Lead Opinion
[¶ 1] The State appeals from a trial court decision granting Ryan Utvick’s motion to suppress evidence. We reverse and remand, concluding the trial court erred in determining the good-faith exception to the exclusionary rule did not apply and improperly granted Utvick’s motion to suppress evidence.
I
[¶ 2] On July 8, 2002, Fargo police officer Glen Hanson applied for a no-knock search warrant to search a hotel room registered to Utvick. He believed Utvick’s hotel room contained methamphetamine, marijuana, drug paraphernalia and items indicating Utvick was selling drugs. In his search warrant application with a supporting affidavit, Officer Hanson alleged drug use with the possibility of gun possession would jeopardize officer safety, if officers were required to announce their presence before entering the room. Officer Hanson also stated he believed contraband might be destroyed if the officers announced their presence. Based on those reasons, Officer Hanson requested a no-knock search warrant. Officer Hanson further supported his request by articulating his belief that proving ownership of contraband would also be easier if officers were not required to knock and announce their presence. Officer Hanson alleged he and hotel employees smelled a marijuana-
[¶ 3] In the supporting affidavit, Officer Hanson alleged he executed a search warrant at a hotel room on June 1, 2002, that was registered to Utvick and one other person. According to Officer Hanson, Utvick and five other people were present when he searched the room and they attempted to dispose of contraband when Officer Hanson knocked and announced his presence. The search revealed a handgun and two separate amounts of methamphetamine, totaling approximately seven grams. A person not registered to the room was charged with possession of the methamphetamine. Officer Hanson also alleged Utvick and two others were listed as suspects in an aggravated assault at a Fargo hotel on June 6, 2002. The victim of the assault was referred to as a “drug informant.” Police searched a hotel room registered to one of the suspects and found marijuana and a scale.
[¶ 4] A magistrate approved Officer Hanson’s application on July 8, 2002. Officer Hanson was granted the search warrant with a provision authorizing him to enter without knocking and announcing his presence. Utvick was arrested on July 8, 2002, after Officer Hanson executed the no-knock search warrant and found marijuana and drug paraphernalia in Utvick’s hotel room. The contraband was seized. Utvick was charged with possession of a controlled substance with intent to deliver, possession of drug paraphernalia, possession of one half to one ounce of marijuana, and possession of marijuana paraphernalia.
[¶ 5] Utvick moved to suppress the seized contraband as evidence, arguing issuance of the search warrant and the no-knock provision violated his right against an unreasonable search and seizure. Ut-vick argued the warrant was issued without probable cause. The trial court granted the motion, finding no probable cause existed for the no-knock provision of the search warrant but declined to address whether probable cause existed for the underlying search warrant. The trial court concluded the good-faith exception to the exclusionary rule did not apply because probable cause was so lacking that it was entirely unreasonable for a law enforcement officer to reasonably believe it existed. The State appealed.
II
[¶ 6] Probable cause is required for a search warrant under the Fourth Amendment to the United States Constitution and Article I, Section 8 of the North Dakota Constitution. State v. Thieling,
[¶ 7] “Whether probable cause exists to issue a search warrant is a ques
“Although each bit of information ..., by itself, may not be enough to establish probable cause and some of the information may have an innocent explanation, ‘probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers ... which is not weighed in individual layers but in the “laminated” total.’ ”
State v. Damron,
[¶ 8] Utvick argues the information presented to the magistrate did not support a finding of probable cause. He states the information presented to the magistrate is conclusory and lacks any reasonable specificity as to Utvick’s alleged criminal activity. Utvick also argues the information presented to the magistrate was stale. We find it necessary to address this issue, even though the trial court failed to rule on whether probable cause existed for the search warrant.
[¶ 9] Officer Hanson noted in his affidavit that, in the previous two months, Utvick had twice been the registered guest of a hotel room where drugs, paraphernalia, and weaponry were found.
[¶ 10] The magistrate was also presented with information that hotel employees observed the odor of marijuana emanating from Utvick’s hotel room, and Officer Hanson later independently investigated and confirmed their observations. Utvick argues the odor of marijuana was the only reasonable evidence presented to the magistrate that indicated Utvick may have been presently breaking the law. Utvick contends the hotel staff member could not tell if the odor was marijuana, leaving only Officer Hanson’s allegation that marijuana was emanating from the hotel room. We have said a citizen informant is “ ‘someone who volunteers] information, [does] not want anything in return for the information, and [is] not at risk or in fear of going
[¶ 11] We do not address whether the odor of marijuana alone provides probable cause for a search warrant. Here, the odor of marijuana was only one piece of information presented to the magistrate. “Although each piece of information may not alone be sufficient to establish probable cause and some of the information may have an innocent explanation, ‘probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.’ ” Thieling,
[¶ 12] We disagree with Utvick’s contention that the affidavit provided speculative information and conclusory statements. Officer Hanson’s affidavit contained reasonable specificity with regard to Utvick’s alleged involvement in criminal activity, particularly drug use and trafficking. Even though some of the information was more than one month old, staleness is determined after reviewing the particular facts of each case, and “passage of time may be unimportant to the validity of probable cause when the course of conduct is of a protracted or continuous nature.” Damron,
[¶ 13] Under the totality of the circumstances, the evidence presented to the magistrate establishes there was probable cause to warrant that a person of reasonable caution would believe evidence of drug use and trafficking would be found in Utvick’s hotel room. As such, there was a substantial basis for the magistrate’s conclusion that probable cause existed to search Utvick’s hotel room.
