State v. Lunde

Thompson Ardmore did not established ND 142 land. The court decided agree to sell Dakota, of North Plaintiff STATE by Thomp- William part performance Appellee and only an consistent with oral was not son contract; Thompson failed William definitely payments clearly prove LUNDE, Marcus Defendant Steven him for purchase made were Appellant. estate; and he clear prove failed to

real No. 20070159. evidence existence of an and definite for the of land which oral contract sale Court of North Dakota. Supreme possessed necessary all the elements and Al- agreement. of an enforceable features July 2008. findings about the district court’s though an consid- agreement the existence of oral relevant to the statute of

ered criteria performance in the con- specific

frauds and finding there contract for

text of was no land, findings reflect

the sale of court’s proof application correct of the burden specific for of an performance

for claims convey contract land. See

alleged oral Anderson,

Cooke, 129; at 429; Buettner, at

195; 144. Syrup, N.W.2d at not reweigh We do the evidence guess

or second court on its district

credibility There is evi- determinations. in this record the dis- supports

dence findings, are not left

trict court’s and we

with a definite firm conviction finding William made mistake prove failed to the existence of

Thompson oral contract the sale land.

We therefore conclude the district court’s

findings clearly are not erroneous.

Ill affirm district court

[¶ 16] We

judgment. SANDSTROM, DALE V. CROTHERS,

DANIEL J. MARY MARING,

MUEHLEN and CAROL KAPSNER, JJ., concur.

RONNING marijua- plea to guilty possession

tional deliver, possession intent to of a na with substance, and two counts of controlled Be- possession drug paraphernalia. we conclude the district court erred the applying in rule, and we reverse remand guilty plea. Lunde to to allow withdraw his I August In Jason Officer Depart- Fargo Hicks of the Police West for applied ment a search warrant for apartment Fargo. in West application, support Officer Hicks detailing submitted informa- had law en- tion he received from other officials. forcement Officer affidavit stated that Hick’s spoke August on Officer Hicks Agent Special Donald Burns Central Drug Force. Officer Minnesota Task Agent he Special Hicks stated learned that and Burns Detective Chuck Anderson of County Clay Department the Sheriffs had spoken to a confidential informant whose identity name and known to were Burns and Anderson. The confidential informant that the stated informant had become in- drug in a trafficking organization volved in with December and associated two individuals, one in suspect who was in large federal narcotics case Minnesota another affida- and known as “Slim.” The vit states confidential informant later “Slim” a photograph identified from as The informant de- Lunde. confidential Euren, Gary E. Attor- Assistant State’s being off scribed Slim’s as ND, ney, Fargo, appellee. for plaintiff road, Sheyenne “Horace” know as now that the infor- Fargo, Street West A. (argued) Lorelle Moeckel Steven apartment. mant had not been in Slim’s (on brief), Light, Far- Light M. Larivee & The confidential informant had met Slim in ND, go, appellant. for defendant and parking building. lot of The Slim’s WALLE, VANDÉ Chief Justice. stated that when confidential informant Slim, infor- informant met from a appealed [¶ 1] Marcus Lunde re- judgment upon “money-grams criminal his condi- mant would entered transfer person period with a “for a short of time” to Slim and drug transactions from ceipts” currency regularly suspect from who associated with the collect on occasion would transfer.” Accord- “money-gram large in a federal narcotics case and two for Slim affidavit, confidential infor- was known ing people, other one whom was involved aware that Slim only mant was cooperating individual as “Slim marijuana and selling of the wholesale Fargo.” cooperating from individual the informant of- methamphetamine, subjects all the believed were involved drug debts Slim ten collected trafficking controlled substances and had money collected to Slim would return person seen the with whom he or she had in- The confidential apartment. at Slim’s possession large lived in of a amount of the informant also stated formant marijuana and what the individual believed keep to track of ledger for Slim kept methamphetamine. cocaine or to be either debts, drug for moneys paid and owed Special Hick’s affidavit states that Officer “pay/owe to as sheets.” commonly referred verify much of Agent Burns “was able to provided by [cooperat- the information this affidavit also states Officer Hick’s 4] [¶ 2, 2006, ing independent Hicks threw individual] [sic] Officer August that on of Anderson means.” to Detective Charles spoke as County Department Clay Sheriffs Special The affidavit also states to attempting was Detective Anderson Agent Burns had “reviewed electronic who person known as “Slim” identify the telephone book in a cellular tak- telephone The affidavit of “Horace” road. lived off suspect large in a federal nar- [the en liv- person Hicks knew of states Officer arrest.” The cotics the time of his case] possibly area who could be ing in the phone affidavit states that there was cell July that on Hicks knew “Slim.” Officer for Officer Hicks’s affidavit number Slim. Fargo Department Police the West Special Agent states that Burns had re- Depart- the Moorhead Police had assisted by the telephone placed viewed calls feder- “CJ,” 'who attempting in to locate ment he was in custo- suspect al narcotics while violations, and narcotics wanted on was County Todd Detention Center dy at the Department detec- that Moorhead Police during several of these calls the and that anony- had received an tive Jeff Larson people suspect attempting “was to have with staying was tip mous “CJ” him of his arrest.” contact Slim and advise Fargo. apartment West Lunde at the Hicks’s the basis of Officer On [¶7] that Lunde allowed the The affidavit states affidavit, magistrate, found and, for CJ officers to check war- and issued the search cause existed further, the officers he that Lunde told Fargo apartment. rant for West Sunday, July 16. since had not seen CJ charged Lunde was August On July The affidavit states that on resulting from drug various crimes Burns conducted Special Agent of enforcement execution the law officers’ individual,” “cooperating interview of a at his residence. the search warrant by Special “fully had been identified” who January Lunde moved remain Burns and who wished to Agent the evidence suppress court to the district states that the

