State v. Herrick

Hinkel testified she is certified adopted [¶ 10] the ALJ’s find- Bureau 6] The designed Blankenship system, which is to conclusions, Theige appeal- and order. ings, determining court, provide objective criteria for which affirmed the the district ed to exerting maximum patient whether a effort Theige appealed has now order. Bureau’s explained example, in the As an Hinkel FCE. this court. patient perform will be asked to tasks Bureau’s deci which, different, We review the outwardly involve although standards: under well-established produce sion the same movements and should that, testified on one similar results. She 28-32-21, § our re- “Under N.D.C.C. test, Theige hand-grip such exhibited governed decision is of the bureau’s view strength pounds of 45 his left hand and 75 § We affirm the by 28-32-19. N.D.C.C. subsequent pounds right in his hand. In a findings its of decision unless bureau’s test, pro- which “rapid exchange grip” should supported by preponder- fact are not results, Theige’s correlating results duce evidence, its conclusions of ance pounds. were 100 and 105 Other tests by findings of supported not its law are results, leading showed similar' inconsistent fact, supported by is not its its decision Theige attempting Hinkel to conclude law, or its decision is not conclusions of by manipulate exerting the results not maxi- the law.... In consid- accordance with mum effort. (cid:127) findings ering whether bureau’s by preponderance supported fact are evidence, From our review of the evidence, we exercise restraint and do reasoning reasonably conclude mind could findings fact or independent make not findings proven determine the Bureau’s were judgment our for the bureau’s substitute weight entire of the evidence Our review the bu- determination.... remaining record. We considered fact wheth- findings of is limited to reau’s by Theige and find them to be issues raised reasoning mind could have reason- er a judgment merit. The of the district without ably findings its determined court is affirmed. proven by weight of the evidence from the entire record.” WALLE, C.J., VANDE SANDSTROM, MARING, MESCHKE and Compensation v. North Dakota Workers Otto JJ., concur. (N.D.1995) (ci- Bureau, 533 N.W.2d omitted). tations dispositive appeal on issue supports

whether the evidence the record participate finding Theige refused to by fail medical treatment and obstructed ing to exert maximum effort the FCEs. 1997 ND 155 Dakota, STATE of North Plaintiff attempt Theige testified he did Appellee, manipulate gave the tests and his best effort. Hinkel, however, length testified about v. Theige conclusion that was not basis for her HERRICK, Defendant Curtis ability at performing to his full and was Appellant. his tempting manipulate the test results to responsibility benefit. It is the Bureau’s Criminal Nos. 970019-970021. credibility assess the of witnesses and re Dakota. Court North solve conflicts in the evidence. Grotte Compensation Bu North Dakota Workers’ Aug. 1997. reau, (N.D.1992); West Compensa man v. Dakota Workers North (N.D. Bureau,

tion

1990). Fremgen, R. Assistant State’s

Frederick Jamestown, Attorney, plaintiff appel- lee. Olson, Office, L. Olson Law Grand

Robin Forks, appellant. for defendant and WALLE, VANDE Chief Justice. The no-knock warrant was -executed January at Herrick’s house on 1996. Offi- appealed Curtis Herrick from the tri- door, cer Gross knocked on the waited three judgment following al court’s and conviction seconds, and then open broke the door with a plea guilty possession his conditional battering ram. Herrick was in the house a controlled with intent manu- substance searching house, the time. In Herrick’s facture, substance, possession of a controlled marijuana, marijuana officers found seeds possession drug paraphernalia. Her- stems, equipment used for indoor horti- denying rick contends the trial court erred in culture, a book Marijuana entitled Indoor suppress. his motion to We reverse and Horticulture, drug para- and several items of remand. phernalia. February LeRoy [¶2] Officer Jamestown, Dakota, of Gross the North Po- suppress Herrick moved the evi- Department garbage lice searched cans lo- dence, claiming the search of garbage his alley cated near a service at the back of cans and the issuance of the no-knock property. Herrick’s Gross was a of member right against violated his an un- Department’s Drug Task Force. The reasonable search and seizure. Herrick placed alley, roughly cans were near the argued also the warrant was issued with- alley’s edge, three feet from the on Herrick’s signed by out cause and was a property. prints There were foot between magistrate. biased trial court denied searching the house and the cans. In motion, Herrick and entered a condi- cans, a paper clip Gross discovered with resi- guilty plea preserving tional while the is- it, seed, due on a a It and stem. was later argued sues in his suppress motion to stem, seed, determined the and residue were appeal. this marijuana, all incapable but the seed was of germination. [¶ 7] We do not reverse a trial court’s deny suppress decision to “ a motion to if Gross and Corrinne of Becker testimony ‘after conflicts are resolved in County Stutsman Narcotics Task Force con- affirmance, compe favor of there is sufficient subsequent gar- ducted a search of Herrick’s fairly capable tent supporting evidence time, bage January can in 1996. This trial findings, court’s and the decision alley cans were four about feet from the contrary weight to the manifest of the evi- plastic bags there were two tied in the can. ” Erbele, 448, derice.’ v. 554 State N.W.2d wires, bag, In one Gross found bent metal (N.D.1996) Glaesman, (quoting 450 stems, two four seeds. Gross also found (N.D.1996)). 178, 181 545 N.W.2d a describing ways grow handwritten note marijuana. Garbage Can Search Using the information from the two searches, applied Becker for a warrant argues gar- [¶ Herrick the search of his 8] applying search Herrick’s house. In for the bage cans violated the Fourth Amendment of

