State v. Biwer, 915 N.W.2d 837

Background

Detective Stein was alerted by a shipping-store employee that Mitchell Biwer behaved unusually when shipping a package to Denver and said it contained an owner’s manual; Stein observed the package’s shape suggested it contained cash.
Stein learned Biwer had a 2013 marijuana-possession conviction and the package recipient had a 2010 drug conviction; Stein, citing interdiction training, believed Colorado is a source state for marijuana.
Magistrate issued a warrant for the package; search disclosed $4,700 in cash.
Before the package warrant application was filed, officers conducted a trash pull at the duplex and found controlled substances plus mail linking Biwer to the downstairs unit (509 1/2); police obtained a warrant for 509 1/2 and executed it.
New occupants of 509 1/2 told officers Biwer had moved upstairs to 509; corroborating signs of a recent move led to a third warrant for 509, where officers found drugs and paraphernalia.
Biwer moved to suppress; district court denied motion; Biwer conditionally pleaded guilty and appealed suppression ruling.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Probable cause for warrant to search the package	Package shape, clerk’s report of odd behavior, high postage vs. claimed contents, prior convictions, and officer’s interdiction experience supported probable cause to search for drug proceeds	These facts are innocent standing alone and officer’s training statements were conclusory; combined they did not establish probable cause	No — warrant for package lacked probable cause; suppression of package contents affirmed (majority)
Probable cause for third warrant (upstairs residence)	New residents’ statements that Biwer moved upstairs plus corroborating observation of a recent move supplied nexus between contraband and upstairs unit	No valid nexus between trash-pull evidence and upstairs unit; Mische requires independent verification	Yes — magistrate had a sufficient nexus; third-warrant search valid
Fruit of the poisonous tree (use of package evidence to obtain subsequent warrants)	Second and third warrants were supported by independent probable cause (trash pull preceded package search), so later evidence is not poisoned fruit	Evidence from package tainted subsequent searches, so derivative evidence must be suppressed	No — independent-source doctrine applies; evidence from second and third warrants admissible
State constitutional claim (Art I, § 8 provides greater protection)	Federal and state protections are equivalent here; no authority showing broader protection applicable	Biwer argued ND Constitution affords greater protection than federal Fourth Amendment	No — Biwer cited no authority to show ND Constitution provides greater protection; claim rejected

Key Cases Cited

State v. Scholes, 2008 ND 146, 753 N.W.2d 377 (deference to magistrate; totality-of-circumstances probable-cause review)
State v. Thieling, 2000 ND 106, 611 N.W.2d 861 (seemingly innocent items may be suspicious but may be insufficient for probable cause)
State v. Rangeloff, 1998 ND 135, 580 N.W.2d 593 (conclusions without underlying detail are insufficient for probable cause)
State v. Kieper, 2008 ND 65, 747 N.W.2d 497 (suspicious items alone may be inadequate to support a warrant)
State v. Ringquist, 433 N.W.2d 207 (stale prior convictions insufficient to establish ongoing criminal activity)
State v. Mische, 448 N.W.2d 415 (need for verification before using information to support a warrant for a different residence)
State v. Ebel, 2006 ND 212, 723 N.W.2d 375 (nexus requirement between place searched and contraband; circumstantial evidence may establish nexus)
State v. Gregg, 2000 ND 154, 615 N.W.2d 515 (independent-source exception two-step test)
Nix v. Williams, 467 U.S. 431 (independent-source doctrine)