State v. Odum , 925 N.W.2d 451 ( 2019 )

Filed 4/11/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 105
State of North Dakota, Plaintiff and Appellant
v.
Perry Wayne Odum, Defendant and Appellee
No. 20180384
Appeal from the District Court of Richland County, Southeast Judicial District,
the Honorable Mark T. Blumer, Judge.
REVERSED.
Opinion of the Court by VandeWalle, Chief Justice.
Casey W. Moen, Assistant State’s Attorney, Wahpeton, ND, for plaintiff and
appellant.
Mark A. Meyer, Wahpeton, ND, for defendant and appellee.
State v. Odum
No. 20180384
VandeWalle, Chief Justice.
[¶1] The State appealed from an order suppressing evidence and dismissing all
charges against Perry Wayne Odum. We conclude the district court erred in finding
probable cause for the search warrant did not exist. We reverse.
I
[¶2] On May 9, 2018, drug task force officers searched the garbage can in front of
Odum’s residence based on an anonymous tip that Odum had been out of town and
came back “with a quantity of marijuana.” The garbage can was “located in a manner
where it would be regularly retrieved by the garbage truck” on the residence’s
regularly scheduled garbage pickup day. During the garbage search, officers found
two garbage bags containing zig zag rolling papers, several empty, labeled plastic
packages and tubes, and green, leafy flakes. The packages and tubes were
commercially labeled as containing either marijuana or THC and indicated that they
appeared to have been legally sold in another state.
[¶3] Based on the anonymous tip and evidence found during the garbage search
officers applied for a search warrant for Odum’s residence on May 11, 2018. A
district judge found there was probable cause and issued a search warrant. On May
17, 2018, while executing the warrant, officers found more than two dozen firearms
as well as items related to the sale and distribution of marijuana.
[¶4] The State charged Odum with possession of a controlled substance with intent
to manufacture or deliver and with possession of a firearm by a convicted felon.
Odum moved to suppress the evidence gathered during the search of his residence and
to dismiss all charges against him, arguing probable cause did not exist to issue the
search warrant. A different district judge found probable cause for the search warrant
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did not exist and granted Odum’s motions to suppress and dismiss. The State filed a
notice of appeal and prosecutor’s statement under N.D.C.C. § 29-28-07(5).
II
[¶5] 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. State v. Apland, 2015 ND 29, ¶ 6, 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. “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.”
Id. “The standard of proof necessary to establish guilt at trial is not necessary to
establish probable cause.” State v. Laverdure, 2019 ND 72, ¶ 7 (quoting State v.
Johnson, 2011 ND 48, ¶ 10, 795 N.W.2d 367). This Court will not disturb a
magistrate’s conclusion that probable cause exists if there is a substantial basis for that
conclusion. Apland, at ¶ 6. Our review of the validity of a search warrant is
independent of the trial court’s determination. State v. Schmalz, 2008 ND 27, ¶ 13,
744 N.W.2d 734.
[¶6] We review the validity of a search warrant using the totality-of-the-
circumstances approach, consider all information for probable cause together, and
test affidavits executed in support of a warrant in a common sense and realistic
fashion. Biwer, 2018 ND 185, ¶ 5, 915 N.W.2d 837. “Conduct which is seemingly
innocent may give rise to probable cause. The relevant inquiry is not whether
particular conduct is innocent or guilty, but the degree of suspicion that attaches to
particular types of noncriminal acts.” Id. at ¶ 6 (internal quotations omitted).
“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
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heard, what they know, and what they observed as trained officers.” 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.
[¶7] The magistrate issuing a search warrant 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. This Court will resolve a doubtful or
marginal case in favor of the issuing magistrate’s determination. Id.
A
[¶8] The State argues that under the totality-of-the-circumstances approach,
probable cause existed for the search warrant for Odum’s home. During the
application for a search warrant, an officer testified that he searched Odum’s garbage
after the drug task force received an anonymous tip. The anonymous tip only stated
that Odum had recently returned from out of town “with a quantity of marijuana.”
