P. 41 | 26, 71, 76, 77, 87, 98, 103, 104 107 & 111 | |||||||||
| N.D.R.Crim.P. 41(b) | 38 & 66 | |||||||||
| N.D.R.Crim.P Rule 41(c)(1) | 70, 71, 73, 75 | |||||||||
| & 76 | ||||||||||
| N.D.R.Crim.P. 41(c)(1)(A) .. | 75 & 76 | |||||||||
| N.D.R.Crim.P. 41(c)(1)(E) .. | 85 | |||||||||
| N.D.R.Crim.P. 41(h)(2)(B) .. | 69 | |||||||||
ISSUES PRESENTED
I. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS AND SUPPLEMENTAL MOTION TO SUPPRESS.
II. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AND IN FINDING HOLLY GUILTY.
III. WHETHER THE TRIAL COURT ERRED IN FINDING HOLLY GUILTY OF CLASS "C" FELONY POSSESSION OF MARIJAUANA IN AN AMOUNT MORE THAN ONE OUNCE AS A LESSER INCLUDED OFFENSE OF THE CHARGE OF POSSESSION OF MARIAJUANA WITH INTENT TO DELIVER.
[¶1] STATEMENT OF THE CASE
[¶2] Defendant, John Joseph Holly [hereinafter Holly], appeals from the Judgments
in the above referenced matter. [¶3] More particularly, an Information was filed charging Holly with various offenses in the above referenced matter. [Index # 25.] Defendant then filed a Motion to Suppress and Brief in Support, dated April 18, 2011. [Index # 29.] On May 23, 2011, a Hearing was held on the Motion to Suppress. This Motion was denied by the trial court in an Opinion, dated June 24, 2011. [Appendix pages 20 - 36, hereinafter A 20 - 36.] An Amended Information, dated October 4, 2011, was filed with the district court charging Holly with: Count 1, Unlawful Possession of Marijuana with Intent to Deliver, a class "B" felony; Count 2, Possession of a Schedule III Controlled Substance, a class "C" felony; Count 3, Unlawful Possession of Drug Paraphernalia Other Than Marijuana, a class "A" misdemeanor; Count 4, Unlawful Possession of Drug Paraphernalia Marijuana, a class "A" misdemeanor; Count 5, Unlawful Possession of Psilocyn, a class "C" felony; Count 6, Unlawful Possession of a Schedule IV Controlled Substance, a class "C" felony; and Count 7, Unlawful Possession of Drug Paraphernalia Other Than Marijuana, a class "A" misdemeanor. [A 37 38.] [¶4] On October 26, 2011, Defendant filed a Supplemental Motion to Suppress and Brief in Support. [Index # 65.] On October 27, 2011, a Hearing was held on this Supplemental Motion. In a Supplemental Opinion of the Court, dated November 11, 2011, the trial court denied the Supplemental Motion. [A 39 - 48.] [¶5] On May 3, 2012, a Bench Trial was held. In an Opinion of the Court, dated May 16, 2012, the trial court found Holly guilty of Counts 2 through 7 in the Amended Information. [A 49 53.] The trial court found Holly not guilty of Count 1, Possession of Marijuana with Intent to Deliver. [Id.] [¶6] However, the trial court found Holly guilty of the class "C" felony offense of Possession of Marijuana (in an amount more than one ounce), characterizing this offense as an included offense to the charge of Possession of Marijuana with Intent to Deliver. [Id.] On May 18, 2012, a Status Hearing was held. At this Hearing, Defendant notified the trial court that Possession of Marijuana (in an amount more than one ounce) is not a lesser included offense of the offense of Possession of Marijuana with Intent to Deliver. [Transcript of May 18, 2012 Status Conference, page 2.] In a Letter, dated June 4, 2012, the trial court notified the parties that its ruling regarding the lesser included offense issue would stand. [A 54 55.] [¶7] On July 18, 2012, a Sentencing Hearing was held, and Judgments, dated July 19, 2012, were filed on July 23, 2012, namely: Count 1, Possession of Controlled Substance, a class "C" felony, in violation of N.D.C.C. 19-03.1-23(7); Count 2, Possession of Controlled Substance Schedule III, a class "C" felony, in violation of N.D.C.C. 19-03.1-23(6); Count 3, Possession of Drug Paraphernalia Other than Marijuana, a class "A" misdemeanor, in violation of N.D.C.C. 19-03.4-03; Count 4, Possession of Drug Paraphernalia Marijuana, a class "A" misdemeanor, in violation of N.D.C.C. 19-03.4-03; Count 5, Possession of Controlled Substance Hallucinogenic Mushrooms, a class "C" felony, in violation of N.D.C.C. 19-03.1-23(6); Count 6, Prohibited Acts A/Controlled Substances, a class "C" felony, in violation of N.D.C.C. 19-03.1-23; and Count 7, Possession of Drug Paraphernalia Other than Marijuana, a class "A" misdemeanor, in violation of N.D.C.C. 19-03.4-03. [A 56, 63 - 68.] [¶8] In regard to the Judgments in the above referenced matter, Counts 2 and 5 appear to list incorrectly N.D.C.C. 19-03.1-23(6) as the subsection violated as opposed to N.D.C.C. § 19-03.1-23(7). [A 63, 66; see A 37 - 38.] Also, the titles of the charges in Counts 5 and 6 do not track the language of the Amended Information. [A 66, 67, see A 36 - 37.] [¶ 9] Defendant filed his Notice of Appeal, dated August 15, 2012, from the above referenced Judgments. [A 69.]
[¶10] STATEMENT OF FACTS
[¶11] On February 7 and 8, 2011, law enforcement received information from an informant [hereinafter Informant # 1] that Defendant, John Joseph Holly [hereinafter Holly], and a female [hereinafter Jane Doe] would be traveling to Montana and returning to Holly's residence with marijuana and prescription drugs. [Appendix pages 16 - 17, hereinafter A 16 - 17.]
