State v. Mitzel

2004 ND 157 Dakota, of North Plaintiff

STATE Appellee MITZEL,

Ryan Defendant C. Appellant.

No.

Supreme Court of North Dakota. 4, 2004.

Aug. Feland,

Cynthia M. Assistant State’s At- ND, torney, Bismarck, plaintiff appellee. Baumann, P. P. Slorby

Tom and Eric ND, Office, Minot, Slorby for Law defen- and appellant. dant SANDSTROM, Justice. Ryan appealing Mitzel is from a

South Central District Court Judicial crim- judgment upon inal a and conviction condi- plea tional guilty possession for of mari- deliver, juana with intent a B class felony, possession drug parapherna- lia, a class A misdemeanor. Mitzel argues in denying the district court erred mo- tion to that he suppress evidence claims was obtained in violation of his Fourth and Fifth rights. Amendment We reverse and remand, concluding district court erred in denying Mitzel’s motion to suppress. 15, 2003, February On Bismarck McMerty Police Officers Mike and Jason Stugelmeyer apartment went to Mitzel’s investigate of a domestic report dispute. a apartment, McMerty While Officer followed the hall Mitzel down toward a back bedroom and observed the odor of marijuana. Mitzel later admitted smok- marijuana. ing McMerty Officer asked for permission Mitzel to search the bed- room of Mitzel apartment, but denied request. Mitzel was arrested for pos- of marijuana. session He later consented bedroom, ato search of the and officers marijuana marijuana found parapher- nalia. February On

charged possession drug with parapher- nalia and possession marijuana with with intent within 1000 feet a to deliver He testified Mitzel bedroom. 15, 2003, moved to the back May On school. marijuana, and he smoking admitted to apart- in his found the evidence suppress to search the Mitzel for consent asked suppression July On ment. bedroom, request. Mitzel denied the but hearing, Officer At the was held. hearing for a apply that he left to He testified respond called McMerty testified he was Stugelmeyer warrant after Officer search he He testified disturbance. to a domestic possession girl arrested Mitzel and the him informed neighbor who with spoke testified he did marijuana. The officer had been apartment people Mitzel’s warrant, because he not obtain banging he had heard yelling informed that Mitzel had decided He testified apartment. in the noises to a search. he explained and on Mitzel’s door knocked distur- investigate domestic there to was Kaizer, Kenan a detective Officer [¶ 6] asked whether that he He testified bance. tes- Department, the Bismarck Police with and that if came inside minded he Mitzel with the that he volunteered to assist tified said He testified Mitzel him in. Mitzel let apart- and that he went to case and girlfriend his arguing with that he was McMerty after ment. He arrived Officer right. all He them were that both of warrant. Offi- had left to obtain him whether he asked Mitzel testified to Mitzel explained Kaizer testified he cer and he girlfriend, awhile; to talk to his like might would that “it be that girl and the that Mitzel He testified he would. and that we Attorney busy, said was the State’s and walking to the back bedroom began someone else to trying to contact were said, “I’ll us, step, took a Mitzel that when he but we the Search Warrant issue Mitzel, told he get her.” He testified to wait.” He go just going to have were bedroom in the my safety going back did not want to “For that Mitzel said he testified I don’t a domestic there has been Mitzel and the any longer where wait I’ll come with back there. testi- know what’s for a search. He girl gave consent shrugged that Mitzel you.” He testified a written consent through he went fied bed- walking them, toward the back it began and both read “had them form with it, their Mi- room. sign and then went sign that and had them read rights, randa that as he testified The officer form also.” bedroom, de- he walking toward the was 11, 2003, He stated an order de- marijuana. August the odor On [¶ 7] tected was suppress bedroom to opened nying Mitzel’s motion that when Mitzel 13, 2003, strong Mitzel entered door, marijuana August was the odor of filed. On under plea guilty testified distinguishable. The officer conditional and 11(a)(2) “You amended yelled, in the room N.D.R.Crim.P. that a female appeal the reserving right that the bed- He testified charges, can’t be here!” No- suppress. that he On shut and his motion door was slammed denial of room convicted open and told the door back vember pushed de- marijuana with intent to testified that possession come out. He girl to go drug paraphernalia. with girl possession and the Mitzel liver and instructed he did a He testified Stugelmeyer. Officer jurisdiction had The trial court [¶ 8] and returned people check for quick Const, YI, 8,§ and art. under N.D. living room. appeal § 27-05-06. N.D.C.C. 4(b). This N.D.R.App.P. timely under that he told testified The officer N.D. Const. jurisdiction under has marijuana Court there was Mitzel he believed Matthews, VI, §§ §§ 29- art. N.D.C.C. materials seized. 2003 ND ¶ 10, 01-12 and 29-28-06. 665 N.W.2d 28. Warrantless person’s pre searches inside a home are II sumptively (citing Pay unreasonable. Id. argues the district York, 573, 586, ton v. New 445 U.S. denying sup court erred in his motion to (1980)). S.Ct. 63 L.Ed.2d 639 during the search of press evidence found Searches inside a home are not unreason apartment, give because he did not his able, however, if the search falls under one him consent for to follow to the rear exceptions to the search warrant there no apartment, of his because were requirement. Id. .

