IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|State of North Dakota,|
|Plaintiff-Appellee,||Supreme Court No. 20070159|
|District Court No. 09-06-K-02983|
|Marcus Steven Lunde,|
APPEAL FROM CRIMINAL JUDGMENT ENTERED MAY 21, 2007
CASS COUNTY DISTRICT COURT
EAST CENTRAL JUDICIAL DISTRICT
THE HONORABLE JOHN C. IRBY, PRESIDING
|Gary E. Euren|
|ND Bar ID #04052|
|Assistant State=s Attorney|
|Cass County Courthouse|
|211 Ninth Street South|
|P.O. Box 2806|
|Fargo, North Dakota 58108|
|Attorney for Plaintiff-Appellee|
[&1] TABLE OF CONTENTS
|Table of Contents||&1|
|Table of Cases and Other Authorities||&2|
|Statement of the Issues||&3|
|Statement of the Case||&7|
|Statement of Facts||&9|
|Standard of Review||&18|
|I.The Good Faith Exception should be recognized under North Dakota Constitution Article I, Section 8&21|
|II.There is no distinction between applying the Good Faith Exception to a legislatively created remedy or a judicially created remedy&31|
|III.The Good Faith Exception, if adopted under North Dakota Constitution Article I, Section 8, applies in the present case&33|
|Certificate of Service||&37|
[&2] TABLE OF AUTHORITIES
|FEDERAL CONSTITUTIONAL PROVISIONS:|
|U.S. Const. Amend. IV||&30|
|STATE CONSTITUTIONAL PROVISIONS:|
|N.D. Const. Art. I § 8||&30|
|Pa. Const. Art. I § 8||&30|
|UNITED STATE SUPREME COURT CASES:|
|Franks v. Delaware, 438 U.S. 154 (1978)||&22|
|United States v. Leon, 468 U.S. 897 (1984)||&22, 32, 34|
|City of Belfield v. Kilkenney, 2007 N.D. 44, 729 N.W.2d 120||&19|
|Commonwealth v. Edmonds, 586 A.2d 887, (Pa. 1999)||&23, 24, 25, 26, 27, 28, 29, 32|
|State v. Campbell, 2006 N.D. 168, 719 N.W.2d 374||&19|
|State v. Dodson, 2003 N.D. 127, 671 N.W.2d 825||&30|
|State v. Dunn, 2002 N.D. 189 653 N.W.2d 688||&19|
|State v. Haverluk, 2000 N.D. 178, 617 N.W.2d 652||&19|
|State v. Herrick, 1999 N.D. 1, 588 N.W.2d 847||&22, 27|
|State v. Ringquist, 433 N.W.2d 207 (N.D. 1988)||&30|
|N.D.R.Crim. P. 41||&28|
|Pa.R.Crim. P. 2003||&28|
[&3] STATEMENT OF THE ISSUES
[&4] I. Whether the Good Faith Exception should be recognized under North Dakota Constitution Article I, Section 8.
[&5] II. Whether there is any distinction between applying the Good Faith Exception to a legislatively created remedy or a judicially created remedy.
[&6] III. Whether the Good Faith Exception, if adopted under North Dakota Constitution Article I, Section 8, applies in the present case.
[&7] STATEMENT OF THE CASE
[&8] On August 3, 2006, the Defendant, Marcus Steven Lunde (hereinafter Defendant) was charged with various drug crimes as a result of law enforcement executing a search at his residence. (Appendix at 3.) On January 18, 2007, Defendant moved the court to suppress evidence based upon lack of probable cause to issue the search warrant. (App. at 5.) At the February 14, 2007 motion hearing, the Honorable John C. Irby (hereinafter "Judge Irby") orally issued his opinion that there was no probable cause for the Search Warrant, but that the Good Faith Exception applied and issued his order denying Defendant's motion. (App. at 26.) On March 16, 2007 an Order Denying the Defendants Motion to Suppress was filed. (App. at 6.) Subsequently, on May 21, 2007, Defendant entered a conditional guilty plea to the above drug charges and the court accepted his plea. (App. at 7.) A Criminal Judgment and Commitment was entered on May 31, 2007. (App. at 9.) On June 4, 2007, Defendant filed a timely Notice of Appeal and Request for Transcripts. (App. at 28-29.)
