*1 if possession, ques- verse indeed the land riparian navigable
tion is land abutting a Thus,
body of water. although might from the findings
conclude of fact of the
trial court that the taken Garcias had
necessary steps to acquire by ad- property possession, may
verse determination if
meaningless permit the law ri- does not
parian abutting body land navigable
water, the bed of which is owned
State, be acquired through pos- adverse
session.6
We of this proper believe resolution
appeal is to judgment reverse the of the
trial court and remand the matter
trial with the permit court direction that it State, States, the United other in- and parties
terested provided intervene as
Rule N.D.R.Civ.P.
It is so ordered.
ERICKSTAD, C.J., PEDERSON, and PAULSON, JJ.,
SAND concur. Dakota, of North
STATE Plaintiff Appellee,
v. ENNIS,
Edward Defendant Appellant.
Crim. Nos. and 895 898.
Supreme Court of North Dakota.
May
party
rights
court,
opinion,
affecting
favor of one
as
6. The trial
its memorandum
Woodland,
party.
determined that
title to relicted land
other
claims
the other
acquired
possession.
Here,
trial
adverse
through
reflected in
were not
the record.
upon
the decision in Schmidt
court
relied
curiae,
the briefs of the amici
we have been
Marschel,
(1942),
Minn.
N.W.2d
made
of other
aware
claims. Because we re-
body
nonnavigable
but that decision involved a
judgment
verse the
for further
remand
finding
authority
There is some
for a
water.
proceedings, all issues between the Park Dis-
navigable body
Lake is a
of water.
that Devils
Garcias,
trict and
as well as other issues
State,
1958),
(N.D.
See Rutten
trolled to René September 19-03.1-23(l)(b), § 19-03.1-05(4)(7), N.D.C.C., N.D.C.C. thereto, judgment Subsequent of convic- tion, August dated entered *3 the District Williams County Court of from For appeals. Ennis now the reasons stated, hereinafter we reverse Ennis’ con- possessing viction of unlawfully marijuana with the intent to deliver and affirm his regard convictions with to delivering hash- ish and marijuana to René and Kevin Ost- berg. Reierson, I. Atty.,
Kent SUPPRESSION MOTION Williston, State’s plaintiff argued for and appellee; by Kent 7, 1982, the April On County Judge of Reierson. Williams a County issued warrant to search Kurzman, Shapiro, Partridge, Manahan & Ennis’ home. The sole basis for this war- Minneapolis, Minn., Bjella, Neff, Rat- rant was a sworn affidavit submitted to the hert, Eiken, Williston, Wahl & for defend- county Quickstad, judge by Jim a lieutenant appellant; ant and argued by Marc G. detective in the County Williams Sheriff’s Kurzman, Minn., Minneapolis, and Richard office. pertinent part Quickstad’s The of Carver, G. Bismarck. affidavit1 four: paragraph “4. 82, March a of Confidential infor- ERICKSTAD, Chief Justice. given mant who has information in Ennis, Defendant/Appellant, Edward G. past leading the to under pur- cover charged was ultimately adjudged with and drugs given chases of and who has in a guilty separate bench trial of five by Quick- information known Jim substance, possessing offenses: a controlled stad to true and reliable about pounds marijuana, five of with the intent to Quickstad told Drug Dealers to Jim deliver, N.D.C.C., 19-03.1-23(l)(b), 19- § § that Ed Ennis had lOlbs of Mar- [sic] N.D.C.C.; 03.1-05(4)(o), unlawfully deliver- ijuana April 7, home on his substance, a ing hashish, controlled to Kev- selling Marijuana has been from this Ostberg on September 23 and 10 lbs. Ennis told the confiden- Ed N.D.C.C., 19-03.1-23(l)(b), 19-03.1- § § that the tial informant 10 lbs of N.D.C.C.; 05(4)(i), unlawfully delivering a marijuana were at his home at 1309 substance, marijuana, controlled to René could be bought 24th stW and there” 2, Ostberg on September 19-03.1- § warrant, 23(l)(b), N.D.C.C., Pursuant to 19-03.1-05(4)(o), Williams N.D. C.C.; and, unlawfully delivering County a con- office searched Ennis’ Sheriff’s ing purchases drugs The of cause section to under cover of Quickstad’s entirety by affidavit reads in as given its follows: who has information known Jim Drug Ostberg “1. In the to and reliable about Fall of 1981 Renae stated be true Quickstad Drug Agent Enforcement Buzzano that that Ed Dealers told to Jim Ed Ennis Quickstad always good has Marijuana hash. had lOlbs in his home on [sic] “2. Ed Ennis was seen Police Officers selling Marijuana April and has been from comming Ostbergs just home [sic] this 10 lbs. Ennis told the confidential Ed pryor Agent buying Buzzano Hashish. [sic] marijuana lbs of informant that the 10 were A“3. search of Ed Ennis home Revealed 24th at his home at 1309 stW and could be Drugs. numerous bottles of Counterfeit bought there” “4. March of informant Confidential given past who has information lead- “... Ed the informant concluded how zip-lock bags and found five contain-
