Lead Opinion
[¶ 1] Stеven Schmalz appeals from two criminal judgments following his conditional guilty pleas for possession of marijuana in both Burleigh and Morton counties, arguing the trial court erred in denying his motion to suppress evidence. We affirm the criminal judgments.
I
[¶ 2] Burleigh County Sheriffs Deputy Simon Scheett received “intel,” allegedly indicating Schmalz “had involvement with narcotics.” Based on this information, Deputy Scheett began an investigation of Schmalz. As part of the investigation, Deputy Scheett, along with another officer, searched trash that had been placed on the sidewalk in front of Schmalz’s home. During their search of the trash, the officers found a paper towel with dark residue, which Deputy Scheett believed to be burnt marijuana residue, packaging tape, which Deputy Scheett said smelled of marijuana, and cellophane packaging, which Deputy Scheett said smelled of marijuana also. Along with these items, the trash contained mail addressed to Schmalz.
[¶ 3] The day after the trash can search, Deputy Scheett and an Assistant Burleigh County State’s Attorney requested a warrant to search Schmalz’s home from a Burleigh County district court judge. At the hearing on the application for a search warrant, Deputy Scheett testified about the “intel” he received, allegedly providing Schmalz was involved with drugs. He did not disclose the names of
[¶ 4] In the application for the search warrant, Deputy Scheett testified this intelligence prompted him to conduct further investigation of Schmalz. He testified he and another officer went to the sidewalk in front of Schmalz’s home, where trash was regularly placed for pick-up and disposal, to conduct a search. He testified the search of the trash in front of Schmalz’s residence uncovered a paper towel with what appeared to be burnt marijuana residue, packaging tape that carried the scent of marijuana, and a cellophane wrapper that also smelled of marijuana. Along with this trash, the officers found mail addressed to Schmalz. Deputy Scheett did not, however, testify how many trash cans were placed on the sidewalk for disposal, whether this trash disposal drop-off point was typically used as the disposal point for the entire trailer park, nor did his testimony explicitly provide whether the mail addressed to Schmalz was found in the same trash container as the material containing marijuana or smelling of marijuana. Based on Officer Scheett’s testimony, the judge issued a warrant to search Schmalz’s home.
[¶ 5] A few days later, Deputy Scheett contacted Schmalz, telling Schmalz he had a warrant to search his home and requested he and Schmalz meet in Mandan so that Schmalz could accompаny the police to his home for the search. Schmalz met with Deputy Scheett and another officer in a parking lot in Mandan, where he left his car and then rode to his home with the officers. During the search of Schmalz’s home in Bismarck, the police found marijuana.
[¶ 6] After finding the drugs in Schmalz’s home, the officers asked Schmalz if he had any marijuana in his vehicle, which was parked in Mandan. Schmalz stated he did not. The officers asked Schmalz to consent to a search of his vehicle, аnd after some hesitation, Schmalz consented. During the search of Schmalz’s vehicle, the police found a small quantity of marijuana.
[¶ 7] Schmalz was charged with possession of marijuana in both Burleigh and Morton counties. Before the date set for trial, he moved to suppress evidence gathered in both searches. He argued there was insufficient evidence to support the issuance of the warrant, and the officers should not have searched his trash based only on the information received from an informant. For these reasons, Schmalz argued the evidence derived from the search of his home should be suppressed. He further argued the search of his vehicle was unconstitutional, because the search of the vehicle was a product of the allegedly unconstitutional search of his home, and therefore the evidence acquired as a result of the vehicle search should have been suppressed under the fruit-of-thе-poisonous-tree doctrine. The district court denied Schmalz’s motion to suppress. Schmalz entered conditional guilty pleas to both possession charges.
[¶ 8] Schmalz appeals, arguing his convictions should be overturned and he should be allowed to withdraw his conditional guilty pleas because his Fourth Amendment right against unreasonable searches and seizures was violated.
