from the District Court of Burleigh County, South Central
Judicial District, the Honorable David E. Reich, Judge.
O. Diamond, Fargo, ND, for petitioner and appellant;
submitted on brief.
M. Vaagen, Assistant State's Attorney, Bismarck, ND, for
respondent and appellee; submitted on brief.
1] Marcus Orlando Chatman appeals an order summarily
dismissing his second application for post-conviction relief.
Chatman argues the district court erred in denying his
request for an evidentiary hearing on newly discovered
evidence, abused its discretion in granting summary dismissal
prior to ruling on outstanding motions, and erred in
determining the anticipatory search warrant in the underlying
case was legal. We affirm the order summarily dismissing
Chatman's application for post-conviction relief.
2] The facts essential to this case were explained in
"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.
"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,
warrant[les]s 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.
"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.
"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.
"Chatman moved to suppress the evidence obtained from
searching him and his vehicle. He argued information from the
May 15, 2014, warrant[les]s 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 evidence to find probable cause to issue
the search warrant absent the information obtained from the
May 15, 2014, cell phone search.
"Before trial, Chatman requested the trial be reset
because he was unable to contact the informant to testify.
The district court granted the request and the trial was
reset. On the morning of the first day of trial, Chatman
informed the court he had subpoenaed the informant, but the
person who responded to the subpoena was not the informant
involved with his case, and he stated the informant should be
present for the case to properly proceed. The State advised
the court it did not know where the informant was. Chatman
did not make any further motions or make any further argument
about the informant's absence. A jury trial was held, and
the jury found Chatman guilty on all three charges."
State v. Chatman, 2015 ND 296, ¶¶ 3-8, 872
N.W.2d 595, reh'g denied, February 18, 2016 [