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State v. Odum

Supreme Court of North Dakota

April 11, 2019

State of North Dakota, Plaintiff and Appellant
v.
Perry Wayne Odum, Defendant and Appellee

          Appeal from the District Court of Richland County, Southeast Judicial District, the Honorable Mark T. Blumer, Judge.

          Casey W. Moen, Assistant State's Attorney, Wahpeton, ND, for plaintiff and appellant.

          Mark A. Meyer, Wahpeton, ND, for defendant and appellee.

          OPINION

          VANDEWALLE, CHIEF JUSTICE.

         [¶1] 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.

         I

         [¶2] 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 another state.

         [¶3] 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.

         [¶4] 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. § 29-28-07(5).

         II

         [¶5] 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.

         [¶6] 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.

         [¶7] 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 ...


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