Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable William W. McLees, Judge.
Sean B. Kasson, Assistant State's Attorney, P.O. Box 5005, Minot, N.D. 58702-5005, for plaintiff and appellee.
Eric P. Baumann, North Dakota Public Defenders' Office, 111st Ave. SW, Minot, N.D. 58701, for defendant and appellant.
[¶ 1] John Holly appeals the trial court's criminal judgments finding him guilty of the following counts: (1) possession of marijuana, greater than one ounce; (2) possession of a schedule III controlled substance; (3) possession of drug paraphernalia, other than marijuana; (4) possession of drug paraphernalia, marijuana; (5) possession of Psilocyn; (6) possession of a schedule IV controlled substance; and (7) possession of drug paraphernalia, other than marijuana. We conclude the search of Holly's vehicle was lawful; sufficient evidence existed on the record to sustain a conviction of guilt for counts 5, 6, and 7; and, the trial court did not err in finding, sua sponte, Holly guilty of a lesser-included offense. We affirm the criminal judgments which are based on the evidence found in Holly's vehicle. We conclude the nighttime search warrant of Holly's residence was not supported by separate probable cause, and the evidence found in Holly's residence must be suppressed. We reverse the criminal judgments which are based on the evidence found in his residence. We remand for the trial court to amend its order denying Holly's motion to suppress and the criminal judgments consistent with this opinion.
[¶ 2] On February 7, 2011, North Dakota Bureau of Criminal Investigation Agent Rob Browne received information from Timothy Marquez and Micah Sesseman that Holly would be traveling to Montana and returning to Minot, North Dakota, with marijuana and unknown prescription drugs. Sesseman identified himself as Holly's current roommate. Sesseman informed Agent Browne that Holly would be traveling in a white Ford Ranger with Texas license plates; Holly's girlfriend, a third roommate, would be driving the vehicle; and, Holly would be returning to Minot the following evening. Agent Browne relayed this information to Deputy Sheriff Willie Graham working with the Ward County Narcotics Task Force.
[¶ 3] On February 8, 2011, Deputy Graham met with Sesseman at the residence he and Holly occupied. Sesseman again relayed information regarding Holly's travel plans. He also informed Deputy Graham that Holly frequently smoked marijuana in his bedroom. While at the residence, Sesseman entered Holly's bedroom. From Deputy Graham's vantage point in the living room, he observed a multi-colored glass smoking device, which he believed to be a bong, sitting on a dresser in Holly's bedroom.
[¶ 4] After his conversation with Sesseman, Deputy Graham sought a search warrant for Holly's vehicle and residence. The magistrate issued Deputy Graham a search warrant allowing law enforcement to search Holly's vehicle and residence during the "daytime." The warrant was later modified at the request of Deputy Graham to "anytime."
[¶ 5] On February 8, 2011, at 10:14 p.m., Deputy Graham and other officers executed the search warrant for the vehicle and residence. There is no dispute that the search warrant was executed during the nighttime. The officers seized the following from Holly's vehicle: two plastic bags of marijuana; one plastic bag containing approximately twenty-six pills of Clonazepam; one plastic bag of Psilocyn, hallucinogenic mushrooms; and one glass smoking device. In Holly's residence, the officers seized: one plastic bag containing aluminum foil that contained Testosterone Propionate; one grey digital scale with marijuana residue; one multi-colored glass smoking device; one plastic tub containing various size plastic bags and marijuana residue; and one metal smoking device. Holly was subsequently charged with six counts of possession of controlled substances and drug paraphernalia and one count of possession with intent to deliver marijuana.
[¶ 6] On April 18, 2011, Holly moved to suppress the evidence seized, arguing the warrant affidavit lacked probable cause. Specifically, Holly argued (1) the warrant affidavit did not contain information establishing the reliability of Sesseman as an informant; (2) Deputy Graham's observation of the multi-colored, glass smoking device constituted an illegal search; and (3) Deputy Graham lacked probable cause to believe the glass smoking device was in fact a bong. Lastly, Holly argued the warrant affidavit did not establish the separate probable cause required for the issuance of an "anytime" warrant. After holding a hearing on May 23, 2011, the trial court denied Holly's motion to suppress.
