State v. Thompson

Dakota, STATE Plaintiff of North Appellant,

Randy and Jackie THOMPSON

Thompson, Defendants

Appellees. Dakota, Plaintiff

STATE of North Appellee, THOMPSON,

Randy and Jackie Appellants.

Defendants and 1045-46,

Cr. Nos. of North Dakota.

June Bismarck,

forcement inUnit North Dako- ta, anonymous phone received an call. them Randy The caller told and Thompson, who live Jackie outside Dakota, Zap, presently North a have large marijuana supply of in their house. informant, According Randy and Thompson city Jackie lived inside the Zap ago they until a short time when Randy moved a Thompson to farmstead. being set, heavy was described as five tall, feet ten inches with dark hair is and Stanton, Duppler, Atty., Alan States years approximately 30 old. Jackie plaintiff appellant. and Thompson large was described as a wom- Chapman Bismarck, Chapman, & for de- an with and who hair is 27 or argued by fendants appellees; and Daniel years said, further, old. The informant Chapman, J. Bismarck. Randy and Jackie Thompson both Beulah, power plant work at a near ERICKSTAD, Justice. Chief Dakota, Thomp- North and that Jackie son, specifically, works the office at appeals Our task in is to these ascertain power plant. Thompsons, The ac- the validity of a warrant search issued informant, cording to the drive a blue county magistrate on basis of the pickup camper and with a it. white on sworn affidavit of a law enforcement offi- acting anonymous cer on an “This advised Drug En- tip. that, We hold under circumstances forcement that she Unit had case, of this warrant search should not against a Mr. Mike Stockert have been issued because the officer’s affi- May The of 1983. information she provide davit did not a substantial basis to provided against proved Mr. Stockert support finding the magistrate’s proba- detail, every be correct and Mr. Stoc- cause, and, further, that all ble evidence presently serving kert time subsequent obtained execution of the Pennitentiary North Dakota State [sic] suppressed. must be as a of this information. result 15, 1984, February “Acting information, On I County Mercer on the above Deputy Wesley Berg Randy Sheriff J. obtained a and Jackie verified authorizing Thompson city Zap search warrant the search did live until time, shortly defendants’ and their residence vehicle before At that Christmas. “marijuana, they other controlled moved the Edward sub- Bauer farm- stances, drug paraphernalia.” and related quarter stead located in the Northeast 146, Township search warrant issued on the Range affi- Section 89. Deputy Berg, signed davit of Thompson cleaning Sheriff Jackie works of- Buchmann, sworn to before Donna M. fice Plains at the Great Coal Gasification county magistrate. Randy This Thompson affidavit reads: Associates. Jackie pickup, own a blue and 1978 Ford white

“I, Wesley Berg, being duly J. first license TCW-499 which sworn, number has depose state I am a topper camper it. deputy County with the Mercer Sheriff’s such, my Office. As one of duties is to “The informant advised investigate occurring in crimes Mercer Randy Drug Enforcement Unit that County. In I capacity have become Thompson selling were Jackie mari- familiar with the described below facts. juana in on February Bismarck driving

“On February They at about 10:00 were their blue and white a.m., CST, Drug pickup the North Dakota En- at the time. information, foregoing