home in his marijuana. ing alleged a substance Mbs Ennis had [sic] Laboratory Division of State selling Crime Mari- and has been April home de- Department subsequently Laboratories Quickstad admit- this 10 lbs.” juana from in these material plant termined the informant question he did not ted that bags marijuana. five Evidence his information he obtained as to whether Ennis’ trial. these facts was received in hearing or seeing either trial, However, to Ennis’ defense prior Ennis. firsthand from suppress counsel filed a written motion record, we are scrutinizing Upon material discovered bags plant the five had Quickstad worked opinion that on the Ennis’ home during the search of occasions, him believed prior informant on underlying basis the affidavit his reliable, accepted consequently to be *4 a number of ma- search warrant contained had mari- that Ennis conclusory statement that the infor- misrepresentations terial and with- which was for sale in his home juana At a mation in affidavit was stale. such of the infor- as to the basis inquiring out motion, hearing on this counsel subsequent knowledge. mant’s hearing to evidentiary an orally requested by this factual presented questions The Quickstad’s veracity of affida- challenge the situation are: request.3 counsel’s granted vit. The court hearings, these the trial Subsequent statement not the affiant’s Whether or Ennis’ suppress court motion to denied regard affidavit with warrant the search evidence. obtained his infor- the informant to how aside; so, and, if be set mation should Quickstad hearing, evidentiary At remaining or not the affidavit’s as to whether knowledge that he had no testified 2. The 3. The and 454.5 man, that the trial court quest State’s that told the confidential pounds marijuana gard for the idea of the basis of mant, must show formant came to the basis was. ment misrepresentations of fact or reckless disre- taken out of the idence reckless those to see “[U]nder can show statements that we statements. We would could be Quickstad der oath on veracity “MR. KURZMAN: ... “At defense following for an bags allegedly transcript, he said he didn’t know what Attorney, and the trial here in misrepresentations of fact or which ev- Pages if ... grams probable bought weighed the Franks says, of Quickstad’s that, evidentiary hearing counsel, truth; first, the likelihood of material April Paragraph colloquium respectively. He didn’t know how the in- this when Affidavit, there.’ disregard the items which constitute granted cause 20, 1982, 454.2, 455.2, knowledge Mrs. have indicated to this were at knowledge then, case, informant Actually, exists without those at Ennis’ house.... submit without Four ... between Mr. Kurz- Mr. Kurzman’s Schmitz, sworn statements: and it is then read we have a state- for the truth are he at if the defendant court, he testified un- the defendant says his home and Page Eight for the infor- 454.6, 454.1, Lieutenant that ‘Ed Ennis he has no challenge Assistant that indicates there ten re- tiary hearing; The State does erred Two, time.... which the warrant They tenant Quickstad misstatements Quickstad, face, Court, past.... relative and, course, offer of or.” Quickstad? submit ... statements “THE COURT: “MR. KURZMAN: Your “MRS. SCHMITZ: “I would “We “I would submit “MRS. SCHMITZ: point the search and the Affidavit that if the State are [*] [*] ****** granting Ennis’ ... would to these proof these Three, possibly, things [Tjhere and that in reckless appeal. [*] [*] therefore, not contend that will cross-examine request, or fabrications. he is One, Two, as to the the sworn happy that have which are alleged misstatements or Do [*] [*] is no wishes to call witnesses could be to the Court present; ... I’ll call request you disregard of therefore, we will probable [*] [*] and testimony of Lieu- and Three possibility of the Honor, we would wish to call happened directly contrary issued, him, ... relate on their for an eviden- the trial court [*] [*] not address is sufficient cause Your Hon- a that truth, ... at call Mr. hearing, are old. [*] [*] affiant, in the upon One, that content is sufficient to establish “A. I Since didn’t write the conversation verbatim, cause. down I can only speculate that me, he came in and told ‘Mr. Ennis has veracity of an affiant’s state ten pounds for sale. He has it at his ments in a warrant affidavit can be chal house.’ lenged pursuant guidelines set forth “Q. course, And you, said, then ‘How in Franks v. Delaware: you do know that information?’ Right? the defendant makes a substan- “[W]here “A. I don’t recall whether I did or not. preliminary showing tial that a false * * * * * * statement knowingly intentionally, “BY MRS. SCHMITZ: or disregard truth, with reckless for the “Q. What conversation, was the Mr. was included by the affiant in the war- Quickstad? affidavit, rant and if the allegedly false Again, “A. recollect, as far as I can he statement necessary to the finding of said that Ed Ennis had the ten pounds of probable cause, the Fourth Amendment marijuana for sale. I don’t recall asking requires a hearing be held at the him or whether he had seen it or whether request. defendant’s In the event that at Mr. Ennis had told him He personally. hearing the allegation perjury or said, ‘Mr. Ennis has the ten pounds for reckless disregard is established ” sale.’ defendant by preponderance of the evi- Thus, in question statement dence, and, with the affidavit’s false ma- Quickstad attributed to the informant was *5 side, terial set to one the affidavit’s re- merely assumption an on his part and not a maining content is insufficient to estab- by statement the informant. This state- cause, lish probable the search warrant ment is false because it is a bald assertion must be voided and the of fruits support devoid of factual which mislead the search excluded to the same extent as if magistrate believing into that he knew the probable cause lacking was on the face of underlying circumstances from which the 154, 155-56, affidavit.” 438 U.S. 98 informant concluded that “... Ed Ennis 2674, 2676, S.Ct. 667, 57 L.Ed.2d 672 had lOlbs of in his home on [sic] (1978). 7, April selling Marijuana and has been purpose For the applying of enunci- test Hence, from this 10 lbs.” in accordance Franks, ated in a false affidavit statement Franks, with the required dictates of we are is a statement which misleads the neutral to set this statement aside and ascertain and detached magistrate believing into that whether or not the remainder of the affida- exist, stated facts in turn facts probable vit is sufficient to establish cause. affect his evaluation of whether or not determination, making probable Groff, there is cause. State 323 (1), will paragraphs not consider affidavit 204, (Iowa 1982). N.W.2d 210 (2), (3) inasmuch as the information Upon reviewing the record in the presented paragraphs approxi in such bar, Quickstad’s case at we believe testimo mately six months old at the time the war ny at the evidentiary hearing reveals that and, therefore, rant was issued Upon stale. he knowingly and intentionally asserted eliminating both the stale information and that his informant told him that Ennis had information, the false the sole statement told the informant that marijua Ennis had remaining in the affidavit is: Quickstad na for sale when in fact had 82, “March of a Confidential informant failed to ask the informant how he obtained given past who has information in the such information. Specifically, Quickstad leading purchases drugs to under cover testified as follows: given and who has information known “BY MR. KURZMAN: Quickstad Jim to be true and reliable
“... you Quickstad What do claim the informant Drug about Dealers told to Jim you morning April 7? of Marijua- told Ed Ennis had lOlbs [sic] 832 7,
na in his home on and has been to deliver. We therefore April reverse Ennis’ selling Marijuana from this 10 lbs.” conviction on this count. of infor- foregoing statement consists relayed Quickstad by mation his infor- II. INSUFFICIENCY OF EVIDENCE TO hear- mant. When an affidavit is based on SUSTAIN OF ENNIS’ CONVICTION instance, say information as in this DELIVERING CONTROLLED SUB- cause must be in accordance determined STANCES v. Texas: Aguilar
with the dictates of trial, At Ennis’ René and Kevin Ostberg “Although an affidavit be based testified that Ennis them with the supplied on and need not re- hearsay information marijuana and which they hashish ultimate- personal flect the direct observations ly special agent sold to Paul Bazzano on affiant, States, Jones v. United 2, 9, 23, September Subse- 697], 4 L.Ed.2d U.S. S.Ct. thereto, quent charged Ennis was [80 magistrate of some must be informed delivering convicted of controlled sub- the underlying circumstances from which stances, to René marijuana, hashish and the informant concluded that the narcot- Ostberg and Kevin on the aforementioned were, ics were they where he claimed charged dates. Ennis was not with deliver- some underlying circumstances ing marijuana special agent or hashish to from which the officer concluded that the Buzzano.