anonymous. The affidavit for Lunde’s because the search warrant seeking any cooperating individual was supported by probable residence was not consideration monetary gain special or Const, amend. IV cause in violation U.S. exchange for any ongoing investigation Const, I, § art. 8. At a Febru- and N.D. information. individ- cooperating hearing, the district court ary 2007 motion that he or she had lived ual had stated rely on Lunde’s motion. sonable law enforcement to denying opinion its issued no probable held there was The court affidavit. warrant, that the for the search

cause going apply I’m not to the exclu- So During the applied. good faith rule, sionary going deny I’m the mo- stated: hearing, the suppress I have found tion since Well, Okay. far as as THE COURT: that there was not cause I’m goes to issue a search going deny compel also the motion to that that a lot about was there’s warrant the disclosure of the confidential infor- There no affidavit. lacking in that mant because I found that there is no garbage there was no buy, controlled showing that the informant was in fact search, coming no views of the there was reliable. indication as to the relia- going. No suppress the motion to is denied on So these confidential informants. bility grounds that there was a second, third, very much It came exception to the rule. fourth hand. 16, 2007, On March the district actually in the police officers were denying court entered order its prior a to itself week apartment .the suppress compel motion to and to disclo- for the search application warrant. sure of the state’s confidential informant. previous entry their into Nothing from 2007, In May Lunde entered a conditional used to support that was guilty plea, reserving right his to appeal probable application cause for suppress. from the denial of his motion to that the in- the search warrant. Given 11. See N.D.R.Crim.P. a member of the criminal was formant need to ascertain that there was milieu II reliable, were in fact and people these Generally, in reviewing a they were not. ruling sup district court’s on a motion to of the portion as far as motion So press, this Court defers to the district I will find that there suppress to is findings court’s of fact and resolves con probable cause. testimony flicts and in favor of affirmance. Now, going go to on to good we’re ¶ 86, 8, Albaugh, State v. 2007 ND 732 here.... I think faith exclusion there Goebel, 712 (quoting N.W.2d State v. 2007 a the exclu- is ¶ 578). 4, 11, However, ND 725 N.W.2d sionary on this matter. I think that rule “we will reverse the district court’s denial point he did out there was-—and those suppression motion where the decision circumstances, exceptions, those competent fairly lacks sufficient evidence 4 rule. Those circumstances. capable supporting findings, its and the Certainly there was no intention or— contrary weight decision is to the manifest give information. The informa- false Demurs, of the evidence.” State v. 2007 tion, if don’t it'was true or false we know ¶ 145, 7, “Questions ND 738 N.W.2d 486. like it was still in a looked observed fully appeal, of law are reviewable on and by magistrate neutral manner finding legal whether a of fact meets probable there was indicia of cause. question Albaugh, of law.” standard is That on a real serious examination of ¶ (internal omitted). quotation at 8 parties and their submissions The Fourth Amendment to the United

