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State v. Schmidt

Supreme Court of North Dakota

May 27, 2015

State of North Dakota, Plaintiff and Appellant
v.
Deven James Schmidt, Defendant and Appellee

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

Dawn M. Deitz, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellant.

Danny L. Herbel, Bismarck, ND, for defendant and appellee.

Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom. Opinion of the Court by VandeWalle, Chief Justice.

OPINION

Page 266

Gerald W. VandeWalle, Chief Justice.

[¶1] The State appealed from a district court order granting Deven Schmidt's motion to suppress the evidence. We reverse and remand.

I

[¶2] A law officer attempted to serve a misdemeanor bench warrant on Devan Lavallie at the location listed on the warrant. Deven Schmidt resided at that residence, but was not a subject of the warrant.

Page 267

Schmidt answered the door for the officer, who asked if Lavallie was there. Schmidt responded that he was sleeping in the back bedroom. The officer then informed him that he had an arrest warrant for Lavallie. Schmidt did not verbally respond or invite the officer in, but did step back and walk to Lavallie's bedroom with the officer following.

[¶3] During Lavallie's arrest, the officer observed in plain view drug paraphernalia in his bedroom. The officer took him into the living room and detained both him and Schmidt. The officer then observed drug paraphernalia in the living room. Permission to search the residence was received from Schmidt and Lavallie. That search discovered marijuana and drug paraphernalia in both of their bedrooms, and they were placed under arrest.

[¶4] Schmidt moved to suppress the evidence as the product of an unlawful warrantless entry and illegal search and seizure of the evidence, and argued that he was illegally seized and detained. The State responded that consent was given to enter the residence, the initial evidence found was found in plain view, and the officer received consent to make the subsequent search of the residence. The district court granted the motion finding that no consent was given to the officer to enter the apartment, and no other exigent circumstances or exceptions to the warrant requirement apply justifying entry into the home. On appeal, the State argues the evidence should not have been suppressed because the officer had ...


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