[&9] STATEMENT OF FACTS
[&10] Officer Jason Hicks, an investigator with the West Fargo Police Department ("Officer Hicks"), submitted an Application and Affidavit for Search Warrant, with an attached Exhibit B, to the Cass County District Court on August 3, 2006. (App. at 19-20.) Officer Hicks was seeking a search warrant for the residence located at 3240 9th St. W #309, in West Fargo, Cass County, North Dakota. (App. at 20.) The Honorable Cynthia Rothe-Seeger, District Court Judge and reviewing magistrate, determined there was probable cause and issued the search warrant on August 3, 2006. (App. at 19-20.)
[&11] On the same day Officer Hicks applied for the search warrant (August 3, 2006), he spoke to Special Agent Donald Burns of the Central Minnesota Drug Task Force ("SA Burns"). (App. at 19.) Officer Hicks learned that SA Burns and Detective Chuck Anderson with the Clay County Sheriff's Department ("Detective Anderson") spoke to a Confidential Informant, whose identity was known to SA Burns and Detective Anderson. Id.
[&12] The Confidential Informant told SA Burns and Detective Anderson the Confidential Informant became involved in a drug trafficking ring in December 2005, and associated with two persons: Glen Forehand and an individual known as "Slim." Id. The Confidential Informant identified "Slim" as the Defendant, Marcus Lunde, from a photograph. Id. The Confidential Informant described the general location of the Defendant's apartment building: off the Horace Road (now known as Sheyenne Street in West Fargo). Id. The Confidential Informant indicated he or she had never been inside of the Defendant's apartment, but had met the Defendant in the parking lot of the apartment building to conduct various drug trafficking transactions. Id. The Confidential Informant stated he or she would transfer money-gram receipts to the Defendant from drug transactions, and occasionally collect currency from the Defendant for money-gram transfer. Id. The Confidential Informant would also collect drug debts for the Defendant and then return the money to the Defendant at the Defendant's apartment. Id. The Confidential Informant kept a ledger, commonly referred to as a pay/owe sheet, for the Defendant to keep track of monies paid and owed for drug debts. Id.
[&13] The day before he applied for the search warrant (August 2, 2006), Officer Hicks was contacted by Detective Anderson, who was attempting to identify a person known as "Slim" who lived off the Horace Road. (App. at 20.) Officer Hicks suspected "Slim" was the Defendant who lived off the Horace Road because the West Fargo Police Department received an anonymous tip on July 21, 2006, that a person wanted for narcotics violations was staying with the Defendant. Id. Officers went to the Defendant's residence and were allowed to look inside for this person known as "CJ." Id. They did not find "CJ" in the apartment, but the Defendant told them he had not seen "CJ" since Sunday, July 16, 2006. Id.
[&14] Additionally, SA Burns had previously interviewed another person on July 20, 2006. Id. This person is referred to as a Cooperating Individual in Exhibit B. Id. The Cooperating Individual wished to remain nameless for personal safety and the safety of his family. Id. The Cooperating Individual was not seeking monetary gain or special consideration in any ongoing investigation in exchange for offering the information. Id. The Cooperating Individual was fully identified by SA Burns.
[&15] The Cooperating Individual indicated he or she lived with Nakia Harris for a short period of time. Id. Nakia Harris regularly associated with Glen Forehand, Jeremiah Pikkaraine, and a person known as "Slim." Id. The Cooperating Individual believed all of these persons were involved in trafficking of controlled substances. Id. The Cooperating Individual had seen Nakia Harris in possession of large amounts of marijuana and matter that the Cooperating Individual believed to be either cocaine or methamphetamine. Id.
[&16] SA Burns verified the information from the Cooperating Individual by reviewing a cell phone taken from Glen Forehand at the time he was arrested. Id. This cell phone contained a phone number for "Slim". Id. SA Burns also reviewed the jail telephone calls placed by Glen Forehand when he was in custody at the Todd County Detention Center. Id. These phone calls indicated Glen Forehand was attempting to contact "Slim" and advise him of his arrest. Id.
