[Copyrighted Material Omitted]
Julie A. Lawyer, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.
Thomas J. Glass, Bismarck, ND, for defendant and appellant Alicia Marie Hart; submitted on brief.
Thomas M. Tuntland, Mandan, ND, for defendant and appellant Paul Timothy Sitte.
VANDE WALLE, Chief Justice.
[¶ 1] Alicia Hart appealed from a criminal judgment for possession of drug paraphernalia after entering a conditional guilty plea reserving the right to appeal the denial of her motion to suppress. Paul Timothy Sitte appealed from a criminal judgment for possession of hashish, possession of methamphetamine drug paraphernalia, and possession of marijuana drug paraphernalia after also entering a conditional guilty plea reserving the right to appeal the denial of his motion to suppress. We reverse the judgments and remand to allow Hart and Sitte to withdraw their guilty pleas and for further proceedings consistent with this opinion.
[¶ 2] This consolidated appeal arises out of two separate criminal cases involving the same facts. In August 2012, police received an anonymous " crime stoppers tip" that Chad Grubb and his girlfriend were selling methamphetamine from a residence at 411 North 12th Street in Bismarck. The tip stated that Grubb was traveling back and forth from Minneapolis to purchase drugs and bring them into the Bismarck area. Police verified that the Burleigh County Sheriff's Department had a bench warrant for Grubb for driving under the influence and driving under suspension.
[¶ 3] Deputies went to the 12th Street residence to serve the misdemeanor bench warrant on Grubb. The residence was a duplex containing separate upstairs and downstairs units. After conducting surveillance on the duplex, police made contact with Chris Giroux as he came up from the downstairs unit. Giroux told the officers that Grubb was not at the duplex. Police asked for permission to search the residence to ascertain that Grubb was not present. Giroux consented to the search. As police searched the downstairs unit of the duplex, Michael Darwin, who lived in the upstairs unit, arrived at the scene. Darwin gave consent to the police to search the upstairs portion of the duplex. Police discovered marijuana paraphernalia and " a handgun in the southwest bedroom of the residence...." " [A]t one point a locked gun safe on the wall was entered and in a soft sided case was what appeared to be a large amount of methamphetamine and a semiautomatic handgun." The locked gun safe containing the gun was located in a common area laundry room.
[¶ 4] Officers questioned the occupants and learned that Grubb had been at the duplex earlier in the day but left with Paul Sitte in a red pickup truck " after grabbing some of his stuff from there." None of the occupants of the duplex were able to verify what " stuff" Grubb had taken with him when he left. Officers determined that Sitte lived at 226 West Divide Avenue in Bismarck (" Sitte residence" ). Deputy Kelly Leben went to the Sitte residence, where from a distance, he observed a red pickup and two males in the driveway. He
was not able to identify Grubb based on the warrant photo. Deputy Leben observed the two males " take something out of the vehicles and carry it into the residence. And not come back out." Deputy Leben testified, " [o]ne of the things I did see that I recalled was a pop container, like a 12 pack pop container."
[¶ 5] Sergeant Macdonald and Deputy Glovich arrived at the scene to provide backup while Deputy Leben served the bench warrant. The officers covered the front and back of the Sitte residence. Deputy Leben bypassed the front door at the entrance of the house and walked through an open vehicle-garage door. The garage is attached to the house. The entry door in the garage provides access into the house from the garage. Deputy Leben testified, " I started knocking on the door and didn't receive any answer. At that point it was just a short proximity from when they disappeared in the house. So I again started knocking on the door harder, and announcing, ‘ Sheriff's Department. Come to the door.’ " Deputy Leben stated, it was just a short time before the door was answered, " [b]ut longer than I expected for somebody that had just gone in the house." Grubb opened the door, identified himself, and was arrested. Grubb did not resist and was arrested in the " foyer area" of the residence. The district court found, " Leben chose to enter the Sitte house to place Grubb under arrest instead of asking Grubb to exit the house and arrest him in the garage."
[¶ 6] Deputy Leben testified he asked Grubb, " ‘ [w]ho else is in the house with you?’ Because I had seen the two people in the driveway. And he told me nobody." Officers began " challenging the house," yelling " [w]hoever's in here, come out." Deputy Leben further stated that the officers were concerned for their safety. " [W]e had found the large amount of methamphetamine and two handguns at that [duplex] residence. So based on that information, and the fact that Chad Grubb was associated now with both residences, I had a concern for officer safety based on the amount of drugs and the firearms." Deputy Leben also testified, he was unsettled with the " uncooperativeness in not opening the door immediately," and the estimated " half ounce to three quarters of an ounce" of methamphetamine police discovered at the duplex. " [A]t that point we're not dealing with a user type amount, and also we're dealing with methamphetamine. Which basically, based on my experience, education and training, is probably one of the worse drugs our community is facing right now."
[¶ 7] After arresting Grubb, officers conducted a " protective sweep" into the Sitte residence. Sitte was arrested after he was discovered on a couch in an upstairs living room. Deputy Sheriff Macdonald testified he observed drug paraphernalia in Sitte's vicinity, including " a little baggy that had kind of residue look on it too. There was a bunch of razor blades on the floor around him. And there was also what's call[ed] foilies, little pieces of tin foil." Sitte appeared to be under the influence or very lethargic. Deputy Leben testified officers ...