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State v. Heier

Supreme Court of North Dakota

July 28, 2016

State of North Dakota, Plaintiff and Appellee
v.
Brandon Mark Heier, Defendant and Appellant

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

          Britta K. Demello Rice, Assistant State's Attorney, for plaintiff and appellee.

          Bobbi Brown Weiler, for defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶ 1] Brandon Heier appeals from an order deferring imposition of sentence entered after he conditionally pled guilty to conspiracy to deliver a controlled substance and reserved the right to appeal the denial of his motion to suppress. Heier argues his right to be free from unreasonable searches and seizures was violated when an officer seized his backpack and transported it to the police department. We affirm.

         I

         [¶ 2] On December 3, 2014, the landlord of a Bismarck apartment building, called police to report an odor of marijuana coming from apartment 10. Heier's friend, Noah Hoffer, was the tenant renting apartment 10.

         [¶ 3] Three Bismarck Police officers responded to the call and noted an odor of marijuana coming from the apartment. Two of the officers left to secure a search warrant for the apartment, and Detective Jerry Stein arrived at the apartment building to assist with executing the search warrant. The landlord approached Stein and told Stein that he had warned Hoffer multiple times to stop smoking marijuana in the apartment, he received another complaint about marijuana use that day, he went to apartment 10 but no one was home, and he entered the apartment and found a black backpack. The landlord led Stein to apartment 1, showed him the backpack, told him there were three jars of marijuana in the backpack, attempted to hand the backpack to Stein, and said "Here you go; here's the backpack." Stein testified a strong odor of marijuana was emanating from the backpack, and he told the landlord to put the backpack on the table while he decided what to do. The landlord informed Stein that he had removed the backpack from apartment 10 and moved it to apartment 1, which was vacant. The landlord told Stein he looked in the backpack and saw three jars of marijuana, but Stein testified the backpack was zipped closed and he could not see what the bag contained.

         [¶ 4] Stein attempted to contact the officers who were securing the warrant for the apartment to request they also obtain a warrant for the backpack, but he was unable to reach them. Stein placed the backpack in his vehicle and later transported it to the police department. On December 10, 2014, Stein obtained a search warrant for the backpack and found three jars containing marijuana, a digital scale, and plastic baggies when he searched the bag.

         [¶ 5] Heier was charged with conspiracy to deliver a controlled substance. He moved to suppress evidence, arguing law enforcement unlawfully seized the backpack and any evidence discovered after the seizure should be suppressed. After a hearing, the district court denied Heier's motion to suppress. The court concluded the seizure was not unreasonable because the backpack was removed from the apartment by the landlord, the landlord searched the bag, and Stein detected an odor of marijuana coming from the bag. Heier conditionally pled guilty, reserving the right to appeal the denial of his motion to suppress.

         II

         [¶ 6] Heier argues the district court erred in denying his motion to suppress because the police violated his Fourth Amendment rights when they seized and moved his backpack without a warrant.

         [¶ 7] We defer to the district court's factual findings in reviewing the court's ruling on a motion to suppress, and we resolve conflicts in testimony in favor of affirmance. State v. Nickel, 2013 ND 155, ¶ 12, 836 N.W.2d 405. The court's factual findings will not be reversed if there is sufficient competent evidence fairly capable of supporting the findings and the court's decision is not contrary to the manifest weight of the evidence. Id. Questions of law are fully reviewable, and the ultimate conclusion of whether the facts meet a particular legal standard is a question of law. Id.

         [¶ 8] The Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution give people the right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. See Nickel, 2013 ND 155, ¶ 13, 836 N.W.2d 405. Heier's backpack is an "effect" entitled to protection from unreasonable searches or seizures. Cf. Nickel, at ¶ 14 (stating a wrapped package was an effect). "A 'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." Id. at ¶ 20 (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). "A 'seizure' of property ...


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