[&17] At the February 14, 2007, motion hearing, Judge Irby found there was not sufficient probable cause to issue the search warrant. (2/14/07 Transcript, page 17, lines 1-2). Judge Irby based its decision on an apparent lack of reliability of the Confidential Informant and Cooperating Information. (Tr, p.16, l1. 24-25). Judge Irby, however, applied the Good Faith Exception, reasoning there "certainly was no intention to give false information." (Tr, p.17, l1. 3-10). Further, Judge Irby found there was indicia of probable cause in the affidavit and that it was reasonable for law enforcement to rely on the affidavit and subsequent search warrant. (Tr, p.17, l1. 14-17). Judge Irby thereby refused to exclude evidence and denied the Defendant's motion to suppress. (Tr, p.17, l1. 24-25).
[&18] STANDARD OF REVIEW
[&19] The standard of review for a claimed violation of a constitutional right is de novo. City of Belfield v. Kilkenny, 2007 N.D. 44, &8, 729 N.W.2d 120 (citing State v. Campbell, 2006 N.D. 168, &6, 719 N.W.2d 374). When reviewing a district court's ruling on a motion to suppress, the Supreme Court defers to the district court's findings of fact and resolves conflicts and testimony in favor of affirmance. State v. Dunn, 2002 N.D. 189 &5, 653 N.W.2d 688 (citing State v. Haverluk, 2000 N.D. 178, &7, 617 N.W.2d 652).
[&21] Issue I. The Good Faith Exception should be recognized under North
Dakota Constitution Article I, Section 8.
[&22] It is true that a state constitutional provision can provide greater protection to its citizens than a federal counterpart. State v. Herrick, 1999 N.D.1&22, 588 N.W.2d 847. However, there is no need for such a distinction regarding the Good Faith Exception. Over the course of more than 200 years, the United States Supreme Court has developed a comprehensive body of case law regarding the warrant requirement of the Fourth Amendment. This includes strict protection of Fourth Amendment freedom from warrantless searches, exclusion of evidence obtained through improper search and seizure, the Franks v. Delaware, 438 U.S. 154 (1978) procedure for challenging warrants obtained through bad faith or reckless disregard by law enforcement, and, the Good Faith Exception in United States v. Leon, 468 U.S. 897 (1984). However, these four subjects must be looked upon as a whole because they work together to provide maximum protection to the citizenry while allowing law enforcement to enforce the law.
[&23] Defendant relies heavily on the historical underpinnings of the North Dakota Article I, Section 8 protection against unreasonable search and seizures. He especially follows the analysis of Pennsylvania in Commonwealth v. Edmonds, 586 A.2d 887, (Pa.1991), because there is some evidence that the North Dakota Constitutional Convention utilized the similar provision from the Pennsylvania Constitution to enact Article 1, Section 8 of the North Dakota Constitution. However, a thorough reading of Edmonds shows that the decision was grounded in both Pennsylvania case law and a specific Pennsylvania Rule of Criminal Procedure. Id., at 897 and 901. In North Dakota we have neither.
[&24] The Edmonds decision specifically held, regarding the case law:
"The history of Article I, Section 8, thus indicates that the purpose underlying the exclusionary rule in this Commonwealth is quite distinct from the purpose underlying the exclusionary rule under the 4th Amendment, as articulated by the majority in Leon." Id., at 897.
However at the time the exclusionary rule was embraced in Pennsylvania, we clearly viewed it as a constitutional mandate. Id. (citations omitted).
Moreover, as this Court has stated repeatedly in interpreting Article I, Section 8, that provision is meant to embody a strong notion of privacy, carefully safeguarded in this Commonwealth for the past two centuries. Id.
[&25] This is in direct contrast to the Leon decision. The Edmonds Court stated:
"[t]he United States Supreme Court in Leon made clear that, in its view, the sole purpose for the exclusionary rule under the 4th Amendment was to deter police misconduct. The Leon majority also made clear that, under the Federal Constitution, the exclusionary rule operated as 'a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.'" Id. (citations omitted).