[¶12] On February 8, 2011, Officer Willie Graham went to the residence that Informant # 1 indicated was occupied by the Informant # 1, Holly and Jane Doe. While at the residence, Informant # 1 in an effort to supply the officers with information regarding Holly's trip, opened the door to Holly's bedroom, thus, allowing Officer Graham to look into the bedroom. [ A 17; Transcript of May 23, 2011 Suppression Hearing page 10, hereinafter TSH 10.] When Officer Graham looked into the bedroom he observed an item that he later characterized in the Application for Search Warrant as "a multi-colored glass smoking device, commonly called a bong". [A 17; TSH 11.]
[¶13] On February 8, 2011, Officer Graham submitted an Application and Affidavit for Search Warrant, requesting to search among other things the residence occupied by the Informant # 1, Holly and Jane Doe and the vehicle that Holly was allegedly traveling in. [A 15 18 (copy with redacted information from May 23, 2012 Suppression Hearing plus the Honorable Richard L. Hagar's signature page), see transcript of May 23, 2012 Suppression Hearing pages 4 6, see index #'s 12, 33 and 38, hereinafter A 15 - 18.]
[¶14] Other than Officer Graham's assertion that he observed "a multi-colored glass smoking device, commonly called a bong," the Application solely relies upon the assertions of Informant # 1. [Id.] The item that Officer Graham characterized as "a multi-colored glass smoking device, commonly called a bong," was a hookah which can be used for smoking tobacco. [TSH 11.] In the subsequent search of the residence, there was tobacco found all around the item. [Id.] Officer Graham testified that he was not trying to imply that the hookah was used smoke marijuana. [TSH 12.] In the Application, Officer Graham omitted information that would tend to indicate that the item was not necessarily marijuana paraphernalia. [A 15 - 18; see TSH 12.] Officer Graham in the Application does not allege that the hookah was in fact marijuana paraphernalia, articulate any reason to believe that the item was marijuana paraphernalia, or make any assertions that such items are commonly used to smoke marijuana. [A 15 18.]
[¶15] The Application indicates that Informant # 1 had witnessed Holly and Jane Doe smoke marijuana in the residence and that Holly had told Informant # 1 of his intention to go to Montana to obtain drugs. [A 16.] The Application contains no indication that Informant # 1 had supplied reliable information in the past or assertions regarding reliability of the informant. [A 15 -18.]
[¶16] At approximately 4:05 p.m. on February 8, 2011, the Honorable Richard L. Hagar signed the search warrant as requested in the Application. [A 19 (copy with redacted information from May 23, 2012 Suppression Hearing), see transcript of May 23, 2012 Suppression Hearing pages 4 6, Index #'s 12, 33 and 39, hereinafter A 19.] The Application did not request nighttime search and the Search Warrant initially did not allow the warrant to be executed during the nighttime. [A 19; TSH 13.]
[¶17] After getting the warrant signed by Judge Hagar, law enforcement decided that it wanted to conduct the search during the night, and Officer Graham brought the warrant back to Judge Hagar. [TSH 13.] The "in the daytime" requirement was crossed out and "anytime" was handwritten into the warrant by Judge Hagar. [TSH 13.] The Search Warrant does indicate precisely when this modification was made. [A 19.]
[¶18] The Application did not state that the contraband suspected to be in residence and/or vehicle was easily disposable or provide any history of persons at the residence attempting to destroy contraband. [A 15- 18.] The Application did not make reference to a belief that persons at the residence had a propensity for violence. [Id.] The Application did not even request a nighttime search warrant. [Id.] Officer Graham orally requested Judge Hagar to allow a nighttime search. [TSH 14.] However, Officer Graham's oral statements when making this request were not sworn nor recorded. [Id.]
[¶19] The Application indicates that Informant # 1 told Officer Graham that Holly had told Informant # 1 that he was "planning to purchase six pounds of marijuana and some prescription drugs bring it back to Minot". [A 16.] However, Informant # 1 testified at the Hearing on Supplemental Motion to Suppress that he did not make any statement to Officer Graham regarding the specific amount of marijuana. [Transcript of October 27, 2011 Hearing on Supplemental Motion to Suppress pages 27 28, 35 - 36, hereinafter TSSH 27 28, 35 - 36.] Informant's # 1 testimony indicated that he had no motivations to lie for Holly and that he thought his statement to Officer Graham was tape recorded. [TSSH 34 35, 37 38.] Another individual [hereinafter Informant # 2] testified that it was he who had made the statement about the "six pounds". [See generally TSSH 12 -21.] Informant # 2 further indicated that he lied to law enforcement when he made this statement. [Id.] Informant # 2 testified that he lied to law enforcement to get a prompt reaction from law enforcement. [TSSH 14 -15.] Informant # 1 also testified that he received $ 300.00 from law enforcement for his cooperation. [TSSH 28.] The fact that Informant # 1 was paid was not disclosed in the Application, and Officer Graham was aware of Informant # 1 being paid. [A 15 - 18, TSSH 39 - 40.]
[¶20] Officer Graham testified that he thought Informant # 1 had made the "six pounds" statement and that he previously had thought Informant # 1's statements were recorded, but that he could find a tape recording so he did not think that it was recorded. [TSSH 46.] Officer Graham acknowledged that attributing the "six pound" statement to informant # 1 may have been a mistake. [TSSH 48.] On page 9 of the November Supplemental Opinion of the Court, Judge McLees indicates that "all indications-----provided (Informant # 1) and (Informant # 2) are now telling the truth-----are that: it was (Informant # 2) who provided the 'six (6) pounds of marijuana' information to Graham". [A 47.] The trial court found that Officer Graham did not intentionally falsely attribute the "six pounds" statement to Informant # 1. [A 39 48.]
[¶21] When Holly arrived back at the residence, he was confronted by law enforcement and the search warrant was executed at approximately 10:14 p.m. or 10:15 p.m. on February 8, 2011. [TSH 9; Transcript of May 3, 2012 Bench Trial page 34, hereinafter TBT 34.] During the execution of the search warrant, Holly allegedly made potentially incriminating statements to law enforcement; Holly allegedly also made a statement to Officer Graham the next day while in the Jail concerning a substance allegedly found during the execution of the search warrant. [TSH 14; see i.e. TBT pages 34 39, 59, see generally Index #'s 6 and 7.] During the execution of the search warrant, allegedly illegal contraband was found in and seized from the vehicle and the residence. [TSH 14; see generally testimony of Officers Graham, Steven Schoenrock and Mike Marcus, TBT 30 72, Index #'s 6, 7, and 12.] All of the allegedly illegal contraband attributed to Holly in the above referenced matters was seized during the execution of the search warrant. [Id.]
