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State v. Biwer

Supreme Court of North Dakota

July 26, 2018

State of North Dakota, Plaintiff and Appellee
Mitchell Steven Biwer, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

          Mindy L. Lawrence, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

          Chad R. McCabe, Bismarck, ND, for defendant and appellant.



         [¶ 1] Mitchell S. Biwer appeals from a district court judgment denying his motion to suppress evidence. Biwer argues probable cause did not exist for search warrants for a package he shipped or for his residence. We reverse the judgment as to the package, affirm the judgment as to the residence, and remand for further proceedings.


         [¶ 2] On April 17, 2017 Bismarck Police Detective Jerry Stein received a call from a shipping store employee about a suspicious package Biwer dropped off to be shipped to Denver, Colorado. The employee told Stein "[Biwer] was explaining too much and talking too much about why the package was being sent out. And then when questioned what was in the package, he said it was an owner's manual, and the cost for shipping this owner's manual was $47 for overnight shipping." Upon inspection, Stein observed a cardboard mailer bulging in a way consistent with cash rather than an owner's manual. Biwer has a 2013 conviction for marijuana possession, and the package recipient has a 2010 conviction for marijuana possession with intent to deliver. Stein applied for a warrant, testifying to these facts, his drug interdiction training, and his belief Colorado is a major source for marijuana in North Dakota. The magistrate granted the first search warrant for the package. Inside the package Stein found $4, 700.00 in four separate envelopes marked with initials.

         [¶ 3] Between observing the package and applying for the search warrant, Stein and another police officer conducted a trash pull in Bismarck at what they believed was Biwer's address. Biwer's residence was in a duplex with an upstairs address of 509 and a downstairs address of 509 1/2. In the same trash bags they discovered court documents and other personal mail connecting Biwer to the 509 1/2 residence along with psilocybin mushrooms, a controlled substance. Based on information from the trash pull Stein sought and obtained a second search warrant for the 509 1/2 residence. While executing the second warrant Stein encountered the new residents of 509 1/2. The new residents told Stein they moved into the 509 1/2 residence a week earlier and Biwer moved upstairs to the 509 residence. Stein observed the 509 1/2 residence had sparse furniture and other signs of a recent move. Stein applied for and received a third search warrant and executed it on the 509 residence, finding drug paraphernalia and controlled substances including meth, marijuana, LSD (acid), and MDMA (ecstasy).

         [¶ 4] On August 7, 2017 the district court held a hearing on Biwer's motion to suppress. The motion was denied, and Biwer entered a conditional guilty plea to six felonies and three misdemeanors. Biwer appeals.


         [¶ 5] Biwer argues probable cause did not exist for the first and third search warrants. He does not contest the validity of the second search warrant. This Court will not reverse a district court's decision on a motion to suppress if sufficient competent evidence supports the district court's findings and the decision is not contrary to the manifest weight of the evidence. State v. Scholes, 2008 ND 146, ¶ 7, 753 N.W.2d 377. "Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law." State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578. "Whether probable cause exists to issue a search warrant is a question of law which is fully reviewable on appeal." Roth v. State, 2007 ND 112, ¶ 18, 735 N.W.2d 882.

"The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. A search warrant may be issued only upon a showing of probable cause. Probable cause to issue a search warrant exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched. We review the validity of a search warrant using the totality-of-the-circumstances approach, consider all information for probable cause together and test[] affidavits executed in support of a warrant in a commonsense and realistic fashion. We generally defer to a magistrate's determination of probable cause if there was a substantial basis for the conclusion, and [we resolve] doubtful or marginal cases... in favor of the magistrate's determination."

Scholes, at ΒΆ 8 (citations and quotation marks ...

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