arguments I found that there was not Constitution, applicable States made certainly cause but there was by indicia in that and it rea- the States the Fourteenth Amend- 140, ways, Ressler, in numerous such as cor- 2005 ND established ment, v. State (citation omitted), ¶ independent investiga- 10, through roboration 701 N.W.2d people to be right of the tion, vouching affiant’s or assertion protects “[t]he houses, papers persons, in their reliable, secure informant is or effects, unreasonable against detailed information over- giving informant Const, and seizures.” U.S. ¶ searches (cita- Stewart, any doubt.” at 8 coming Const, I, IV; art. also N.D. amend. see omitted). tions unreasonable against § protect 8. To totality-of-the- We use seizures, cause “[p]robable searches circumstances test to review the sufficien under a search warrant required for magistrate, before the cy of information to the United Amendment the Fourth district court’s decision. independent I, and Article Sec- States Constitution ¶ Nelson, 59, 16, 910; 2005 ND 693 N.W.2d State our state constitution.” tion 8 of ¶ 175, 11, 741. Hage, 1997 ND 568 N.W.2d ¶ 7, 611 2000 ND Thieling, making independent this decision Wamre, 1999 (citing State v. N.W.2d exists, 268). ¶ cause “the re whether ND 599 N.W.2d may beyond not look viewing ¶27, 10, Schmalz, ND State v. application of the affidavit or four corners ex- 734. “Whether Schmalz, of the warrant.” for issuance question warrant is to issue a search ists ¶27, 13, ¶ (citing 744 N.W.2d 734 12, 2008 ND Ebel, of law.” State v. ¶ Roth, 375; Hage, see also 495). 741. 1997 ND cause exists Here, “Probable [¶ 11] the district court conclud- [¶ 13] relied and circumstances when the facts cause did not exist to probable ed that the warrant by judge the who issues upon issuance of the search warrant support the reasonable caution person lead a of would the agree residence. We for Lunde’s or evidence the contraband to believe not cause did district place found in the will be sought probably of the search war- support the issuance Schmalz, 27, ND 2008 to be searched.” However, sup- court denied the rant. the ¶ 2000 11, (citing Thieling, 744 734 N.W.2d good faith concluding the pression motion 861). ¶ Thus, 7, 106, 611 N.W.2d ND in this the rule exception to cause, there must exist establish dispositive. case is to be searched place “a nexus between Ebel, sought.” 2006 the contraband 111 ¶ 375; 212, 13, see also 723 N.W.2d ND that North argues Lunde ¶ 17, Nelson, 59, ND 693 v. 2005 State against protection constitutional Dakota’s criminal ac suspicion “Mere N.W.2d 910. pre and seizures unreasonable searches may warrant taking place, which tivity is excep good faith recognition cludes of to a does not rise investigation, further exclusionary rule. tion to state’s Ebel, cause to search.” level of in argues the alternative Lunde also ¶ ¶ Further, 14; at Thieling, 8. see also incorporate the were to even if this Court presumed informants are while citizen exclu to the state’s exception faith good information, v. State be a reliable source rule, exception faith does sionary good 135, ¶ 22, 580 N.W.2d 1998 ND Rangeloff, case. This Court apply present in the not within the 593, reliability of informants Dakota’s whether North not decided has established, be State criminal milieu must excep faith precludes good constitution ¶8, Stewart, 39, v. 2006 ND exclusionary rule. See tion to the state’s an informant can be “Reliability of 403. 636 Herrick, 1, ¶27, rule, ary suppression appro- 1999 ND 588 is not the remedy

