DocketNumber： 20130290
Citation Numbers： 2014 ND 65, 845 N.W.2d 6, 2014 N.D. LEXIS 63, 2014 WL 1320126
Judges： Vande Walle, Neumann, Kapsner, Crothers, McEvers, Sandstrom
Filed Date： 4/3/2014
Status： Precedential
Modified Date： 11/12/2024
[¶ 1] Todd Zeller appealed from a judgment of conviction after he conditionally pled guilty to possession of methamphetamine with intent to manufacture or deliver and possession of marijuana with intent to manufacture or deliver. We hold the search warrant’s provision providing for a nighttime search was not supported by probable cause. We reverse the judgment and remand for entry of an order granting Zeller’s motion to suppress and to allow Zeller to withdraw his guilty pleas.
I
[¶ 2] In the early morning hours of November 17, 2012, Detective Witte of the Fargo Police Department applied for a search warrant for Zeller’s residence at 114 24th Street South in Fargo. Detective Witte presented an affidavit in support of the search warrant alleging Zeller was involved in drug trafficking. The affidavit averred Detective Witte had previously received information in 2010 regarding Zel-ler distributing methamphetamine in the Fargo area. An investigation was opened, but police were not able to corroborate the information and the investigation was closed. The affidavit further stated that in July 2012, Detective Witte received multiple complaints on the narcotics tip line “from a concerned citizen living in the area of 114 24th Street South.” The anonymous tips reported a high volume of short stay, come and go traffic, particularly on the weekend, and that many of the vehicles displayed out-of-state license plates. According to the affidavit, the “concerned citizen” believed the activity was related to narcotics trafficking. At the request of law enforcement, the “concerned citizen” provided police with five license plate numbers. According to the affidavit:
Two of the license plates provided by the concerned citizen came back to [J.G.] and [J.B.]. Your Affiant has previously dealt with these two individuals and is aware they both use methamphetamine. The identity and reliability of the concerned citizen is unknown to your Affi-ant. Based on this information, your Affiant re-opened an investigation into Todd Zeller, Lisa Foulkes, and 114 24th Street South.
[¶ 4] The affidavit also stated that officers subsequently conducted a traffic stop on Gust. Gust was placed under arrest for delivery of methamphetamine. The recorded buy-fund money was not recovered. According to the affidavit “Detective Christensen also searched Gust’s phone incident to his arrest and located a recent text message from ‘Todd Z’ ... asking Gust if he was close to the area.” Fargo Police records indicated the number belonged to Todd Zeller of 114 24th Street South, Fargo.
[¶ 5] Based on this information, the magistrate authorized the search warrant of Zeller’s residence at 3:25 a.m. The warrant included a provision permitting law enforcement to conduct the search at night. Police executed the warrant at approximately 4:00 a.m. During the search, officers discovered narcotics and paraphernalia. Zeller was arrested and charged with nine felonies. Zeller filed a motion to suppress, arguing the search warrant was not supported by probable cause, and that alternatively, the nighttime provision in the search warrant was not supported by probable cause. Following a hearing, the district court denied the motion to suppress.
[¶ 6] Zeller filed a second motion to suppress, arguing Detective Witte misled the magistrate to obtain the search warrant. Zeller requested a Franks hearing to determine whether the search warrant was based on false statements made by the detective. After a hearing, the court denied Zeller’s motion. Zeller entered a conditional guilty plea reserving the right to appellate review of the court’s ruling on his motions to suppress.
II
[¶ 7] We affirm a district court’s order denying a motion to suppress evidence if 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. Holly, 2013 ND 94, ¶ 11, 833 N.W.2d 15. “Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.” Id. Whether there is probable cause to issue a search warrant is a question of law which is fully reviewable on appeal. State v. Rangeloff, 1998 ND 135, ¶ 16, 580 N.W.2d 593. “We generally defer to a magistrate’s determination of probable cause if there was a substantial basis for the conclusion, and doubtful or marginal cases should be resolved in favor of the magistrate’s determination.” Roth v. State, 2007 ND 112, ¶ 18, 735 N.W.2d 882.
[¶ 8] Zeller argues the search warrant was issued without probable cause. Alternatively, Zeller contends that, even if there was probable cause to support the warrant, the nighttime search provision in the warrant did not contain sufficient separate probable cause necessitating the need to execute the warrant at night. For purposes of this opinion, the dispositive issue on appeal is whether there was probable cause for the nighttime search.
[¶ 9] The Fourth Amendment to the United States Constitution and Article I, Section 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures. State v. Sommer, 2011 ND 151, ¶ 9, 800 N.W.2d 853. “If an individual has a reasonable expectation of privacy, the government must acquire a search warrant unless the search fits within a recognized exception to the warrant requirement.” Id. “Probable cause is required for a search warrant under the Fourth Amendment to the United States Constitution, and Article I, Section 8 of the North Dakota Constitution.” Rangeloff, 1998 ND 135, ¶ 16, 580 N.W.2d 593. Probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place. State v. Roth, 2004 ND 23, ¶ 7, 674 N.W.2d 495. This Court employs 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. Rangeloff, 1998 ND 135, ¶ 16, 580 N.W.2d 593. In applying the totality-of-the-eircumstances test, this Court has stated:
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 what they observed as trained officers.