“Based on the I court district concluded that the affi- hereby Deputy Berg comply davit of did not apply for a warrant to search the in Aguilar the standards set forth Randy Thompson Tex- and Jackie residence as, L.Ed.2d located at the former Edward Bauer (1964), explicated further Spi- quar- farmstead located in the Northeast States, 410, nelli 14, 146, Township Range ter of Section 584, (1969).1 S.Ct. 21 L.Ed.2d 637 The dis- 89, County. in Mercer This recognized trict court the United house, for a warrant to cover the Court, Supreme States Illinois v. farmstead, any buildings out on the 213,103 76 L.Ed.2d 527 pickup well as for the and white blue (1983), two-pronged abandoned the Agui- by Randy Thompson owned and Jackie lar-Spinelli “totality test in favor aof of objects The described above. approach determining circumstances” marijuana, any search are other con- tip whether or not an informant’s suffices substances, drug par- trolled and related to establish cause for the issuance aphernalia be found.” concluded, of a warrant. The district court ap- The search warrant was executed at however, inapplicable, that Gates was rea- February proximately p.m. 6:00 soning “ipso did facto” 1984, by Deputy Berg and other law en- change North Dakota case law “which is officers, including special forcement two grounded Constitution, in our Arti- [State] agents Drug of the North Dakota Enforce- I, addition, cle Section 8.” In the district search, the ment Unit. As a result of court concluded that the affidavit failed to charges were filed in the District Court of satisfy “totality the of circumstances” against Randy County Mercer and Jackie analysis holding of In so the court Thompson possession of a controlled said: (288.96 substance with intent to deliver story “The informant’s and the surround- felony. B grams marijuana), of a class The ing possess facts no internal coherence Thompsons charged were also in Mercer give weight of her whole County possession drug para- of Court with story. story Her carries no more cre- A phernalia, a class misdemeanor. any person by dence than that told with any signifi- or without motive and lacks 13, 1984, April Thompsons On the filed in verification, cant nor is that attributes court, 26,1984, county April and on filed in by supplied verification court, suppress “any district motions to any other source.” evidence, including personal and all obser- any person, made as the result of vation the county court concluded that county the search warrant” issued the search warrant was valid under Gates. magistrate. Following the submission August a bench trial had on court, parties, county briefs Randy county court found and Jackie Schulz, memoran- Honorable O.A. issued a Thompson guilty possession of the crime of 23, 1984, May opinion dum and order dated drug paraphernalia. Their convictions court, denying The district the motions. entirely on the use in evidence were based Schneider, A. issued against drug paraphernalia the Honorable Dennis them of opinion during and order dated the search of their a memorandum had been seized 7, 1984, and vehicle. July granting the motions. residence underly- Aguilar of some of the Spinelli, Court set trate must be informed 1. In containing requirements ing forth two for affidavits circumstances from which the affiant con- hearsay affiant or his cluded that the informant is credible (1) magistrate unidentified informant: must (the "veracity" prong). information reliable underlying circum- be informed of some of 1514; Spinel- Aguilar, 378 U.S.at 84 S.Ct.at which the informant concluded stances from 412-13, li, S.Ct. at See 393 U.S. at (the is where he claims it is contraband Schmeets, (N.D.1979). 278 N.W.2d 401 State knowledge” magis- prong), "basis of appeals Florida, State from the dis wife would drive their car to leave trict suppressing court’s order up drugs” evidence.2 it “to be loaded and then Although back, fly concedes “that much of officer after fly which the husband would Berg’s merely affidavit is a restatement of down and drive the car back. The letter informant,” word of an predicted May that on the wife would be “probably are driving correct” down to Florida and that the hus- in asserting that the affidavit does not flying days, band would be down in a few satisfy the knowledge veracity basis of $100,000.00 which would result in “over prongs test, Aguilar-Spinelli drugs” being brought back the trunk of State asserts that under the the car. analysis circumstances” the affi Acting tip, on the determined Deputy Berg provides davit of a substan the defendants’ address and confirmed that magistrate’s

tial basis for the determina the husband fly had made a reservation to probable tion that cause existed to search Beach, Florida, to West Palm May on 5. Thompsons’ residence and vehicle. Through surveillance it was established Randy Thompson appeal Jackie from that the flight, husband made the checked judgments of conviction in entered registered into a hotel room in the wife’s county They court. in part, contend name, following and left the morning, ac- Deputy the affidavit of Berg does not es- companied by woman, an unidentified in an probable require- tablish cause under the bearing plates automobile Illinois license ments of either Aguilar-Spinelli. Gates or registered him, heading north on an in- highway terstate used travelers to the

I Chicago area. A search warrant was is- sued a state judge circuit for the It is Gates’ our view that even under the more upon residence and automobile an flexible of circumstances” stan- foregoing which set forth the facts and a dard of pro- the affidavit does not copy anonymous of the letter. 103 S.Ct. at vide a substantial magis- basis for the trate’s conclusion that cause exist- support ed to the issuance of the search magistrate Gates holds that the task of a

warrant. viewing support an affidavit of a Department the Police simply search warrant is prac- to make a Bloomingdale, Illinois, Chicago, tical, a suburb of common-sense decision whether or anonymous not, received an given letter which in- all the circumstances set forth in defendants, formed them affidavit, that the including husband veracity wife, “strictly living make their knowledge persons supplying basis selling drugs,” $100,000.00 information, and had “over hearsay proba- there is a fair drugs worth of in their bility basement.” The that contraband or evidence of a letter typical detailed the operandi modus crime particular place. will be found in a couple’s drug operation, to wit: the Id. 103 S.Ct. at 2332. “Sufficient informa- explanation 2. The why filed motion to dismiss A state’s the court's order appeal, alleging the State’s that the suppressing State has evidence rendered the available adequate explana- failed to file proof statement and insufficient as a matter of law be appeal compliance tion of the reasons for the pur- in the state's brief filed for the N.D.C.C., 29-28-07(5), with Section and State v. poses appeal. Dilger, 322 N.W.2d at 463. Dilger, (N.D.1982). 322 N.W.2d 461 The State In its brief the State asserts that ”[s]ince the appeal following filed with its notice of evidence, State’s entire case was based on this 29-28-07(5): pursuant statement to Section Judge ruling Schneider’s left the State without a case at all.” In of the nature and circum- "The Honorable Dennis A. Schneider has granted necessary stances of this case and the suppress reliance Defendant’s Motion below to placed by physical prosecution upon all of the evidence herein. This or- evidence ob- warrant, proof der has rendered State, tained in available to the execution of the search we respect charge explanation to the criminal adequate. filed believe the State’s Ac- herein, cordingly, insufficient as a matter of law.” the motion to dismiss is denied. tion presented magistrate must be Gates were involved in drug trafficking.” allow that official to determine 103 S.Ct. at 2334. cause; his action cannot be a mere rat- “The corroboration of predic- the letter’s ification of the bare conclusions of others.” tions that the Gates’ car would