[&26] The Edmonds Court then goes on to discuss how other state courts have either adopted or rejected the Good Faith Exception under their own constitutions. Id., at 899-900. It is interesting to note that the four states that rejected it were all initial thirteen colonies and states (New Jersey, New York, North Carolina, and Connecticut). Id., at 900.
[&27] My research has uncovered no similar reasoning in North Dakota caselaw of the interpretation of Article I, Section 8. In fact, this Court has said:
"The Pennsylvania Supreme Court asserts this is clear evidence that Pennsylvania has always viewed Article I, Section 8 as providing more protection than the Fourth Amendment, and therefore, adoption of Leon would be repugnant to their constitution. Id., at 899.
North Dakota precedent does not contain such clear guidance. While we certainly recognize privacy as an important right under Article I, Section 8 we have not unequivocally distinguished privacy as the major factor in applying the exclusionary rule to Article I, Section 8." Herrick at &25, 26. (citations omitted).
That is not to say that the North Dakota Supreme Court can not read in more expansive rights to the Article I, Section 8 protections; it simply means, to this point, it has not. Because Pennsylvania relies so heavily on its history of interpretation, its caselaw should not be controlling for North Dakota.
[&28] The Edmonds Court then discusses Pennsylvania Rules of Criminal Procedure. Id., at 901-903. Specifically the Court discusses Rule 2003:
(a) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavit.
(b) At any hearing on a motion for the return or suppression of evidence, or for suppression of the fruits of evidence, obtained pursuant to a search warrant, no evidence shall be admissible to establish probable cause other than the affidavits provided for in paragraph (a). Id., at 901.
North Dakota has a comparable provision to subdivision a, but not b. N.D.R.Crim.P. 41. Because Pennsylvania relies so heavily on Rule 2003, it should not be considered controlling for North Dakota's decision. The Edmonds Court stated:
"Rule 2003 thus serves to underscore the incongruity of adopting a good faith exception to the exclusionary rule in Pennsylvania. Although Rule 2003 is not constitutionally mandated by Article I, Section 8, as Milliken correctly explains, it reflects yet another expression of this Court's unwavering insistence that probable cause exist before a warrant is issued, and only those facts memorialized in the written affidavit may be considered in establishing probable cause, in order to eliminate any chance of incomplete or reconstructed hindsight." Id., at 903.
[&29] The Edmonds decision also contains an interesting dissent. Edmonds at 906-909. Justice McDermott disagreed completely with several of the conclusions of the majority. Specifically:
"Today we have abandoned the twenty-seven (27) year history of this Court's restrictive use of the exclusionary rule to only those instances where its application would deter misconduct by law enforcement authorities. Now that we have ignored that history and have decided to employ it even in cases where police officers have fulfilled their every obligation to protect the individual constitutional rights of citizens, I dissent.
Until this day we have dutifully followed the canons of the Fourth Amendment prescribed by the Supreme Court of the United States through hundreds of cases. We accepted, as we must, the rationale that police procedures had overstepped constitutional bounds and we imposed the sanction of suppression to dissuade illegal search. To teach the lesson, we were obliged to ignore a mountain of illegal contraband that otherwise was palpable indicia of guilt. There is no doubt that the social cost has been more than criminals freed to try again. It has generated a disbelief and a growing disrespect in the efficacy of law that stands mute in the presence of incontrovertible evidence of fire and lets the house burn down because the fireman arrived before he was properly called." Id., at 906-907. (citations omitted).
"The United States Supreme Court has made it abundantly clear that suppression of evidence seized without probable cause is not a constitutional right. This Court has made that clear as well. The United States Supreme Court has made it equally clear that suppression of evidence seized without probable cause is mandated to contain police action. Likewise, we have approved the suppression of evidence only where it will have the benefit of deterring similar police misconduct in the future." Id., at 907-908. (citations omitted).
