State v. Duchene , 2001 N.D. LEXIS 78 ( 2001 )

MARING, Justice.

[¶ 1] Daniel Duchene appeals from criminal judgments entered upon a jury verdict finding him guilty of manufacture of a controlled substance and possession of drug paraphernalia. Because there was probable cause to support the search warrant issued by the magistrate, we affirm the judgments of the trial court.

I

[¶ 2] In April 1998, Game Warden Timothy Larson received information from an' anonymous informant that Daniel Duchene was growing marijuana in his home located in Turtle Lake, North Dakota. According to the informant, Duchene was growing the marijuana in a closet in his home. The informant, who contacted Warden Larson by telephone, did not explain to him how she acquired the information or how she came to know Duchene. Upon receiving the information from the anonymous informant, the warden contacted Deputy Lange of the McLean County Sheriffs Department. Thereafter Deputy Lang contacted Deputy Siurek of the South Sakakawea Narcotics Task Force (“SSNTF”).

[¶ 3] Together the two deputies conducted an independent investigation. On June 9, 1998, the deputies collected Du-chene’s garbage, which revealed two potting soil bags, one marijuana seed, eight marijuana stems, and a utility bill addressed to Duchene at his Turtle Lake address.

[¶ 4] On June 10, 1998, Deputy Siurek of the SSNTF applied to a magistrate for a warrant to search the Duchene home. In his affidavit supporting the application, Deputy Siurek stated Deputy Brian Lang of the McLean County Sheriffs Department had provided information that Du-chene was growing marijuana in his home. Deputy Siurek further stated Duchene had prior criminal convictions involving drugs. Finally, the deputy stated he and another deputy had collected Duchene’s trash on June 9, 1998. Deputy Siurek listed the items found in Duchene’s garbage. The deputy did not inform the magistrate of the anonymous informant.

[¶ 5] Based on the information provided, the magistrate granted law enforcement officers a search warrant to search Duchene’s home for evidence related to the use, possession or manufacture of marijuana. Officers searched Duchene’s home on June 11, 1998, and seized evidence, including five marijuana plants, drug paraphernalia, numerous marijuana seeds, and marijuana.

[¶ 6] On May 19, 1999, Duchene brought a motion to suppress the evidence seized from his home, arguing there was insufficient probable cause to issue the search warrant. An evidentiary hearing was held, and the trial court issued an order, dated June 2, 1999, denying Du-chene’s motion to suppress. The matter proceeded to trial, and on April 25, 2000, a jury convicted Duchene of manufacture of a controlled substance and possession of drug paraphernalia. Duchene appeals from the criminal judgments.

II

[¶ 7] Duchene contends there was insufficient evidence to support a finding of probable cause because Deputy Siurek failed to reveal that much of the information found in his affidavit was derived from an anonymous informant and was not corroborated. Duchene contends Deputy Si-urek misled the magistrate by this omission.

[¶ 8] Challenges to the issuance of a search warrant involving an allegation that the law enforcement officer made false or misleading statements in an affidavit, are governed by the standard set forth in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

[WJhere the defendant makes a substantial preliminary showing that a false statement knowingly 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 the same extent as if probable cause was lacking on the face of the affidavit.

“A false affidavit statement under Franks is one that misleads the neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate’s evaluation of whether or not there is probable cause.” State v. Rangeloff, 1998 ND 135, ¶ 9, 580 N.W.2d 593. The Franks standard also applies to statements that are misleading by omission. Id. Whether the defendant makes a substantial preliminary showing that a reckless or intentional falsity has been made is a finding of fact. State v. Tester, 1999 ND 60, ¶11, 592 N.W.2d 515. “A trial court’s findings of fact in preliminary proceedings of a criminal ease will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence.” Rangeloff, 1998 ND 135, ¶ 10, 580 N.W.2d 593 (citation omitted).

[¶ 9] Duchene did not request a Franks hearing. He was, however, provided a hearing on his motion to suppress evidence. Following the hearing, the court denied his motion to suppress and concluded there was sufficient probable cause to issue a search warrant.

[¶ 10] The State concedes Deputy Siurek failed to reveal that the source of the information at issue was derived from an anonymous informant. Misleading statements made knowingly and intentionally or with reckless disregard are stricken from the affidavit. Once the misleading statement is omitted, we examine the affidavit’s remaining contents and determine whether that information is sufficient to establish probable cause. Rangeloff, 1998 ND 135, ¶ 9, 580 N.W.2d 593 (citing State v. Rydberg, 519 N.W.2d 306, 308-09 (N.D.1994)).