Id. duty reviewing of a court is to Florida, that Lance Gates would fly to ensure “magistrate that the had a ‘substan- day so, Florida the next and that he tial basis for conelud[ing]’ proba- ... would drive the car north toward Bloom- Id., ble cause quoting existed.” Jones v. ingdale indicated, all albeit not with cer- States, 257, 271, tainty, that the informant’s other asser- 725, 736, (1960). 4 L.Ed.2d 697 tions also were true.” Id. 103 S.Ct. at

The majority agreed in Gates anonymous elements under letter two-pronged test contained “[T]he con- range of cerning relating just details not veracity, easily reliability, obtained facts and knowledge existing basis of conditions highly “are all rele- tip, time of the vant but to determining the value of future actions his re- port.” parties of third ordinarily easily pre- Id. 103 S.Ct. at 2327. Courts dicted. ... It is enough should continue to there was a reliance probability fair elements, elaboration of these writer of the not “as en- tirely separate letter had independent obtained his entire require- story from the Gates or rigidly case,” they ments to be someone every exacted trusted. And major but corroboration of “closely por- rather as intertwined issues predictions tions of the provides letter’s usefully illuminate the common- just this sense, probability.” practical question Id. 103 S.Ct. whether there ‘probable cause’ to believe that contraband or evidence is particular place.” located in a Subsequently, Up- Massachusetts v.

Id. 103 S.Ct. at 2327-28. —ton, -, (1984) (per curiam), L.Ed.2d 721 the Su- supplied by anony Information an preme Court reaffirmed holding its mous informant cannot alone establish emphasized rejection Gates of “af- probable cause for a tip ter-the-fact, [probable de novo scru- cause] provides virtually nothing from which one tiny” by reviewing “judging courts and the might conclude that the informant is hon pieces bits and of iso- [of] reliable, est or that his information is or if against lation pro- the artificial standards “gives the information absolutely no indica two-pronged vided test.” 104 S.Ct. tion of the basis for pre [the informant’s] at 2087-88. regarding dictions” a defendant’s criminal activities. Id. 103 S.Ct. at 2326. While the In Upton, the of one affidavit Lt. Beland Supreme Court indicated that for these rea following set forth the information: Lt. agree sons it was inclined to that the anon Beland assisted in the execution of a search ymous Gates, alone, standing letter in did warrant for the motel room of Richard provide probable cause to believe con yielded Kelleher which property stolen in traband would be found the Gates’ car burglaries; recent but other items taken in home, the Court found that the inde burglaries, jewelry, those such as silver pendent police anony corroboration of the gold, were not found at the motel. mous informant’s detailed account of the Approximately later, three hours Be- Lt. provided Gates’ future actions a substan telephone land received a call from un- believing tial basis for that the informant knowledge identified woman who revealed had access to reliable information. This is of the motel search and informed the offi- following illustrated from Gates: cer of the existence of a motor home “full alone, standing parked