informant,
identity
whose
need not be
Ennis contends that
the evidence intro-
disclosed,
States,
Rugendorf
see
v. United
duced
the State was insufficient
to sus-
833 stead, 888, Ennis also contends that the evi 246 N.W.2d 890 (N.D.1976),cert. denied, dence was insuffi introduced the State 436 U.S. 98 56 S.Ct. as identify cient to the substances delivered L.Ed.2d 759 We will not substitute “marijuana” record is or “hashish.”5 The judgment our for that of trial if court expert-witness tes replete conflicting judge’s the trial factual are determinations timony concerning identification sub supported by substantial evidence. Olm witness, expert Aaron stances. The State’s stead, 890; supra, 246 N.W.2d at State Rash, Supervisor Laboratory of the Crime Champagne, N.W.2d (N.D. Depart Division of the Laboratories State 1972); Larson, State N.W.2d ment, that he four performed testified labo (N.D.1953). ratory upon samples question: tests Determining whether or not the sub- identification; microscopic Duquenois-Le- stances in question marijuana were or hash- vine; thin layer chromatography; and in ish was the exclusive function of the trier Rash, spectroanalysis. According frared fact, the trial judge. defense each of these tests indicated that the sub presented strong evidence, all contradictory marijuana stances were or hashish. of which proving was directed toward The defense attempted to undermine Aaron was inept Rash and that the tests testimony Rash’s by emphasizing that Rash performed in the Laboratory State were and, has limited training; botanical there- both inadequate and inconclusive. Defense fore, he qualified was not amake conclu- counsel, however, not did offer evidence sive microscopicidentification numer- when independent performed by tests an expert plants ous have the same characteristics as in which the substances were shown to not the plant Cannabis from which is or hashish. addition, derived. the defendant’s ex- Where the trial court the experts heard pert witness, Fullerton, Dr. testified that testify, demeanor, their observed Duquenois-Levine nonspecific test is judged credibility, their and where there is and inaccurate plants because numerous competent support substantial evidence to trig- contain the chemical resorcinol determination, con court’s factual gers positive reaction in test. Dr. that the us clude defendant failed leave Fullerton also stated spectra that the four “... with a definite and firm conviction charts used in infrared spectroanalysis that a has mistake been committed.” Olm were internally neither consistent nor con- stead, supra, N.W.2d at 890. That sistent with the spectra. reference the situation this case as to existence The crux testimony of Dr. Fullerton’s of the controlled substance. that, based the State Laboratory’s it analysis, impossible positively identi-
fy marijuana the substances as or hashish. III. OF CONSTITUTIONALITY However, cross-examination, on Dr. Fuller- MARIJUANA CLASSIFYING ton admitted that he was stating not nor A SCHEDULE I DRUG AS he that analyzed could state the substances Ennis’ final contention is that the trial marijuana were not or hashish. dis- erroneously court denied his motion to marijuana on that classifying
We are reluctant to reverse the miss the basis of I findings regard factual a trial court with of the Uniform Controlled Schedule Act, 19-03.1, N.D.C.C., disputed questions Chapter to of fact. v. Olm- State Substances some, analysis; trial not 5. Ennis asserts that the court had a rea- that bothered me but it’s ” regarding beyond doubt of sonable identification the reasonable doubt .... a question statement, mandates a substances which doubt Upon analyzing this we believe the However, of we must remind counsel Fullerton, reversal. testimony expert, Dr. defendant’s language by exact utilized the trial court: the mind; question in the court’s created some trial doubt, beyond guilty a “He’s also reasonable however, conflicting did not cre- such evidence doubt, beyond is but not a reasonable there a ate a “reasonable doubt.” my only doubt. And doubt is in the chemical 834 Org. Nat. for Reform said in District Court to rights Fifth Amendment
violates his
Bell:
indi-
process. Defend-
“Studies
equal protection
Marijuana
and due
Laws
challenge premised
is
impair
ant’s constitutional
the circula-
may
marijuana
that
cate
that,
statutory
defi-
theory
pursuant
the
endocrine,
immunity sys-
and the
tory, the
marijua-
nition,
classify
permissible
it is
chromosomes and
alter
body,
of the
tems
only if it “has
drug
na as a
I
Schedule
[a]
F.Supp. at
488
cell metabolism.”8
change
“has no ac-
high potential for abuse” and
Furthermore,
recent bulletin from
a
136.
accepted
or lacks
cepted medical use ...
