Appeal
from the District Court of Cass County, East Central Judicial
District, the Honorable Susan L. Bailey, Judge.
Joshua
J. Traiser, Assistant State's Attorney, Fargo, ND, for
plaintiff and appellee.
Richard E. Edinger, Fargo, ND, for defendant and appellant;
submitted on brief.
OPINION
VANDEWALLE, CHIEF JUSTICE.
[¶1]
David John Laverdure appealed from a criminal judgment
entered upon a conditional guilty plea to possession with
intent to manufacture o r d e l i v e r a c o n t r o l l e d
substance in violation of N.D.C.C. § 19-03.1-23(1)(a).
We conclude the district court properly denied
Laverdure's motion to suppress evidence and we affirm.
I
[¶2]
Relying on information from a concerned citizen and a
"source of information" about short term traffic
and potential heroin distribution, a Fargo detective took
part in a garbage search at Laverdure's residence on July
11, 2017. The searched garbage cans had been placed on the
street in front of the residence in a City of Fargo container
for the residence's usual garbage pickup day. The garbage
contained two sealed grocery bags and a sealed trash bag. A
search of the bags revealed a broken glass pipe with
methamphetamine residue, a small clear bag containing white
powdery residue, and four used hypodermic syringes.
[¶3]
On July 12, 2017, the detective applied for a search warrant
for Laverdure's residence. In his application and
affidavit in support of the search warrant, the detective
described the two tips he received and the results of the
garbage search. The affidavit did not state if anyone had
observed the garbage container being placed on the street.
The affidavit also did not state if the garbage contained
mail or other items connecting it to Laverdure or the
residence. The magistrate issued the search warrant. While
executing the warrant, narcotics and related paraphernalia
were found. Laverdure was arrested and charged with
possession with intent to manufacture or deliver a controlled
substance in violation of N.D.C.C. § 19-03.1-23(1)(a).
[¶4]
Laverdure moved to suppress the evidence alleging a lack of
probable cause to issue the search warrant. The district
court denied the motion, finding sufficient probable cause
existed for the search warrant. Laverdure entered a
conditional plea of guilty, reserving the right to appeal the
district court's denial of the motion to suppress
evidence.
II
[¶5]
"We affirm a court's decision denying a motion to
suppress if, after resolving conflicting evidence in favor of
affirmance, 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." State v. Apland, 2015 ND 29, ¶
5, 858 N.W.2d 915. "Whether probable cause exists to
issue a search warrant is a question of law which is fully
reviewable on appeal." State v. Biwer, 2018 ND
185, ¶ 5, 915 N.W.2d 837.
[¶6]
"Probable cause is required for a search warrant under
the Fourth Amendment to the United States Constitution, and
Article 1, Section 8 of the North Dakota Constitution."
Apland, 2015 ND 29, ¶ 6, 858 N.W.2d 915
(quoting State v. Damron, 1998 ND 71, ¶ 5, 575
N.W.2d 912). Determining if probable cause for a search
warrant exists is a question of law and this Court will not
disturb a magistrate's conclusion that probable cause
exists if there is a substantial basis for that conclusion.
Id. "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." Biwer, 2018 ND 185, ¶ 5, 915
N.W.2d 837.
[¶7]
"The standard of proof necessary to establish guilt at
trial is not necessary to establish probable cause."
State v. Johnson, 2011 ND 48, ¶ 10, 795 N.W.2d
367. "To establish probable cause, there must be a nexus
between the place to be searched and the contraband sought.
Circumstantial evidence may be used to establish that
nexus." Biwer, 2018 ND 185, ¶ 12, 915
N.W.2d 837. "Although each piece of information may not
alone be sufficient to establish probable cause and some of
the information may have an innocent explanation, probable
cause is the sum total of layers of information and the
synthesis of what the police have heard, what they know, and
what they observed as trained officers." State v.
Schmalz, 2008 ND 27, ¶ 11, 744 N.W.2d 734. "We
also recognize courts must take into account inferences and
deductions that a trained and experienced officer
makes." Id.
[¶8]
The magistrate is to make a practical, commonsense decision
if probable cause exists to search a particular place.
Apland, 2015 ND 29, ¶ 6, 858 N.W.2d 915.
"We apply the totality-of-the-circumstances test to
review whether information before the magistrate was
sufficient to find probable cause, independent of the trial
court's findings." Id. We ...