III
[¶ 14] The State argues Officer Hanson’s affidavit establishes the requisite level of probable cause that evidence would be destroyed if law enforcement was required to knock and announce their presence prior to entering the hotel room.
[¶ 16] Before the knock and announce requirement may be dispensed, exigent circumstances must exist to justify the unannounced entry. See Richards v. Wisconsin,
[T]he police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.
Id. at 394,
[¶ 17] While the United States Constitution requires reasonable suspicion be demonstrated to justify a no-knock entry, North Dakota affords its citizens greater protection. Probable cause must be demonstrated before a no-knock' search warrant may be issued. N.D.C.C. § 19-03.1-32(3). No-knock search warrants are authorized under N.D.C.C. § 19-03.1-32(3), which provides:
Any officer authorized to execute a search warrant, without notice of the officer’s authority and purpose, may break open an outer or inner door or window of a building, or any part of the building, or anything therein, if the judge or magistrate issuing the warrant has probable cause to believe that if such notice were to be given the property sought in the case may be easily and quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, and has included in the warrant a direction that the officer executing it is not required to give such notice.
[¶ 18] Probable cause determinations must be made after reviewing the facts. presented in a particular case. State v. Van Beek,
[¶ 19] When potential destruction of evidence is the alleged exigent circumstance, officers must provide some particularized basis for their suspicion. See Herrick I,
[¶20] The search warrant was issued for Utviek’s hotel room. The layout of a hotel room may have made it particularly easy for a suspect to destroy evidence, given the probable location of the bathroom. See Michigan v. Hall,
[¶ 21] In the search warrant application, Officer Hanson sought methamphetamine and marijuana. Officer Hanson’s supporting affidavit failed to present any allegations stating the drugs sought were of a type considered easily disposable. Merely alleging the presence of marijuana and methamphetamine does not allow one to infer the drugs were easily disposable. In Herrick I, the officer’s affidavit supporting the search warrant application stated marijuana is easily disposable. Herrick I,
[¶ 22] In this instance, it is not even a matter of sufficiency of particularized information in the affidavit. No particularized facts whatsoever were presented regarding the fact that the drugs were easily disposable. While it could be true that methamphetamine and marijuana are easily disposable, it could also be true that the drugs were of such an amount or in such a location to make them difficult to dispose of quickly. Large quantities of drugs or unprocessed marijuana may not be condu
[¶ 23] When Utvick’s room was searched on June 1, 2002, the officer observed persons in the room attempting to dispose of drugs by flushing in the bathroom, after executing a search warrant without a no-knock provision. While Ut-vick is not alleged to have engaged in this activity, Utvick was the registered guest of the hotel room and was in the company of persons suspected of disposing of evidence. Prior history of destruction of evidence, when detailed in an affidavit for a no-knock search warrant, is not a threshold requirement but may strengthen probable cause to believe evidence will be destroyed. Cf. Mazepink v. Arkansas,
[¶ 24] Officer Hanson may have reasonably believed Utvick might destroy the drug evidence if he knocked and announced his presence. However, that belief does not constitute an exigent circumstance, in light of Officer Hanson’s failure to allege the drugs were of a type or in such a location making disposal easy. Merely demonstrating a predisposition to destroy evidence, based on one prior instance, without more, cannot be said to be particularized information warranting a no-knock authorization. “We consider all information for probable cause together, not in a piecemeal manner....” Hage,
[¶ 25] The State argues Officer Hanson did more than merely submit speculation that drugs could be easily disposed of. We disagree. Under the totality of the circumstances, the allegations set forth in Officer Hanson’s affidavit were insufficient to create an exigent circumstance justifying issuance of the no-knock authorization. The supporting affidavit did not contain information regarding Utvick’s ability to destroy evidence nor was there any information regarding the ease with which any evidence may have been destroyed. Aside from recounting of prior incidents involving Utvick, very little of the affidavit was devoted to Officer Hanson’s belief drugs would be destroyed. The supporting affidavit stated, “your Affiant is aware that Ryan Utvick is usually accompanied by a group of people inside motel rooms and if Law Enforcement would have to knock and announce their presence, those people could pitch their illegal drugs aside or flush potential evidence down a sink or toilet. Your Affiant has seen this on other search warrants and did see this happen ... on June 1, 2002 where Ryan Utvick was listed on the room registration card.” There was no particularized information supporting Officer Hanson’s belief evidence would be destroyed if law enforcement was required to knock. There was no substantial basis for the magistrate’s conclusion that probable cause existed for the no-knock authorization. The no-knock
IV
[¶ 26] Generally, the appropriate remedy for searches conducted in violation of the Fourth Amendment to the United States Constitution is suppression of the illegally-obtained evidence, under the exclusionary rule. Weeks v. United States,
(1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.”
