from the District Court of Burleigh County, South Central
Judicial District, the Honorable Gail Hagerty, Judge.
K. Demello Rice, Assistant State's Attorney, for
plaintiff and appellee.
Brown Weiler, for defendant and appellant.
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.
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.
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 ...