Lead Opinion
[¶ 1] Williаm Scott Gagnon III appeals a criminal judgment entered on a conditional plea of guilty to manufacturing marijuana. He reserved his right to appeal the denial of his motion to suppress evidence discovered in his residence. Gagnon argues the evidence was unconstitutionally seized during an illegal warrantless search of his home. We reverse the judgment, remand to allow Gagnon to withdraw his guilty plea and for further proceedings.
I
[¶ 2] On May 28, 2010, North Dakota Department of Parole and Probation Officer Mike Nason was in Douglas, North Dakota, volunteering as a campaigner for a Ward County Sheriffs candidate. While distributing campaign information, Nason saw two marijuana plants in- a window in the back of Gagnon’s residence. On May 29, 2010, Nason contacted the North Dakota Bureau of Criminal Investigation (“BCI”) and reported observing the marijuana.
[¶ 3] On June 3, 2010, Special Agent Steve Niebuhr of the BCI traveled to Douglas. At approximately 1:30 p.m., he parked his vehicle on a public street outside Gagnon’s residence. Using binoculars while on the public street, Niebuhr observed two marijuana plants in the window of Gagnon’s residence. Niebuhr radioed for assistance, and three officers from thе Ward County Narcotics Task Force responded. At approximately 2:10 p.m., Niebuhr and the other officers approached Gagnon’s residence. Niebuhr and Trevor Huber approached the front and knocked on the door while the other two officers covered the back. Without
[¶ 4] At approximately 2:16 p.m., while Niebuhr was walking through the residence, Gagnon told Huber he would consent to a search. Gagnon and Yellowbird signed a joint “Consent to Search” form. The officers seized a total of 54 marijuana plants from inside and outside the residence, a pill container used to store marijuana and a marijuana smoking device.
[¶ 5] Gagnon was charged with manufacture of marijuana and possession of drug paraphernalia. He moved to suppress all evidence, arguing the warrantless search of his home was unconstitutional because he did not consent until after law enforcement violated his constitutional rights. Gagnon alleged several violations occurred including Nason’s initial entry onto his property, Niebuhr’s use of binoculars to view the interior of the residence, Niebuhr and Huber’s entry into the residence despite the presence of “No Trespassing” signs and Niebuhr’s walk through the residence. Without separately addressing the alleged violations, the district сourt denied the motion, concluding the search fell within the consent and plain view exceptions to the warrant requirement. Gagnon entered a conditional plea of guilty to manufacturing marijuana. The possession of drug paraphernalia charge was dismissed.
II
[¶ 6] Gagnon argues law enforcement illegally entered and conducted a number of illegal searches of his residence before he consented to the search. We address only Gagnon’s contention that Niebuhr’s walk through the residence was illegal because it is dispositive of this appeal.
[¶ 7] Gagnon arguеs Niebuhr’s walk through the residence was an illegal warrantless search. The State responds it was reasonable for Niebuhr to walk through the residence “to ascertain that there were no other individuals present that could pose any threat to the officers or destroy evidence while the search warrant was being sought.” We affirm a district court’s disposition of a motion to suppress if, after resolving conflicting evidence in favor of affirmance, sufficient competent evidence fairly capable of supporting the district court’s findings exists and the decision is not contrary tо the manifest weight of the evidence. State v. Mitzel,
[¶ 8] The Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures. A search occurs when the government intrudes upon an individual’s reasonablе expectation of privacy. Mitzel,
[¶ 9] The State argues Niebuhr’s “quick walk” through Gagnon’s residence was lawful under the United States Supreme Court’s decision in Segura v. United States,
[¶ 10] Although the security check in Segura was similar to the walk through in this case, the Segura Court clearly stated the legality of the security check was not at issue:
“At the outset, it is important to focus on the narrow and precise question now before us. As we have noted, the Court of Appeals agreed with the District Court that the initial warrantless entry and the limited security search were not justified by еxigent circumstances and were therefore illegal. No review of that aspect of the case was sought by the Government and no issue concerning items observed during the initial entry is before the Court. The only issue here is whether drugs and the other items not observed during the initial entry and first discovered by the agents the day after the entry, under an admittedly valid search warrant, should have been suppressed.”
