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State v. Weinmann

Supreme Court of North Dakota

August 25, 2015

State of North Dakota, Plaintiff and Appellee
v.
James Roy Weinmann, Jr., Defendant and Appellant; State of North Dakota, Plaintiff and Appellee
v.
Kayla Marie Weinmann, Defendant and Appellant

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.

Julie A. Lawyer, Burleigh County Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Richard E. Edinger (argued), Craig M. Richie (on brief), Fargo, ND, for defendants and appellants.

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

OPINION

Page 829

Gerald W. VandeWalle, Chief Justice.

[¶1] James Roy Weinmann, Jr. and Kayla Marie Weinmann appealed from a criminal judgment entered upon their conditional pleas of guilty to possession of methamphetamine, possession of a controlled substance (hashish), possession of a controlled substance (marijuana), possession of drug paraphernalia (methamphetamine), and possession of drug paraphernalia (marijuana). The Weinmanns pled guilty after the district court denied their motion to suppress evidence. They argue

Page 830

the district court erred in denying the motion when it determined probable cause was established for the issuance of a search warrant, the reliability of the confidential informant was established, and the affiant did not intentionally mislead the magistrate by omitting certain facts from the magistrate. We affirm.

I

[¶2] Burleigh County Sheriff's Deputy Brandon Rosen, a narcotics investigator for the Sheriff's office, gave a sworn affidavit for a search warrant. The affidavit indicated probable cause to believe the Weinmanns were in possession of methamphetamine and drug paraphernalia at their residence. Probable cause was based on text messages and a phone call he received from Lucas Sizer, a confidential informant, who stated he had been at the Weinmann residence, had observed a large bag of methamphetamine, and observed Weinmann and a male guest ingest methamphetamine.

[¶3] Sizer was previously charged with the manufacture of marijuana and possession of drug paraphernalia. In consideration for information obtained as a confidential informant, Rosen agreed to recommend Sizer receive a lower sentence on his criminal case. At the time he gave the affidavit, Rosen was aware that Sizer had an addiction to methamphetamine and that he had violated the terms of the 24/7 sobriety program. Rosen did not include in his affidavit any information related to Sizer's criminal charges, addiction, or 24/7 program violation. This was the first time Sizer had acted as a confidential informant and he had no prior history of reliability. Sizer's information included the following facts confirmed by Rosen: James Weinmann's home town, the business his father operates, the name of his wife and date of their marriage, the names of his children, and the vehicles owned by the couple. Sizer stated the male guest he observed at the Weinmann residence drove a red Jeep with the license plate number JZE045. Rosen later drove by the Weinmann residence and observed the same red Jeep parked on the street across from the residence. Rosen confirmed who owned the vehicle and that the owner was a white male. Sizer also stated that James Weinmann did not park his vehicle in his garage because he used that location to ingest controlled substances.

[¶4] Rosen's affidavit stated he had

observed vehicles that belong to known drug users parked in front of the Weinmanns' residence. On May 5, 2014 Rosen observed one of those vehicles to be a Jeep Cherokee bearing ND license JSC756. Rosen knows this vehicle to be registered to Kelly Haux ...

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