[¶22] During the Bench Trial, the State introduced into evidence, a Laboratory Report which identified the following substances from the evidence seized during the search warrant: Clonazepam, Cannabis, Resin of Cannabis, Testosterone Propionate, and Psilocyn. [TBT 48, exhibit # 19, Index # 108.] However, there was no testimony regarding the specific makeup of the substances. [See generally TBT 30 72.]
[¶23] Holly allegedly told Officer Graham that he found the Clonazepam "along the roadway somewhere". [TBT 35.] Officer Graham testified that Holly never presented him with a prescription for Klonopin/Clonazepam and that Holly never told him that he had a prescription for Clonazepam. [TBT 43 - 44.] Holly also told Officer Graham that Propionate was a Schedule I drug and that it allowed him to lift 600 pounds. [TBT 36.] Officer Graham also testified that Holly had said that he paid $ 250.00 for an ounce of marijuana. [TBT 59.]
[¶24] There was no testimony at trial indicating that Holly was ever asked if he had prescriptions for any of the allegedly illegal substances. [See generally TBT 3 114.] There was also no testimony at trial that Holly ever stated that he did not have prescriptions for the allegedly illegal substances. [Id.] There also was no testimony or report at trial indicating Holly's prescriptions or lack thereof. [Id.]
[¶25] Pictures of the residence, vehicle, and items therein, including pictures of allegedly illegal contraband were offered into evidence by the State. [TBT 62 67, Exhibits 1-18, Index #'s 91 -107.]
[¶26] At the Hearings on Defendant's Motion to Suppress and Supplemental Motion to Suppress, Officer Graham did not explain his awareness of caselaw and N.D.R.Crim.P 41 prior the obtaining and executing the nighttime search warrant. [See generally Testimony of Officer Graham, TSH 6 18, TSSH 39 -54.] There was no testimony that officers could or would have secured the areas to be searched and conducted the search during the daytime if they did not have a nighttime warrant. [See generally TSH 3 - 34, TSSH 3 87.]
[¶27] The above referenced matter was tried to the Bench, not a Jury. [See generally TBT 3 - 114.] Neither the State nor Defendant requested Judge McLees to consider a lesser included charge. [Id.] Also, Judge McLees did not inform the parties that he may consider a lesser included charge prior to announcing his decision. [Id.]
[¶28] LAW AND ARGUMENT
[¶29] I. HOLLY HAS THE RIGHT OF APPEAL TO THE NORH DAKOTA SUPREME COURT.
[¶30] Pursuant to N.D.C.C. § 29-28-03 an appeal may taken as a matter of right from all verdicts, judgments and orders enumerated in N.D.C.C. § 29-28-06. Defendant, John Joseph Holly [hereinafter Holly], appeals from the Judgments in the above referenced matters, specifically arguing that the trial court erred in denying his Motion to Suppress and Supplemental Motion to Suppress, that the trial court erred in denying his Motion for Judgment of Acquittal and in finding Holly guilty, and that the trial court erred in finding Holly guilty of class "C" felony Possession of Marijuana in an Amount more than One Ounce as lesser included offense of Possession of Marijuana with Intent to Deliver.
[¶31] II. STANDARDS OF REVIEW.
[¶32] When reviewing the disposition of a motion to suppress, the North Dakota Supreme Court defers to the trial court's findings of fact and resolves conflicts in testimony in favor of affirmance. State v. Kitchen, 1997 ND 241, ¶ 11, 572 N.W.2d 106 (N.D. 1997). "Generally, a trial court's decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court's findings, and if its decision is not contrary to the manifest weight of the evidence." Id. However, whether findings of fact meet a legal standard is a question of law subject to de novo review. Id. at ¶ 12.
[¶33] When reviewing a claim of insufficiency of evidence, the North Dakota Supreme Court looks only to the evidence most favorable to the verdict and the reasonable inferences therefrom to see if there is substantial evidence to warrant a conviction. State v. Hatlewick, 2005 ND 125, ¶ 4, 700 N.W. 717 (N.D. 2005) (citing State v. Schill, 406 N.W.2d 660, 660 (N.D. 1987). "A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor." Id.
[¶34] Whether the trial court properly found Holly guilty of class "C" felony Possession of Marijuana in an amount of over one ounce as lesser included offense of the charge of Possession of Marijuana with Intent to Deliver is a question of law subject to de novo review. State v. Kitchen, 1997 ND 241, ¶ 12.
[¶35] III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS AND SUPPLEMENTAL MOTION TO SUPPRESS.
[¶36] The trial court erred in denying Defendant's Motion to Suppress and
Supplemental Motion to Suppress for the following reasons.
[¶37] A. INSUFFICIENT PROBABLE CAUSE.
[¶38] The entries into and/or searches of the residence and vehicle were unlawful and constituted unreasonable searches and seizures because the warrant was not supported by probable cause that the vehicle, residence and/or the particular items authorized to be searched and/or seized contained evidence of a crime. State v. Schmeets, 278 N.W.2d 401 (N.D. 1979); N.D.R.Crim.P. 41(b).
[¶39] Other than Officer Graham's assertion that he observed "a multi-colored glass smoking device, commonly called a bong," the Application solely relies upon the assertions of Informant # 1. [A 15 18 (copy with redacted information from May 23, 2012 Suppression Hearing plus the Honorable Richard L. Hagar's signature page), see transcript of May 23, 2012 Suppression Hearing pages 4 6 , index #'s 12, 33 and 38, hereinafter A 15 - 18.]
[¶40] 1. Unreliability of Informant # 1.
[¶41] The Application indicates that Informant # 1 resided with Holly, was present while marijuana had been smoked at the residence and had been taken into Holly's confidence. [Id.] Accordingly, the Application indicates that Informant # 1 was member of the member of the "criminal milieu". State v. Dahl, 440 N.W.2d 716, 718 (N.D. 1989) (describing members of "criminal milieu" as persons "involved in criminal activity or at least someone who enjoys the confidence of criminals").