exigent justify no exception [¶ 12] When ex later consent to a and because his ists, sup the evidence obtained must be search was obtained violation of his pressed as inadmissible under the exclu rights involuntary. Miranda and was sionary Gregg, rule. findings A trial court’s of fact in ¶ 23, 615 N.W.2d 515. It is the State’s preliminary proceedings of a criminal burden to show that a warrantless search if, ease will not reversed after the falls within an exception to the warrant testimony conflicts are resolved Avila, 142, requirement. State v. 1997 ND affirmance, favor of there is sufficient ¶ 16, 566 N.W.2d 410. fairly competent capable evidence supporting findings, the trial court’s contrary

the decision is not to the mani- A weight fest of the evidence. exceptions One of the

City v. Fargo Thompson, 520 to a warrantless search is consent. State v. 578, (N.D.1994); DeCoteau, 77, ¶9, v. N.W.2d 581 State Boll 1999 ND 592 N.W.2d ¶30, 13, ingberg, 2004 ND 674 281 ques N.W.2d 579. The existence of consent ais (motion suppress). This standard rec tion of fact to be determined from the ognizes importance totality of the district of the circumstances. United Patacchia, (9th opportunity 218, court’s to observe the wit States v. 219 credibility, Cir.1979); Miller, nesses and assess their United States v. 589 (1st 1117, Cir.1978). great given deference is to the district F.2d 1130 scope in suppression court matters. State v. of objectively by consent is measured what Matthews, 108, ¶8, 2003 ND 665 a person N.W.2d reasonable would have under Questions fully 28. of law by exchange are reviewable stood between the Ova, appeal. Guthmiller, on v. 539 suspect. State N.W.2d and the v. ¶ ¶ (N.D.1995); 100, 5, Bollingberg, at ND 13. 235. N.W.2d finding legal Whether a of fact a meets In involving cases consent to en question City standard is a of law. “ home, held, ter a we have ‘to sustain ¶ Dardis, 186, 7, Jamestown v. 2000 ND consent, finding of the State must show by person alleged affirmative conduct [¶ The Fourth Amendment to have consented that 11] is consistent with consent, provides protection giving from unreasonable merely rather than Const, searches showing person and seizures. U.S. that the took no affirma amend. IV. A search and seizure has oc tive stop police...'" City actions to Dardis, if person expec curred has a reasonable Jamestown v. 2000 ND ¶ 11, privacy tation of in an or in (quoting area searched 618 N.W.2d 495 (citation requested is not a case which the officer 592 N.W.2d omitted)). case, consent began the context of consent. In this the officer Outside if home, Mitzel, said, it has been found “I’ll go to enter a and Mitzel consent, expressly or request my do get replied, her.” The officer “For reasonably be consent cannot impliedly, safety going back in the bedroom where object. and failure to implied from silence been a domestic don’t know there has Jams, States See United you.” there. I’ll come with what’s back Cir.1996) (consent (5th to search 390-91 did not ask for Mitzel’s con The officer Although implied). not be suitcase could sent; authority. he made statement cannot be held that consent it has been statement, Mit- response to the officer’s object, failure to from silence or implied walking shrugged zel “kind of and started Judge Cis- implied. can be James acquiescence back to the bedroom.” Mere 2-5(h) sell, § Trials Federal Criminal police authority is insufficient to show 2003). (6th Failing object ed. Ringel, consent. 1 W.E. Searches & Sei search makes the of a consent continuation (2d zures, § Arrests and 9.3 Confessions objectively reasonable. continued search Jaras, 2004); ed. see United States Seizures, E. & Ringel, Searches William Cir.1996). (5th F.3d (2d § 9.3 ed. Arrests and Confessions Alcantar, 2004); States v. United if the officer’s 17] Even [¶ Cir.2001). 731, 738 interpreted asking could as statement for consent to a reasonable case, undisput it is In this not believe Mitzel’s conduct person would invited in that the were ed In determining consent. whether showed court found that The trial defendant. to an officer’s suspect has consented bed the defendant went back when question is not sub room, request him that the police officer advised person him if he was a reasonable accompany jective need to but is whether he would of the house. The consent. part to another believe the conduct showed going would Seizures, could court found that “the officer Ar Ringel, trial 1 Searches & W.E. 2004). (2d in of an defendant the absence § follow the 9.3 ed. rests