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State v. Laverdure

Supreme Court of North Dakota

March 13, 2019

State of North Dakota, Plaintiff and Appellee
v.
David John Laverdure, Defendant and Appellant

          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 ...


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