warrant, magistrate asked Becker she I United States Constitution and Article “no-knock,” nighttime wanted a to Section Dakota 8 North Constitution. responded yes. ques- which Becker When argues garbage Herrick cans his during evidentiary hearing tioned an on the property pickup, and not set out for why suppress motion to she a no- wanted thus, expectation privacy he still had an as knoek Becker stated no-knock to the contents of these cans. “[mjarijuana warrant was needed because easily

an disposed dry, Rydberg, of item when it’s v. State 519 N.W.2d 306, (N.D.1994), processed. easily when It “placing it’s could 310 stated ... we garbage against public alley, flushed down a toilet. We had [cans] evidence on or [a] marijuana there was exposed general public, inside of his house where it to the [is] found, garbage leading based on the express purpose abandoning me and with the marijuana any to believe that there was inside it to the trash collector ... waive[s] ” the house.... privacy garbage.” interest ... in the Under 340 Constitution, demonstrating magistrate was bi- Herrick must record Dakota the North “ against Herrick. prejudiced ased or expectation privacy ‘subjective objec society accepts as garbage that [his] ” garbage to be tively for his reasonable’ Probable Cause Carriere, v. 545 N.W.2d protected. State Whether there is (N.D.1996) (quoting Rydberg, 519 775 question is a of law. cause to issue warrant 309). v. Green at See N.W.2d California (N.D. Winkler, 552 N.W.2d State

wood, 35, 40-41, U.S. 1996). a warrant is is We review whether (1988) (warrant- 1629, 100 L.Ed.2d 36-37 totality- probable cause under the sued with garbage cans set out for less searches of at approach. of-the-eircumstances Id. constitutionally valid under the disposal are 308). at (citing Rydberg, of the United States Fourth Amendment make a issuing task of the “is to Constitution); Ronngren, whether, practical, commonsense decision (defendant (N.D.1985) had N.W.2d together, given all the information considered privacy gar expectation no reasonable probability a fair or evi there is contraband dog garbage carried onto bage after particular of a crime will be found in a dence property). neighbor’s Rydberg, place.” 308. probable cans 13] The record shows the Herrick maintains [¶ 10] cause did not exist to issue the warrant. He roughly two and six feet between possible it states someone else could alley. edge public We will not gar dropped the seeds and stems into his privacy measuring expectations in of engage Furthermore, he bage on both occasions. apparent placed Herrick with a ruler. It is in argues garbage while items found indi his alley in an area where cans near the use, speculation cate it would mere on the picked up them garbage unknown collectors part any drugs drug or officer’s believe people unknown could rum and where other paraphernalia would be found in Herrick’s Moreover, it mage through ap the cans. But, home. gar items in the pears placed when Herrick “ not cans, ‘[p]robable cause to search does re- bage these items as trash he considered quire proof necessary of the same standard picked up and intended them be trial; rather, guilt probable establish Rydberg, Her garbage collectors. Under if it cause to search exists is established privacy objectively not expectation of rick’s objects proba- that certain identifiable are any expectation he waived of reasonable and bly activity with criminal connected garbage. privacy he had in the present probably to be found at the ” place.’ at an time identifiable Magistrate and Detached Neutral (quoting Rydberg, 519 N.W.2d at 308 magis contends the Herrick (N.D.1988)). 207, 212 Ringquist, 433 N.W.2d trate, issuing the search demon Johnson, N.W.2d State strated when he asked Becker she bias (N.D.1995), thought it for “reasonable no-knock, nighttime warrant. A wanted concluded, from the magistrate to have detached, by a issued neu must be presence marijuana of seeds in [defendant’s] 41, N.D.R.Crim.P.; magistrate. tral Rule marijuana prob- garbage bag, that more was Leon, 914, 104 States v. 468 U.S. United ably located inside his house.” (1984); 3405, 3416, L.Ed.2d 677 Ronngren, From the 361 N.W.2d at 229. Becker, applying for the form, testimony application it and warrant for stated cause appears merely issuing stems, seeds, on the search was based along trying application process to move the paraphernalia during the two searches of garbage application when he Becker if she wanted a no- asked Herrick’s cans. warrant was made on the same nothing knock warrant. on this the search There is day as the second search. The officers had here to the rule announcement when applying cause for for the search executing involving a search warrant felo- warrant under the standard described drug delivery.’’ nious Ringquist. 201 Wis.2d (1996) added). (emphasis N.W.2d