and Confessions privi him that denying express statement lightly inferred. should not be Consent lege by the defendant. The defendant Cameron, 790, Misc.2d 342 People v. 73 voluntarily let the officer in.” this case had (1973); 773, v. 782 United States N.Y.S.2d (9th Patacchia, 218, 219 Cir. fact are Although findings 16] [¶ 1979). by clear proven must be Consent evidence, the district by the supported v. testimony. United States positive law, because misapplied court has (6th Cir.1978); Scott, 1186, 1188 to show con findings these are insufficient McCaleb, v. United States Johnson, Diemert sent. See (6th Cir.1977). un must be Consent (N.D.1980) (holding that Cameron, (finding action at 784 equivocal. by findings based is not bound the Court to constitute con law). shrugging insufficient conception of This on an erroneous McCaleb, sent); ambig shrug at 721. A is Mitzel failed to is not a case which “ aloofness, uous; indiffer ‘express it can him down object to the officer’s ” ence, Raibley, uncertainty.’ People v. Perseke, or the hall. But see State Ill.Dec. Ill.App.3d voluntary (finding *3 Minn.App. Lexis 550 (2003) Mer (quoting N.E.2d police allowed of appellant consent where downstairs). Dictionary 1084 Collegiate riam Webster’s him This also ficer to follow 2000)). McMerty warning. Even Officer ed. Domestic violence victims shrug to mean “whatever.” interpreted may be or intimidated suffer from a dependence inherent the abusive rela- We conclude district court’s [¶ 18] tionship. signs danger may be findings of fact are based on an erroneous masked. conception of law and are therefore insuffi- cient to constitute consent. The court in Fletcher also stated police that must often make balanced B choices. “Domestic violence situations re- exception Another quire police to particularly make delicate exigent cir requirement the warrant is judgments quickly.” and difficult Id. The cumstances, meaning “emergency an situa court, however, recognized also that “offi- tion action im requiring prevent swift respect cers must basic guaran- freedoms danger damage minent to life or serious by teed the Fourth per- Amendment. A property, or to forestall the imminent es son’s sanctuary, ordinarily home is her cape suspect of a or destruction of evi by be entered unless ¶¶ 14-15, dence.” entry is authorized a warrant.” Id. (citations omitted). 592 N.W.2d 579 We apply a de novo standard of review to Although domestic dis determine whether the facts constitute exi putes can explosive, there are insuffi gent Id. circumstances. at 15. Mitzel specific cient facts in this case indicating argues that no exigent circumstances ex that an apartment immediate search of the isted the officer him when followed case, warranted. this apartment. received a call from a neighbor who re The district court concluded the ported banging yelling coming from appropriately officer acted under the cir- inside apartment. There was no cumstances. The district court stated: in progress disturbance when the officers shouting The officer was aware that etc. arrived, and Mitzel informed the had from premises emanated and that he girlfriend fight and his had had a had no idea what was at the rear of the they were both fine. There was apartment. He was protect entitled to testimony no that Mitzel was trying to may himself from at what be the rear of prevent the from entering apart the apartment the once the defendant was ment or being that he was evasive. There out of explo- his view. These are often no testimony any was that Mitzel had vio sive situations and one which the offi- tendencies, lent and there were no initial right protect cer had a himself. The signs of intoxication. There was no testi defendant could have called out to the mony calm, to indicate that Mitzel was not occupant other to come to living the and there was no evidence of an alterca room and he chose not to do so. tion, blood, such as bruising, or raw knuck Clinton, In Fletcher v. Town les. Mitzel asked whether the officers of (1st 41, Cir.1999), 50 the court stressed: wanted girlfriend, to talk to his and he spot judgments by On the reasonable went get her. These circumstances are dangers officers about risks and pro- are insufficient exigent to show circumstances. ¶¶ DeCoteau, tected. judgments 77, Deference to those 17-18, See 1999 ND 592 (no may particularly be warranted exigent domes- N.W.2d 579 tic disputes. disputes, In those violence found while investigated a domestic may situation); lurking explode and with little see also Superior Tamborino v.

