State v. Erickson

555 Nor, constitutes a violation defendant’s orally open court. on writing or record, right jury Hegg, supra. waive the to a trial. See expressly did counsel this counsel, Accordingly, letter from reverse the denial of right for Gates.2 The we matter was to Gates that a trial remand explaining Gates’ motion for new and trial, not the affir- as bench scheduled for a new trial. 23(a), contemplated by Rule waiver mative WALLE, C.J., MESCHKE, and VANDE no written record reveals NDRCrimP. The J., ERICKSTAD, Surrogate and RALPH waiver, on Gates coun- J. signed behalf of Justice, sel, waiver on Gates’ behalf concur. nor a verbal Bohn, at supra 680 n. 3. open court. See Surrogate Judge RALPH J. ERICK- infer a silent record an not from We will at time this STAD was Chief Justice right alleged of a client’s attorney’s waiver surrogate case was heard and serves as Accordingly, agree we jury trial. to a to judge pursuant for this case Section 27- right of her to deprived that she was Gates 17-03, NDCC. jury trial. JOHNSON, J., was a who member The trial conclusion that court’s heard, ease did this Court when this was right to a impliedly jury her waived Gates participate not in this decision. misinterpretation of trial is based its SANDSTROM, JJ., not NEUMANN and permit case-specific, fact-inten Kranz being of the Court when this case members whether or not of “the issue of sive review heard, participate not in this deci- did right to a has ... waived a defendant sion. not by jury the defendant has trial [when] record.” To so on the specifically stated contrary, requirement an ex precludes the exercise such

press waiver

review, eliminating the in addition need So, while it is true that decision

for it.3 deny a for a new trial is grant or motion Dakota, Plaintiff of North STATE sound of the trial left discretion Appellee, and court, Skaro, v. 474 N.W.2d 711 e.g., State v. that a (N.D.1991),it is axiomatic court also ERICKSON, Orlynn Defendant Mark here, when, as it its discretion mis abuses Appellant. and law. interprets E.g., Klootwyk v. Van

Arman, 477 N.W.2d 590 No. 920195. Crim. court, having received no The trial writ- Supreme of North Dakota. Court waiver, open should have ascertained ten 23, 1993. Feb. affirmatively Gates waived court whether jury Proceeding right to a trial. with a her of either writ- trial absence

bench open expressed court

ten waiver or herently only personal waiv to a criminal defendant” argument no makes defen 2. Gates dant, defendant, attorney, only attorney can not and in and not defendant’s able trial]; right Compare jury right to a right go jury waive the Bohn, trial. and clude to trial 677, (N.D.1987); 744, N.W.2d 680 n. 3 State, 406 310 Ark. 841 see also Calnan v. Petsock, with, 11(g); e.g., Wells v. NDRCrimP J., (Brown, (1992) dissenting). S.W.2d 593 (3rd Cir.1991), cert. denied sub F.2d 253 941 nom., -U.S.-, Vaughn, 112 S.Ct. Wells hand, the threshold determina- 3. On other 3038, (1992) L.Ed.2d must [defendant jury defendant’s trial waiv- tion of whether "the rights inherently personal personally waive knowing, intelligent deci- voluntary, er is a rights importance; inherent in fundamental upon unique *depend[s] circum- sion ... guilty” go plead "right to trial or clude "right Kranz, stances of each case.’” jury."]; by judge be tried or United (N.D.1984) [quoting Adams N.W.2d Joshi, (11th Cir.1990), States v. 896 F.2d 1303 McCann, 277- United ex rel. States States, nom., v. United denied sub Panchal cert. 240-41, (1942) ]. 87 L.Ed. 268 S.Ct. (1990) [rights are fundamental and in "which