"I would choose to accept the rationale of the Supreme Court and recognize the "good faith exception" of Leon to the exclusionary rule as have eighteen of our sister states. My opinion is not merely grounded in the absurdity of excluding this evidence, nor only upon the persuasiveness of Leon, but also because it is firmly grounded in Pennsylvania jurisprudence." Id., at 908. (citations omitted).
Thus, it appears that the Pennsylvania Supreme Court majority in Edmonds may have itself ignored some of the history of the Fourth Amendment jurisprudence of Pennsylvania.
[&30] The Defendant also makes an issue of how similar the provisions of the Fourth Amendment; Article I, Section 8 of North Dakota Constitution; and Article I, Section 8 of Pennsylvania Constitution are to each other. However, a comparison of the three shows that the North Dakota provision is much closer to the Fourth Amendment than to the Pennsylvania Constitution provision; and than the Pennsylvania Constitutional provision is to the Fourth Amendment:
U.S. CONSTITUTION: FOURTH AMENDMENT
The right of the people could be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized.
N.D. CONSTITUTION: ARTICLE I, SECTION 8
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.
PA.CONSTITUTION: ARTICLE I, SECTION 8
The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures; and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.
There are only four differences between the North Dakota provision and the Fourth Amendment (two of these are commas left out in the North Dakota provision). There are numerous differences between the Pennsylvania provision and the Fourth Amendment including a different use of words, a non use of words, and a reorganization of words. Therefore, by simple grammar, an argument could be made that this Court should interpret the North Dakota Constitutional provision in conformance with the Fourth Amendment. See, State v. Dodson, 2003 N.D. 187, 671 N.W.2d 825 (Sandstrom, J., concurrence); State v. Ringquist, 433 N.W.2d 207 (N.D. 1988) (VandeWalle, J., concurrence).
[&31] Issue II. There is no distinction between applying the Good Faith
Exception to a legislatively created remedy or a judicially
[&32] As the Defendant states in his brief, and the Edmonds Court so carefully articulated along with the Leon Court, the genesis of the search and seizure protection was the general warrants issued by the British government within the colonies. Precisely because of the protection afforded by the U.S. Constitution and the various state Constitutions regarding warrants, such general warrants and their abuses have been extremely rare from the beginning of this country. Such abuses as do happen occur in the context of a warrant being obtained for a specific reason with an alleged probable cause when no such probable cause exists or when the affidavit in support is defective as to particulars. However, it is unusual to see law enforcement present to a reviewing magistrate an affidavit and search warrant application so void of probable cause as to be considered an application for a general warrant. As stated in Issue I, this Court has never defined Article I, Section 8 as protecting privacy in the context of the exclusionary rule, and should not do so now.
[&33] Issue III. The Good Faith Exception, if adopted under North Dakota
Constitution Article I, Section 8, applies in the present case.
[&34] None of the four exceptions set forth in Leon apply in this case. The trial Judge's decision was simply that there was no probable cause to issue the warrant. There was no ruling, nor was there any evidence to indicate, that the issuing magistrate was mislead by false information intentionally or negligently given. Leon, at 914. Neither was there a ruling or evidence that the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner. Id. There also was no ruling or evidence that the affidavit was so lacking in indicia of probable cause as to render official belief of the existence entirely unreasonable. Leon, at 915. Finally, there was no ruling nor was there any evidence that a reasonable law enforcement officer could not rely on the facially deficient warrant. Leon, at 921. In fact, Judge Irby ruled that the opposite was true. The officers did act in good faith in relying on the search warrant. The statement of facts of this brief specifically and in a very detailed manner set forth the facts as they appeared in the affidavit. A close look at these facts show that law enforcement officers could rely on the magistrate's decision to issue a search warrant.
[&36] For the reasons stated above, the Court should determine that the Good Faith Exception as enunciated in Leon is appropriate under Article I, Section 8 of the North Dakota Constitution; that it does apply to this case; and that the decision of the trial court should be affirmed.
Respectfully submitted this 26th day of September, 2007.
|Gary E. Euren, NDID#4052|
|Assistant State=s Attorney|
|211 9th Street South|
|P.O. Box 2806|
|Fargo, North Dakota 58108|