[¶ 11] The Fourth Amendment to the United States Constitution and Article I, Section 8 of our state constitution require probable cause to issue a search warrant. Whether probable cause exists is a question of law. Rangeloff, 1998 ND 135, ¶ 16, 580 N.W.2d 593. We use the Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), totality-of-the-circumstances test to analyze whether information before the magistrate was sufficient to establish probable cause. Tester, 1999 ND 60, ¶ 17, 592 N.W.2d 515.

[¶ 12] “The magistrate should make a practical, common sense decision on whether probable cause exists to search that particular place.” State v. Wamre, 1999 ND 164, ¶ 5, 599 N.W.2d 268. We defer to the magistrate’s findings of fact if there is a substantial basis for the probable cause conclusion. State v. Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861.

[¶ 13] Probable cause to search does not demand the same standard of proof to establish guilt at trial. Wamre, 1999 ND 164, ¶ 6, 599 N.W.2d 268. “Probable cause to search exists ‘if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.’ ” Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861 (citation omitted). All the information presented to establish probable cause should be considered together, rather than analyzed in a piecemeal fashion. State v. Damron, 1998 ND 71, ¶ 6, 575 N.W.2d 912. “Circumstantial evidence may alone establish probable cause to support a search warrant.” Wamre, 1999 ND 164, ¶ 6, 599 N.W.2d 268. Information causing mere suspicion and warranting further investigation, however, is not probable cause. Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861.

[¶ 14] A search of Duchene’s garbage revealed two potting soil bags, one marijuana seed, eight marijuana stems, and a utility bill addressed to Duchene at his Turtle Lake address. Duchene contends this evidence does not materially differ from the evidence found in both State v. Lewis, 527 N.W.2d 658 (N.D.1995) and State v. Ennen, 496 N.W.2d 46 (N.D.1993). In Lewis, we held evidence the defendant ordered and received equipment consistent with indoor marijuana growing operations, evidence of increased electrical usage, and evidence the defendant insulated his windows with styrofoam and fiberglas was not sufficient to establish probable cause. 527 N.W.2d at 662. We explained the equipment could be consistent with growing legal plants; the increased electrical usage perhaps indicated the equipment was being used; and the insulation on the windows was consistent with “[w]eatherproof-ing one’s home for wjnter weather in North Dakota.” Id. In Ennen, the magistrate was provided with information the defendant was a known drug user; his water usage was unusually high for a three-month period; his electrical usage was slightly higher than normal; and his shades were drawn. 496 N.W.2d at 49. We held such evidence did not support a finding of probable cause because the defendant’s reputation as a “known drug user” was devoid of any evidentiary support; the increased three-month water usage was consistent with the summer water usage of most homeowners; the slight increase in electrical consumption was not unusual during the summer months; and shades drawn raised no significant inference. Id. at 50.

[¶ 15] The instant case is distinguishable. from both Lewis and Ennen because much of the evidence found in Duchene’s garbage is consistent with criminal activity. Even “seemingly innocent” conduct may give rise to probable cause. Thieling, 2000 ND 106, ¶9, 611 N.W.2d 861. “In making a determination 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.” Gates, 462 U.S. at 243-44 n. 13, 103 S.Ct. 2317. Potting soil bags are common household items and are consistent with noncriminal activity. The marijuana seed and marijuana stems found in Duchene’s garbage, however, are consistent with criminal activity. State v. Johnson, 531 N.W.2d 275, 279 (N.D.1995). These items while arguably insufficient to establish guilt are 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. Id.

[¶ 16] The affidavit to the magistrate also contained information concerning Duchene’s prior criminal history. When used in connection with other evidence, a suspect’s criminal history can support a determination of probable cause. State v. Hage, 1997 ND 175, ¶23, 568 N.W.2d 741. Although each piece of information may not be sufficient to establish probable cause, “probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.” Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912 (citations omitted). When considered with Duchene’s prior criminal convictions, the potting soil bags, marijuana seed and marijuana stems would warrant a person of reasonable caution to believe that Duchene was growing, using, or possessing marijuana in his home. Therefore, exclusion of the misleading statement from the affidavit would not affect the magistrate’s evaluation of whether there was probable cause.

[¶ 17] We conclude the items found in Duchene’s garbage and Duchene’s prior drug convictions were sufficient to establish probable cause to issue a search warrant. The search of Duchene’s home was, therefore, reasonable under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution. The judgments of the trial court are affirmed.

[¶ 18] VANDE WALLE, C.J., and NEUMANN and KAPSNER, JJ., concur. [¶ 19] RONALD L. HILDEN, District Judge, sitting in place of SANDSTROM, J., disqualified.