Holly, 2013 ND 94, ¶ 12, 833 N.W.2d 15.
[¶ 10] Significantly, for this case, where a warrant application seeks authorization for a nighttime search, an additional showing of probable cause is required for the nighttime authorization. Roth, 2007 ND 112, ¶ 19, 735 N.W.2d 882. Under N.D.R.Crim.P. 41(c)(1)(E), a search warrant “must 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.” Reasonable cause and probable cause are synonymous. Holly, 2013 ND 94, ¶ 35, 833 N.W.2d 15. “Daytime” is defined as “the hours from 6:00 a.m. to 10:00 p.m. according to local time.” N.D.R.Crim.P. 41(h)(2)(B). “The purpose of Rule 41(c), N.D.R.Crim.P., is to protect citizens from being subjected .to the trauma of unwarranted nighttime searches. Courts have long recognized that nighttime searches constitute greater intrusions on privacy than do daytime searches.” State v. Fields, 2005 ND 15, ¶ 9, 691 N.W.2d 233.
[¶ 11] Probable cause for a nighttime search exists upon a showing that the evidence sought may be quickly and easily disposed of if the warrant is not promptly executed. Id. at ¶ 10. “An officer must set forth some facts for believing the evidence will be destroyed other than its mere existence. Mere allegations about the presence of drugs do not lead to the inference that the drugs are easily disposable.” Roth, 2007 ND 112, ¶ 21, 735 N.W.2d 882 (citations omitted). “Courts have upheld nighttime searches when there was particularized evidence of drug trafficking, sales, or manufacture which oc
[¶ 12] In the affidavit in support of the search warrant application, Detective Witte included a special request for nighttime service authorization “to allow officers the ability to get closer to the residence before being detected under the cover of darkness.” The affidavit stated, “entry of law enforcement in this manner will be safer to those inside as well as the law enforcement officers executing the search warrant.” Detective Witte further averred, “this methamphetamine transaction occurred between the hours of 10 p.m. and 11 p.m. and the investigation is ongoing. Your Affiant notes this information was developed in the late hours of November 16th and early morning hours of November 17, 2012.”
[¶ 13] At the suppression hearing, Detective Witte testified on cross-examination that a nighttime provision does not provide any more safety than a daytime warrant. The detective also testified part of the reason for the nighttime provision is that the evidence might be lost by the morning, and that depending on the circumstances, a nighttime search can be more dangerous. The detective also testified:
I had no information related to Mr. Zel-ler being armed, being dangerous, or specifically that showed exigent circumstances where he would destroy evidence. However, I do have an indication that Mr. Zeller is continuing his criminal activities at night, which leads me to conclude that if he has X-amount of narcotics in his residence for sale, if he continues selling throughout the night, I have no idea what’s going to be left when I execute the search warrant.
Detective Witte testified that he started writing the warrant application between midnight and 1:00 a.m., and that “If I’m staying up and I’m writing a search warrant in the middle of the night, the intention is to serve it at that time period.... if I have probable cause I’m not going to not write it and then get up at 8:00 o’clock and write it.”
[¶ 14] Applying these facts, we conclude there is nothing in the record, beyond the single incident of the controlled buy, to indicate that without the nighttime search, the evidence would have been destroyed or removed from the premises before a search could be executed in the morning hours. Detective Witte admitted at the suppression hearing, “I had no information related to Mr. Zeller ... specifically that showed exigent circumstances where he would destroy evidence.” Specifically, there was no information in the affidavit to suggest Zeller was likely to destroy evidence, or any other exigent circumstances to suggest the controlled buy money and the narcotics would be removed or disposed of before 6:00 a.m. Similarly, the record here does not establish that officer safety necessitated execution of the nighttime search warrant.
[¶ 15] Additionally, the facts do not suggest that the controlled buy conducted
[¶ 16] Our previous decisions also require particularized facts illustrating the need to execute the warrant at night. For instance, in Roth, a majority of this Court concluded there was sufficient probable cause to justify a nighttime search where the affidavit indicated the defendant manufactured methamphetamine in his home late at night, surveillance established that there was activity in the basement during the late nighttime hours, and that at least one other person connected with drug activity was in the residence at the time. Roth, 2007 ND 112, ¶ 27, 735 N.W.2d 882. We held that in order for police to apprehend Roth in the process of manufacturing methamphetamine, the search needed to be executed at nighttime rather than during the day. “If law enforcement searched Roth’s residence at a time when he was not manufacturing, it was reasonably probable that much of the evidence of the manufacturing process, including the methamphetamine itself, would have been removed from the premises.” Id.