II
A. Sufficiency of the Warrant
[¶ 9] When reviewing a district court’s decision to grant or deny a motion to suppress, this Court gives deferenсe to
[¶ 10] The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, State v. Ressler,
[¶ 11] Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe thе contraband or evidence sought probably will be found in the place to be searched. Thieling, at ¶ 7 (citing State v. Johnson,
[¶ 12] The determination of whether probable cause exists to issue a search warrant is a question of law. Thieling, at ¶ 8 (citing Damron, at ¶ 5). Deference is given to the magistrate judge’s findings if there is a substantial basis to determine probable cause exists. Thieling, at ¶ 8 (citations omitted). “ ‘We resolve doubt about the sufficiency of an affidavit in support of a request for a search warrant in favor of sustaining the search.’ ” Id. (quoting Wamre, at ¶ 7); see also State v. Roth,
[¶ 13] This Court’s review of the validity of a search warrant is independent of the trial court’s determination. State v. Hage,
[¶ 14] Deputy Seheett testified during the warrant application hearing that he had received “intel,” allegedly providing Schmalz was involved with drugs. Deputy Seheett did not disclose the names of the informants or the sources of the information, nor did he attempt to deliver any detailed information regarding what exactly had been communicated to the police in the “intel.” Schmalz properly notes this information does not sustain a finding of probable cause. See, e.g., Roth, at ¶ 12 (quoting Rage, at ¶ 17) (“An anonymous informant is one unknown to both the investigating officer and the magistrate. We have stated within the context of anonymous informants that an ‘informant must supply information from which one may conclude that the informant is honest and his information is reliable, or from which the informant’s basis of knowledge can be assessed.’ ”); Franks v. Delaware,
[¶ 15] At the warrant hearing, Deputy Seheett testified the information from the unnamed source prompted him to conduct further investigation of Schmalz. He testified he and another officer searched trash in front of Schmalz’s home, which was regularly placed at that location for pickup and disposal. During the search of the trash, the officers discovered the paper towel with marijuana residuе, packaging tape that carried the scent of marijuana, and cellophane packaging that also smelled of the drug. The officers found mail addressed to Schmalz in the trash. Deputy Seheett did not testify during the hearing as to how many trash cans were placed on the sidewalk for disposal, nor did he testify as to whether the mail addressed to Schmalz was found in the same trash bag as the material containing marijuana or smelling of marijuana. Further, there was ambiguity as to whethеr this trash disposal drop-off point was typically used as the disposal point for the entire trailer park, or whether this spot was used for Schmalz’s residence exclusively. With regard to these factual issues, the transcript for the hearing for application for warrant provided:
Q: And explain why you’re requesting to search the area 312 Oxford [D]rive [Schmalz’s residence].
A: I received intel regarding 312 Oxford Drive and a Steve Schmalz that Steve Schmalz had involvement with narcotics. I conducted ... a trash pull on May 22nd, 2006, at approximately 23 — or 11:45 p.m. In the trash we discovered a packing tape bundled up with an odor of marijuana, cigarette cellophane with an odor of marijuana, and a paper towel that appeared to be used for cleaning marijuana paraphernalia. It had a dirty blackish residue, and it—*740 there was an odor of burnt marijuana on it. Also there was mail addressed to Steve Schmalz, 312 Oxford Drive, Bismarck, North Dakota.
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Q: Where was the garbage located when you actually searched it?
A: It was on the west side, the front of the residence on the sidewalk by the driveway of 312 Oxford Drive where the garbage cans in that area are set out for trash pickup.
[¶ 16] The facts surrounding the trash can search are thin. There was minimal information provided at the hearing to show the nexus between the drug residue, the other drug-scented trash, and the mail connecting those items to Schmalz’s residence. It is not explicitly clear whether the drug evidence and mail were found together or separately in a single bag or can and, as a result, the nexus between the drug evidence and the mail tying that evidence to Schmalz’s residence is questionable. However, it can be inferred the judge understood the testimony to mean the items were all in the same can or bag from the first answer above.