[¶42] "There is no presumption of reliability when the informant is someone who is a member of the 'criminal milieu'. State v. Donovan, 2004 ND 201, ¶ 13, 688 N.W.2d 646 (N.D. 2004) (affirming suppression order and citing State v. Dahl, 440 N.W.2d 716, 718 (N.D. 1989)). Informant # 1's credibility had to be established. Id. at ¶ 14. The Application contained no indication that the Informant # 1 had supplied reliable information in the past or assertions regarding reliability of the Informant # 1. [Id.]
[¶43] In regard to the reliability of Informant # 1, it was indicated at the Hearing on Supplemental Motion to Suppress that Informant # 1 was paid. [Transcript of October 27, 20111 Hearing on Supplemental Motion to Suppress page 28; hereinafter TSSH 28.] See State v. Roth 2004 ND 23 ¶¶ 9 -12, 674 N.W.2d 495 (N.D. 2004) (explaining differences of types of informants and their level of presumed reliability). Officer Graham was aware of Informant # 1 being paid and did not include this information in the Application. [A 15 18; TSSH 39 40.]
[¶44] "To succeed on Franks challenge based upon omitted information, the defendant must show: (1) that [law enforcement officers] omitted facts with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading; and (2) the affidavit[,] if supplemented by the omitted information[,] would not have been sufficient to support a finding of probable cause." State v. Scholes, 2008 ND 146 ¶ 17,753 N.W.2d 377 (N.D. 2008) (quoting State v. Ballweg, 2003 ND 153 ¶ 17, 670 N.W.2d 490 (N.D. 2003); Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
[¶45] It is argued that Officer Graham's omission of information that Informant # 1 was paid was made with at least a reckless disregard of making the Application misleading.
[¶46] In regard to Franks issues related to the reliability of Informant # 1, the "six pounds" statement should not support his reliability through providing specific information due to a Franks violation, with said violation being more fully developed later in the this ¶¶ 80 87 of this Brief.
[¶47] Regardless of whether the information regarding Informant # 1 being paid was included and the "six pounds" statement was excluded, the Application was insufficient to support a finding of probable cause.
[¶48] 2. The assertions of Informant # 1 were not adequately supported.
[¶49] The only evidentiary assertion contained the Application, not related to Informant # 1's claims, was Officer Graham's assertion that he observed "a multi-colored glass smoking device, commonly called a bong". [A 15 18.] This assertion does not adequately contribute to finding probable cause. The following are reasons why this assertion does not adequately contribute to finding probable cause.
[¶50] a. The observation of the hookah should have been suppressed.
[¶51] The observation of the hookah resulted from an unconstitutional search. The hookah was allegedly observed in Holly's bedroom after Informant # 1 opened the door to the bedroom; thus, allowing Officer Graham to look into the bedroom. [A 17; Transcript of May 23, 2011 Suppression Hearing page 10, hereinafter TSH 10.]
[¶52] Although Informant # 1 resided at the dwelling where the hookah was observed, he did not have "common authority" over Holly's bedroom, and accordingly did not have authority to enter the bedroom or to allow police offers to peer into the bedroom. State v. Zimmerman, 529 N.W.2d 171 (N.D. 1995).
[¶53] Regardless of whether law enforcement asked Informant # 1 to open the door to Holly's bedroom, Informant # 1 was acting in concert with law enforcement when he opened the door to such an extent that his actions coupled with the law enforcement's actions should result in the suppression of evidence. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). In this regard it should be noted Informant # 1 was paid by law enforcement for his cooperation. [TSSH 28.]
[¶54] Accordingly, the observation of the hookah resulted for unconstitutional search in violation of Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution.
[¶55] The fruit of a search conducted pursuant to a search warrant should be suppressed due to prior unconstitutional police activity if: (1) the warrant was not supported by probable cause from sources independent of the unlawful entry, or (2) the decision to seek the warrant was prompted by what was seen during the unlawful entry. State v. Winkler, 552 N.W.2d 347, 353 (N.D. 1996) (citing Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988)).
[¶56] Accordingly, the observation of the hookah and the fruits of the subsequent searches done pursuant to the warrant should have been suppressed. Even if the observation of the hookah is not suppressed, the observation does not adequately support probable cause.
[¶57] b. Omissions and characterization of the hookah make the Application misleading.
[¶58] In the Application, Officer Graham characterizes the hookah as "a multi-colored glass smoking device, commonly called a bong". [A 17.] It is argued that Officer Graham omitted information which he was either aware of or reasonably should have been aware of that would tend to indicate that the item was not marijuana paraphernalia. In the subsequent search of the residence, there was tobacco found all around the hookah. [TSH 11.] See N.D.C.C. § 19-03.4-02, Drug paraphernalia Guidelines.
[¶59] Officer Graham acknowledged that the item he saw was a hookah which can be used for smoking tobacco. [Id.] Officer Graham testified that he was not trying to imply this particular item was used smoke marijuana. [TSH 12.] However, the Application does not indicate these points. [A 15 18.]
[¶60] Officer Graham's characterization of the hookah coupled with the omission of information indicating that the hookah was not necessarily marijuana paraphernalia make the Application misleading. Accordingly, the fruits of the subsequent searches done pursuant to the warrant must be suppressed.
[¶61] c. Reasons why observation of the hookah, regardless of its characterization or admissibility, does not adequately support probable cause.
[¶62] The hookah was observed in the residence where Informant # 1 was living. [A 16 17.]
[¶63] The Application does not allege that the hookah was in fact marijuana paraphernalia, articulate any reason to believe that the hookah was marijuana paraphernalia, or make any assertions that such items are commonly used to smoke marijuana. [Id.] Deputy Graham testified that he was not trying to imply that this particular item was used to smoke marijuana. [TSH 12.]
[¶64] The reported observation of the hookah in the residence does not support probable cause that there was illegal contraband in the vehicle.
[¶65] 3. Conclusion of the insufficient probable cause argument.
[¶66] The reliability of Informant # 1 had to be established, and the observation of the hookah fails to adequately do this regardless of any of the Franks issues referenced above. Accordingly, the Application does not supply adequate probable cause that the vehicle, residence and/or the particular items authorized to be searched and/or seized contained evidence of a crime. State v. Schmeets, 278 N.W.2d 401 (N.D. 1979); N.D.R.Crim.P. 41(b).