“We hold, therefore, that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents. We reaffirm at the same time, however, that, absent exigent circumstances, a warrantless search — such as that invalidated in Vale v. Louisiana,399 U.S. 30 , 33-34,90 S.Ct. 1969 ,26 L.Ed.2d 409 (1970) — is illegal.”
Segura, at 810,
[¶ 11] The district court found the war-rantless search of Gagnon’s residence was justified by the consent and plain view exceptions to the warrant requirement. Because Gagnon did not consent until after Niebuhr began walking through the residence, we must assume the district court determined the walk through was justified because the marijuana plants wеre in plain view.
[¶ 12] The “plain view” doctrine only applies when an officer is legitimately in a constitutionally protected area. State v. Gronlund,
[¶ 13] The State asserts the need to prevent destruction of evidence and to protect officer safety were exigent circumstances justifying Niebuhr’s walk through the residence. We have recognized that evidence in plain view may be seized if exigent circumstances exist. Gronlund,
[¶ 14] The timeline of events in this case does not support the conclusion a warrantless search was necessary to avoid imminent destruction of evidence. Nason observed marijuana in Gagnon’s window on May 28 and reported his observation to the BCI on May 29. When Niebuhr traveled to Douglas on June 3, marijuana plants were still in Gagnon’s window. Following Niebuhr’s initial observation, the plants remained in the window for approximately forty minutes while Niebuhr waited for additional officers. Nothing in the record indicates destruction of the plants became imminent when the additional officers arrived. To the contrary, Gagnon’s failure to remove the marijuana from the window and Yellowbird’s invitation that the officers “come in,” indicate Gagnon and Yellowbird were unaware their residence was being observed by law enforcement until Niebuhr and Huber walked in their door. Finding a warrantless search was justified under these circumstances would permit law enforcement to create an exigency by deciding to approach the residence without a warrant despite ample opportunity to obtain one. In addition, nothing in the record indicates the safety of the officers or any other person was threatened before the officers approached Gagnon’s residence. The State argues that after Niebuhr and Huber entered the residence, their safety was a concern because an unidentified person could have been inside. The presence of unidentified persons inside a residence always will be a possibility and that possibility, without more, does not create an exigency sufficient to justify a warrantless search. See
[¶ 15] Niebuhr’s walk through Gag-non’s residence was an unreasonable war-rantless search. Because of our resolution of this issue, we need not address the other issues raised.
Ill
[¶ 16] We reverse the judgment, remand to allow Gagnon to withdraw his guilty plea and for further proceedings.
Concurrence Opinion
concurring specially.
[¶ 18] I agree with the dissent that officer safety is an extremely important factor in determining whether or not exigent circumstances exist which may justify a search as an exception tо the requirement of a search warrant under the Fourth Amendment of the United States Constitution. However, I agree with the majority that such circumstances do not exist under the facts of this case.
[¶ 19] In State v. Mitzel,
[¶ 20] I dissented to thе majority opinion because the facts in that case revealed the officers were sent to the home to investigate a report of a domestic disturbance, the police were invited into the home and, although there was initially no consent to search the home, I concluded the officer was entitled to follow Mitzel to the back bedroom, because “[i]t is well known that law enforcement officers may be in considerable danger when called to the scene of domestic violence” and “the officer was invited into the home and told by the defendant he had been arguing with his girlfriend, who was not visible in the home.” Id. at ¶ 36. I concluded that the officer out of concern for the woman and his own protection was justified under the exigent-circumstances exception to the warrant requirement of the Fourth Amendment in following Mitzel to the rear of the home.