Department of Justice
the United States
Specif-
in treatment
....”6
safety for use
and
burglaries
of all
reveals that “a fourth
mari-
classifying
asserts that
ically, Ennis
all robberies and all
a fifth each of
roughly
arbitrary
is
juana
drug
as a
I
Schedule
committed under the
drug offenses were
longer
no
irrational as the classification
Bureau of Justice
marijuana.”
influence
a
relationship
legitimate
bears
a rational
Bulletin,
Drugs
Prisoners
Statistics
(1)
governmental
govern-
interest because:
Thus,
attempting to
(March 1983).
without
subsequent
mental
conducted
studies
pro and con on
arguments
restate all the
the
Controlled Sub-
enactment of
Uniform
conclude,
rec-
based on the
subject,
marijuana
stances Act reveal that
does not
research, that
us and our
ord before
abuse”; and, (2)
“high potential
have a
for
whether or
experts strongly disagree as to
marijuana
safely
used
in the
currently
for
marijuana
high potential
“has
not
[a]
glaucoma.
cancer and
Ennis
treatment of
Furthermore, we do not believe
abuse.”
for
upon
authority
relies
case
which stands
of whether or not mari-
constitutionality
questions
“the
that the
proposition
that:
predicated upon
particular
of a statute
a
use ... or
juana
accepted
“has no
medical
challenged
may
state of facts
a show-
safety for the use in treat-
accepted
lacks
those
have
ing to the court
facts
fact
simple
ment” can be resolved
ceased to exist.” United
v. Carolene
States
experimenting
may
that some states
now
Co.,
144,153,
Products
58
U.S.
S.Ct.
prescriptive
as a
use of
Recent studies myths (1981).9 is an addictive nar- P.2d 956 generally stepping-stone cotic and to more Co.,the Products Unit Carolene See, Org. serious Nat. Reform drugs.7 for said Supreme unequivocally Court Bell, 123, ed States 488 F.Supp. Laws v. to review the (1980). However, that when a court is asked as the United States statutory Whitney, Washington Supreme provision question Section 9.In Court 6. The 19-03.1-04, removing marijuana I N.D.C.C.: from Schedule said that purpose placing it in Schedule II for Schedule I The de- “19-03.1-04. tests. partment place researching shall a substance in schedule the treatment of can- its effect on I glaucoma patients if it finds that the substance: “... does not mean cer and abuse; high potential drug 1. Has for legislature has found that accepted 2. Has no medical use in treat- high potential abuse or that does not have a for accepted ment in States or lacks the United accepted safe for it has an medical use and is safety for use in treatment under medical supervision.” use in treatment under medical supervision.” P.2d, Wash.2d, Whitney, supra at supra further stated that at 960. The court Report Marihuana Fifth & Health: Annual drug I for in schedule Congress Secretary retention “[t]he from the the United States *8 program Health, Education, purposes can- (1975), other than the research of and Welfare 3 at 91; Hearings reasonably bear no rational rela- Decriminalization of Marihuana: not be said to legislative purpose.” on Narcot- legitimate Before the House Select Committee Whit- to a tion Control, Congress, 583, P.2d, 95th 1st Sess. Wash.2d, supra ics Abuse & ney, supra at 637 96 423-38 at 960. Org. pp. Nat. for Reform of 8. See 128-130 of Bell, F.Supp. (1980) Marijuana 488 123 Laws v. marijuana’s for a full discussion of effects.
judgment legislative of body, a it State v. question fairly should is debatable.” exercise policy judicial a of restraint: Boushee, 284 N.W.2d (N.D.1979). “[Ijnquiries, where legislative judg- the Accordingly, the because issue of ment in question, is drawn must be re- whether or properly not is classi stricted to the issue any whether state of fied debatable, as a I drug fairly Schedule is
facts either known or which could reason-
we will
usurp
not
the legislature’s factfind-
ably be assumed affords
for
support
[the
ing
essence,
In
function.
we conclude as
Here the demurrer chal-
classification].
did the three United States District Judges
lenges
validity,
the
of the statute on its
Nat.
for Reform
in
Org.
of
Laws
face and it
evident
from all the consid-
Bell,
erations presented
Congress, and those
continuing questions
“[t]he
of
may
notice,
judicial
take
about marijuana
and its effects make the
the question is at
least debatable....