[¶ 7] Holly then moved to suppress the evidence based on the warrant affidavit's reference to "six pounds" of marijuana. Holly argued Deputy Graham intentionally or with reckless disregard for the truth misled the magistrate in obtaining the search warrant by stating that Holly would be transporting six pounds of marijuana. The trial court held a hearing on October 27, 2011. The trial court denied Holly's motion, concluding that, although the information was later determined to be false, Deputy Graham did not intentionally or with reckless disregard for the truth mislead the magistrate.
[¶ 8] Holly waived his right to a jury trial. At a bench trial, the trial court found Holly guilty of all six counts of possession of controlled substances and possession of drug paraphernalia. The trial court found that the State failed to prove beyond a reasonable doubt that Holly possessed marijuana with the intent to deliver. The trial court dismissed the charge, but found the State had proven beyond a reasonable doubt the lesser-included offense of possession of a controlled substance, namely possession of more than one ounce of marijuana.
[¶ 9] Holly appeals arguing the trial court erred in denying his motions to suppress, denying his motion for a judgment of acquittal, and finding him guilty of the lesser-included offense.
[¶ 10] Holly argues the trial court erred in denying his motions to suppress. He argues the warrant affidavit lacked sufficient probable cause and the search of his residence and vehicle violated the U.S. Const. Amend. IV and N.D. Const. art. I, § 8. We conclude the warrant affidavit contained sufficient separate probable cause to issue a nighttime search warrant for Holly's vehicle. We conclude, however, the warrant affidavit did not contain sufficient separate probable cause to search Holly's residence at night, and therefore, the evidence found in Holly's residence must be suppressed.
[¶ 11] We affirm a trial court's order denying a motion to suppress evidence 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." State v. Beane, 2009 ND 146, ¶ 8, 770 N.W.2d 283. Conflicts in testimony are resolved in favor of affirmance, as the trial court is in a superior position to assess the witnesses' credibility. Id. "Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. The determination of whether probable cause exists to issue a search warrant is a question of law." State v. Johnson, 2011 ND 48, ¶ 9, 795 N.W.2d 367 (citations and quotations omitted). We give deference to the trial court's determination of probable cause if a substantial basis for the conclusion exists. Johnson, at ¶ 10. "Marginal cases are decided in favor of the [trial court's] determination." Id.
[¶ 12] "The Fourth Amendment of the United States Constitution and Article I, section 8 of the North Dakota Constitution protect against unreasonable searches and seizures." Id. at ¶ 10. A search warrant may be obtained upon a showing of probable cause. Id. "'Probable cause exists "if the facts and circumstances relied on by the magistrate would warrant a person of reasonable caution to believe the contraband... will be found in the place to be searched."'" Id. (quoting State v. Kieper, 2008 ND 65, ¶ 7, 747 N.W.2d 497 (quoting State v. Nelson, 2005 ND 59, ¶ 3, 693 N.W.2d 910)). We apply the totality-of-the-circumstances test to determine whether the information before the magistrate was sufficient to establish probable cause:
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.
State v. Guthmiller, 2002 ND 116, ¶ 10, 646 N.W.2d 724 (quotation omitted). A
[¶ 13] Holly argues the warrant affidavit failed to contain information establishing Sesseman's reliability as an informant. Holly argues Sesseman was a confidential informant and, therefore, his reliability should have been established.
[¶ 14] There are three types of informants: citizen, confidential, and anonymous. State v. Roth, 2004 ND 23, ¶ 9, 674 N.W.2d 495 [hereinafter " Roth I "]. "A citizen informant is 'someone who volunteers information, does not want anything in return for the information, and is not at risk or in fear of going to jail.'" Id. at ¶ 10 (quoting State v. Rangeloff, 1998 ND 135, ¶ 4 n.3, 580 N.W.2d 593). Citizen informants are presumed reliable. Roth I, at ¶ 10. "'[T]heir reliability should be evaluated from the nature of their report, their opportunity to hear and see the matters reported, and the extent to which it can be verified by independent police investigation.'" Id. (quoting State v. Frohlich, 506 N.W.2d 729, 733 (N.D. 1993)).
[¶ 15] A confidential informant is a person known to the police, but whose identity is concealed from the magistrate. Roth I, 2004 ND 23, ¶ 11, 674 N.W.2d 495. A confidential informant's identity is being protected, differing significantly from a citizen informant. Id. Here, the warrant affidavit identified Sesseman by name and as Holly's roommate at 15 11th Ave, N.W., Minot, North Dakota. The warrant affidavit also stated that Sesseman had been Holly's roommate for a period of one month and that he had seen Holly smoking marijuana in their residence. It stated that Holly told Sesseman that he was going to Montana to buy marijuana and other prescription drugs to transport back to Minot. Sesseman told Agent Browne and Deputy Graham that Holly drove a white Ford Ranger with Texas license plates.