[¶67] Accordingly, the entries and/or searches done pursuant to the warrant, including the entries into and/or searches of the residence and/or vehicle, were unlawful and unconstitutional under the Fourth Amendment of the United States Constitution, Article I, Section 8 of the North Dakota Constitution and/or N.D.R.Crim.P. 41. Accordingly, all evidence gained as fruit of these entries and/or searches, including statements, including Holly's statements during the execution of the search warrant and subsequently at the jail, and all alleged illegal contraband, including testing, observations and photographs of said contraband, must be suppressed. State v. Wahl, 450 N.W.2d 710, 714 (N.D. 1990). [See i.e. and generally index #'s 6, 7, 12 and 91 -108, Transcript of May 3, 2012 Bench Trial pages 30 - 72, hereinafter TBT 30 - 72.]
[¶68] B. INSUFFICIENT CAUSE FOR AND INAPPROPRIATE OBTAINING AND ISSUANCE OF NIGHTTIME WARRANT.
[¶69] The Search Warrant in the above referenced was executed at approximately 10:14 p.m. or 10:15 p.m. [TSH 9, TBT 34.] Accordingly, the warrant was executed during the nighttime. N.D.R.Crim.P. 41(h)(2)(B).
[¶70] "Rule 41(c)(1) N.D.R.Crim.P. requires the issuing magistrate find a sufficient showing of probable cause to justify authorization of a nighttime search." State v. Fields, 2005 ND 15, ¶ 9, 691 N.W.2d 233 (N.D. 2005).
[¶71] The Application did not state that the contraband suspected to be in the residence and/or vehicle was easily disposable or provide any history of persons at the residence attempting to destroy contraband. [A 15 - 18.] The Application did not make reference to a belief that persons at the residence had a propensity for violence. [Id.] The Application did not even request a nighttime search warrant. [Id.] Officer Graham's oral request to be allowed to search at night was not made through "sworn recorded testimony" . [TSH 14.]
[¶72] The unsworn, unrecorded comments of law enforcement cannot be used to as justification for issuance of the "anytime" warrant. State v. Schmeets, 278 N.W.2d 401, 405 406 (N.D. 1979).
[¶73] The potential of illegal drugs being present is insufficient to justify issuing nighttime warrant. State v. Fields, 2005 ND 15, ¶ 13, 691 N.W.2d 233; N.D.R.Crim.P 41(c)(1)(E).
[¶74] Accordingly, there was insufficient justification for the issuance of the "anytime" search warrant.
[¶75] N.D.R.Crim.P. 41(c)(1)(A) states, "(in) general. A warrant other than a warrant on oral testimony under Rule 41 (c)(2) may issue only on an affidavit or affidavits sworn to or sworn recorded testimony taken before a state of federal magistrate and establishing grounds for issuing the warrant." N.D.R.Crim.P. 41(c)(1)(E) states in part, "(t)he warrant may be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime".
[¶76] The "in the daytime" requirement in the warrant was crossed out and "anytime" was handwritten in. [TSH 13.] The Search Warrant does indicate precisely when this modification was made, make specific reference to a nighttime authorization, or indicate why Judge Hagar authorized this modification. [A 19 (copy with redacted information from May 23, 2012 Suppression Hearing), see transcript of May 23, 2012 Suppression Hearing pages 4 6, index #'s 12, 33 and 39, hereinafter A 19.] Officer Graham's oral request to be allowed to search at night was not made through "sworn recorded testimony" as required by N.D.R.Crim.P. 41(c)(1)(A). The record made at the time that the warrant was issued does not disclose a reasonable cause for the authorization of the nighttime search. Accordingly, this modification was obtained and issued in violation of N.D.R.Crim.P. 41, and specifically Rule 41(c)(1)(A) and Rule 41(c)(1)(E). See State v. Berger, 285 N.W.2d 533, 537 (N.D. 1979).
[¶77] Accordingly, the entries and/or searches done pursuant to the warrant, including the entries into and/or searches of the residence and/or vehicle, were unlawful and unconstitutional under the Fourth Amendment of the United States Constitution, Article I, Section 8 of the North Dakota Constitution and/or N.D.R.Crim.P. 41. Accordingly, all evidence gained as fruit of these entries and/or searches, including statements, including Holly's statements during the execution of the search warrant and subsequently at the jail, and all alleged illegal contraband, including testing, observations and photographs of said contraband, must be suppressed. State v. Wahl, 450 N.W.2d 710, 714. [See i.e. and generally TBT 30 72, index #'s 6, 7, 12 and 91 -108.]
[¶78] The State may attempt to argue that the "six pounds" of marijuana statement in the Application should cause this Court to disregard the precedent set forth in Fields. 2005 ND 15. However, the "six pounds" statement does not provide this Court with grounds to disregard said precedent, and even if the "six pounds" statement is considered, the entries and/or searches done pursuant to the warrant were unlawful and unconstitutional for the aforementioned reasons.
[¶79] Even if this Court determines that the "six pounds" statement is of consequence in determining the sufficiency of the Application, it should be stricken from the Application for the following reasons.
[¶80] C. THE "SIX POUNDS" STATEMENT SHOULD BE STRICKEN.
[¶81] The Application indicates that Informant # 1 told Officer Graham that Holly had told Informant # 1 that he was "planning to purchase six pounds of marijuana and some prescription drugs bring it back to Minot". [A 16.] However, the evidence reflects that Informant # 1 did not make this statement to Officer Graham; Informant # 2 made this "six pounds" statement; and this "six pounds" statement was lie. [A 47; TSSH 27 28, 35 36, see generally TSSH 12- 21.]
"(W)here the defendant makes a substantial preliminary showing that a false statement knowing and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to same extent as if probable cause was lacking on the face of the affidavit." State v. Nelson, 2005 ND 59, ¶ 4, 693 N.W.2d 910 (N.D. 2005) (quoting Franks v. Delaware, 438 U.S. 154, 155 -156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)).
[¶82] The trial court found that Officer Graham did not intentionally falsely attribute the "six pounds" statement to Informant # 1. [A 39 48.] However, it is not required that the false statement was made "intentionally" for a Franks violation to have occurred. Deputy Graham's false attribution of the "six pounds" statement to Informant # 1 was made "in reckless disregard for the truth" for purposes of Franks analysis.