classification
su
F.Supp.,
rational.”10
As that
Congress,
decision was for
nei-
pra at 136.
ther the findings of a
court arrived at
Finally, pursuant
19-03.1-02,
to Section
evidence,
weighing the
nor the verdict of
N.D.C.C.,11 the North Dakota State Labora-
a jury can be
it.”
substituted
for
tories Department has the authority to re-
U.S. at
ry dealing scheme indicates with observation, whatever, al or and neither did aspect ‘drug’ problem, Con- giv- the officer to whom the statement was gress flexibility intended and receptivity en ask the informant basis for his state- to the latest scientific to be information ment. While the statement not may pro- approach. the hallmarks of its This ... warrant, probable vide cause for a search it very irrationality antithesis of the it merely is not false because is a “bald appellants Congress.” attribute to support.” assertion devoid of factual Ac- F.2d, supra at 357. briefs, cording to the the record does not Incidentally, argument a reasonable can knowingly reflect the statement was be made and has been made that the statu- intentionally given with reckless disre- tory criteria asserted Ennis are not in- gard for the truth. The statement not tended to be exclusive.12 reliable or sufficient for a search war- rant because it was and was not inadequate
We conclude that it reasonably cannot up appropriate questions followed said that classifying marijuana as a Sched- drug poor, ule I bears no officer’s recollection was but that relationship rational legitimate controlling State interest of does not make it false under the holding drug Boushee, supra, Delaware, abuse. 284 N.W.2d at majority Franks cited in the 432. opinion. In accordance with foregoing opinion, majority opinion, discussing
we reverse Ennis’ conviction for possessing cause, probable frequent issue of makes ref- marijuana with the intent to deliver and erence in one'form or another to the con- affirm the remaining four convictions. statement, tents of the informant’s “Ed En- nis had 10 Marijuana lbs. of in his home on WALLE, VANDE PEDERSON and April selling Marijuana and has been PAULSON, JJ., concur. This, [Emphasis from this 10 lbs.” added.] SAND, Justice, concurring specially. any qualification, without may suggest that in establishing probable cause valid infor- While the majority opinion correctly iden- mation must be submitted that tifies the United Supreme States Court case at a place being certain and is sold. If law on search and seizure which we are selling integral part is an of the rule law follow, obligated to I have reservations re- opinion convey, tends to then I must garding the principles manner those of law disagree because the applied opinion have been would be add- the facts of this case. The principal ing unnecessary issue is whether criteria to the proba- or not ble cause existed requirement. for the search of the home cause In my opinion, the sale and the seizure of the alleged marijuana. or sales justify need not be established to Admin.News at 4602. The criteria listed in which must be considered in quirements specified U.S.C. whether a substance meets the 35, reprinted section schedules .... U.S.C. the criterion of abuse, “The House Bell, In Nat. the United § subsection 811(c) Org. 811(c) 812(b)] report for Reform of ’ actual or relative include the state of current ] lists seven other 1970 House States District [1970] for (c) states that inclusion in in section of section 201 U.S.Code Report, supra ‘[a]side potential determining Court said: specific criteria ... 202(b) particular Cong. Laws from [21 [21 for re- at & their effort to reduce the tion, penalties poses. Such a classification carries heavier na.” sidered in risk to cantly other abuse. knowledge, 140-141. thus concerns, Congress might (Footnote omitted). broaden the public These for aiding in Schedule I for classifying the current sale, more health, law enforcement officials in distribution, scope subjective and the pattern drug. of issues to be con- supply marijua- regulatory pur- significance factors Given these F.Supp. well want abuse, importa- signifi- at *10 the issuance of a warrant for search a con- possession
trolled substance. Mere of mari- substance,
juana, a controlled in violation of
NDCC is a 19-03.1-23(3) crime. How-
ever, I agree that the statement by the
informant does how not disclose or on what acquired
basis he information and as questionable
such information is and is
legally inadequate to justify issuance of
a search warrant. If informant had properly questioned, possible
been it is
the informant had the necessary have
information have provided ap- and would
propriate answers which would have made
the information to justify sufficient
search warrant. But was not done. WINKLER,
Richard A. Plaintiff Appellee, CO., INC.; & MFG.
GILMORE TATGE
DaKon, Inc.; Implement, and Hausauer Appellees,
Defendants and Manufacturing,
Kent Defendant Appellant.
Civ. No.
Supreme Court of North Dakota. 26, 1983.
May