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State v. Smith

May 11, 2010


Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Richard L. Hagar, Judge.

The opinion of the court was delivered by: Maring, Justice


[¶1] The State appealed from a trial court order granting John Oliver Smith's motion to dismiss the charge of conspiracy to manufacture methamphetamine. We reverse and remand, concluding the trial court erred by granting the motion to dismiss.


[¶2] In July 2009, John Oliver Smith purchased four boxes of ephedrine at two different pharmacies. Smith was a passenger in a vehicle owned by Levi Ward. Law enforcement had "recently received information that Ward was in possession of hypodermic needles and a bag of white powder." Law enforcement continued to follow Ward's vehicle after it left both pharmacies. Law enforcement eventually requested a marked patrol unit to pull the vehicle over. During a patdown search, law enforcement found methamphetamine on Levi Ward. On the back bumper, law enforcement also "observed" a syringe in what appeared to be a broken methamphetamine pipe. At that point, law enforcement searched the vehicle and found seven or eight syringes, spoons with residue, glassware, solvents, tubing, a gas generator, coffee filters, and four or five boxes of pills containing ephedrine. The officer testified the vehicle contained everything needed to make methamphetamine except for the anhydrous ammonia. Law enforcement did not find any paraphernalia on Smith. The officer testified that Smith informed him that he purchased the ephedrine in exchange for a Mega Ride pass to the North Dakota State Fair. Smith also told the officer he was aware the ephedrine was going to be used to cook methamphetamine. The affidavit of probable cause indicated Smith suspected the ephedrine would be used for cooking methamphetamine.

[¶3] Smith was arrested for criminal conspiracy to manufacture methamphetamine. At the August 2009 preliminary hearing, the officer testified. At the conclusion of the hearing, the trial court stated, "unless there's more to this that the State has that they can bring to the Court, the Court is going to be inclined to grant a dismissal after motions are made." The trial court also stated, "I will bind you over . . . based on meeting the probable cause, but it's a very, very thin piece of ice for the State."

[¶4] Smith moved to dismiss the information, arguing the State failed to prove probable cause for any element of the offense at the preliminary hearing. The State argued the testimony provided at the preliminary hearing established sufficient facts to defeat dismissal. It also argued the motion was res judicata. The trial court granted the motion. In its order, the court noted it was concerned at the preliminary hearing by the discrepancies between the officer's testimony and his affidavit of probable cause. The court also mentioned its concern that the officer testified Smith did not provide false identification, he did not make any misstatements about purchasing the ephedrine, and it is lawful to purchase ephedrine.

[¶5] The State appeals, arguing the trial court acted without authority in ordering dismissal of the information.


[¶6] This Court will not reverse the trial court's "findings of fact in preliminary proceedings in a criminal case if, after resolving conflicts in the evidence in favor of affirmance, sufficient competent evidence exists that is fairly capable of supporting the court's findings and the decision is not contrary to the manifest weight of the evidence." State v. Blunt, 2008 ND 135, ¶ 14, 751 N.W.2d 692. Whether the trial court's findings of fact reach the level of probable cause is a question of law, fully reviewable on appeal. Id.


[¶7] The State argues the trial court properly applied the probable cause standard at the preliminary hearing and found the State met its burden. The State contends Smith's motion was silent regarding the sufficiency of the information and instead focused on the insufficiency of evidence at the preliminary hearing of an agreement to perform an illegal act.

[¶8] The function of the preliminary hearing is to determine whether probable cause exists to hold an accused for further action. N.D.R.Crim.P. 5.1, note. Preliminary hearings are governed by N.D.R.Crim.P. 5.1(a), and the State need only prove probable cause. Rule 5.1, N.D.R.Crim.P., provides:

(a) Probable Cause Finding. If the magistrate finds probable cause to believe an offense has been committed and the defendant committed the offense, an arraignment must be scheduled. The finding of probable cause may be based on hearsay evidence in whole or in part. The defendant may crossexamine adverse witnesses and may introduce evidence. The magistrate may receive evidence that would be inadmissible at the trial.

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