[¶83] At the end of the day, Deputy Graham falsely attributed arguably the most noteworthy statement in the Application to a person who did not make the statement. What's more the statement itself was a lie. Law enforcement officers who apply to our Courts for permission to enter citizens' homes in the middle of the night must be held some meaningful requirement of accuracy. The "six pounds" statement must be stricken from the Application.
[¶84] When the "six pounds" statement is taken out of the Application, the Application is particularly lacking probable cause for a nighttime warrant given that no amount giving rise to an inference of potential delivery is referenced. Without the "six pounds" statement, the Application merely infers that drug paraphernalia and/or drugs of an unknown quantity were suspected to be present, making no reference to Deputy Graham believing that the suspected contraband would be destroyed or disposed of during the night or that persons at the residence had a propensity for violence. [A 15 18.] The Application does not even request an a "nighttime" warrant. [Id.] State v. Schmeets, 278 N.W.2d 401, 405 406.
[¶85] North Dakota law clearly indicates that the potential of illegal drugs being present is insufficient to justify issuing a nighttime warrant. State v. Fields, 2005 ND 15, ¶¶ 10-13; N.D.R.Crim.P 41(c)(1)(E).
[¶86] It is reiterated that regardless whether the "six pounds" statement was included, the Application was insufficient to support a finding of probable cause and inadequate to support the probable cause necessary for an "nighttime" warrant.
[¶87] Accordingly, the entries and/or searches done pursuant to the warrant, including the entries into and/or searches of the residence and/or vehicle, were unlawful and unconstitutional under the Fourth Amendment of the United States Constitution, Article I, Section 8 of the North Dakota Constitution and/or N.D.R.Crim.P. 41. Accordingly, all evidence gained as fruit of these entries and/or searches, including statements, including Holly's statements during the execution of the search warrant and subsequently at the jail, and all alleged illegal contraband, including testing, observations and photographs of said contraband, must be suppressed. State v. Wahl, 450 N.W.2d at 714. . [See i.e. and generally TBT 30 72, index #'s 6, 7, 12 and 91 -108.]
[¶88] An address to some potential arguments from the State follows.
[¶89] D. ADDRESS TO STATE'S POTENTIAL ARGUMENTS.
[¶90] 1. Holly was awake.
[¶91] The State may attempt to argue that since Holly was awake when the officers executed the warrant that evidence should not be suppressed. However, whether Holly was awake is not material to determining evidence should be suppressed. The exclusionary rule serves to deter police misconduct.
"The exclusion of unlawfully obtained evidence serves two underlying policy considerations: (1) compelling respect for the constitutional guaranty against unreasonable searches and seizures by removing the incentive to disregard that guaranty, and (2) bolstering judicial integrity by not allowing convictions based on unconstitutionally obtained evidence." State v. Handtmann, 437 N.W.2d 830, 837 (N.D. 1989).
[¶92] The court in Fields does not engage in any analysis of how traumatic it was for the defendant, who purportedly kept odd hours, to have the search conducted during the nighttime. North Dakota law does not recognize "he was awake anyway" or "it was just barely nighttime" exceptions to its requirements for nighttime search warrants. 2005 ND 15.
[¶93] 2. Good Faith.
[¶94] The State may attempt to argue the "good faith' exception as grounds for not suppressing evidence. If such argument is attempted, it should be noted that Defendant's Motion to Suppress is made in part under the North Dakota Constitution. Although the "good faith" exception can apply to the Federal Constitution, the North Dakota Supreme Court has not held that the "good faith" exception applies to North Dakota Constitution. State v. Lunde, 2008 ND 142, ¶¶ 17 19, 752 N.W.2d 630 (N.D. 2008). It is "axiomatic (that) our state constitution can provide greater protections that its federal counterpart". State v. Herrick, 1999 ND 1, ¶ 22, 588 N.W.2d 847 (N.D. 1999); State v. Ringquist, 433 N.W.2d 207, 212 (N.D. 1988); State v. Matthews, 216 N.W.2d 90, 99 (N.D. 1974).
[¶95] The "good faith" exception should not be applied to the North Dakota Constitution because the North Dakota Supreme Court has recognized that unconstitutional entries into the home are the primary constitutional violations. City of Jamestown v. Dardis, 2000 ND 186, ¶ 8, 618 N.W.2d 495 (N.D. 2000).
[¶96] Further, the above referenced prohibitions against nighttime warrants are designed to protect our citizens from trauma. Fields, 2005 ND 15.
[¶97] Further, the North Dakota Legislature adopted and the North Dakota Supreme Court uses the standard of "probable cause" to assess level of suspicion for exigencies justifying the issuance of a no-knock warrant, higher than the Federal standard. State v. Van Beek, 1999 ND 53, ¶ 22, 591 N.W.2d 112 (N.D. 1999).
[¶98] Further, to enforce no penalty against law enforcement when they act in violation of clearly established caselaw from our State's highest court and our State's Rules of Criminal Procedure, would undermine the integrity of our State's judicial system. See Fields, 2005 ND 15, Rule 41.
[¶99] Further, as evidenced by the present case, North Dakota law enforcement is not sufficiently deterred by the above referenced prohibitions. Adding the "good faith" exception to the North Dakota Constitution would erode the already insufficient deterrence of the above referenced prohibitions.
[¶100] For the aforementioned reasons, the "good faith" exception should not be applied to the North Dakota Constitution.
[¶101] Even if this Court determines that "good faith" analysis is authorized under the North Dakota Constitution, the good faith exception is not present in this matter.
[¶102] The North Dakota Supreme Court, in interpreting the Federal "good faith" exception, has determined that when officers rely on then-existing caselaw or are inappropriately granted a search warrant in a marginal case, the federal "good faith" exception may be present. State v. Utvick, 2004 ND 36, ¶¶ 32 -33, 675 N.W.2d 386 (N.D. 2004) (finding that although officer's reference to flushing history did not establish probable cause for no-knock warrant, this reference made the officer's belief in the validity of the warrant reasonable); State v. Hughes, 1999 ND 24, ¶ 8, 589 N.W.2d 912 (N.D. 1999) (finding that officer's reliance on then-existing caselaw reasonable).
