State v. Laverdure , 2019 ND 72 ( 2019 )

Filed 3/13/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 72
State of North Dakota, Plaintiff and Appellee
v.
David John Laverdure, Defendant and Appellant
No. 20180228
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Susan L. Bailey, Judge.
AFFIRMED.
Opinion of the Court by VandeWalle, Chief Justice.
Joshua J. Traiser, Assistant State’s Attorney, Fargo, ND, for plaintiff and
appellee.
Richard E. Edinger, Fargo, ND, for defendant and appellant; submitted on
brief.
State v. Laverdure
No. 20180228
VandeWalle, Chief Justice.
[¶1] David John Laverdure appealed from a criminal judgment entered upon a
conditional guilty plea to possession with intent to manufacture or deliver a controlled
substance in violation of N.D.C.C. § 19-03.1-23(1)(a). We conclude the district court
properly denied Laverdure’s motion to suppress evidence and we affirm.
I
[¶2] Relying on information from a concerned citizen and a “source of information”
about short term traffic and potential heroin distribution, a Fargo detective took part
in a garbage search at Laverdure’s residence on July 11, 2017. The searched garbage
cans had been placed on the street in front of the residence in a City of Fargo
container for the residence’s usual garbage pickup day. The garbage contained two
sealed grocery bags and a sealed trash bag. A search of the bags revealed a broken
glass pipe with methamphetamine residue, a small clear bag containing white
powdery residue, and four used hypodermic syringes.
[¶3] On July 12, 2017, the detective applied for a search warrant for Laverdure’s
residence. In his application and affidavit in support of the search warrant, the
detective described the two tips he received and the results of the garbage search. The
affidavit did not state if anyone had observed the garbage container being placed on
the street. The affidavit also did not state if the garbage contained mail or other items
connecting it to Laverdure or the residence. The magistrate issued the search warrant.
While executing the warrant, narcotics and related paraphernalia were found.
Laverdure was arrested and charged with possession with intent to manufacture or
deliver a controlled substance in violation of N.D.C.C. § 19-03.1-23(1)(a).
[¶4] Laverdure moved to suppress the evidence alleging a lack of probable cause
to issue the search warrant. The district court denied the motion, finding sufficient
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probable cause existed for the search warrant. Laverdure entered a conditional plea
of guilty, reserving the right to appeal the district court’s denial of the motion to
suppress evidence.
II
[¶5] “We affirm a court’s decision denying a motion to suppress if, after resolving
conflicting evidence in favor of affirmance, there is sufficient competent evidence
fairly capable of supporting the court’s findings and the decision is not contrary to the
manifest weight of the evidence.” State v. Apland, 2015 ND 29, ¶ 5, 858 N.W.2d 915.
“Whether probable cause exists to issue a search warrant is a question of law which
is fully reviewable on appeal.” State v. Biwer, 2018 ND 185, ¶ 5, 915 N.W.2d 837.
[¶6] “Probable cause is required for a search warrant under the Fourth Amendment
to the United States Constitution, and Article 1, Section 8 of the North Dakota
Constitution.” Apland, 2015 ND 29, ¶ 6, 858 N.W.2d 915 (quoting State v. Damron,
1998 ND 71, ¶ 5, 575 N.W.2d 912). Determining if probable cause for a search
warrant exists is a question of law and this Court will not disturb a magistrate’s
conclusion that probable cause exists if there is a substantial basis for that conclusion.
Id. “Probable cause to issue a search warrant 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.” Biwer, 2018 ND 185, ¶ 5, 915 N.W.2d 837.
[¶7] “The standard of proof necessary to establish guilt at trial is not necessary to
establish probable cause.” State v. Johnson, 2011 ND 48, ¶ 10, 795 N.W.2d 367. “To
establish probable cause, there must be a nexus between the place to be searched and
the contraband sought. Circumstantial evidence may be used to establish that nexus.”
Biwer, 2018 ND 185, ¶ 12, 915 N.W.2d 837. “Although each piece of information
may not alone be sufficient to establish probable cause and some of the information
may have an innocent explanation, probable cause is the sum total of layers of
information and the synthesis of what the police have heard, what they know, and
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what they observed as trained officers.” State v. Schmalz, 2008 ND 27, ¶ 11, 744
N.W.2d 734. “We also recognize courts must take into account inferences and
deductions that a trained and experienced officer makes.” Id.
