Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.
The opinion of the court was delivered by: Sandstrom, Justice.
[¶1] Eric Wayne Loh appeals from criminal judgments entered after he conditionally pled guilty to two counts of delivery of methamphetamine. Because we conclude the district court did not err in denying his motions to suppress evidence in each case and the court did not err in sentencing Loh to the mandatory minimum sentence of 20 years in each case under N.D.C.C. § 19-03.1-23, we affirm.
[¶2] Loh was charged with two counts of delivery of methamphetamine after he sold methamphetamine to a confidential informant on August 5, 2007, and October 8, 2007. On each of those dates, Loh entered the confidential informant's car and sold the informant methamphetamine for $200. The confidential informant was wearing an audio transmitting device ("wire"), and police officers were listening to and recording the conversations between Loh and the informant. On each occasion the informant turned over to police a small bag containing methamphetamine. Loh was subsequently arrested and charged with two counts of delivery of methamphetamine. Each count was charged as a third or subsequent offense.
[¶3] In September 2008, Loh moved to suppress evidence in both cases because no warrant was obtained for use of the wire. After a hearing, the court denied the motions, stating, "The Court finds as a matter of constitutional law that Loh had no right of privacy when he put himself in the [confidential informant's] vehicle for the purpose of selling [the confidential informant] methamphetamine. The recording of both conversations between Loh and the [confidential informant] do not violate the Constitution of North Dakota." Loh entered conditional guilty pleas to the charges under N.D.R.Crim.P. 11(a)(2), reserving his right to appeal the district court's denial of his suppression motions.
[¶4] Loh also objected to imposition of the 20-year mandatory minimum sentence for each count. In his objection, Loh acknowledged he was convicted in 1996 of one count of delivery of marijuana and methamphetamine and a second count of delivery of only marijuana. Loh conceded the conviction for delivery of marijuana and methamphetamine counted as an enhancement conviction under N.D.C.C. § 19-03.1-23, but argued the conviction for delivery of only marijuana should not be considered an enhancement conviction, asserting that State v. Laib, 2002 ND 95, 644 N.W.2d 878 was wrongly decided. He claimed he should be given only a five-year minimum mandatory sentence for a second offense. The district court rejected his arguments, stating, "[T]he Court has no choice in this matter. The legislature has set the rules. The Court has to follow those." The court sentenced Loh to 20 years of imprisonment on each count to run concurrently.
[¶5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06(1). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 29-28-06. The appeal was timely under N.D.R.App.P. 4(b).
[¶6] Loh argues that the district court erred in denying his motion to suppress evidence because the police did not obtain a warrant for the use of the wire.
[¶7] Our standard of review of a district court's decision whether to suppress evidence is well-established:
In reviewing a district court's decision on a motion to suppress evidence, we defer to the court's findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. This Court will affirm a district court's decision on a motion to suppress if "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." City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D. 1994). On appeal, questions of law are fully reviewable, and whether a finding of fact meets a legal standard is a question of law. Graf, at ¶ 7. State v. Brockel, 2008 ND 50, ¶ 4, 746 N.W.2d 423.
[¶8] The Fourth Amendment to the United States Constitution, applicable to the states under the Fourteenth Amendment, and Article I, § 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures by the government. See Brockel, 2008 ND 50, ¶ 8, 746 N.W.2d 423; State v. Gregg, 2000 ND 154, ¶ 22, 615 N.W.2d 515. "The United States Supreme Court has defined a search, within the meaning of the Fourth Amendment, as an intrusion into a person's reasonable expectation of privacy." Gregg, at ¶ 22 (citing Katz v. United States, 389 U.S. 347 (1967)).
When an individual reasonably expects privacy in an area, the government, under the Fourth Amendment, must obtain a search warrant unless the intrusion falls within a recognized exception to the warrant requirement. In the absence of such an exception, evidence obtained in violation of the Fourth Amendment's protections against unreasonable searches must be suppressed as ...