“Even the facts obtained stuff” Upton’s stolen behind through independent [police] investi- home at 5 Jefferson Avenue. The infor- gation suggested ... at least that the mant stated that she had seen the stolen items, jewelry, she asserted included The State asserts that the facts of Gates “closely parallel” the gold, silver and and informed the facts of the instant case, that, Gates, police indepen- like plan Upton’s to move the motor home as a dently verified information that “could result motel search and because he completely had explana- innocent purchased had the stolen items from Kelle- Furthermore, that, tion.” argues the State initially her. informant refused to unlike the informant in this case had identify herself but did admit Lt. Be- her reliability past by provid- shown Upton’s land’s assertion that she was for- ing “extremely detailed and useful infor- girlfriend. mer Lt. Beland thereafter ob- mation” another defendant. parked served a motor home premis- on the begin our analysis We totality es of 5 Jefferson Avenue. circumstances in this pointing ease out review, Applying the standard of anonymous tip did not Court found that Lt. Beland’s any specific disclose facts or circumstances a sufficient basis for the from which the informant concluded that magistrate’s finding cause. large supply “have a “Examined Lt. Be- home, marijuana” in their and were “sell- provides land’s affidavit a substantial ba- ing marijuana in Bismarck on February sis for the issuance of the warrant. No 1984.” Our view of the affidavit is that single piece of evidence in it is conclu- anonymous merely asserted But pieces neatly together sive. fit given previous that she had tip which and, viewed, support magistrate’s so resulted in the arrest and conviction of determination prob- that there was ‘a fair person another who was now in the State ability that contraband or evidence of Penitentiary. nothing There is in the affi- crime’ Upton’s would be found in motor Deputy Berg davit of prove which tends to home.... The informant claimed to informant is the same have seen goods gave the stolen person gave tip who resulted description of them which tallied with the person’s the other arrest and conviction. items taken in burglaries. recent She The other description information as to the of knew the raid on the motel room— of the pickup their and as produced place to their evidence connected former of residence to and their burglaries new those of residence could the room had have been —and supplied by anyone been who observed them reserved Kelleher. ex- She coming going conjunction in plained with com- the connection between Kelle- her’s motel room and the stolen Upton’s motor nymity a cent ‘to burn him.’ motive both for her ^[*] furnishing breakup —fear ^[*] of home. And she the information —her re- Upton’s ^[*] Upton ^[*] attempt retaliation —and and her desire ^[*] provided goods at ano- ^[*] in informant Nothing stated in the affidavit in the in- mation stant case indicates dentiary detail. statement in pletely Bismarck of Zap innocent about areas. The without privy marijuana employment It defendants such as in is to allegation evidentiary support. purely very personal is lacking in the Beulah a anonymous of the sale conclusory in evi- infor- Gates, which when verified would lend cre- concluding “In probable that there was dence alleged to the unverified criminal warrant, cause for the issuance of this activity. magistrate can hardly be accused of approving a mere ‘hunch’ or a bare recit- places The State considerable reliance legal al of conclusions. The informant’s record,” the informant’s “track story surrounding and the pos- facts allegedly supplied that she information a sessed gave an internal coherence that prior “proved matter which to be correct weight to the Upton, whole.” every detail.” In support proposi- at 2088-89. deficiency tion that a in either the “basis of knowledge” veracity prongs Agui- or observations sufficiency for, compensated in determin- lar entirely corroboration of innocent ac- ing reliability tip, by the overall a tivity: strong showing prong as to the other noting bears that all of the corrobo- “[I]t reliability, some other indicia of the Gates rating detail Draper, established in su-

majority following example: offered the pra, entirely was of activity innocent particular “If ... a informant is known for reliability predictions the unusual of his “[Pjrobable requires only proba- cause types certain of criminal activities in a lo- bility or substantial chance of criminal cality, failure, case, particular his in a activity, showing not an actual of such thoroughly set forth the basis of his knowl- therefore, activity. By hypothesis, inno- edge surely should not serve as an absolute frequently cent behavior provide will finding probable bar to a cause based on showing cause; probable basis for tip. Sellers, his See United States require otherwise would be to sub silen- (CA5 1973).” F.2d 37 103 S.Ct. at 2329. impose drastically rigorous tio more magistrate pro- In our view the was not definition of cause than the se- enough meaningful vided information to curity of our citizens In demands.... judgment ques- make an informed on the making a determination of anonymous past tion of the inquiry cause the relevant is not whether performance. Schmeets, See 278 N.W.2d particular conduct is ‘innocent’ or example, at 408. For it would have been ‘guilty,’ degree suspicion but the meaningful under the circumstances of this particular types attaches to of non-crimi- what, magistrate case to tell the any, nal acts.” 103 S.Ct. at 2335 n. 13. underlying support facts the conclusion im- Thus, completely we are mindful that inno- plicitly made the affidavit that the anon- activity provide cent can sufficient corrobo- ymous person was the same ration in some circumstances. The fact who accurate remains, however, that even under past. law Gates enforcement officers “a conscientious assessment of the basis assertion, Contrary to the State’s crediting tips required ... scope independent police we believe the Fourth Amendment.” 103 S.Ct. at tip corroboration of the informant’s in this substantially case differs from the investi Draper pro- the informants gatory performed work The Su explicit preme vided in detail information concern- noting ing magistrate rely could activities that would be undertaken on the persons The major part by police letter corroboration corroborated future. efforts, “just facts, Draper as had occurred in of these otherwise innocent which [v. States, only United 358 U.S. 79 3 would known to one S.Ct. be with close (1959)],”3 following suspects, gave police L.Ed.2d 327 made the access to the the rea- Draper, agent always In an informant named re- Hereford had found to be accurate and ported agent Draper to a federal narcotics reliable. Chicago would arrive in Denver on a train from every Police officers verified facet of the in- days, on one of two carrying and that he would he given by "except formation the informant quantity of heroin. The informant petitioner accomplished whether had his mis- supplied fairly physical descrip- also detailed sion and had the three ounces of heroin on his Draper predicted tion of and that he would be bag.” person Draper or in his Court con- raincoat, slacks, wearing colored brown that, every cluded "with other bit of Hereford’s shoes, walking and black and would be "real verified, being personally information thus the gave fast.” The informant no indication of the grounds’ officer had 'reasonable to believe that However, basis for his the Court’s ‘information. remaining the unverified bit of Hereford’s infor- opinion notes that the informant had been en- Draper mation—that would have the heroin gaged employee as an of the Bureau of Narcot- true.” U.S. at with him—was likewise 358 months, ics for about six and "from time to S.Ct. at 333. gave agent time” to the the son to the Applying purposes believe that remainder of the of this case tips persons the informants’ were en- Gates circumstances” anal —that gaged is, activity ysis whole, to the as a criminal also reli- —were Draper, “giving significance able. to each piece Unlike the relevant infor- by Deputy balancing mation information and Berg corroborated con- the relative weights of all the only easily sisted various indicia of obtainable facts and reliabil (and ity unreliability) attending existing tip” conditions the time the tip, at 2330; [Gates, i.e., Upton, at S.Ct. Thompsons’ location of resi- 2088], dence, move, we conclude that the affidavit of their recent their ownership Deputy Berg provide not magis did of a pickup topper, blue and white trate with a substantial basis for determin Thompson’s employ- Jackie ing the existence of cause. The nothing ment. There suspi- unusual or tip which, and the sur cious about these facts when corrob- rounding possess facts did “an internal orated and when considered under the to- “ weight gave whole,” coherence that tality circumstances, reduced ‘the nor did scope investigatory chances of a or prevaricating reckless ” “ performed work tale,’ adequately in this case provided ‘a substantial basis ” conclusory bolster the nature of the anony for crediting hearsay.’ tip. mous informant’s Jones, quoting S.Ct. at 362 U.S. at 271, 80 S.Ct. at 736. II persuasive following We find obser- parties discussed applica-