[¶103] This is not a marginal case, and long established caselaw indicates that the issuance and/or execution of the nighttime warrant was unlawful and unconstitutional. Fields, 2005 ND 15, N.D.R.Crim.P. 41 What's more, at the Hearings on Defendant's Motion to Suppress and Supplemental Motion to Suppress, Officer Graham did not even explain his awareness of caselaw and N.D.R.Crim.P 41 prior the obtaining and executing the nighttime search warrant. [See generally Testimony of Officer Graham, TSH 6 18, TSSH 39 -54.]
[¶104] The "good faith" exception is also not present because the nighttime provision was clearly obtained in violation of N.D.R.Crim.P 41 given that the request for this provision was not included in the Application or sworn, recorded statements to the issuing judge.
[¶105] The "good faith" exception is also not applicable because of the above referenced omissions, mischaracterization, and false statement in the Application submitted by Officer Graham.
[¶106] The following are four situations where the good faith exception does not apply:
"1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned her 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 (N.D. 1999) (citing and quoting in part, United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
[¶107] The circumstances of the present case indicate that (1) Judge Hagar was misled by false information intentionally or negligently given by Deputy Graham and/or omitted information intentionally or negligently omitted by Deputy Graham; (2) the warrant was based on an Application so lacking in indicia of probable cause and/or indicia of probable cause for the nighttime provision as to render official belief in its existence entirely unreasonable; (3) Judge Hagar issued a warrant not authorized under North Dakota caselaw and included the nighttime provision without a recorded or sworn request or legal rationale to do so as required under N.D.R.Crim.P. 41, United States v. Decker, 956 F.2d 773, 777 (8th Cir. 1992); and (4) a reasonable law enforcement officer could not rely on this facially deficient warrant.
[¶108] Accordingly, even if determined to be an issue, the "good faith" exception does not apply due to each of the above referenced circumstances. State v. Lunde, 2008 ND 142 ¶¶ 16 -25 (discussing "good faith" exception and reversing district court's denial of suppression motion).
[¶109] 3. Inevitable Discovery.
[¶110] The State may attempt to argue the "inevitable discovery" exception as grounds for not suppressing evidence. The North Dakota Supreme Court has used the following two-part test for analyzing the inevitable discovery exception:
"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 State 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." State v. Handtmann, 437 N.W.2d 830, 838 (N.D. 1989) quoting State v. Phelps, 297 N.W.2d 769, 775 N.D. 1980).
[¶111] "Inevitable discovery" is not permitted in this case because law enforcement acted in bad faith to accelerate the discovery of evidence. First of all, law enforcement violated Rule 41 by obtaining the nighttime warrant with request(s) and/or information not contained in the Application or sworn, recorded statements. Second, the nighttime provision was not allowable under long existing North Dakota caselaw. Fields, 2005 ND 15. Also, there are the above referenced omissions, mischaracterization, and false statement in Application submitted by Officer Graham.
[¶112] Accordingly, law enforcement acted in bad faith to accelerate the discovery of evidence.
[¶113] The "inevitable discovery" doctrine is also not applicable in this case because the State has not proven that the evidence would have been found without the unlawful activity and has not shown how the discovery of the evidence would have occurred. An assertion that officers could have "secured" the area and conducted the search during the daytime is merely an attempt to show how the evidence could have been discovered. However, "(a) showing that discovery might have occurred is entirely inadequate." State v. Handtmann, 437 N.W.2d 830, 838 (N.D. 1989). First, there was no testimony that officers actually would have done this if they did not have a nighttime warrant. [See generally TSH 3 - 34, TSSH 3 87.] Second, the State has not proven that law enforcement would be allowed to do this. If law enforcement does not provide the necessary probable cause for a "nighttime" warrant, law enforcement should not be able enter property during the nighttime and detain persons due to the existence of the warrant for many hours during the nighttime. If law enforcement were allowed to do this, there would be no point to North Dakota's nighttime warrant requirements.
[¶114] The North Dakota Supreme Court has ruled that "the inevitable-discovery doctrine may not be applied to encourage shortcuts by law-enforcement officials which eliminate a neutral and detached magistrate's probable-cause determination." Id. Ruling that the "inevitable discovery" doctrine is present in this case would render North Dakota's protections against nighttime searches moot and encourage short-cuts by law enforcement.
[¶115] Accordingly, the "inevitable discovery" doctrine is not applicable in this case.
[¶116] IV. THE TRIAL COURT ERRED IN DENYING DEFEDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AND IN FINDING HOLLY GUILTY.
[¶117] If Defendant's Motion to Suppress or Supplemental Motion to Suppress were granted, there would exist insufficient evidence for any of the charges, and all of charges against Holly must ultimately be dismissed. However, even if this Court affirms the trial court's denial of Defendant's Motions to Suppress, it is still argued that all of the Judgments in the above referenced matters should be reversed due to insufficient evidence.
[¶118] N.D.C.C. § 19-03.1-23(7) indicates that it is illegal to willfully possess a controlled substance, "unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this chapter". The issue of whether the substance was obtained pursuant to a valid prescription is an element of possession of controlled substances charges under § 19-03.1-23(7) and, as a result, is also an element of possession of drug paraphernalia charges under N.D.C.C. § 19-03.4-03, which criminalizes the possession of drug paraphernalia used in relation to controlled substances which are illegal under chapter 19-03.1. Accordingly, whether a defendant had valid prescription is not a defense or affirmative defense under Chapter 12.1-05, which would require proof from the defendant.
[¶119] Accordingly, as an element of the alleged offenses, the State was required to prove beyond a reasonable doubt that the substances were not "obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this chapter." § 19-03.1-23(7).
[¶120] Although Officer Graham testified that Holly never presented him with a prescription for Klonopin/Clonazepam and that Holly never told him that he had a prescription for Clonazepam. [TBT 43 44.] There was no testimony at trial indicating that Holly was ever asked if he had prescriptions for any of the allegedly illegal substances. [See generally TBT 3 114.] There was also no testimony at trial that Holly ever stated that he did not have prescriptions for the allegedly illegal substances. [Id.] There also was no testimony or report at trial indicating Holly's prescriptions or lack thereof. [Id.]