While insufficient to establish probable cause on its own, the anonymous tip “adds an
additional piece or layer to other evidence supporting the existence of probable
cause.” Laverdure, 2019 ND 72, ¶ 9.
[¶9] Officers obtained additional evidence supporting probable cause during the
search of Odum’s garbage. In one garbage bag, officers found “three plastic packages
with labels indicating the contents of the packages [had] contained THC” and four
plastic tubes with “labels indicating the content of the tubes [had contained] THC and
marijuana.” An officer testified that a second garbage bag “contained a plastic
package with a label indicating the contents of the package it contains THC and it also
contained green leafy flakes appearing to be marijuana.” Also included in the second
garbage bag were zig-zag paper packages and a plastic tube “containing a label
indicating the contents [had] THC and a pre-rolled marijuana cigarette.” The officer
stated the labeled packages and tubes “were professional packages that you could buy
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from a store or on-line from a state where it’s legal” and “appeared [to be] from a
state where it is legal, like in the State of Washington one indicated.”
[¶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.” Laverdure, 2019 ND 72, ¶ 10
(quoting State v. Jones, 2002 ND 193, ¶ 17, 653 N.W.2d 668). “Probable cause
demands not that an officer be sure or certain but only that the facts available to a
reasonably cautious man would warrant a belief that certain items may be
contraband.” State v. Doohen, 2006 ND 239, ¶ 12, 724 N.W.2d 158. Here, the search
of the garbage placed on the street outside of Odum’s home revealed empty packaging
and tubes with labels stating they contained THC and marijuana. Inside one package
were green, leafy flakes which, based on the officer’s training and experience,
appeared to be marijuana. Given the available facts, a reasonably cautious person in
the officer’s position could believe the green, leafy flakes were marijuana. Combined
with the anonymous tip and the garbage can’s location, the officer’s reasonable belief
that the garbage contained drug residue was sufficient for the judge that issued the
warrant to find probable cause.
[¶11] Odum contends rolling papers, empty plastic packages and tubes, and labels
denoting marijuana and THC content are legal to own and do not rise to the level of
probable cause. “The relevant inquiry is not whether particular conduct is innocent
or guilty, but the degree of suspicion that attaches to particular types of noncriminal
acts.” State v. Thieling, 2000 ND 106, ¶ 9, 611 N.W.2d 861. Rolling papers are not
illegal, but are commonly known to be used to roll marijuana cigarettes. Drug
paraphernalia, including packaging and objects used to ingest, inhale, or otherwise
introduce marijuana into the body, are illegal. See N.D.C.C. § 19-03.4-01(9), (10).
The packaging found in the garbage was labeled as containing THC or marijuana,
including marijuana cigarettes. While the items may have an innocent explanation,
and contained a legal substance when purchased in another state, the judge that issued
the warrant relied on “common knowledge” and common sense in finding probable
4
cause that contraband would be found in the house based on the evidence from the
garbage search.
[¶12] This case is distinguishable from State v. Kieper, where this Court found
common household items were not enough to support a finding of probable cause.
2008 ND 65, 747 N.W.2d 497. In Kieper, the application for a search warrant was
based on common household items that were possibly being used for an illegal
purpose. Id. at ¶ 10. Unlike the butter knives and ripped plastic baggies in Kieper,
packaging labeled as containing THC and marijuana are not common household items
because the packaging’s purpose is to contain a substance that is illegal in North
Dakota. Evidence that is insufficient to establish guilt, can still be “sufficient to
warrant a person of reasonable caution to believe the contraband or evidence sought
would probably be found in the place to be searched.” State v. Duchene, 2001 ND 66,
¶ 15, 624 N.W.2d 668. The presence of the labeled packages and tubes in the garbage
added a layer to the totality of the circumstances for the court to consider in
determining if probable cause existed.