tion has been obtained that the above- referenced individual is and continues trafficking of con- be involved trolled substances. Leier, Williston, for defendant Patrick F. Evidence has obtained which “2. been appellant. and illustrates above-referenced individu- Furuseth, Wil- Attorney, State’s Peter H. substances, possesses para- al controlled liston, plaintiff appellee. and for transactions, phernalia, of mon- records ey, other items used in transactions and LEVINE, Justice. of controlled substances. Said evidence appeals Erickson from a Orlynn Mark bags, marijuana cigarettes, of consists posses- of unlawful judgment of conviction marijuana plastic cup and a white with drugs upon a conditional entered sion residue. evidence is indicative Said 11(a)(2), Rule guilty under plea activities. above-referenced NDRCrimP, suppress his after motion in Evidence found was located “3. hold that there was denied. We Orlynn Erick- garbage dumpster behind probable cause issue the known son’s home. This was to be his officers exceeded warrant but that the garbage a because traffic citation conducting in their scope of that warrant his on it with these name was located re- Accordingly, we reverse and search. garbage Also found in materials. mand. was a letter addressed to Mr. Erickson.” arrest, resid- of his Erickson At the time signing Prior to the search in ed at 503 10th Street West Williston. Agent magistrate from took statements ranch-style occupied the side of a He west Busching of Sergeant Carlson and Scott con- duplex. duplex The east side County Department. the Williams Sheriff’s separate apartment with a differ- tained a essentially reiterated the informa- Carlson address, On 501 10th Street West. ent Busching told the tion in affidavit. officers, investigat- police March magistrate: drug ing possible local Erickson’s role people “I information from have received inspected and 250- trafficking, removed a that I know have been involved who dumpster, located in an al- gallon garbage drug trafficking Orlynn Mark Erick- and trash, ley duplex. behind the up me more than name has come son’s zip-lock bag, a contain- police found small subdeal- being once one who deals to marijuana, ciga- ing appeared to be what surrounding and the ers in Williston packages envelope an rette and addressed area. officers conducted anoth- to Erickson. The and that Mr. dumpster day the next had information er search of “I’ve also plastic bags smelled of I seen where he several that is armed. have cigarettes, hand-gun. a marijuana, marijuana 9-millimeter purchased several has a seeds, shotgun and he has a plant amount of material I information that small to Erickson.1 much all of the time. pretty and a traffic citation issued with him that he has This leads me to believe sought officers On March hiding, or something he is it is also that for Erickson’s home search warrant somebody deal- that indicative of Carlson, special L. Dallas automobile. ing illegal substances.” Bureau of agent for the North Dakota affi- Investigation, submitted an Criminal the officers executed On March davit, stating: 503 10th Street the search warrant on. residence, entering in- Erickson’s pursuant ongoing West. After “1. That to an Busching stairway Sergeant con- descended Orlynn Mark Erickson vestigation At the led to Erickson’s basement. cerning his transactions involvement stairway, a door he found involving controlled substances informa- bottom marijuana. positive plant tested as for cigarettes and the ma- terial field 1. The or "roaches" 433 N.W.2d along Ringquist, a wall that hasp padlock with a totality-of-the-circumstances from 501’s use the basement separated Erickson’s cause, unlocked, reviewing probable under for as the test The door was basement. issuing magistrate which task of from the door. Ser- hasp was unscrewed “[t]he simply practical, make a commonsense the door and en- geant Busching opened whether, given all the circum- portion of the decision tered a room in the southeast forth in the affidavit the main floor of the stances set before duplex located under him, including ‘veracity’ and ‘basis of apartment at 501 10th Street neighboring hearsay room, knowledge’ persons supplying he discovered a safe In that West. cash, information, probability there is a fair The safe contained and a scale. crime grow marijuana and a contraband or evidence of a will be to book on how canister, particular place.” Ringquist, containing marijuana found in a small film “simply marijuana supra duty in a at 211. Our is to en- He also found tool residue. box, magistrate the had a in the basement sure that ‘substantial located southeast concluding’ probable mari- basis for ... that room. The officers found additional 211, citing portions of Erickson’s resi- cause existed.” Id. at Illinois juana in other Gates, 213, 238-239, 103 S.Ct. on Erickson. dence as well as L.Ed.2d charged arrested and Erickson was information, “Sufficient rather than a ‘bare possession of a controlled substance with affidavit, presented bones’ must still be to intent to deliver. The intent to deliver magistrate the to allow that official to de- upon portion charge of the was based the probable cause. That determina- termine in the southeast basement items found tion cannot be a mere ratification of the the district to room. Erickson moved court Ringquist, of others.” bare conclusion su- suppress the evidence obtained from the pra, at 213. grounds the that there was insuf- search on probable the ficient cause to issue paragraph Erickson contends that and the search warrant failed to ade- that Agent one of Carlson’s affidavit is a bare place quately describe the to be searched. supporting conclusion with no facts about sought suppress any also to state- Erickson agent’s credibility reliability the and police custody any and ments he made agree that the character information. We person, evidence found on paragraph one of Erickson as a ization ground fruit of that the evidence was the drug “nothing is more than conclu- dealer an unconstitutional search. The district sionary provided by information unidenti 8,May court denied the motion on 1992. Mische, people.” fied