No-Knock Warrant The United States recog- Court nized the need for a no-knock warrant argues Herrick the use of the no- cases, drug because frequently these cases right against knock warrant violated his un- physical involve the threat of violence and lawful search and seizure it not because was evidence, the likelihood of the destruction of reasonable issue no-knock warrant under agree but did not with the Wisconsin Court’s the circumstances. per se rule: Both the Fourth Amend drug investigation frequently “[W]hile does ment of the United States Constitution and pose special safety risks officer and the Article I Section 8 the North Dakota evidence, preservation every drug require all Constitution searches and sei investigation pose will these risks to zures be reasonable. An element of this rule degree. substantial entering dwelling is officers must knock presence. and announce their v. Ar Wilson kansas, 927, 934, 514 U.S. 115 S.Ct. case, Thus ... duty each it is the of a (1995). 1918, 131 L.Ed.2d 976 However the court question confronted with the to de- flexible, and,

rule of reasonableness is for law termine whether the facts and circum- interests, safety enforcement such as the particular stances of the entry justified integrity law enforcement officers and the dispensing with the knock-and-announce evidence, may require officers to knock requirement.” 934-36, prior entry. and announce at Id. — Richards, at -, 117 U.S. S.Ct. at 1421. 1918; Knudson, 115 S.Ct. at State v. 499 Under law enforcement officials (N.D.1993). 872, N.W.2d 876 In situations suspicion must reasonable the an physical where a threat of possi violence or presence jeopard nouncement of their would exist, may ble destruction of evidence officers justify ize the search to the use of a no-knock may validly execute a no-knock warrant. burden, warrant. requiring Id. This a bal Wilson, 934-36, 514 at U.S. 115 S.Ct. at legitimate ance between law in enforcement 1918-1919; Knudson, 499 N.W.2d at 876. terests privacy and the interests of the indi vidual, high, police “is not but should be Subsequent to the issuance of required to make it whenever the reasonable case, the warrant in this the United States entry ness of a no-knock challenged.” is Id. Supreme again Court applica considered the at-, 117 S.Ct. at 1422. drug tion of no-knock in warrants cases. — Wisconsin, -, Richards v. U.S. 117 argues reason (1997). 137 L.Ed.2d 615 The case suspicion might able the evidence be de appealed the Wisconsin stroyed danger or the officers are is all Court, which held necessary is for a no-knock warrant. But, language the clear of section 19—03.1— “exigent always present circumstances are 32(3), N.D.C.C., requires “probable cause” in the execution of search warrants involv- for the issuance of a no-knock warrant. Our ing drug delivery. public felonious decisions on the issuance no-knock war interests these far circumstances out- See, speak rants weigh privacy minimal terms cause. interests of the Borden, e.g., occupants dwelling of the State v. 316 N.W.2d which (N.D.1982); Loucks, already search warrant has been is- State v. 209 N.W.2d (N.D.1973). 41(c), sued .... required [PJolice are not to ad- 776-77 Rule N.D.R.Crim. warrants, 19-03.1-32(2), previously we have of no-knock P., section together with which stated, N.D.C.C., nighttime govern the issuance