[¶ 17] Because this case presents a questionable nexus tying Schmalz to a substance officers believed tо be marijuana, based on their experience and training, but without confirmation from a lab or field test of the substance, this warrant hearing provides a “marginal” or “doubtful” case. However, the doubtful and marginal cases require this Court to affirm the magistrate’s determination that probable cause existed, so long as there is a substantial basis for the conclusion. Roth,
[¶ 18] Schmalz points out that the dark colored residue the officers believed to be burnt marijuana was never tested to confirm it was marijuana. The cellophane wrapping and tape smelled of marijuana; on these two pieces of evidence, there was no apparent marijuana or marijuana residue. Thus, there is a question as to whether the determination, by a trained and experienced narcotics officer, that residue and other objects that smell like marijuana constituted a factual basis upon which probable cause established Schmalz’s garbage contained marijuana and that Schmalz had been or was committing a crime.
[¶ 19] In State v. Woinarowicz, this Court discussed the standard upon which probable cause may be established.
[¶ 20] The mere smell of marijuana, as detected by a trained and experienced officer, has been held by this Court to create a sufficient factual basis upon which to establish probable cause. See, e.g., Overby, at ¶ 13 (“[T]he officer was well-trained in identifying the odor of marijuana. Under Binns and the particular facts of this case, we conclude Officer Nagel had probable cause to arrest Overby....”); State v. Binns,
[¶ 21] Based upon Officer Scheett’s testimony regarding his training and experience as a police officer, the smell of marijuana on all three pieces of evidence, and the existence of residue that looked like burnt marijuana, there was a sufficient factual basis to issue a warrant. We acknowledge the facts surrounding this search warrant constitute a “marginal case”; however, as we stated in Roth,
B. Constitutionality of the Trash Can Search
[¶ 22] Schmalz next argues the trash can search should be deemed unconstitutional and the evidence derived therefrom should have been suppressed. Schmalz urges this Court to depart from its current rule regarding searches of trash. The rules governing the constitutionality of this issue in North Dakota and in federal courts provide “a warrantless garbage search would violate the Fourth Amendment only if the defendants had ‘a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.’ ” State v. Rydberg,
Based on the public location of Rydberg’s garbage, we conclude the garbage searches, in this case, did not violate Article I, § 8 of the North Dakota Constitution. By placing her garbage on or against the public alley, where it was exposed to the general public, and with the express purpose of abandoning it to the trash collector, Rydberg waived any privacy interest she may have had in the garbage.
Rydberg, at 310. The Court further explained individuals who abandon their trash to collection have
“exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common*742 knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents’ trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage ‘in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,’ respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.”
Id. at 309-10 (quoting Greenwood,
[¶ 23] Schmalz urges this Court to recognize, as a minority of other jurisdictions have, that “the public would not be entirely comfortable with the image of police officers overtly foraging through curbside garbage.” Schmalz cites State v. A Blue in Color, 1993 Chevrolet Pickup, 2-Door, MT 14T-D899 VIN/2GCEC19KOP1153371,
[¶ 24] Finally, Schmalz cites Litchfield v. State,
[¶25] When evaluating the constitutionality of a search and seizure under the Constitution of North Dakota, this Court employs the same test used by the United Statеs Supreme Court. See, e.g., Rydberg,
[¶ 26] Schmalz did not have a reasonable expectation of privacy in his trash once he placed it out in public for disposal. Therefore, the evidence gathered in the trash was аdmissible for the purposes of the warrant application.
III
[¶ 27] Because we find probable cause did exist to issue the warrant for Schmalz’s residence, we need not address the applicability of the good-faith exception in this case.
IV
[¶ 28] Schmalz raises the fruit-of-the-poisonous-tree doctrine, arguing that because the search of his trash and home were unconstitutional, the subsequent search of his vehicle was tainted, and the evidence found in his vehicle should bе excluded. We need not address this issue because we sustain the probable cause finding of the magistrate and find the trash search to be constitutional.
V
[¶ 29] We affirm the criminal judgments.
Concurrence Opinion
concurring in the result.
[¶31] I agree with the majority that this case provides a “close call” whether evidence supporting the warrant was sufficient. However, the lack of evidence about the location of the garbage, about how the contraband was found within the garbage, and about the location of mail within the garbage failed to provide a nexus to the defendant and to provide probable cause to search his home. However, under the good-faith exception, suppression of evidence is not the appropriate remedy if law enforcement relies on an objectively reasonable search warrant. State v. Dodson,
[¶ 32] DANIEL J. CROTHERS