vations Appeals made the Court of “good-faith tion to excep- these cases of Sorrells, States v. F.2d exclusionary tion” to the (11th Cir.1983), recently rule 1528-29 Gates: adopted by the United States “The test in Aguilar has many served Leon, Court in United States purposes useful from insuring aside -, (1984).4 82 L.Ed.2d 677 rights the constitutional of citizens be that, The State assuming asserts even respected. given It has to law enforce- invalid, search warrant was evidence ob- officers, ment prosecuting attorneys and tained as a result the search should not straightforward courts a test for re- suppressed, “law enforcement did all solving disputes over issuance of a reasonably could be asked to do in con- warrant. We do not view Gates as an forming requirements of the Fourth slovenly endorsement of or careless law Amendment.” enforcement work. Such work will con- produce tinue to problems prose- for the a “confidential informant of cution, the and the unproven defense courts en- reliability” informed the Bur- gaged bank, analysis California, a case case Department rather Police repair than a certain individuals, two definite later determined to be San- Stewart, rules. The selling Gates stated that chez and were cocaine and Aguilar guidance methaqualone has in deter- from their home. The infor- mining existence cause mant further claimed have witnessed a anticipated departure methaqualone it is not sale Stewart five months guidelines from these will be looked earlier and had observed at that time a with favor.” containing large shoe box a amount of 5, July ques- 4. Leon affording was decided on 1984. The ed defendants rather than defendants benefits, applied greater protections tion whether or not Leon should be ap- should be retroactively by party, plied retroactively yet has not been raised ap- either cases not final on believe, See, parties they peal. e.g., Sager, nor do the indicated to States v. 743 F.2d argument, (8th Cir.1984); retroactivity problem People us at a MacAvoy, oral that 1261 162 note, issue, 746, deciding (1984); Cal.App.3d Cal.Rptr. exists. We without the People that 209 34 Leon, 609, recognized Cal.App.3d some Helmquist, Cal.Rptr. courts have that 161 207 (1984). restricts the Fourth Amendment benefits afford- 718

