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State v. Zeller

Supreme Court of North Dakota

April 3, 2014

State of North Dakota, Plaintiff and Appellee
Todd Michael Zeller, Defendant and Appellant

Page 7

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable John C. Irby, Judge.

Mark R. Boening, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

Jesse N. Lange, Fargo, ND, for defendant and appellant.

Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, William A. Neumann, S.J., Daniel J. Crothers. Opinion of the Court by VandeWalle, Chief Justice. The Honorable William A. Neumann, S.J., sitting in place of McEvers, J., disqualified. Sandstrom, Justice, dissenting.


VandeWalle, Chief Justice.

Page 8

[¶1] Todd Zeller appealed from a judgment of conviction after he conditionally pled guilty to possession of methamphetamine with intent to manufacture or deliver and possession of marijuana with intent to manufacture or deliver. We hold the search warrant's provision providing for a nighttime search was not supported by probable cause. We reverse the judgment and remand for entry of an order granting Zeller's motion to suppress and to allow Zeller to withdraw his guilty pleas.


[¶2] In the early morning hours of November 17, 2012, Detective Witte of the Fargo Police Department applied for a search warrant for Zeller's residence at 114 24th Street South in Fargo. Detective Witte presented an affidavit in support of the search warrant alleging Zeller was involved in drug trafficking. The affidavit averred Detective Witte had previously received information in 2010 regarding Zeller distributing methamphetamine in the Fargo area. An investigation was opened, but police were not able to corroborate the information and the investigation was closed. The affidavit further stated that in July 2012, Detective Witte received multiple complaints on the narcotics tip line " from a concerned citizen living in the area of 114 24th Street South." The anonymous tips reported a high volume of short stay, come and go traffic, particularly on the weekend, and that many of the vehicles displayed out-of-state license plates. According to the affidavit, the " concerned citizen" believed the activity was related to narcotics trafficking. At the request of law enforcement, the " concerned citizen" provided police with five license plate numbers. According to the affidavit:

Two of the license plates provided by the concerned citizen came back to [J.G.] and [J.B.]. Your Affiant has previously dealt with these two individuals and is aware they both use methamphetamine. The identity and reliability of the concerned citizen is unknown to your Affiant. Based on this information, your Affiant re-opened an investigation into Todd Zeller, Lisa Foulkes, and 114 24th Street South.

Page 9

[¶3] The affidavit further stated that on November 16, 2012, several detectives, including Detective Witte, executed a controlled purchase of methamphetamine from John Gust by using a confidential informant. The controlled buy took place in the vicinity of Zeller's residence. Police used " recorded funds" to purchase the methamphetamine. According to the affidavit, " At approximately 10:35 p.m., Gust told the [confidential informant] he was going to meet his 'dealer' to obtain more methamphetamine. Gust exited the vehicle and walked on foot to an unknown location. A short time later, Detective Christensen observed Gust in the alley immediately behind 114 24th Street South." Gust then returned to the confidential informant and dropped him off at a bar. Officers picked up the confidential informant, a recording device, and conducted a field test on a substance that was later determined to be methamphetamine. From the face of the affidavit, we are left to assume that the substance later determined to be methamphetamine was given to the confidential informant by Gust.

[¶4] The affidavit also stated that officers subsequently conducted a traffic stop on Gust. Gust was placed under arrest for delivery of methamphetamine. The recorded buy-fund money was not recovered. According to the affidavit " Detective Christensen also searched Gust's phone incident to his arrest and located a recent text message from 'Todd Z' . . . asking Gust if he was close to the area." Fargo Police records indicated the number belonged to Todd Zeller of 114 24th Street South, Fargo.

[¶5] Based on this information, the magistrate authorized the search warrant of Zeller's residence at 3:25 a.m. The warrant included a provision permitting law enforcement to conduct the search at night. Police executed the warrant at approximately 4:00 a.m. During the search, officers discovered narcotics and paraphernalia. Zeller was arrested and charged with nine felonies. Zeller filed a motion to suppress, arguing the search warrant was not supported by probable cause, and that alternatively, the nighttime provision in the search warrant was not supported by probable cause. Following a hearing, the district court denied the motion to suppress.

[¶6] Zeller filed a second motion to suppress, arguing Detective Witte misled the magistrate to obtain the search warrant. Zeller requested a Franks hearing to determine whether the search warrant was based on false statements made by the detective. After a hearing, the court denied Zeller's motion. Zeller entered a conditional guilty plea reserving the right to appellate review of the court's ruling on his motions to suppress.


[¶7] We affirm a district court's order denying a motion to suppress evidence if there is sufficient competent evidence fairly capable of supporting the court's findings, and the decision is not contrary to the manifest weight of the evidence. State v. Holly, 2013 ND 94, ¶ 11, 833 N.W.2d 15. " Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law." Id. Whether there is probable cause to issue a search warrant is a question of law which is fully reviewable on appeal. State v. Rangeloff, 1998 ND 135, ¶ 16, 580 N.W.2d 593. " We generally defer to a magistrate's determination of probable cause if there was a substantial basis for the conclusion, and doubtful or marginal cases should be resolved in favor of the magistrate's determination." Roth v. State, 2007 ND 112, ¶ 18, 735 N.W.2d 882.

Page 10


[¶8] Zeller argues the search warrant was issued without probable cause. Alternatively, Zeller contends that, even if there was probable cause to support the warrant, the nighttime search provision in the warrant did not contain sufficient separate probable cause necessitating the need to execute the warrant at night. For purposes of this opinion, the dispositive issue on appeal is whether there was probable cause for the nighttime search.

[¶9] The Fourth Amendment to the United States Constitution and Article I, Section 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures. State v. Sommer, 2011 ND 151, ¶ 9, 800 N.W.2d 853. " If an individual has a reasonable expectation of privacy, the government must acquire a search warrant unless the search fits within a recognized exception to the warrant requirement." Id. " Probable cause is required for a search warrant under the Fourth Amendment to the United States Constitution, and Article I, Section 8 of the North Dakota Constitution." Rangeloff, 1998 ND 135, ¶ 16, 580 N.W.2d 593. Probable cause to search exists if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place. State v. Roth, 2004 ND 23, ¶ 7, 674 N.W.2d 495. This Court employs the totality-of-the-circumstances test to review whether information before the magistrate was sufficient to find probable cause, independent of the trial court's findings. Rangeloff, 1998 ND 135, ¶ 16, 580 N.W.2d 593. In applying the totality-of-the-circumstances test, this Court has stated:

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.

Holly, 2013 ND 94, ¶ 12, 833 N.W.2d 15.

[¶10] Significantly, for this case, where a warrant application seeks authorization for a nighttime search, an additional showing of probable cause is required for the nighttime authorization. Roth, 2007 ND 112, ¶ 19, 735 N.W.2d 882. Under N.D.R.Crim.P. 41(c)(1)(E), a search warrant " must be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime." Reasonable cause and probable cause are synonymous. Holly, 2013 ND 94, ¶ 35, 833 N.W.2d 15. " Daytime" is defined as " the hours from 6:00 a.m. to 10:00 p.m. according to local time." N.D.R.Crim.P. 41(h)(2)(B). " The purpose of Rule 41(c), N.D.R.Crim.P., is to protect citizens from being subjected to the trauma of unwarranted nighttime searches. Courts have ...

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