[¶ 21] Here the facts are considerably different. This was not a domestic disturbance, the officers were not called to the home, the officers had observed the marijuana plants a week before and there was no indication the plants would be destroyed before a search warrаnt was obtained. There were no exigent circumstances which required the officers to enter the home before they obtained a search warrant. Rather, the officers were granted entrance to the home at their request when there was no good reason to do so before obtaining a search warrant. Under those facts I cannot
[¶ 22] MARY MUEHLEN MARING, J., concur.
Dissenting Opinion
dissenting.
[¶ 28] Concluding that with probable cause to arrest, the officer was entitled to do a warrantless safety sweep of the trailer home, I respectfully dissent. Additionally, if the sweep had not been permissible, suppression of the evidence would not have been appropriate.
I
[¶ 29] As the majority notes, at ¶¶ 2-3, after receiving a tip from North Dakota Department of Parole and Probation Officer Mike Nason that two marijuana plants were growing in William Gagnon’s residence and were visible through a window, Special Agent Steve Niebuhr parked his vehicle on a public street outside Gagnon’s residence and, using binoculars, observed two marijuana plants in the window of
[¶ 30] Because probable cause to arrest already existed here, this case is unlike State v. Mitzel,
[¶ 31] The majority, at ¶ 15, concludes Agent Niebuhr’s walk through Gagnon’s residence was an unreasonable warrantless search. The conclusion is misplaced, however, because incident to a valid arrest, law enforcement officers may conduct a protective sweep to secure the premises to protect the officers’ safety under appropriate circumstances. See Maryland v. Buie,
[¶ 32] In Buie, the United States Supreme Court held “that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Buie,
[¶ 33] Here the record establishes that the safety sweep was of the trailer home in which the officers were present. Reasonably, an attack could have been immediately launched from anywhere within the trailer home.
[¶ 34] The Court in Buie said more was required if officers are going to go beyond “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” As the Court explained, “Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. And Buie did involve going beyond “closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” In Buie, law enforcement swept the first and second floors of the house and the basement. It was in the basement that the incriminating evidence was found. Id. at 328,
First, incident to an arrest, law enforcement officers may contemporaneously search areas within the arrestee’s immediate control to prevent the destruction of evidence or procurement of a weapon. Second, officers may search areas immediately adjoining the place of arrest, such as closets and other spaces, from which a surprise attack could occur. Probable cause or reasonable suspicion is not necessary for these first two variations. Third, officers may also perform cursory “protective sweeps” of larger areas if they have articulable facts plus rational inferences that allow a reasonable officer to suspect that an individual dangerous to the officers is within the area to be searched.
Mata,
In United States v. Charles, [469 F.3d 402 (5th Cir.2006),] this Court upheld a precautionary search when officers quickly entered a 10' by 25' storage unit in which they found the defendant. The officers approached the storage unit, ordered the defendant outside, and arrested him without a warrant. One officer quickly entered the unit, which contained a car, to check beneath, behind, and inside the car to confirm no other person was hiding. During this brief entrance, the officer noticed in plain view narcotics and a firearm. Charles argued that once he was outside the unit nothing inside was within his immediate control and that the officer lacked artic-ulable facts justifying the sweep. This court сoncluded that the officers were justified in searching the unit because [Maryland v.] Buie[,494 U.S. 325 , 334,110 S.Ct. 1093 ,108 L.Ed.2d 276 (1990),] held that police may as a precautionary matter and without probable cause or reasonable suspicion look in closets and spaces immediately adjoining the place of arrest from which an attack could be launched.
Id. (footnotes omitted). Our case here is much more in line with Charles, in which the protective sweep was upheld, than with Mata, in which a separate, large building was involved, or Buie, in which three levels of the house were swept.
[¶ 36] As the United States Supreme Court emphasized in Buie, “such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspeсtion of those spaces where a person may be found.” Id. And, again, that is what the record reflects happened in this case.
[¶ 37] It is of no consequence the arrest contemporaneously followed the protective sweep. See Rawlings v. Kentucky,
“We hold, therefore, that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents. We reaffirm at the same time, however, that, absent exigent circumstances, a warrantless search — such as that invalidated in Vale v. Louisiana,399 U.S. 30 , 33-34,90 S.Ct. 1969 ,26 L.Ed.2d 409 (1970) — is illegal.”