[¶121] It appears that the only evidence at trial which addresses specifics of how Holly obtained the substances, were statements attributed to Holly indicating that he paid $ 250.00 for an ounce of marijuana and that he had found the Clonazepam "along the roadway somewhere". [TBT 35, 59.]
[¶122] "The State must prove each of the elements of the offense charged beyond a reasonable doubt." State v. Plentychief, 464 N.W2d 373, 376 (N.D. 1990). Given the lack of any specific evidence regarding whether Holly had prescriptions, there was insufficient evidence to sustain the verdicts in Counts 1 through 5. Accordingly in regard to counts 1 through 5, the trial court erred in denying Defendant's Motion for Judgment of Acquittal and in finding Holly guilty.
[¶123] In regard to counts 6 and 7, which relate to Clonazepam and Clonazepam Paraphernalia, it may be argued that Officer Graham's testimony that Holly never presented him with a prescription for Klonopin/Clonazepam and that Holly never told him that he had a prescription for Clonazepam would provide grounds for sustaining the verdicts in counts 6 and 7. However, it is argued that such an argument is unavailing because the issue of whether Holly had a prescription is an element of the offense, not a defense or affirmative defense which would require Defendant present evidence on the issue. The State may argue that Holly's alleged statement that he found the Clonazepam "along the roadway somewhere" would provide grounds for sustaining the verdicts in counts 6 and 7. It is argued that this argument is unavailing because there is a lack of context relating to this statement and no other specific proof that Holly did not have a prescription for Clonazepam. Even though inferences can be drawn from the above referenced evidence, it is argued that there was not proof beyond a reasonable doubt that Holly did not have a prescription for the Clonazepam. State of North Dakota v. Vantreece, 2007 ND 126, 736 N.W.2d 428 (N.D. 2007) (reversing gross sexual imposition judgment and finding that there was not substantial evidence that the defendant used force despite any inferences which could potentially be drawn from, among other things, the defendant cutting a hole in the alleged victim's pajamas).
[¶124] Accordingly, it is argued that in regard to counts 6 and 7, the trial court erred in denying Defendant's Motion for Judgment of Acquittal and in finding Holly guilty.
[¶125] Also, in regard to counts 2 and 3, the Lab Report identified a substance found as Testosterone Propionate. [TBT 48, exhibit # 19, Index # 108.] Officer Graham also testified that Holly also told him that Propionate was a Schedule I drug and that it allowed him to lift 600 pounds. [TBT 36.] However, there was no testimony regarding the specific makeup of the substance. [See generally TBT 3 114.] Under N.D.C.C. § 19-03.1-09(7), it appears that a number of different types of testosterone are listed as controlled substances. However, Testosterone Propionate does not appear to be referenced to by the name "Testosterone Propionate". Accordingly, in specific regard to counts 2 and 3, it is argued that the trial court erred in finding denying Defendant's Motion for Judgment of Acquittal and finding Holly guilty.
[¶126] V. THE TRIAL COURT ERRED IN FINDING HOLLY GUILTY OF CLASS "C" FELONY POSSESSION OF MARIJAUANA IN AN AMOUNT MORE THAN ONE OUNCE AS A LESSER INCLUDED OFFENSE OF THE CHARGE OF POSSESSION OF MARIAJUANA WITH INTENT TO DELIVER.
[¶127] The above referenced matter was tried to the Bench, not a Jury. [See generally TBT 3- 114.] Judge McLees found Holly not guilty on Count 1, Possession of Marijuana with Intent to Deliver. However, Judge McLees found Holly guilty of the charge of Possession Marijuana in an Amount More than One Ounce. [A 49 -53.] Neither the State nor Defendant requested Judge McLees to consider a lesser included charge. [See generally TBT 3- 114.] Also, Judge McLees did not inform the parties that he may consider a lesser included charge prior to announcing his decision. [Id.] [¶128] Judge McLees erred in finding Holly guilty of Class "C" felony Possession Marijuana in an Amount More Than One Ounce. First, although in State v. Morris, 316 N.W.2d 80 (N.D. 1982) it was held that the court properly considered a lesser included charge in a bench trial, the lesser included offense in that case was requested by the State. In the present matter, neither party requested a lesser included offense. [Id.] Neither party was made aware that the Court was considering a lesser included offense when making its final arguments at trial. [Id.] It is argued that this lack of notice violates Defendant's Constitutional rights to notice and an opportunity to be heard. Fifth, Sixth and Fourteenth Amendment to the United States Constitution and Article I § 12 of the North Dakota Constitution. [¶129] Regardless of whether it is potentially appropriate for a judge to find a defendant guilty of any lesser included offense in the above referenced manner, Possession Marijuana in an Amount More Than One Ounce quite simply is not a lesser included offense of the charge of Possession of Marijuana with Intent to Deliver. In State v. Keller, 2005 ND 86, ¶ 31, 695 N.W.2d 703, the North Dakota Supreme Court articulates our State's law on lesser included offenses, stating, "(o)ur law on lesser included offense is this: We apply an elements-of-the-offense analysis. For an offense to be a lesser included offense, it must be impossible to commit the greater offense without committing the lesser." See also N.D.C.C. § 12.1-01-04(15); N.D.R.Crim.P. 31(c). [¶130] It is possible to commit the offense of Possession of Marijuana with Intent to Deliver without committing the offense Possession Marijuana in an Amount More than One Ounce. [¶131] Accordingly, it is requested that this vacate the Judgment in Count 1 and direct that a Judgment of Acquittal be entered for Count 1.
[¶132] CONCLUSION
[¶133] For the aforementioned reasons it is requested that this Court reverse and vacate the Judgments, reverse the trial court's denials of Defendant's Motion to Suppress and Supplemental Motion to Suppress, and remand for entry of judgments of acquittal for all counts. Alternatively, if the Court affirms some Judgments, but not others, remand for resentencing is requested.
| Dated this 8th day of November, 2012. | ||||||||
| Eric P. Baumann, ND Bar ID #05690 | ||||||||
| ND Public Defenders' Office--Minot | ||||||||
| Attorneys for Defendant/Appellant | ||||||||
| 11 First Ave. S.W. | ||||||||
| Minot, ND 58701 | ||||||||
| (701) 857-7750 | ||||||||