from the District Court of Burleigh County, South Central
Judicial District, the Honorable Sonna M. Anderson, Judge.
A. Lawyer, Burleigh County Assistant State's Attorney,
plaintiff and appellee.
M. Morrow, for defendant and appellant.
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.
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
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
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 ...