[¶8] The magistrate is to make a practical, commonsense decision if probable cause
exists to search a particular place. Apland, 2015 ND 29, ¶ 6, 858 N.W.2d 915. “We
apply the totality-of-the-circumstances test to review whether information before the
magistrate was sufficient to find probable cause, independent of the trial court’s
findings.” Id. We will resolve a doubtful or marginal case in favor of the magistrate’s
determination. Id.
A
[¶9] In this case, probable cause was based on evidence gathered during the garbage
search and citizen tips about short term traffic and the distribution of heroin at the
residence. “Citizen informants are presumed to be a reliable source of information.”
State v. Ebel, 2006 ND 212, ¶ 15, 723 N.W.2d 375. While insufficient to establish
probable cause on its own, the evidence from an anonymous informant adds an
additional piece or layer to other evidence supporting the existence of probable cause.
Schmalz, 2008 ND 27, ¶ 14, 744 N.W.2d 734.
[¶10] “Where drug residue is discovered in the garbage, it is well established that
affidavits based almost entirely on the evidence garnered from garbage may be
sufficient to support a finding of probable cause.” State v. Jones, 2002 ND 193, ¶ 17,
653 N.W.2d 668; see State v. Duchene, 2001 ND 66, ¶¶ 15-17, 624 N.W.2d 668;
State v. Johnson, 531 N.W.2d 275, 278 (N.D. 1995); and State v. Erickson, 496
N.W.2d 555, 559 (N.D. 1993). In State v. Herrick, we considered if probable cause
existed where garbage was placed near an alley on the edge of the defendant’s
property, foot prints were found between the house and the garbage cans, and a search
of the trash cans revealed drug contraband. 1997 ND 155, ¶ 2, 567 N.W.2d 336.
Based on the contraband found during the garbage search, we determined it was
reasonable for the magistrate to conclude contraband would probably be found at the
residence. Id. at ¶ 15; see also Johnson, 531 N.W.2d at 278-79. Here, the search of
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the garbage placed on the street outside of Laverdure’s residence revealed a broken
glass pipe with methamphetamine residue, a small clear bag containing white
powdery residue, and four used hypodermic syringes. Combined with the tips
received by the detective and the garbage can’s location, this contraband was
sufficient for the magistrate to find probable cause for a search warrant.
B
[¶11] Relying on People v. Burmeister, 728 N.E.2d 1260 (App. Ct. Ill. 2000),
Laverdure argues probable cause for the search warrant did not exist because an
insufficient nexus existed to connect the drug contraband found in the garbage search
to him or his residence. Laverdure alleges Burmeister provides the proper result
because all garbage search cases decided by this Court have included some type of
indicia of residency directly linking the garbage to the defendant. However, our
jurisprudence does not require the same result as Burmeister. While many of our cases
addressing probable cause from garbage searches include indicia of residency, the
indicia alone is not the reason this Court determined probable cause existed. See, e.g.,
Jones, 2002 ND 193, ¶ 17, 653 N.W.2d 668; Duchene, 2001 ND 66, ¶¶ 15-17, 624
N.W.2d 668; Johnson, 531 N.W.2d 275, 278 (N.D. 1995); and Erickson, 496 N.W.2d
555, 559 (N.D. 1993). Cases that relied on indicia of residency to find probable cause
generally involved situations where garbage was collected from multiple residences
in one location or where the facts of the case made the type of residence unclear. See
State v. Kieper, 2008 ND 65, ¶¶ 2, 11, 747 N.W.2d 497; see also Schmalz, 2008 ND
27, ¶ 4, 744 N.W.2d 734; State v. Lunde, 2008 ND 142, ¶ 7, 752 N.W.2d 630.
[¶12] In this case, the district court found a nexus between Laverdure’s residence and
the garbage after determining the residence was a single-family home and the garbage
was placed in the street for the residence’s regular pickup day. While the affidavit in
support of the warrant did not state if Laverdure’s residence was a single-family
home, it contained no information indicating the residence was a multi-family
residence or an apartment. Based on the record, the tips received by the detective, and
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common-sense inferences available to the magistrate, sufficient evidence existed to
establish a nexus between the garbage and Laverdure’s residence.
III
[¶13] Under the totality of the circumstances, sufficient competent information
existed in the detective’s affidavit for the magistrate to determine probable cause
existed for a search warrant of Laverdure’s residence. We affirm the judgment.
[¶14] Gerald W. VandeWalle, C.J.
Jerod E. Tufte
Daniel J. Crothers
Lisa Fair McEvers
Jon J. Jensen
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