[¶13] Odum also argues there is a strong inference that the marijuana contained in
the labeled packaging was used in a state where it was legal to do so.1 The presence
of the packaging in a garbage can in North Dakota supports an equally strong
inference that the marijuana was possessed or used in North Dakota, where it is
illegal. See N.D.C.C. § 19-03.1-05; see also N.D.C.C. § 19-03.4-01(9). Additionally,
the out-of-state labels on the packaging corroborated the anonymous tip that Odum
had been out of town and returned “with a quantity of marijuana.” The green, leafy
flakes in the garbage, which the officer stated “appeared to be marijuana” added
another layer to the totality of the circumstances. Probable cause only requires “a
1
At the time of the garbage search in May 2018, North Dakota did not allow
recreational marijuana and had no operational medical marijuana dispensaries.
N.D.C.C. ch. 19-24.1 (establishing medical marijuana in North Dakota);
https://www.ndhealth.gov/mm/PDF/Status_Update/Status_Update_3.14.19.pdf. See
State v. Kuruc, 2014 ND 95, ¶¶ 25-37, 846 N.W.2d 314 (out-of-state medical
marijuana prescriptions may not be used as an absolute defense to possession of
marijuana).
5
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.
When viewing the evidence under the totality of the circumstances, the judge that
issued the warrant was reasonable in finding probable cause existed.
B
[¶14] In its order granting Odum’s motions to suppress and dismiss, the district court
found that no nexus existed between the evidence found in the garbage and Odum or
his residence. The court based this finding on the officers not discovering indicia of
residency in the garbage bags containing evidence. Probable cause requires “a nexus
between the place to be searched and the contraband sought.” Biwer, 2018 ND 185,
¶ 12, 915 N.W.2d 837. Circumstantial evidence may be used to establish that nexus.
Id.
[¶15] Odum argues this Court has always required indicia of residency to establish
a nexus, even in cases of single-family residences. To support his argument, Odum
relies on Schmalz, where this Court upheld a magistrate’s probable cause
determination based on a garbage search revealing contraband and indicia of
residency. 2008 ND 27, ¶ 4, 744 N.W.2d 734. Odum’s reliance on Schmalz is
misplaced. In Schmalz, the searched garbage cans were located outside of the
defendant’s residence in a trailer park. Id. However, it was unclear if the garbage
can’s location was typically used as a disposal point for the entire trailer park or just
for the defendant’s residence. Id. at ¶ 15. Further, no testimony established how many
trash cans were on the sidewalk for disposal or whether the indicia of residency was
found in the same garbage bag as the other contraband. Id. This Court described the
facts surrounding the garbage search as “thin” and stated the nexus was
“questionable,” ultimately upholding the finding of probable cause under the rule that
we affirm “marginal” or “doubtful” cases in favor of the magistrate. Id. at ¶¶ 16-17.
[¶16] This Court recently addressed a more analogous fact pattern and upheld a
nexus without indicia of residency in the garbage. See Laverdure, 2019 ND 72. In
Laverdure, police searched the garbage can placed on the street outside of the
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defendant’s residence and found a broken glass pipe with methamphetamine residue,
a small clear bag containing white powdery residue, and four used hypodermic
syringes. Id. at ¶ 10. This Court held that, combined with anonymous tips and the
garbage can’s location, drug residue in the garbage was sufficient for the magistrate
to find probable cause. Id.
[¶17] Here, officers received an anonymous tip stating that Odum recently returned
from out of town “with a quantity of marijuana.” Officers obtained Odum’s address
from his drivers license and conducted a garbage search. The garbage can searched
by the officers “was located in a manner where it would be regularly retrieved by the
garbage truck” on a regularly scheduled garbage pickup day. During the application
for a search warrant, the court asked how the officers verified the residence belonged
to Odum. The officer stated he had “obtained information from Mr. Odum’s drivers
license that he does reside at [the residence]” and the residence’s mailbox “indicated”
Odum’s last name. This information, along with the garbage can’s location,
established the required nexus between the contents of the garbage and the residence.
III
[¶18] Under the totality of the circumstances, sufficient probable cause existed to
support a search warrant for Odum’s residence. Because sufficient probable cause to
support the search warrant existed, the district court erred in granting Odum’s motions
to suppress evidence and dismiss all charges. We reverse the order suppressing
evidence and dismissing all charges.
[¶19] Gerald W. VandeWalle, C.J.
Jon J. Jensen
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
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