warrants, cause term “reasonable uses the purpose of the no-knock warrant is “[t]he construed this term we have shown” and safety protect of law enforcement probable cause for the synonymously with A integrity of evidence. officers and nighttime warrant under issuing a purpose of drug no-knock warrant in cases is available 19-03.1-32(2). Knudson, 499 N.W.2d section statute, we have taken under this because may be a conflict Insofar as there at 875. possession judicial notice that those 29-29-08, N.D.C.C., a more between section ordinarily substances are on the controlled warrants, governing no-knock general statute easily dispos- destroy typically alert to 19-03.1-32, N.D.C.C., latter and section quickly sign at the first of a able evidence involving respect to offenses prevails with presence.” enforcement officer’s law Loucks, 209 N.W.2d controlled substances. Borden, Knudson, (citing axiomatic that the state at at 777. It is now Loucks, protections not lesser may grant greater but 316 N.W.2d at 96 and N.W.2d 776-77). prior ap than States Constitution. the United Insofar as our rhetoric (N.D.1974). Matthews, justifying per-se drug rule in cases proves cause legislature warrants, has done so. Probable they Our of no-knock are issuance for issuance of no-knock war- required drugs allegations Mere overruled.1 19-03.1-32, N.D.C.C. rant under section automatically present cannot result issuance of a noknock warrant. See United Controlled Dakota’s Under North (8th Moore, 956 F.2d Cir. States 19-03.1, Act, Chapter N.D.C.C. Substances 1992) (blanket permitting rule no-knock an officer cases, drug regardless in all search to execute a search “authorized quantities suspected form and of whether authority and notice of the officer’s without present readily disposed patent can be may open an outer or inner purpose, break unreasonable). ly building, any part or or window of door applying The officer for the therein, building, anything or if questioned if she when issuing judge the warrant or yes, sought responded a no-knock warrant to believe that such has cause forewarning that stating, had “[i]f [Herrick] given property sought notice were to be in, coming were I think that he would be may easily quickly be in the case destroy any that inclined to kind evidence destroyed disposed of, danger or that to or drugs.” him would link to the On the affida or limb or another officer life applica vit attached to the search result, may and has included the war- tion, property listed to be seized the officer executing that rant a direction the officer substances, Drug parapherna as “Controlled Any required give to such notice. it is not documents, associates, lia, Financial Lists of acting officers under such as soon vehicles/garages, to Phone ree- practicable entering premises, after Access as ords/bills, identify pur- Ledgers/notebooks/documents themselves and state the shall sales, au- pose entering premises possible and the or Cassette showing orders added). bulbs, thority doing (Emphasis machine, for so.” answering Light [and] fertilizer, The offi growing equipment, etc.” 19-03.1-32(3). § N.D.C.C. they looking grow were for cers stated operation, simply not for controlled sub statutory provisions These reflecting personal use. in conflict with Richards. On the issue stances , — 1914, (1995) and “have v. U.S. S.Ct. 131 L.Ed.2d 976 1. The Court in Richards Wisconsin rules, 1416, 1420, -,-, concluding simple adopted similar n. n. cases, (1997) including a home for narcotics cause to search L.Ed.2d 615 cites several Loucks, (N.D.1973) police forego always the knock-and- allows the to State v. 209 N.W.2d 772 Arkansas, requirement.” predate announce 514 U.S. Wilson record, exclusionary exception offered no to rule where officers’ this the officer 23] On magistrate’s reliance on determination of other than for the no-knock warrant reason reasonable”). “objectively cause was easily disposed of and that marijuana was The issue was raised the State in its brief destroy the evidence fore- would Herrick suppress trial to to the court the motion no further initiated warned. part as of the issue of whether it was reason- why thought Herrick inquiry as to the officer a no-knock warrant: able issue any controlled substances he may dispose of premises. The officer did may have on aspect “If the no-knock of the warrant demonstrating the not meet her burden of found void and it is determined that the request the no-knock war- need of her police prior did not knock and announce record, rant. There is no evidence in this entry, police then the should allowed a drugs possible other than the existence good exception faith to the warrant re explained that Herrick would and an belief Sakellson, quirement. forewarned, dispose the evidence if dem- North Dakota Court discussed its why needed a no- onstrating the officers granting good exception faith criteria for apparent It to us the knock warrant. requirement. to the warrant Sa magistrate, relying previous on the decision (N.D. kellson, 784-85 Court, applied per-se compara- rule of this 1985). Essentially, required the court to that struck down in Richards. ble good faith belief that the conduct was au thorized. Sakellson at 785. The court Although possession of a objective explained that the belief must be they no-knock the officers testified ly an reasonable and based on articulable only knock waited 3 seconds before did but reasonable, premise sufficient to cause appar The trial court battering the door. trained, reasonably officer to believe he ently considered the execution of the warrant case, lawfully. acting Id. In Herrick’s will we. See as a no-knock warrant and so sought the officers a no-knock warrant for LaFave, Seizure, Wayne R. Search they reasonably of a house be 4.8(c) (3d. ed.1996) (wait § at 608 of two to marijuana. circum lieved to contain inadequate). four seconds is There is noth they sought no- under which stances the officers ing the record indicate would cause a reasonable knock warrant pres effectively announce their intended officer, reasonably trained to believe a no- something If in the record ence. there appropriate. righteously As an knock was intend, to indicate the officers did so like granted. A ticipated, the no-knock was invalidating the issuance of a no- subsequent execution of a no-knock war rule, a per-se knock warrant under a last in all rant would been reasonable entry cannot rest on minute decision force required by aspects Sakellson.” Lucht, assumption. an States v. United response was made to this issue No (8th denied, Cir.1994); F.3d cert. trial not discuss it trial court. The court did 115 S.Ct. 130 L.Ed.2d 316 513 U.S. sup- opinion denying the motion to in the (1994). and, appeal, response no was made press requesting by Herrick to the State’s brief Remedy if the warrant application of the rule we find invalid. urges The also we now em- [¶ 25] State discussed, brace what we have often good- Althoügh the we discussed [¶ 26] (N.D.1995);