State v. 448 N.W.2d offered, Erickson then and the district (N.D.1989). Conclusions alone are accepted, plea guilty court a conditional of probable Only insufficient for cause. Id. charge possession to the of unlawful of reputation by specif when is demonstrated appeal, a controlled substance. On Erick- circumstances, underlying ic it be used son contends there was insufficient evi- support finding probable a of cause. support the of dence to issuance a search Handtmann, State v. 437 N.W.2d 830 warrant, defective, that the warrant was here, But no circumstances by him any and that statements made or presented magis are that would allow the any person found on his should reliability trate to consider the of the state suppressed. “consistently required ment. We have reputation more than mere statements of cause to search does not “Probable unsupported allegations or conclusions and require proof the same standard of neces probable to establish cause.” Id. at 835. trial; rather, sary guilt prob at establish if paragraph able cause to search exists it is estab In addition of affidavit, objects Sergeant Busching lished that certain identifiable are testified probably activity purchased connected with criminal he knew Erickson had nine- a probably present and are handgun. to be found at the millimeter He added that he had place.” time at an identifiable State v. been informed that Erickson often carried neighborhood may Busching dents have used to believe shotgun, which led a dumpster. But, something to had hide. that veracity or basis again, not know we do Challenges the issuance of a search hearsay information. knowledge of the allegation an based on false Accordingly, it is bones” information “bare statement, governed by are affidavit support probable insufficient that is forth in standard set Franks Delaware: pre- However, magistrate was cause. the defendant makes a sub- “[W]here activity in of criminal sented with evidence showing preliminary that a false stantial plastic bags marijuana and the form the knowingly intentionally, statement dumpster. Ronng- found truth, disregard for the or with reckless ren, (N.D.1985), this court 361 N.W.2d by the in the war- was included affiant marijuana concluded that evidence affidavit, allegedly if false rant bag, reported by neighbor trash necessary finding statement dragged from the defendant’s have been cause, the Amendment probable Fourth yard, suffi- property neighbor’s requires hearing be held at the garbage bag cient to establish that request. In the event that defendant’s originated residence. at defendant’s hearing allegation perjury at disregard by The here is whether the incrimina- question reckless is established or ting dumpster in can by preponderance items discovered the defendant of the the and, evidence, reasonably Erickson. We with the affidavit’s false be connected to side, material set to one the affidavit’s they can be. conclude remaining content is insufficient es- in envelope The citation and the cause, probable the search war- tablish name on them. dumpster had Erickson’s the fruits of the rant must be voided and dumpster, The of the behind Erick- location as if search excluded to the same extent residence, impli- place of fortified the son’s lacking on the face probable cause was by Er- dumpster that the was used cation 155-156, of the affidavit.” ickson and that the trash was Erickson’s. S.Ct. 57 L.Ed.2d 667 a nexus supplies This evidence between (1978). the as well as Erickson and contraband sup- motion to hearing A on Erickson’s the home to be searched the between 4,May 1992. No tran- press was held on Metzner, sought. provided. hearing has been script that In N.W.2d State issue of the false affi- Erickson raised the supra, there was additional evi- Ronngren, in his brief to the district davit statement contributing to the determination of dence May that court ruled that court. On cause, present is in probable which not this form and in both affidavit was “sufficient But, that direct case. we conclude approving preclude such as substance evidence, marijuana form approving suppress.” In these motions bags, with the circumstan- plastic combined affidavits, of the the district the substance contraband, Erickson, tial link between claim of Erickson’s implicitly rejected court home, support a and his determination decided that a false statement and believe these facts probable cause. We that Erickson the information omission of appli- our but considered cautious single-family dwell- duplex, in a not a lived principle that “a doubtful or cation of used the ing, may and that others in marginal should be resolved favor case nor with dumpster, was neither intentional magistrate’s] prob- determination [the disregard truth. In reckless for the Metzner, supra at able cause.” State suppress, support brief to the motion 804. submitted was only evidence Erickson of the paragraph Busching’s ambiguous Erickson claims three Sergeant portion of by during statement omission. affidavit a false cross-examina- testimony, elicited says, deliberately hearing, mis- that police, preliminary The at the tion imply by may use oth- magistrate by failing dumpster’s to state that led location which duplex there is confusion about he and that other resi- ers. But lived dumpster being referred to and the object was entire area which the of the obviously impressed. district court not was may by search be found and is not limited We are not the district court’s convinced possibility separate entry act or implicit finding clearly erroneous. opening may required complete be Ross, search.” United States v. 456 U.S. argues Erickson also that the search of 798, 820-21, 2157, 2170-71, 102 S.Ct. the southeast basement room in 501 was (1982). instances, In some constitutionally defective because structures, may search extend to deemed to search warrant adequately failed to de- curtilage be within the searched, premises of the place required scribe the by the Fourth described in the Amendment of the United warrant. See United applicable Dunn, States Constitution made to the States v. the Fourteenth Amendment and adja- 94 L.Ed.2d 326 Areas I,

