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State v. White

Supreme Court of North Dakota

March 7, 2017

State of North Dakota, Plaintiff and Appellee
v.
Jesse Gene White, Defendant and Appellant

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

         AFFIRMED.

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

          Kent M. Morrow, for defendant and appellant.

          CROTHERS, JUSTICE.

         [¶ 1] Jesse White appeals from a criminal judgment entered after a jury found he was guilty of possession of certain materials prohibited. We affirm, concluding the probation search of White's cell phones did not violate his Fourth Amendment rights and sufficient evidence supports his conviction.

         I

         [¶ 2] White was on supervised probation when his residence was searched. His probation conditions required him to submit to a search of his person, vehicle or residence as requested by his probation officer.

         [¶ 3] On April 15, 2014, a probation officer searched White's residence after police officers received a tip from White's girlfriend. White's girlfriend told officers that she discovered images of clothed, young girls in provocative positions and that White was uploading pictures to a cell phone with no service. The probation officer and police officers went to White's residence where the probation officer informed White of the reason for searching his residence and that they were interested in images on any computers or phones. White pointed out his laptop computer and cell phones, including a phone that did not have cellular service. An officer found a folder of papers containing Facebook login information for "Jesse White" and "Ashley Black." White claimed he did not know "Ashley Black." Officers also found pornographic DVDs, including DVDs titled "Barely Legal." The officers looked at the cell phones and found numerous pictures of clothed young girls and at least one picture of a topless prepubescent girl. A search warrant was granted. The phones and computer were forensically analyzed and images of young, unclothed females were found.

         [¶ 4] White was charged with possession of certain materials prohibited in violation of N.D.C.C. § 12.1-27.2-04.1, a class C felony. White moved to suppress any evidence seized from his cell phones, arguing officers were required to obtain a warrant before searching his cell phones and the search warrant was issued upon illegally seized evidence. The State opposed the motion and argued the cell phone search did not violate White's constitutional rights because it was a probationary search and the officers had reasonable suspicion. Neither party requested a hearing. The district court denied the motion to suppress, concluding the search was constitutional because it was a probationary search and the officers had reasonable suspicion.

         [¶ 5] A jury trial was held. The jury found White guilty of possession of certain materials prohibited. White was sentenced to three years in prison with all but 18 months suspended and three years parole following release from prison.

         II

         [¶ 6] White argues the district court erred in denying his motion to suppress because the search of his cell phones violated his Fourth Amendment rights. He claims the search was not a reasonable probation search because his probation conditions are limited to searching his "person, vehicle, or residence" and do not include his cell phone and the officer did not have reasonable suspicion to justify the search. White does not challenge the initial entry into his residence or the initial search of his residence; rather, he only argues the search of his cell phones violated his constitutional rights.

         [¶ 7] In reviewing a district court's decision on a motion to suppress we defer to the district court's findings of fact, and we resolve conflicts in testimony in favor of affirmance because we recognize the district court is in a superior position to assess the witnesses' credibility and weigh the evidence. State v. Schmidt, 2015 ND 134, ¶ 5, 864 N.W.2d 265. "A district court's findings of fact on a motion to suppress will not be reversed if there is sufficient competent evidence fairly capable of supporting the court's findings, and the decision is not contrary to the manifest weight of the evidence." Id. (quoting State v. DeCoteau, 1999 ...


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