N.W.2d 847. priate illegal for an search if an officer’s reliance on the search warrant Generally, evidence Utvick, objectively was reasonable. seized violation of the illegally which is ¶36, 26, 2004 ND 675 N.W.2d 387. The suppressed must Amendment be Fourth good faith inquiry upon focuses whether exclusionary rule. See State v. under the reasonably well-trained officer would ¶ 138, 8, 593; Oxen, 717 2006 ND illegal have known that the search was Utvick, 36, ¶ 26, ND 675 despite magistrate’s authorization. Supreme The United States N.W.2d 387. Beek, State v. Van recognized good exception faith Court However, 112. Leon, may officer United States U.S. (1984). always reasonably rely upon not the va- S.Ct. L.Ed.2d lidity held evidence should Supreme Court of a search warrant issued not when an officer has acted be excluded magistrate. recognized Id. We have good upon objectively faith reasonable specific good four situations when the magistrate’s probable reliance on the exception faith apply does not because applying A court decision. Id. the officer’s reliance on the warrant “ must decide ‘whether objectively reasonable: reasonably well trained officer would have (1) issuing magistrate when the illegal despite that the search was known misled false information intention- ” Herrick, magistrate’s authorization.’ ally negligently given by or the affi- ¶1, 15, (quoting 1999 ND 588 N.W.2d 847 (2) ant; magistrate totally when the Leon, at 922 n. 468 U.S. 104 S.Ct. judicial abandoned her role and failed 3405). to act in a neutral and detached man- State, In Roth v. (3) ner; when the warrant was based ¶¶ 31-32, this on an lacking “so in indicia recently application Court addressed the probable cause as to render official good exception of faith when the of source in its entirely existence unrea- belief exclusionary rule is the Fourth (4) sonable”; and when a reasonable Amendment: law enforcement could rely officer not exclusionary applies If the rule when facially aon deficient warrant. implicating a statute or rule substantive ¶ Herrick, Leon, 923, at (citing 15 at 468 violated, rights is constitutional and the 897, 3405, U.S. 104 S.Ct. 82 L.Ed.2d exclusionary source of the rule is the 677). an reviewing “[W]hen officer’s reli- Amendment, Fourth then we must also warrant, upon ance a we must determine application good consider the faith underlying whether the documents are exception set forth United v. States support, devoid of factual not merely Leon, 897, 3405, 104 468 U.S. S.Ct. 82 they whether the facts contain are legal- (1984). L.Ed.2d 677 See v. Her- State ly sufficient.” United v. States McKnee- ¶ rick, 1, 12, 847; 1999 ND 588 N.W.2d (10th Cir.1993) ly, 1447, 6 F.3d 1454 see v. 1 Maholy, also United States F.3d (internal omitted). quotation (8th Cir.1993) (holding 721-23 that added.) (Emphasis a nighttime the fruits of search were ¶ Herrick, [¶ 1999 ND 17] 588 good under the faith excep- admissible tion, Court, if N.W.2d this under federal even the search violated the Amendment). precedent, good applied good Fourth Under the the Leon faith ex- exception faith ception § federal exclusion- to a violation of 19- N.D.C.C. Here, 03.1-32(3) although the issue on a no-knock warrant based briefed, defendant, not has been raised we need per a se basis. The issued on whether North Dakota’s constitu address however, North argued had that “the also recognition faith precludes good tion of a recognizes greater Constitution Dakota rule, exception to the state’s constitution, protections than federal conclude because we there is insufficient good-faith exception and therefore competent support evidence to the district a issued to search warrant apply does not a exception faith good court’s decision ¶ Herrick, 21. This law.” at under state Lewis, v. applies. State acknowledged that is axiomatic Cf. “[i]t Court (N.D.1995) (“Even 658, 663 if we were to greater may provide our constitution state good-faith we exception, follow the issue counterpart.” its protections than federal decide, of yet implication have to ... [t]he ¶ But, Id. 22. because the issue before at activity simply criminal in this too case statutory was a violation Court objectively to it weak tenuous make 19-03.1-32(3), than a § rather N.D.C.C. rely on the reasonable for officers to Const, I, § didwe violation of N.D. art. Mische, warrant.”); State v. provides North Dakota not whether decide (N.D.1989) (“We 415, 422 leave continue to greater protections state constitutional question adopt to open [whether Herrick, at Amendment. than the Fourth exception] good-faith faith if the good ¶¶ open The Court thus left 26-27. exception adopted were to be we would protection “such heightened issue whether here.”); Thompson, it apply State to good-faith exception preclude would (N.D.1985) (explaining exclusionary rule.” Id. North Dakota’s good if we were faith apply that even ¶ 27. rule, lacking in indi- the “affidavit was ‘so cause,’ [¶ This Court has continued 18] unrea cia of it was See, it.”). e.g., issue undecided. rely upon leave this for him to sonable Utvick, ¶28, good exception application third may pro- exception is “when the warrant (noting the state constitution faith in indicia lacking Fourth on an ‘so protections than the based greater vide cause as official be Amendment, to render holding precedent federal entirely existence unreason lief in its a state ar- controls because constitutional Herrick, 15, 588 1999 ND able.’” gument properly was not raised We 847. conclude 187, N.W.2d briefed); Dodson, case, apply does not in this be ¶ 21, (holding defendant on an the search warrant was based the sufficiently argument not raised an had in indicia lacking probable cause affidavit precludes application of state constitution official in its existence rendering belief exception the ex- good faith to the state’s entirely unreasonable. rule); Beek, 1999 clusionary State v. Van ¶53, (holding ND n. here Officer Hicks’s [¶ 20] insufficiently state consti- defendant raised and con- no more than a tenuous supplies violation); Hughes, tution in involved clusory suggestion Lunde was ¶ 5, (holding feder- ND based activity. The warrant was criminal de- appeal al controlled because an uncorrob- precedent upon stale information from properly part had not raised or briefed who was fendant orated confidential informant fails that constitution criminal The affidavit argument state milieu. protection probability the federal even fair greater affords than to establish constitution). a crime would contraband or evidence of cently places found in the identified to be the various transactions described

