Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Gerald H. Rustad, Judge.
The opinion of the court was delivered by: Sandstrom, Justice.
Opinion of the Court by Sandstrom, Justice.
[¶1] The State appeals from a district court order granting in part Donald Beane's motion to suppress evidence found during two searches that led to charges of possession of a controlled substance and possession of drug paraphernalia. Because we conclude the law enforcement officers' actions in this case did not violate Beane's Fourth Amendment rights, we reverse the challenged part of the court's order.
[¶2] During summer 2007, two Williston parole and probation officers, Darin Cote and Lloyd Haagenson, learned that there were parole violation and aggravated assault warrants for the arrest of Tanner Wold, who was believed to have recently moved from Bismarck to the Williston area. On August 29, 2007, Haagenson received a phone call from Wold's former girlfriend, who told him that she had seen Wold "driving around" with Beane in Williston. Later that day Cote and Haagenson located Beane and his vehicle in the parking lot of a local business. Beane told the officers that he had dropped Wold off a couple of blocks away. The officers looked for Wold in the area where Beane had said he dropped him off, but the officers could not find Wold.
[¶3] On September 3, 2007, Cote and Haagenson received an anonymous tip that Wold was at Beane's residence. The officers went there, and Cote described what occurred:
[W]e parked off the property, walked on to the property, walked up to the door of Mr. Beane's place. Right when I was just getting ready to knock at the door, I was up in front of the door. Lloyd was down on the side of the house next to a-I think it was a vehicle parked-I can't remember if it was a pick-up or a car parked there.
Right before I knocked, Mr. Beane then walked out from the garage which is not connected to the residence. I identified him as Donald Beane from earlier, dealing with him a couple days before that. Informed Mr. Beane who we were. We had showed him our badges that were displayed openly around our neck. We have necklaces with badges on it. He knew who we were. Asked him if Tanner Wold was at the residence. He said he didn't even know who we were talking about. I then informed him that we had talked to him just a couple days ago, and he had told us that he had dropped . . . Mr. Wold off. At that time I noticed that Mr. Beane had a pocket knife in his right front pocket by a clip display that holds it onto your pocket. I then told him to show me his hands, `cause his hands were in the vicinity of his front right pocket. He didn't comply. I let P.O. Haagenson know `cause it was blind to him, being on the other side of him to the left of Mr. Beane, that he had a knife.
I again asked him to show me his hands. He took an aggressive step backwards, put his hand towards his pocket. Then he was pushed up against the vehicle, again told to take his hand out of his pocket, which was in his pocket at this time, his right hand being his right front pocket. Ah, he failed to do-comply with our request. He was assisted to the ground by P.O. Haagenson and I. After a slight struggle with him for approximately 30 seconds, he was handcuffed, detained. The knife was then taken. A Terry pat was done then to determine if he had any other weapons. We asked him; he said no, he didn't. Then we did the Terry pat.
While doing the Terry pat there were some other objects found. In one of the pockets there was a-a-he wouldn't tell us what it was in his pocket, it [sic] could feel a bulge. Wouldn't tell us what it was; took it out. It was a blue container with hinges on it. Opened it up to see if there was any kind of weapons in it. Realized then it was a scale, had residue on it.
[¶4] Beane was arrested and charged with class C felony possession of drug paraphernalia and class C felony possession of a controlled substance. Three weeks after Beane was released on bond, Beane's home was searched under the authority of a condition of the bond, and contraband was discovered. This resulted in three additional charges of class C felony possession of drug paraphernalia, class A misdemeanor possession of drug paraphernalia relating to methamphetamine, and class A misdemeanor possession of drug paraphernalia relating to marijuana.
[¶5] With the assistance of an attorney, Beane moved to suppress the evidence discovered during the two searches on the ground that the searches were unreasonable under the Fourth Amendment. See U.S. Const. amend. IV. Following an evidentiary hearing, the district court did not find that the officers' testimony lacked credibility. Rather, the court ruled Beane's actions did not invite "his take-down and removal of the folding knife from his pocket," and even if they did, "once Beane was handcuffed, the danger was over and additional search was not justified." Concluding "the officers were over-reaching based on search not justified by officer safety or reasonable suspicion," the court suppressed the evidence found in the container in Beane's pocket. However, the court did not suppress the evidence found during the second search. The court concluded the evidence was discovered during a search "based upon a lawful bond condition" and was not "fruit of the poisonous tree." The State appealed the part of the court's order suppressing the evidence found in the container in Beane's pocket.
[¶6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The State's appeal was timely under N.D.R.App.P. 4(b). Although the prosecutor's statement accompanying the notice of appeal merely parrots the language of N.D.C.C. § 29-28-07(5), we conclude the appeal is properly before us because a "review of the facts clearly demonstrates the relevance of the evidence suppressed." State v. Gay, 2008 ND 84, ¶ 10, 748 ...