Lewis, see, Sakellson, have never exception faith 784-85, Sakellson, at but e.g., prescribe “its adopted it nor did the Court i.e., “good-faith” exception adopted, exception never the faith granting good for a criteria exclusionary requirement.” to the rule used United The issue the warrant Leon, 897, 926, good faith rule adopt 104 S.Ct. or not to States v. 468 U.S. whether (1984) and, 3405, 3422, adopted apply it a (good-faith if it is whether 82 L.Ed.2d 677 However, specific separate issues. Sakellson I case would reverse and direct Therefore, application but neither it nor our suppression. respectfully discussed I dis- Lewis, cases, e.g., other discuss whether we sent the remand to consider whether a recognize good-faith a should or should not good-faith exception to the constitution exclusionary exception to the rule. We de- applied should be in this ease. question cline to decide the at this time Leon, majority at 468 U.S. adequate briefing, including

without discus- 922, 104 S.Ct. at clarified: recognizing sion of the merits or demerits of exception generally. such an suggest We do not ... that exclusion is always inappropriate in cases where an fact In view of the we have reversed officer has a obtained warrant and abided under we now remand to the trial by its terms. court for consideration of whether or not a good-faith exclusionary exception to the rule majority The Leon explained: If, applied in should be this case. after the is clear that in [I]t some circumstances the court, appeal decision of the trial a further grounds officer will have no reasonable raising good-faith taken the issue of the ex- believing properly the warrant was ception, parties are instructed to brief issued. question of recognize whether we should and, so, good-faith exception whether it 922-23, (footnote Id. at at applied should be in this ease. omitted). Here, the officers had no reason- grounds able seek no-knock judgment [¶ of conviction 28] and application their for the warrant was “so denying suppression order are reversed and lacking in indicia of a no- [for cause proceed- the matter is remanded for further knock as to warrant] render official belief in ings opinion. consistent with this entirely its existence Id. at unreasonable.” Essentially, agree 104 S.Ct. at 3421. I SANDSTROM, NEUMANN, LaFave, Seizure, 1.3(f), with 1 § Search and MARING, JJ., concur. (1996), pp. 70-71 that “Fourth Amendment relating violations to execution of war- MESCHKE, Justice, concurring and dis- ” by rant are .... unaffected Leon senting. Because I suppression, would direct join I in the conclusions of ma- 30] ponder good-faith rather than exception to jority opinion garbage-can against constitutional canon unreasonable right did not violate Herrick’s constitutional searches, respectfully I dissent. privacy; search warrant was issued [¶ Herbert L. 34] Meschke magistrate; neutral and detached the offi- cers had cause for a warrant

search; probable-cause reason is re-

quired to authorize a no-knock search war- agree justi-

rant. I there was no evidence to

fy Thus, a no-knock warrant in this case. I

agree this “automatic” no-knock authoriza-

tion was unreasonable and thus unconstitu-

tional. Unlike circumstances Richards v.

Wisconsin, there were no circumstances

the time execution of this warrant to

justify abrupt entry an without the need

comply require- with knock-and-announce

ments.

Case Details

Case Name: State v. Herrick

Court Name: North Dakota Supreme Court

Date Published: Aug 11, 1997

Citation: 567 N.W.2d 336

Docket Number: Criminal 970019-970021

Court Abbreviation: N.D.