from the District Court of Burleigh County, South Central
Judicial District, the Honorable Thomas J. Schneider, Judge.
L. Lawrence, Assistant State's Attorney, Bismarck, ND,
for plaintiff and appellee.
R. McCabe, Bismarck, ND, for defendant and appellant.
J. CROTHERS, ACTING C.J.
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
Scholes, at ¶ 8 (citations and quotation marks