from the District Court of Richland County, Southeast
Judicial District, the Honorable Mark T. Blumer, Judge.
W. Moen, Assistant State's Attorney, Wahpeton, ND, for
plaintiff and appellant.
A. Meyer, Wahpeton, ND, for defendant and appellee.
VANDEWALLE, CHIEF JUSTICE.
The State appealed from an order suppressing evidence and
dismissing all charges against Perry Wayne Odum. We conclude
the district court erred in finding probable cause for the
search warrant did not exist. We reverse.
On May 9, 2018, drug task force officers searched the garbage
can in front of Odum's residence based on an anonymous
tip that Odum had been out of town and came back "with a
quantity of marijuana." The garbage can was
"located in a manner where it would be regularly
retrieved by the garbage truck" on the residence's
regularly scheduled garbage pickup day. During the garbage
search, officers found two garbage bags containing zig zag
rolling papers, several empty, labeled plastic packages and
tubes, and green, leafy flakes. The packages and tubes were
commercially labeled as containing either marijuana or THC
and indicated that they appeared to have been legally sold in
Based on the anonymous tip and evidence found during the
garbage search officers applied for a search warrant for
Odum's residence on May 11, 2018. A district judge found
there was probable cause and issued a search warrant. On May
17, 2018, while executing the warrant, officers found more
than two dozen firearms as well as items related to the sale
and distribution of marijuana.
The State charged Odum with possession of a controlled
substance with intent to manufacture or deliver and with
possession of a firearm by a convicted felon. Odum moved to
suppress the evidence gathered during the search of his
residence and to dismiss all charges against him, arguing
probable cause did not exist to issue the search warrant. A
different district judge found probable cause f o r the se a
r c h wa rra nt did not exist and granted Odum's motions
to suppress and dismiss. The State filed a notice of appeal
and prosecutor's statement under N.D.C.C. §
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.
State v. Apland, 2015 ND 29, ¶ 6, 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. "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." Id. "The standard of proof
necessary to establish guilt at trial is not necessary to
establish probable cause." State v. Laverdure,
2019 ND 72, ¶ 7 (quoting State v. Johnson, 2011
ND 48, ¶ 10, 795 N.W.2d 367). This Court will not
disturb a magistrate's conclusion that probable cause
exists if there is a substantial basis for that conclusion.
Apland, at ¶ 6. Our review of the validity of a
search warrant is independent of the trial court's
determination. State v. Schmalz, 2008 ND 27, ¶
13, 744 N.W.2d 734.
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 common sense and
realistic fashion. Biwer, 2018 ND 185, ¶ 5, 915
N.W.2d 837. "Conduct which is seemingly innocent may
give rise to probable cause. The relevant inquiry is not
whether particular conduct is innocent or guilty, but the
degree of suspicion that attaches to particular types of
noncriminal acts." Id. at ¶ 6 (internal
quotations omitted). "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."
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.
The magistrate issuing a search warrant 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. This Court ...