[¶ 16] Holly argues that Sesseman received a reward for the information he provided law enforcement making him a confidential informant. Sesseman testified that he had not received a reward or been told he would receive a reward when he spoke with Deputy Graham. Sesseman was offered a $300.00 reward after Holly was arrested.
[¶ 17] The record contains no evidence that Sesseman was presently involved in criminal activity or enjoyed the confidence of criminals. He provided his name, address, and unsolicited information to law enforcement without seeking anything in return. The detailed information Sesseman provided, including the make, model, color, and license plates of Holly's car, is evidence of Sesseman's reliability. Therefore, we conclude Sesseman is a citizen informant and his reliability is presumed.
[¶ 18] Holly argues Deputy Graham violated his right to be free from unreasonable searches and seizures by allegedly searching his bedroom.
[¶ 19] The Fourth Amendment requires that all searches of a person's residence be reasonable. U.S. Const. amend. IV. Generally, a search of a person's residence must be accompanied by a warrant. Illinois v. Rodriguez, 497 U.S. 177, 184-86 (1990); State v. Hurt, 2007 ND 192, ¶ 6, 743 N.W.2d 102. However, a search is reasonable if a person with the proper authority consents to the search. Rodriguez, 497 U.S. at 184-86; State v. Zimmerman, 529 N.W.2d 171, 174 (N.D. 1995). A third party who has common authority over the premises may consent to a search absent the consent of the other occupant. Id. Common authority is based on "mutual use of the premises by persons generally having control over or joint access to the property for most purposes." Id. The rationale behind this decision is that "it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." Hurt, at ¶ 7. Third-party consent does not, however, extend to a search of the premises under another person's exclusive control. State v. Swenningson, 297 N.W.2d 405, 407 (N.D. 1980). Further, a search conducted by a private individual does not violate the Fourth Amendment. Walter v. United States, 447 U.S. 649, 656 (1980); State v. Seglen, 2005 ND 124, ¶ 6, 700 N.W.2d 702.
[¶ 20] The multi-colored, glass smoking device was in Holly's bedroom on top of Holly's dresser. Deputy Graham observed the glass smoking device from his vantage point in the living room when Sesseman opened the door to enter Holly's bedroom. Deputy Graham testified that he did not enter Holly's bedroom, nor did he ask Sesseman to enter Holly's bedroom. At the May 23, 2011, suppression hearing, Deputy Graham testified to the following:
A. While I was sitting in the livingroom [sic], the subject that... was giving us the information went into the bedroom that he said was shared by Mr. Holly and the female juvenile. And when he opened the door, I could see [the glass smoking device] from the -- from where I was sitting in the livingroom [sic].
[¶ 21] Sesseman, as Holly's roommate, was a third party who had common authority over the residence's living room. Therefore, he properly consented to Deputy Graham's presence in the living room. From Deputy Graham's vantage point in the living room, he observed the glass smoking device in plain view from a place he was lawfully entitled to be. See State v. Albaugh, 2007 ND 86, ¶ 18, 732 N.W.2d 712 (holding officers may seize contraband without a warrant "if the officers are lawfully in a position from which they can view the object" and it is readily apparent the item is contraband). Deputy Graham's observation of the glass smoking device was not the result of an illegal search.C
[¶ 22] Holly argues the warrant affidavit's characterization of the glass smoking device as a "bong" and the inclusion of the phrase "six pounds" of marijuana were false and misleading.
[¶ 23] When a defendant alleges false or misleading statements have been made in a warrant affidavit, we address the issue under the standard set forth by the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Nelson, 2005 ND 59, ¶ 4, 693 N.W.2d 910. Under Franks, a false or misleading statement may result in suppression of evidence if probable cause for the search warrant was otherwise lacking:
"Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit."
Nelson, at ¶ 4 (quoting Franks, 438 U.S. at 155-56).