Article of the North Dakota Consti- place § cent to a described Finally, po- tution.2 Erickson contends the suspect’s are under a manage- exclusive scope lice exceeded the of the warrant ment, control, and domain at times be searching the room in 501 where the safe part deemed of the described in a and scale were found. State, Walbey warrant. See 644 S.W.2d (Tex.App.1982)[patio adjacent area description Erickson’s attack on the apartment]; Elliott, United States v. the warrant is based on United States v. cf. (9th Hinton, (7th Cir.1990) Cir.1955). 893 F.2d 220 219 F.2d 324 be- [storeroom Hinton, apartment magistrate part issued a hind considered apartment building premises]. warrant for an entire arguably probable where there was cause comparable see no circumstances only apartment. to search The Sev- bring the search of the southeast base- Appeals enth Circuit Court of ruled the scope ment room in 501 within the of “503 warrant was invalid it because failed to occupies 10th Street West.” 501 the east place describe the to be searched with suf- duplex. half of the 503 and 501 have their particularity. ficient The court reasoned . basements, wholly separated by own a wall that the warrant covered areas where there between them with a door that allows ac- probable was no cause to search. cess from one room to the other. The Here, the warrant for Erickson’s police room searched the is in the base- particularity describes with the ment of 501. The record indicates the place to be searched: 503 10th Street West. door, opened by Sergeant Busching, is the The warrant does not extend to areas only way gain access to 501’s basement probable where lacking. cause is Conse from Erickson’s basement. The room was quently, the issue is not whether the war area, not a common nor under the exclusive defective, rant is but whether the search Erickson; control and domain of there is no conducted scope exceeded the of the war evidence that permission Erickson had question, rant. On agree this we with Er enter the room or that the safe and scale ickson that it did. were, plain within the officer’s view. The only record indicates that there was authority