127 868, Court, 919, consent was it Cal.Rptr. 226 to search invalid because 41 Cal.3d (1986) (officer 242, justified in was in violation his Miranda 244 obtained of P.2d 719 involuntary. rights and was for a victim when searching potential home and person a wounded bleed observed Whether consent report a there had been a of ing and voluntary is a fact. question search is Sailas, 432, v. 129 Idaho robbery); State Larson, 1021, v. F.2d United States 978 (exigent cir (Ct.App.1996) P.2d 1131 925 (8th Cir.1992). A 1023 trial court must saw found when officers blood cumstances whether, totality under determine the and nose and the on a woman’s hands circumstances, volun consent was continued their domestic disturbance ¶ tary. 592 1999 ND Wiedenheft, v. 136 presence); State Idaho government N.W.2d 579. The has the (exigent cir (Ct.App.2001) 27 873 P.3d prove burden to was volun consent found when a 911 call was cumstances McCaleb, tarily given. v. United States received, injuries, per observed and (6th Cir.1977). visibly answering upset); was son door When is the (Colo. Mascarenas, 972 P.2d People v. product and choice free unconstrained (exigent circumstances found Ct.App.1998) coercion, and not or product duress injuries); v. police observed Fletcher when Larson, voluntary. it is F.2d at 1023. (1st Clinton, Cir. Town of voluntariness, To focus on determine we 1999) found (exigent circumstances when (1) the and two elements: characteristics restraining prior order there was condition of the accused at the time of the abuser); alleged State v. conduct with (2) consent, setting the details of the (1989) Greene, Ariz. P.2d 257 obtained, in which with no the consent when circumstances found victim (exigent City being one factor determinative. beaten); police that had been told the she Ellison, 175, 13, 635 Fargo v. 2001 ND Lynd, Wash.App. P.2d State Guscette, 151; also see (1989) (exigent circumstances found ¶71, 11, 678 N.W.2d 911). call to hang-up there was when deciding that Mitzel’s not an Because the facts do show valid, the court does consent was district emergency requiring pre- swift action to totality appear have considered danger property, vent imminent to life or court, The district circumstances. justify do not exigent circumstances factors, ap of all other exclusion of Mitzel’s Because no apartment. solely its on pears to have based decision apply, to a warrantless search exceptions signed fact a consent as a that Mitzel action in we conclude officer’s informed that it having result of been an his home constitutes hours a search would take a few to obtain unlawful search and all evidence obtained rationale for its warrant. The trial court’s sup- must from the warrantless search finding it was was that satisfied under the pressed as inadmissible exclu- until a search right aware of his wait Gregg, ND sionary rule. See State v. warrant had been secured. 154, 23, 615 N.W.2d 515. consent Before Mitzel

