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State of North Dakota v. Jason Robert Huber

February 8, 2011

STATE OF NORTH DAKOTA,
PLAINTIFF AND APPELLEE
v.
JASON ROBERT HUBER, DEFENDANT AND APPELLANT



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

N.D. Supreme Court

State v. Huber,

2011 ND 23

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

Concurrence filed.

AFFIRMED.

Opinion of the Court by Sandstrom, Justice.

State v. HuberNo. 20100209

[¶1] Jason Huber appeals the district court's criminal judgment convicting him of manufacture and possession of a controlled substance and possession of drug paraphernalia. We affirm, concluding the discovery of evidence without a warrant was justified under the emergency exception.

I

[¶2] Huber was charged with manufacture and possession of a controlled substance and possession of drug paraphernalia following a warrantless search of his apartment by law enforcement. Huber moved to suppress the evidence gathered during this search, and a hearing was held on his motion. The testimony at the hearing described the events that led to the collection of evidence from Huber's apartment. During the early morning hours of December 11, 2009, Huber's landlord testified he received a call from another tenant complaining of a "terrible odor." Within ten minutes, he arrived at the building and went to the caller's unit to inspect the source of the odor. The landlord confirmed the "ammonia smell" the caller complained of and testified he thought maybe a sewer vent was plugged in the building. Unsure of the odor's source, he contacted the Mandan Fire Department for assistance.

[¶3] Two firefighters responded and proceeded to check the building. Before approaching Huber's apartment, the landlord testified he and the firefighters had checked all other units and failed to find the odor's source. By this time they were joined by two Mandan police officers who were called to help identify the source of the problem, which is "routine" procedure according to firefighter Mitch Bitz. Bitz testified he and the other responders noticed Huber's window was open despite the bitterly cold weather, and speculated that he might be "airing something out." For several minutes, the police officers and the landlord knocked on Huber's door and asked him to open it, but received no response.

[¶4] The landlord began to unlock Huber's door with the master key to the building. Huber's lease reserved a "right of entry" to the landlord in certain situations. This provision stated in part: "Landlord has the right to enter the rental unit at any time in case of an emergency, or if landlord reasonably believes resident has abandoned the premises, or if landlord reasonably believes resident in violation of any of the provisions of this contract." According to the landlord, he felt he needed to inspect Huber's apartment because he believed there was an emergency at hand since it was extremely cold outside and the building's tenants might have to be evacuated.

[¶5] When the landlord began to unlock the door, Huber immediately cracked it open. The ammonia and chemical smell was immediately apparent and was "pouring" out of the apartment according to the emergency personnel. Officer Bill Stepp testified the emergency personnel explained to Huber that the firefighters needed to enter the apartment to check for explosive gases and the source of the odor, but he was unwilling to let them in. According to the testimony of all present, Huber remained insistent that nobody enter. Officer Stepp explained how they finally entered Huber's apartment:

Q So at some point then did you have to kind of take over the situation?

A Yes, I did.

Q Could you explain?

A I finally told him that he needed to back up and stand aside, that the firemen were going to come in with their meters and investigate. Officer Doolin was standing right in front of me, Mr. Huber backed up, as he did . . . I heard something heavy hit the floor and thud. I couldn't see what was going on at that point. The "thud" Officer Stepp referred to was a propane torch falling to the floor, which was lit as it hit the carpet.

[¶6] Huber was handcuffed and placed in a police car, though he was told he was not under arrest. In response to the fumes, the firefighters entered Huber's apartment wearing self-contained breathing equipment. Firefighter Bitz testified they discovered a glass pipe and multiple propane cylinders before finding a person lying under the blankets in a back room. According to Bitz, the police officers briefly entered to remove this person, and the firefighters then proceeded to inspect the rest of the apartment. The officers were called in again while the firefighters were continuing to inspect the apartment with their meters for the source of the odor. Officer Stepp testified the likely source was discovered in the bathroom during this inspection:

I remember seeing there was like a power cord that was hardwired to the exhaust fan that was pulled out. There was a crock-pot sitting on the counter. They showed me underneath the sink and the cabinet. There was an assembly, which I recognize like the coffee filter apparatus and the residue and stuff which I recognized. It looked like a partially dismantled meth lab apparatus. In the toilet the water was like a dark blue or black and it looked like strips of--it looked like paper, but which I recognized as being the Lithium batteries that are peeled apart to get the Lithium out in order to use in the manufacturing process. At that point again the odor was so bad in there that I backed out of the apartment.

[ΒΆ7] Huber was arrested and taken to the Mandan law enforcement center. He was read his Miranda rights and then interviewed. According to law enforcement testimony, Huber admitted while in custody that his apartment contained components of a methamphetamine lab, and he consented to a search of his apartment. The Mandan ...


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