[¶ 17] Similarly, in Holly, a majority of this Court held that evidence in an affidavit sustained a finding of probable cause justifying the nighttime search of the defendant’s vehicle. Holly, 2013 ND 94, ¶ 42, 833 N.W.2d 15. The affidavit indicated the defendant would be traveling to Whitefish, Montana, to purchase marijuana and prescription drugs. Id. It also noted the defendant would be transporting narcotics in his white Ford Ranger, and he would be returning to Minot during the evening hours. Id. We concluded, “The inherent mobility of the vehicle provided the nighttime probable cause to infer the illegal drugs would not be expected to be in Holly’s vehicle the following day or might be removed if the search was delayed to daytime.” Id. at ¶ 44. However, we also concluded the facts in the affidavit did not contain sufficient probable cause to justify a nighttime search of the defendant’s residence. Id. at ¶ 45. We held that, unlike Roth, the affidavit did not contain particularized facts indicating the need to search the residence during the commission of the alleged crime, and there was no information that the drugs would be moved from the vehicle into the residence. “The warrant affidavit established only the presence of a ‘bong1 in the residence and that Holly smoked marijuana in the residence. It lacked any information to establish the evidence would be destroyed or quickly removed from the resi
[¶ 18] A survey of related cases in other jurisdictions similarly reflects the general principle that there must be some particularized evidence showing that the contraband may be destroyed, sold, or removed during the nighttime search hours. See, e.g., State v. Martinez, 806 Ark. 353, 811 S.W.2d 319, 321 (1991) (holding the affidavit was insufficient to support issuance of nighttime search warrant where the affidavit was silent with respect to anything regarding reasonable cause to believe that marijuana would be destroyed or removed before next morning, that the place to be searched was difficult of speedy access, or that warrant could only be safely or successfully executed at nighttime); Hall v. State, 302 Ark. 341, 789 S.W.2d 456, 458 (1990) (holding that an affidavit simply reciting that illegal drugs were present at the defendant’s residence and that a confidential informant had purchased marijuana at the residence within the last seventy-two hours did not state facts sufficient to support the issuance of a nighttime search warrant); State v. Jackson, 742 N.W.2d 163, 172 (Minn.2007) (holding nighttime search of defendant’s residence violated her Fourth Amendment rights where police failed to provide facts in an affidavit showing the nighttime search was necessary to prevent the loss, destruction, or removal of the objects of the search); State v. Fitch, 255 Neb. 108, 582 N.W.2d 342, 348 (1998) (concluding an affidavit in support of a nighttime search warrant contained no facts that would support an inference that the contraband was being disposed of, removed, or hidden in such a manner that nighttime service was required); compare State v. Jackson, 117 Ariz. 120, 571 P.2d 266, 268 (1977) (holding the magistrate did not abuse his discretion in finding sufficient reasonable cause to justify nighttime search where defendants were selling marijuana at all hours of the day and night).
[¶ 19] The State argues it was reasonable for the issuing magistrate to authorize the nighttime search because time was of the essence. “The missing Fargo Police Department buy-monies were more likely to be recovered if law enforcement acted immediately. The need for immediate execution resulted in the request for nighttime authorization.” However, at the suppression hearing, Detective Witte testified there was no specific reason to believe that the money would not be at the residence in the morning. In addition, the following colloquy between Detective Witte and counsel for Zeller demonstrates that law enforcement did not have specific information that the drugs or buy-money would disappear before morning:
Q. Now, did you have any reason to believe that Mr. Zeller was more likely to spend money between the hours of 4 and 6 a.m., than he would be to spend money between — I don’t know, between 11 and 4 a.m.?
A. No.
Q. Did you have any specific intelligence about Mr. Zeller’s plans that evening?
A. No.
Q. Did you have any evidence that Mr. Zeller was intending to leave his residence?
A. No.
Q. Did — again, you did not have anybody surround the home or keep an eye on the home to see if he was going to go and spend his money?
A. We had officers at the residence periodically checking. But no. We didn’t have the manpower to set up a perimeter around Mr. Zeller’s residence.
*14 Q. Did you — you didn’t even have one person staying there continuously, correct?
A. Correct.
Q. Your concern here was that people can just basically generally can spend cash money relatively easily, is that correct?
A. No. It’s not just the money, it’s also the quantity of drugs that is — I have no idea what quantity of drugs Mr. Zeller has inside the residence until I serve the search warrant.
[¶ 20] We conclude the nighttime search warrant did not establish sufficient probable cause to justify a nighttime search of Zeller’s residence. The affidavit in support of the nighttime search warrant contained no information that Zeller was selling narcotics throughout the night, nor did it contain indicia that the evidence sought by law enforcement might quickly and easily be disposed of if the warrant was not executed within the nighttime hours. Additionally, the affidavit did not reflect that the officers faced a threat of physical violence that would justify executing the warrant at nighttime. Cf. State v. Herrick, 1997 ND 155, ¶ 17, 567 N.W.2d 836 (stating “In situations where a threat of physical violence or possible destruction of evidence may exist, officers may validly execute a no-knock warrant.”).
IV
[¶ 21] We reverse the judgment of conviction and remand with instructions to allow Zeller to withdraw his guilty pleas and to suppress the evidence obtained as a result of the nighttime search.