[¶ 28] C search, without the benefit ed the officers warning, was told argues Mitzel also the district Miranda [¶ 24] warrant, but that it get “would” a search finding subsequent his con- court erred would be “time argues “might He take awhile” and to search was valid. sent consuming.” warning, Lack of a Miranda Ill itself, does not invalidate a consent to trial Although court found Lee, search. States v. 356 F.3d United Mitzel’s written consent to search was val- (8th Cir.2003); United States v. id, upon that determination an was based (8th Newton, 964, 966-67 Cir. application incorrect of the law. We 2001). Stating that a search warrant will therefore reverse the criminal judgment, insufficient to be obtained is also render vacate denying the order the motion to involuntary. See United States suppress, and remand for a determination Bramble, (D.Haw. F.Supp. of whether voluntary Mitzel’s consent was 1995) (consent voluntary to search was totality under the of the circumstances. they get when officers said would a search If, above, applying the law set forth warrant but did not claim to have a search trial court determines Mitzel’s consent was warrant or to be able to obtain one imme involuntary, permitted Mitzel must be Miller, diately); see also United States v. guilty plea. withdraw his (1st Cir.1978) 1132 n. 13 (consent involuntary is not made by an NEUMANN, WILLIAM A. assertion that a warrant would be obtained KAPSNER, JJ., CAROL RONNING search). if given no consent is concur. [¶ 29] When Mitzel consented WALLE, Justice, VANDE Chief dis- to the he had been arrested and senting. inwas handcuffs. Because all of the evi majority opinion The has out- dence obtained from the initial search lined the applicable facts and the law. Be- exclusionary must be excluded under the cause I do not agree misap- the trial court rule, there was no basis for his arrest. facts, plied the respectfully law to the I fact that a person mere has been dissent II B majority Section of the arrested violation of his constitutional opinion and the reversal of the judgment rights grave upon casts doubt the volun- of conviction. Under the circumstances of subsequent tariness of a consent. United I exigent this case believe McCaleb, (6th States v. justified the actions of the officers Cir.1977); Bazinet, United States v. exception as an requirement of a Cir.1972); F.2d but see Unit search warrant under the Fourth Amend- Watson, 411, 424-25, ed States v. 423 U.S. ment of the United States Constitution. (1976) (con 96 S.Ct. 46 L.Ed.2d 598 would therefore affirm denying the order sent to search valid while defendant the suppression of the evidence and the arrest). custody after lawful There were judgment of conviction. also two present officers when he consent ed, and Mitzel not given his Miranda There is no doubt that Mitzel warning until after he had consented to invited the into pur- the home. For the search. Miranda warnings poses are a fac of this dissent I agree with the tor to consider majority home, under the voluntariness that once in the test. Payne, United States v. subsequent F.3d actions were not consent for (8th Cir.1997). 637, 643-44 Miranda the officer to accompany Mitzel to the back warning cannot support But, voluntariness bedroom. the facts of this case are given consent when it is significantly after the consent. different than in those DeCoteau, United States v. Perez-Lopez, 348 F.3d 579. Cir.2003). First, noted, police as has been the were exception the the exigent under invited into the home. police requirement the were the in the or not warrant Fourth issue was whether entering home. held in in the We Amendment the defendant to justified or Although an invitation they were not. the rear of the home where he smelled the result, marijuana. a home does not alone the consent to enter As a I believe ensu- to roam at will police entitle the arrest not ing illegal was the home, house, it once inside the the entire the subsequent consent home danger to the potential me the seems to voluntary and therefore valid under was when considerably greater than officers is these circumstances. inor common

the officers were outside McMerty’s testimony J„ that MARING, hall. Officer MARY MUEHLEN in safety bedroom my going “For back the concurs. has a domestic don’t

where there been I’ll with

know there. come what’s back as

you” indicates much. While the may not consent to

silence have been him, that is accompany

officer under facts. necessary

not these which significant The other fact ND in distinguishes this from DeCoteau is GRANDBOIS, INC., AND GRANDBOIS were DeCoteau both adults outside corporation, and Linda and Edward The wom- home arrived. when Appellants Grandbois, Plaintiffs and nothing there an assured the was The wrong and asked the leave. CITY, City WATFORD CITY OF Wil window, by told police saw a broken were liston, County Williams, County in heard standing a child the street that he McKenzie, political Divide, County of officer’s breaking glass. the sound of subdivisions; City Police De Watford justification entering the home was Depart partment, Williston Police if the children were officer wanted see Sheriff, ment, County Divide Williams right although not clear from all it is County County Sheriff, McKenzie were the home. opinion there children Sheriff, Task Northwest Narcotics Here, woman with whom [¶35] Force, M. and Dale and Kirk Sutton arguing outside Hager, Appellees. and Defendants home, al- visibly present in the home nor though to the officer Mitzel’s statements No. 20030250. clearly subsequent actions indicated Dakota. Supreme Court North present.

she was Aug. en- It is well known that law may be considerable forcement officers

danger called to the scene of domes- when Here, invited

tic the officer was violence.

into the home told defendant arguing girlfriend, who

had been with con- home. Out of

was not visible protec- woman and his own

cern for the

tion, justified I believe the officer was

Case Details

Case Name: State v. Mitzel

Court Name: North Dakota Supreme Court

Date Published: Aug 4, 2004

Citation: 685 N.W.2d 120

Docket Number: 20030359

Court Abbreviation: N.D.