371 belonged cash that to Stewart. On the tion probable whether cause existed under information, basis of po- this the Burbank ‘totality the of the circumstances’ test” an- lice investigation” initiated an “extensive But, nounced majority the also of these two individuals and their resi- noted that probable cause issue had not dence, discovering, among things, other argued, been briefed or concluded previously Sanchez had been arrested was within authority the Court’s to take marijuana possession; for that several indi- it, case as it “accepting came to viduals drug with known involvement were Appeals’ Court of probable conclusion that arriving observed at the named residence lacking cause was under the prevailing le- leaving packages; with small that one gal standards.” Id. 104 S.Ct. at 3412. Castillo, of individuals, these Del had been six-justice A of majority previously possession arrested for fifty Court held in Leon that the Fourth Amend- pounds marijuana; that Del Castillo’s exclusionary ment rule should be modified employer, Albert been had arrested so as not to prosecution’s bar use in the drug charges 1980 on a companion case-in-chief of by evidence obtained offi- police had informed the at time that acting cers reliance on a reasonable heavily importa- Leon was involved in the by search warrant issued a detached and drugs; tion and that Burbank officers magistrate neutral ultimately but found to previously had learned unsupported by probable cause. The police had told a Glendale officer that Leon marginal reasoned that “the or non- large quantity methaqualone stored a at produced by suppressing existent benefits his residence in Glendale. 104 S.Ct. at in objectively evidence obtained reasonable subsequently reliance a invalidated warrant, A search which included within search justify warrant cannot the substan- scope its automobile, Leon’s residence and tial costs of exclusion.” 104 S.Ct. at 3421. by was a judge issued state on the basis “ The Leon Court said that ‘a warrant lengthy prepared affidavit Officer by magistrate issued normally suffices to Rombach, experienced “an and well-trained establish’ that a law enforcement officer investigator.” narcotics sup- Motions to in good conducting has ‘acted faith press pursuant evidence seized to the war- ” Id., quoting search.’ United States v. granted part by rant were the federal Ross, 72 district court which affi- concluded (1982). Nevertheless, suppres L.Ed.2d 572 probable davit was insufficient to establish remedy sion appropriate remains an cause. The Ninth under Appeals Circuit Court of and, affirmed, exceptional (1) certain “if applying then-prevail- situations: ing Aguilar-Spinelli test, magistrate judge issuing reasoned that or a warrant indicating the affidavit included no facts was misled in an information the basis for the informants’ statements or the affiant knew was false would concerning Leon’s criminal activities and except have known was false for his reck establishing was devoid disregard less of the truth. Franks v. reliability, informants’ which deficiencies Delaware, 98 U.S. S.Ct. investigation. were not cured (1978),” 3421-22; L.Ed.2d 104 S.Ct. at at Id. S.Ct. (2) issuing wholly magistrate if “the aban judicial role,” his doned id. 104 S.Ct. at certiorari, petition govern- In its becoming stamp thus rubber declined to ment seek review the lower “ police; ‘so affidavit is lack courts’ search war- determination that the ing in indicia of cause as render unsupported by cause rant entirely belief official in its existence un sought only but review of whether Illinois, 422 Brown v. good reasonable.’ facially faith reliance on a valid search warrant requires suppression. ^[590] 610-611, [95 at 2265- J., (1975)] (POWELL, L.Ed.2d 416 majority Leon that “it undoubted- indicated 3422; ly power ques- concurring our in part),” is within to consider the 104 S.Ct. at circumstances, the officers’ facially “so deficient— reliance the warrant is i.e., particularize magistrate’s proba- to failing to determination of things reasonable, to seized— objectively be searched or the be ble cause was executing that the officers cannot reason application of the extreme sanction of presume it to be valid.” Id. inappropriate.” exclusion is Id. 104 S.Ct. ably at 3423. view, apply In if we were to our even good-faith purposes of this case the Leon commonsense, non-hy- Analyzed in a exceptions, Deputy Berg’s affi- rule and its pertechnical way, the affidavit in the in lacking probable in indicia of davit was “so supply anything more stant case does not cause,” unreasonable for him to that was conclusory sug than a most tenuous and regard In rely upon it. this Court gestion that the were involved stated Leon view, activity. in criminal In our the inves magis- reliance on the “the officer’s tigation produced pos much more Leon probable-cause determination and trate’s sibly incriminating leading to a sufficiency on the technical of the war- justi conclusion that a search warrant was objectively must rea- rant he issues be investigation fied than the in this case. It sonable, that in ... and it is clear some is our conclusion that under these circum circumstances the officer will have no stances, magis the officer’s reliance on the grounds believing that the reasonable cause trate’s determination properly warrant was issued.” Id. unreasonable, having objectively he was (citation and footnotes omit- supplied the information on which the ted). issued, therefore, search warrant was Leon, exception in exclu under the third upon the focus is not Under sion of all evidence obtained execution of magistrate’s decision as is the case under appropriate.5 search is the invalid warrant rather, but the focus is to and then execute a decision seek Accordingly, we affirm the district question re- certain warrant. judgments suppression court’s order. The reasonably solved is “whether a well- county entered in court are of conviction trained officer would have known reversed, denying the order the defendants’ illegal despite magistrate’s search was vacated, suppress motions to and the Id. 104 S.Ct. at 3421 n. authorization.” cases are remanded with instructions question 3423. This was answered county appropriate enter an order court negative by the under the facts in Court suppress.6 granting the motions to Leon: Rombach’s for a “Officer MESCHKE, GIERKE, LEVINE and clearly supported by much JJ., concur. more than a ‘bare bones’ affidavit. LEVINE, Justice, concurring specially. of an exten- affidavit related results and, investigation opinions join majority opinion by I authored