be searched. in the affidavit occurred over an almost fact, eight-month period of time. In Offi- correctly the district court As cer Hick’s affidavit indicates that Lunde concluding probable in cause did observed allowed law enforcement to search his exist, independent was no not there inves- approxi- for another individual tigation corroboration of the confiden- or mately one week before the search war- attempting tial informants. establish residence, rant Nothing previ- to Lunde’s Officer was issued. from this “nexus” search, entirely Hicks’s affidavit is based almost ous apparently which Lunde consented, however, on the assertions of confidential infor- suggests probable in drug trafficking mant involved since cause existed for subsequent search relayed as to Officer December warrant. law Hicks another enforcement officer. Other information Officer Hicks However, milieu, part as of the criminal in included his affidavit were statements to establish nothing appears reliability from another law enforcement officer tak- informant. of this confidential “cooperating en from a individual” that The confidential informant indi- apparently knew people who associated in apart- cated he had been Although sug- Slim. these statements ment, says they instead in met gest that Lunde was associated with other Further, parking describing lot. in individuals whom “cooperating individ- confidential informant’s interactions with ual” drug believed to be involved in traf- “Slim,” Lunde, whom he later identified as ficking, they do not establish or corrobo- pur- no time-frame was established rate that contraband would be discovered poses determining recently how the al- at Lunde’s residence. The warrant is a leged place, transactions took or whether warrant a place person. search not a was stale. have information We said Mische, 448 N.W.2d at 422. Simply put, presented where information to a Mische, as in sug- while the information magistrate activity shows “conduct or aof gests may Lunde have been involved or nature, ‘protracted and continuous’ associated with individuals involved in passage important of time is less drug trafficking, there is insufficient infor-

validity probable cause” mation to establish indicia of dealing intrinsically “[d]rug ‘protract- premises cause to search the indicated in Ebel, activity.” ed and continuous’ the search warrant. 15, 723 N.W.2d 375 (citing ¶¶ 12-13, [¶ 25] We conclude the search warrant Hage, 1997 ND 741). However, stale information was based on an prior lacking affidavit “so in misconduct does not establish indicia of cause as to render offi- improper cause that similar or conduct cial entirely belief its existence unrea- Roth, continues to occur. 2004 sonable,” and the district court erred ¶ 17, 674 N.W.2d 495. applying the Leon this case. good Because we conclude the Here, despite asserting being [¶ in- 23] exception case, faith apply does not in this drug volved with trafficking since Decem- we do not address whether North Dakota’s ber the confidential pro- informant protection against constitutional unreason- vided uncorroborated information that he able precludes searches and seizures currency would “on occasion” collect from rec- ognition good and “often” collected of the faith drug exception Slim debts for to the Slim, provided no but indication how re- state’s rule. previously explained I have