The to search access is limited portion to a through of 501’s place described in the basement warrant and door, unlocked does not include but closed located additional or different on the places. Keiningham States, side of the in v. United 287 basement and that the (D.C.Cir.1960). F.2d 129 lock on appeared A search that door con have been pursuant tampered ducted may to a search A with. closed door does not extend to the entire area entry. covered invite unauthorized Compare State description. Sakellson, warrant’s “A (N.D.1985) lawful search of v. 379 N.W.2d 779 premises generally fixed [open extends to the private door in area of defendant’s 2. The except Fourth Amendment "particularly describing of the United States shall issue those I, Constitution and Article place of the North "thing § to be searched” and the to be require Dakota Constitution that no warrant seized.”

561 the au- disregard ed. Most states have not retained not allow officers home did standing Wayne rule. 4 R. Mere access tomatic See knock-and-announce rule]. 11.3, of LaFave, to extend the reach at 70 is insufficient Seizure 501 Search and § citing (2d warrant. Supp.1993), ed. State n. Cortis, 237 Neb. N.W.2d ex- conclude the warrant. scope of Conse- ceeded permission If had no to enter illegal 501 is evidence quently, the appear have he not the room would Reversed and suppressed. and must be Amendment vio- standing to raise a Fourth remanded. Salvucci, supra; lation. United States cert, (11th Pitt, Cir.1983), F.2d MESCHKE, J., concurs. 1421, 79 denied 465 Judge RALPH J. ERICK- Surrogate (1984) priva- expectation [no this at the time Chief Justice STAD was possessory no cy room where tenant had surrogate as heard and serves case was If, hand, the other he did on interest]. 27- pursuant to Section judge for the case room, it is permission to enter the 17-03, NDCC. police not open question whether or JOHNSON, PHILIP who was The scope Justice J. warrant. exceeded when this case was member of the Court very Erickson marshals to attack heard, in this participate not decision. exceeding scope did the search suggests he has no stand- search warrant and Justice SAND- Justice NEUMANN no he had ing to attack the search because STROM, being of the Court not members privacy premises. expectation Cf. heard, partici- did not this case was when Crane, 296 372 S.E.2d S.C. decision. pate this (1988) excess objection to [defendants Justice, WALLE, resulting concur- of lands Chief in execution in search YANDE likely ring specially. rejected to be by another owned standing]. grounds lack of as to Erickson’s No has been raised issue challenge validity of the standing to Nevertheless, standing if the issue of observes, majority opinion search. As it that Erickson had been raised area, nor “the was not common room permission to he had could shown that of the exclusive control domain under cre- sufficient to at least use Erickson; no that Erick- there is evidence i.e., privacy, legitimate expectation ate permission to enter room....” son had recognize as society prepared to one that is Olson, 826, 495 U.S. Lind, 833 Minnesota v. 322 N.W.2d reasonable. State v. (1990), 91, 1684, (N.D.1982), long- 109 L.Ed.2d 85 we it was “no 110 S.Ct. determined States, 389 U.S. the automatic- quoting er desirable continue Katz v. United (1967), 347, 507, 576 standing rule” the United 19 L.Ed.2d announced 88 S.Ct. 128, Illinois, Supreme Court Jones v. United v. States and Rakas 725, 4 States, 362 U.S. 58 L.Ed.2d 387 S.Ct. (1960), gave which defendant standing issue was not Although the possession seized charged with crimes of could raise the raised, I this court believe challenge the standing to goods automatic Cortis, see, su- sponte, issue sua produced the legality which above, But, this record as indicated pra. against him whether or not definitively that Erickson indicate does not privacy expectation had defendant an Therefore, standing. I believe did not have premises. did so on the basis properly focuses majority opinion Salvucci, United States scope of the search warrant. (1980), which L.Ed.2d S.Ct. Nevertheless, scope of the appears the it charged crimes held defendants with intertwined integrally of warrant may only claim the benefits

possession place to searched or not the if own Fourth whether exclusionary rule their mean- particularly described within the rights violat- was have in fact been Amendment ing of the Fourth Amendment to the I Unit- concur in the result reached I, majority opinion. ed States Constitution and Article 8 of § Although the North Dakota Constitution. preferable

it would had ERICKSTAD, have been the affi- Surrogate RALPH J. davit and warrant indicated that this was a Judge, concurs.

multiple dwelling building, only- and that apartment searched,

one was to be thus

precluding a search of the other unit indis-

criminately, agree I that the fact the two addresses, separate

units had and the war- address, only

rant listed meets the However,

constitutional standard. as La-

Fave observes in his treatise:

“Assuming designated subunit, JOHNSON, Margaret Appellee, M. may only be executed there and subunit, not extend to another NORTH DAKOTA WORKERS’ regard this is so ‘without to whether the BUREAU, COMPENSATION anticipated officers could have ahead of Appellant. they separate time would encounter ” premises.’ Civ. No. 920290. Wayne LaFave, R. Search and Seizure Supreme Court of North Dakota. 4.5, (2d Supp.1993), at 51 ed. quoting § Feb. 1993. Devine, 307 Or. 768 P.2d 913 (1989) specifying permits address [warrant numbered,

search of house so but not

apartment having separate entrance and

separate number over door].

At preliminary hearing, response question of whether the room in drugs

which the were found was beneath apartment,”

“the other executing offi- replied

cer “I believe it was” and that it

“was correct” that the room was under the

main floor of 501. appeared Had it not part the room searched was of another

dwelling unit not described"in the

I would vote to affirm for I do not believe

the fact the door was closed and unlocked necessarily significant. Surely in a premises

search of described in a executing may open officers doors in closed, which are notwith-

standing a “closed door does not invite entry.” See,

unauthorized e.g., United Elliott,

States v. 893 F.2d

(9th Cir.1990) warrant for certain [search

apartment allowed search of store room apartment

behind that where that room through “accessible a hole in the bath-

room sack,” wall concealed a burlap

this “unconventional manner of access ... part

made the room apartment.”]

Case Details

Case Name: State v. Erickson

Court Name: North Dakota Supreme Court

Date Published: Feb 23, 1993

Citation: 496 N.W.2d 555

Docket Number: Crim. 920195

Court Abbreviation: N.D.