(Quoting Segura,
[¶ 38] On the basis of Buie and Segura, Agent Niebuhr’s protective sweep to secure the residence incident to Gagnon’s arrest was not an unreasonable warrant-less search or seizure. Buie,
[¶ 39] Additionally, even if Agent Niebuhr had testified to having seen marijuana plants inside the residence during his protective sweep, which he did not, the majority erroneously applies the “plain view” doctrine to the facts in this case. The majority concludes, at ¶ 12, the “plain view” doctrine did not apply as an exception to the warrant requirement because Agent Niebuhr observed the marijuana plants standing on a public street outside the residence and “[p]lain view alone ... is never enough to justify the warrantless search or seizure of evidence.” (Quoting State v. Garrett,
[¶ 40] Agent Niebuhr’s safety sweep was reasonable under the Fourth Amendment.
II
[¶ 41] Even if the safety sweep had not been reasonable, the suppression of the evidence would not be appropriate. No evidence was seized in the safety sweep. The officers had already seen the marijuana in the window before the safety sweep. They were going to go to get a search warrant when both occupants signed a consent to search.
The exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search, Weeks v. United States,232 U.S. 383 ,34 S.Ct. 341 ,58 L.Ed. 652 (1914), and of testimony concerning knowledge acquired during an unlawful search, Silverman v. United States,365 U.S. 505 ,81 S.Ct. 679 ,5 L.Ed.2d 734 (1961). Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes “so attentuated [sic] as to dissipate the taint,” Nardone v. United States,308 U.S. 338 , 341,60 S.Ct. 266 , 268,84 L.Ed. 307 (1939). See Wong Sun v. United States,371 U.S. 471 , 484-485,83 S.Ct. 407 , 415-16,9 L.Ed.2d 441 (1963).
Almost simultaneously with our development of the exclusionary rule, in the first quarter of this century, we also announced what has come to be known as the “independent source” doctrine. See Silverthorne Lumber Co. v. United States,251 U.S. 385 , 392,40 S.Ct. 182 , 183,64 L.Ed. 319 (1920). That doctrine, which has been applied to evidence acquired not only through Fourth Amendment violations but also through Fifth and Sixth Amendment violations, has recently been described as follows:
“[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by 'рutting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. ... When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation.” Nix v. Williams,467 U.S. 431 , 443,104 S.Ct. 2501 , 2509,81 L.Ed.2d 377 (1984).
Murray,
[¶ 43] Under the circumstances of this case, the police obtained no evidence as a result of the sweep. Under the United States Supreme Court criteria, there is nothing properly excludable.
Ill
[¶ 44] I would affirm the district court judgment.
Notes
. Respectfully, as illustrated by the Fifth Circuit cases discussed in the following paragraph, Justice Kapsner’s concurring opinion misreads Buie and would nullify a key sen
Concurrence Opinion
concurring.
[¶ 23] Justice Sandstrom’s reliance upon Maryland v. Buie,
We conclude that the Fourth Amendment would permit the protective sweep undertaken here if the searching officer “possesse[d] a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]’ the officer in believing,” that the area swept harbored an individual posing a danger to the officer or others.
Buie,
[¶ 24] He notes that police might look in closets and other spaces immediately adjoining the area of arrest from which an attack might be launched, but fails to quote the remainder of the paragraph in Buie:
Beyond that, however, we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.
Buie,
[¶ 25] The Supreme Court in Buie also was cautionary that such searches are not automatic:
Moreover, it is dеcidedly not “automatic],” but may be conducted only when justified by a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.
Buie,
[¶ 26] The facts in Buie were decidedly different. Police were on the premises with an arrest warrant for an armed robbery suspect. There are no specific and articulable facts demonstrated in this record that the residence harbored an individual dangerous to the officers. Authorizing the search under the circumstances in this case would indeed make “protective sweeps” automatic.
[¶ 27] CAROL RONNING KAPSNER