[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
The opinion cannot be considered final until disposition of such petition for rehearing by the court or expiration of 14 days from filing date.
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich,Judge.
Justin J. Schwarz (argued), Assistant State's Attorney, and Dawn M. Deitz (on brief), Assistant State's Attorney, Burleigh County Courthouse, Bismarck, N.D., for plaintiff and appellee.
Charles A. Stock, Crookston, Minn., for defendant and appellant.
Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice.
[¶1] Marcus Chatman appeals from a criminal judgment entered after a jury found him guilty of possession of heroin with intent to deliver, possession of cocaine, and possession of marijuana by a driver. Chatman argues the district court should have suppressed evidence because illegally seized evidence was used to establish probable cause for a search warrant. He also argues his Sixth Amendment confrontation and compulsory process rights were violated. We affirm.
[¶2] On May 15, 2014, Chatman was arrested on an unrelated charge. After the arrest, Bismarck police officers searched Chatman's cell phone without a warrant and found text messages about drug distribution.
[¶3] On May 20, 2014, an informant began providing information to a Bismarck Police detective in exchange for two one-way bus tickets and to potentially help with her boyfriend's criminal charges. The informant told the detective she was a heroin user, Chatman was her source for heroin, Chatman was known by the street name " D," she had seen Chatman in possession of heroin two days earlier, and he was selling the heroin for $100 for one-tenth of a gram. The informant told the detective she was meeting Chatman later that day. After meeting with Chatman, the informant told the detective that Chatman was leaving for Chicago that night to pick up heroin and cocaine and asked her to accompany him on the trip.
[¶4] The informant traveled to Chicago with Chatman and kept in contact with the detective during the trip. The detective received a text message from the informant around 11:12 p.m. on May 20, 2014, stating they had left Bismarck to go to Chicago. On the morning of May 21, 2014, the detective received a text message from the informant stating they were in Wisconsin. On May 22, 2014, the detective applied for a warrant for cell tower information for a cell phone belonging to another individual the detective believed was with Chatman and the informant to track their progress. The affidavit submitted in support of the search warrant application included information obtained from the May 15, 2014, warrantees search of Chatman's cell phone. After the detective applied for the warrant for the cell tower information, he received a text message from the informant informing him they were almost to " the cities" and Chatman had the heroin in his jeans pocket.
[¶5] The detective applied for a warrant to search Chatman and the vehicle he was driving. The detective testified in support of the application and also submitted a copy of his affidavit from the prior cell phone tower warrant application. A warrant was issued, authorizing a search of Chatman's person and the vehicle he was driving when he arrived in Bismarck.
[¶6] Officers set up surveillance along the route they believed Chatman would take to determine when Chatman returned to Bismarck. The detective observed Chatman driving the vehicle on the interstate heading toward Bismarck, he notified other officers, and the officers stopped Chatman's vehicle when it reached his residence. Officers searched Chatman and the vehicle and found heroin, cocaine, and marijuana. Chatman was charged with possession
of heroin with intent to deliver or manufacture, a class A felony; possession of cocaine, a class C felony; and possession of marijuana by a driver, a class A misdemeanor.
[¶7] Chatman moved to suppress the evidence obtained from searching him and his vehicle. He argued information from the May 15, 2014, warrantees cell phone search was used to obtain the search warrant, a warrant must be obtained to search a cell phone incident to arrest, and therefore all evidence obtained as a result of the illegal search of his cell phone must be suppressed. After a hearing, the district court denied the motion, concluding the Fourth Amendment was not violated by the search of Chatman and the vehicle because there was sufficient ...