[¶ 24] For probable cause to be established, "truthful" does not mean that every fact recited is in fact correct. Franks, at 165. The information must be "'truthful' in the sense that the information put forth is believed or appropriately accepted by the affiant as true." Id. "A false statement under Franks is 'one that misleads a neutral and detached magistrate into believing the stated facts exist, and those facts in turn affect the magistrate's evaluation of whether or not there is probable cause.'" State v. Ebel, 2006 ND 212, ¶ 21, 723 N.W.2d 375 (quoting State v. Donovan, 2004 ND 201, ¶ 7, 688 N.W.2d 646).
[¶ 25] The defendant must establish the alleged false statement was intentionally made or with reckless disregard for the truth. Donovan, 2004 ND 201, ¶ 8, 688 N.W.2d 646. "Reckless disregard for the truth may be proved inferentially from circumstances evincing obvious reasons to doubt the veracity of the allegations." Id. "Mere negligence by the affiant, however, does not constitute reckless disregard for the truth." Id. We review whether the defendant met his burden under a clearly erroneous standard. Id. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence, on the entire evidence, we are left with a definite and firm conviction a mistake has been made. Id.
[¶ 26] Holly argues the characterization of the glass smoking device as a bong in the warrant affidavit misled the magistrate.
[¶ 27] The warrant affidavit stated, "Graham observed a multi-colored glass smoking device, commonly called a bong" sitting in Holly's bedroom. The warrant affidavit also indicated that Holly and a third roommate frequently used Holly's bedroom to smoke marijuana. Based on Deputy Graham's observation of the glass smoking device, information regarding Holly smoking marijuana in his bedroom, and knowledge as a narcotics task force agent, he reasonably believed the glass smoking device was a bong. Therefore, we conclude the trial court did not err in finding Deputy Graham reasonably believed the multi-colored glass smoking device was a bong and that he did not intentionally or with reckless disregard for the truth mislead the magistrate.
[¶ 28] The State concedes the warrant affidavit contained an incorrect statement regarding the quantity of marijuana. However, the State argues that, at the time Deputy Graham attested to the information, he reasonably believed it to be true.
[¶ 29] The warrant affidavit said, "Sesseman states that John Holly told him that he was going to Whitefish, MT. While there, Holly was planning to purchase six pounds of marijuana." However, the record indicates several months after the execution of the search warrant, Marquez, an informant who originally was unnamed, told law enforcement that when he initially contacted law enforcement he did not know the exact quantity of marijuana Holly would be transporting, and that he simply made up the amount. Sesseman denied making any statement to law enforcement with regard to the quantity of marijuana.
[¶ 30] Holly moved to suppress the evidence seized, arguing the warrant affidavit's reference to "six pounds" of marijuana misled the magistrate. At the supplemental suppression hearing, held on October 27, 2011, Marquez, testified that he made the initial call to law enforcement regarding Holly's drug activities. Marquez testified that he spoke with Agent Browne and told him that Holly would be transporting six pounds of marijuana from Montana to Minot. Marquez then testified that Sesseman spoke with Agent Browne to provide detailed information about Holly's vehicle and travel plans.
[¶ 31] Sesseman testified he did not mention to Deputy Graham the exact amount of marijuana Holly would be transporting. He testified that he knew Marquez had told law enforcement Holly would be transporting six pounds of marijuana, but he never affirmatively said it was six pounds. He also testified that he did not correct Marquez's statement to law enforcement.
[¶ 32] Deputy Graham, however, testified that he specifically remembered talking to Sesseman at the apartment about the quantity of marijuana Holly would be transporting:
Q. Okay. Now, are you saying in regard to this that the "six pound" statement from Mr. Sesseman was made while at the residence and also on the phone? Or just simply at the residence?
A. I'm saying for sure at the residence. I'm not sure about the phone. But the residence for sure. Because that would be where I talked to him about what was going on.
THE COURT: Deputy Graham, do you recall exactly what Mr. Sesseman did say to you at his residence about any quantity of marijuana being brought back, or supposedly being brought back, by Mr. Holly to North Dakota? Do you recall exactly what he said to you?
WITNESS GRAHAM: I do not recall the exact words. I do recall discussing it and I believe we discussed the amount that he had said the night before. And I think I verified it with him by him saying the six pounds.
THE COURT: But you're not --
WITNESS GRAHAM: I -- I really do believe he said -- told me six pounds. I --
THE COURT: But you're not entirely sure, is what you're saying?
WITNESS GRAHAM: Correct.
THE COURT: And I recognize we're several months removed from this incident. So you're not ...