sive as the specially only panel Appeals the Chief Justice and write the divided caveat, clear, to the contained in provided evidence sufficient direct attention make disagreement among thought- majority opinion, footnote 5 of the that we to create yet adopted competent judges as to the exist- have not either United States ful and Although or Illinois v. ence of cause. Under these v. Leon applicable ascertaining analyzed argued We these cases as to us and the standards 5. doing parties validity and in so have discussed of a search warrant. Gates and Leon. Lest we be misunder- detail stood, emphasize we our discussion we matter, disposition we of our of this question whether or not intimate no view on the address raised need not additional issues independent we should chart an course under Thompsons concerning alleged errors which I, Article Section of the North Dakota Consti- place during county their trial in took court.. regard "good-faith" exception tution

373 (N.D.1985). may flag, Klosterman, footnote as a red not serves State v. 317 alert the color blind. (N.D.1982) N.W.2d 796 Spoke v. State Com., Ctr., Etc., University 270 N.W.2d -, United v. States 468 U.S. (N.D.1978); Mertens, 339 State v. 268 3405, (1984), 104 S.Ct. 82 L.Ed.2d 677 (N.D.1978); Therefore, 446 N.W.2d resort contemporaneously released the deci- to be summoning Gates akin to sions of the trial courts in this case. two As party repairman a result Leon in to fix neither addressed what “ain’t broke.” the proceedings below and the trial courts Underlying the Aguilar-Spinelli test is reaching did not the case consider when belief basic that the determination of respective their conclusions. probable cause to issue a warrant must be to issue of of Leon magistrate aby made law en- this yet ripe case is thus not for review forcement officers who seek warrants. To any regard this Court decision this perform constitutionally this prescribed would rendering be tantamount to an advis- function, magistrate must be ory opinion, an action we are not authoriz- containing underlying circum- City ed to take. Minot v. Central Ave. for the stances officer’s conclusion News, Inc., (N.D.1982). 325 N.W.2d 243 informant was credible and majority opinion precedential has process This magis- reliable. enables the only value therefore insofar as it addresses informed, independent trate exercise an to cause standard forth in set judgment persuasiveness about the Texas, 108, Aguilar 378 84 S.Ct. v. U.S.. upon by facts relied to the officer show 1509, 12 723 Spinelli L.Ed.2d v. probable Spinelli, cause. 412- 393 at States, 584, 89 S.Ct. lb, 586-89; at 378 Aguilar, 89 S.Ct. U.S. at (1969), 21 L.Ed.2d 637 which has our been 1115-14, 110-115, 84 S.Ct. at found in State’s benchmark this area since State Jackson, State 102 688 v. Wash.2d Dove, (N.D.1970). 182 N.W.2d 297 (1984). approach P.2d 136 Nor does this Gates concluded the Aguilar-Spinelli preclude examining, practical in a and real- unduly rigid encouraged test was ex- hypertechnically, istic fashion rather than tips. cessive dissection of informants’ executed in of a support affidavits search at place 2230. In Klosterman, supra warrant. State v. rules, adopted Aguilar-Spinelli Gates approach of the circumstances” purposes may represent For our magistrate issuing where “the task of the Aguilar- an unwise1 evisceration of simply practical, to make a common Spinelli which cause standard sense whether is a fair decision ... there has served North effectuat- well Dakota probability contraband or evidence I, safeguards ing the contained Article place.” particular a crime will found at a be Constitution, the North Dakota § Gates, 103 S.Ct. at 2332. states; Article Aguilar-Spinelli guide- North Dakota’s rights people “The be secure appear lines do not applied have been persons, houses, papers and ef- their “hypertechnical” “unduly rigid” man- against searches and fects unreasonable ner, making magistrates seemingly our violated; shall not and no seizures “practical, common sense is- decisions” upon proba- shall See, be issued but suing warrants. S.Ct. at 103 cause, White, J., also, supported 2350-2351, ble or affirma- concurring. oath See tion, e.g., Ronngren, particularly describing 224 State v. 361 N.W.2d (1983); jurisdictions legal Cal.App.3d Cal.Rptr. 1. Other have en- Kami- scholars gaged sar, Gates, Cause”, Faith”, in extensive criticism of See Com- And "Probable "Good Upton, LaFave, N.E.2d (1984); monwealth v. 394 Mass. Beyond, 1 W. 69 Iowa L.R. 551 Jackson, (1985); State v. 102 Wash.2d Seizure, (Supp.1984). § Search and 3.3 Kershaw, (1984); People 688 P.2d 136 things persons be searched and the or issue has not to presented which been nor by be seized.” Although the trial considered court. contrary procedure that is to normal in this may State, provide We the of our citizens court, appears to me that the issue is law, as a matter of State constitutional essentially one of A law. to the remand greater protection I, interpreting Article applica- trial court consideration of the safeguards guaranteed 8 the than the § “good-faith” exception tion of the an- Federal Constitution. City Bismarck v. Leon, although provide nounced in it would Altevogt, (N.D.1984); 353 N.W.2d 760 legal analysis us with of the learned Stockert, (N.D. v. State 245 N.W.2d 266 again judges, trial would issue 1976); Matthews, State v. N.W.2d 90 216 appeal on before us with little additional (N.D.1974).2 jurisdictions Other have re facts or evidence to assist us. jected “totality the Gates the circum approach Agui stances” and retained the respect application With Leon lar-Spinelli appropriate cases, rules as under convinced, to these I am so not respective their state constitutions. Com majority, “officer’s reliance Upton, monwealth 394 Mass. 476 magistrate’s determination of (1985); Jackson, 548 unreasonable, N.E.2d 102 State v. objectively cause he (1984); 688 People Wash.2d P.2d 136 having supplied the which information on Kershaw, 147 Cal.App.3d 195 Cal. issued, the search warrant was Al- ...” Rptr. (prior 311 to the amendment of though, out, majority opinion points as the Proposition 8). by “commonsense, the State Constitution analyzed even if in a non- reasoning of The these states will hypertechnical way, the the in- affidavit in our careful consideration in the future supply stant case does not more anything we decide when whether or to follow conclusory sug- than a most tenuous and Supreme the United States lead in gestion Court’s the Thompsons involved were abandoning protections activity,” well-established in criminal re- Leon nevertheless against unreasonable searches and seizures versed a decision the Ninth Circuit by Aguilar-Spinelli. offered Appeals Court of that concluded the affida- ease contained vit no facts indicat- GIERKE, J., concurs. ing the for the state- basis informants’ ments Leon’s criminal activities WALLE, Justice, concurring YANDE establishing and was devoid of information specially. reliability the informants’ and that these Neither of the trial involved in courts police defects were not cured inves- appeals these application considered the Despite tigation. Supreme those facts the Leon, U.S.-, States v. United Court determined the reliance (1984), S.Ct. 82 L.Ed.2d reach- “objec- officers on the warrant was separate ing their conclusions because the tively reasonable.” decision Leon either was released after opinion majority appear thus [county court’s the trial decision court] “good-faith” apply exception in a more simultaneously with the trial court’s deci- narrow manner than the sion [district court]. However, did in I agree Leon. prime would be of significance Leon be- instance, cause, majority opinion that in con- observes, as the this majority opinion trary to no agree, and with which observation I affidavit contains what, offi- anything, search warrant does not indication as meet the standard had, verify ap- cer did to circumstances” fact, proach adopted given the officers Illinois v. previous 76 L.Ed.2d 527 had led to a arrest and conviction