IV the [¶ 33] rejecting that basis for the claim there is judg- reverse the criminal We [¶ 26] good-faith exception no under the North to the remand district ment and See, e.g., Dakota Constitution. State v. his conditional permit Lunde to withdraw ¶¶ Herrick, 32-37, ND 588 N.W.2d guilty plea. (Sandstrom, J., concurring). RONNING KAPSNER [¶ CAROL 27] Here the that record reflects [¶ 34] MARING, JJ., and MARY MUEHLEN ongoing drug- confidential informant had concur. apart- related business outside Lunde’s An additional Justice, cooperating ment. individu- SANDSTROM, dissenting. of the provided al corroboration involve- I the trial Because would affirm [¶ 28] Lunde, informant, ment of the confidential suppress the denying court in motion Forehand, and Glen who had been arrest- evidence, respectfully I dissent. drug trafficking. phone ed for trial court concluded The [¶ 29] phone number was on Forehand’s cell supported was not search warrant arrest, of his the time and Forehand cause, but the results probable concluded following to alert sought Lunde Fore- suppressed, should of the search not be hand’s arrest. law enforcement relied on because majority The it 35] asserts [¶ faith. warrant provided by not known whether evidence appeal, argues, pri- On Lunde [¶ 80] “stale,” was the confidential informant ex- marily, good-faith there should be no pre- we have said when information the North ception under Dakota Constitu- magistrate to a shows “conduct or sented and, if secondarily, good- tion is a there ‘protracted activity of and continuous’ Dakota under the North nature, passage impor- time is less of Constitution, was reli- good-faith there no validity probable to the cause” tant ance enforcement. on the warrant law intrinsically “[d]rug dealing is and that be a argues The there is or should State activity.” ‘protracted continuous’ North Da- good-faith exception under the Ebel, Constitution, clearly kota was there (citing Hage, in law reliance on good faith enforcement’s ¶¶ 741). 12-13, The evi- this search warrant. here present magistrate was dence majority says The it need not [¶ 31] protracted activity of conduct and excep- a good-faith there is decide whether nature. continuous Constitution, tion the North under Dakota premises further majority could have no reasonable officer because view of analysis on erroneous its for the there was believed every provided by relevant detail law the warrant. issuance of must be corrob- the confidential informant believe, I on the basis Birk, orated. See State affidavit, there presented evidence (N.D.1992) (“[W]hen law enforcement cause; good-faith was there is a part have of the infor- officers verified Dakota Consti- exception under North by independent information investi- mant’s tution; and, if there credence to the corroboration lends gation, issuance of search war- cause for the information.”). remaining unverified rant, prob- there was indicia substantial to sug- It overreaches the record on the good-faith able cause and reliance previously had law enforcement by gest warrant law enforcement. apartment “apparent- “searched” 2008 ND 141 states, The affidavit ly” his consent. Dakota, STATE of North Plaintiff officers to allowed check [Lunde] “Marcus Appellee for ‘CJ’ and Lunde also told apartment Sunday had not seen ‘CJ’ since officers he illogical think July 16th.” It seems TORKELSEN, Steven Arthur Lunde would have allowed law enforce- Defendant and ment to look his to see Appellant. if present drugs,

whether “CJ” was his No. 20070140. drug paraphernalia, incriminating or other plain sight. evidence was Supreme Court of North Dakota. Law enforcement acted reason- [¶ 38] July 21, 2008. I ably and in faith. would affirm. Dale V. Sandstrom

CROTHERS, Justice, dissenting. I respectfully

[¶ dissent. 40] good-faith exception I believe a rule exists under the

North Dakota for the Constitution reason

articulated Justice Sandstrom in State ¶¶ Herrick, 32-37, 1999 ND (Sandstrom, J., concurring). I

N.W.2d 847 judgment

would affirm the district court’s analysis that court’s

based on and determi- lacking

nation that cause was good-faith exception applied.

that the See ¶ However,

Majority Opinion at 8. I do not

join today Justice Sandstrom’s dissent be- disagree

cause I the search this case supported cause. See

Sandstrom, J., dissenting at 32. Daniel J. Crothers

Case Details

Case Name: State v. Lunde

Court Name: North Dakota Supreme Court

Date Published: Jul 21, 2008

Citation: 752 N.W.2d 630

Docket Number: 20070159

Court Abbreviation: N.D.