(1983). Therefore, discussing we are and that presently Stockert Stockert was See, e.g., is true This even when the North Dakota con- ilar to the States Constitution. Newman, provisions (Idaho 1985). phraseology stitutional contain sim- State v. 696 P.2d 856 serving Penitentiary time in the State

that conviction. Had the affidavit revealed

clearly that such information was verified

by Deputy Berg, Sheriff in order to deter-

mine that there was an informant in the matter, only

Stockert person who

was the informant in that matter would information,

have had the and thus at-

tempted to the reliability establish

informant, the officer’s reliance on the war-

rant “objectively would have been reason- Instead, notes,

able.” as the majority

information verified was information that commonly

would have been known to most

people living in people. an area with so few

Perhaps the relia-

bility of the informant was known

Deputy so, Sheriff. If it should have been

revealed in the affidavit. The United

States Court has not extended the

“good-faith” exception encompass

subjective attitude of the officer.

Although I suspect Deputy Sheriff relying

and others on the search acting faith,

this instance good were might used, term ordinarily be we

must objective nevertheless view it from an

standpoint. doing, may appear so

we are giving little recog- more than token

nition “good-faith” exception to the

exclusionary rule and that our

of that exclusion will be little different

from the of the circumstances”

standard of review of supra. Dakota,

STATE North Plaintiff Appellee, NEIGUM,

John Defendant Appellant. No.

Cr. 1072.

Supreme Court of North Dakota.

June

Case Details

Case Name: State v. Thompson

Court Name: North Dakota Supreme Court

Date Published: Jun 10, 1985

Citation: 369 N.W.2d 363

Docket Number: Cr. 1045-46, 1051-52

Court Abbreviation: N.D.