State v. Dodson,
[¶ 27] This Court has previously held the North Dakota Legislative Assembly did not set forth a remedy when enacting N.D.C.C. § 19-03.1-32(3). Herrick II,
[¶ 28] While the good-faith exception has only previously been applied when a search warrant was issued on a per se basis, in violation of N.D.C.C. § 19-03.1-32(3), prior to Herrick I,
“[W]e are required to apply the good faith exception to the exclusionary rule under the Fourth Amendment when evaluating a federal constitutional claim because, if we do not, we will be imposing greater restrictions on police activity when the United States Supreme Court specifically refrained from doing so in Leon.
We are also required to apply the good-faith exception to the exclusionary rule under the Fourth Amendment in the same manner as the federal courts apply it.”
Dodson, at ¶¶ 22-23. Therefore, while a violation of N.D.C.C. § 19-03.1-32(3) generally requires suppression as the appropriate remedy, because of Fourth Amendment concerns, we must consider whether the good-faith exception should apply in this case.
[¶ 29] The trial court refused to apply the good-faith exception because “police officers should know of the 1999 North Dakota Supreme Court cases that explain to officers that they cannot use the mere presence of drugs to justify a no-knock warrant.” The trial court then found that a reasonably well-trained officer would know that this search was illegal despite the magistrate’s authorization.
[¶ 30] We have previously applied the federal good-faith exception to no-knock warrants issued on a per-se basis, in violation of N.D.C.C. § 19-03.1-32(3), prior to Herrick I,
[¶ 31] The trial court concluded the no-knock provision of the search warrant was issued on a per se basis. Black’s Law Dictionary defines “per se” as “as a matter of law.” Black’s Law Dictionary 1162 (7th ed.1999). While we defer to the trial court’s findings of fact, “[w]hether findings of fact meet a legal standard is a question of law. While we do not conduct a de novo review of the findings of fact, questions of law are fully reviewable.” State v. Kitchen,
[¶ 32] In this case, we have concluded the information provided in the affidavit did not rise to the level of establishing probable cause for the magistrate to issue the no-knock provision of the search warrant. However, the record and the trial court’s findings of fact do not support the trial court’s legal conclusion that, based on its findings of fact, the magistrate issued the no-knock provision of the search warrant on a per se basis, in violation of state and federal law. Officer Hanson did more than merely allege drugs
[¶ 33] We reiterate the standard that must be met before the good-faith exception will not apply. The warrant must be based on an affidavit “ ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’” Dodson,
VII
[¶ 34] Because the trial court erred in determining the good-faith exception to the exclusionary rule did not apply and improperly granted Utvick’s motion to suppress evidence, we reverse and remand.
Notes
. The May 2002 search occurred after Utvick had checked out of his room. Regardless, the drug evidence is compelling and supports a finding of probable cause under the totality of the circumstances. We note a similar case in which the defendant vacated the hotel room, officials found residue of cocaine and a hypodermic syringe, and the defendant returned several days later and re-registered to the same room. An appellate court determined, under the totality of the circumstances, the magistrate properly concluded probable cause existed and the information was not stale. State v. Keller,
. The State does not argue exigent circumstances existed to justify a no-knock search warrant based on the likelihood of danger to law enforcement.
Concurrence Opinion
concurring in part and dissenting in part.
[¶ 38] I respectfully dissent and would affirm the district court order granting Utvick’s motion to suppress. Although I agree with the majority that there was probable cause to obtain a search warrant for Utvick’s motel room and that there was no probable cause for a no-knock warrant, I disagree with the majority that the good-faith exception applies. Instead, I agree with the well-reasoned decision of District Court Judge Norman Backes that the good-faith exception does not apply to the facts of this case.
[¶ 39] The United States Constitution requires only reasonable suspicion to justify a no-knock warrant, but North Dakota requires that probable cause be established before a no-knock warrant can be granted. N.D.C.C. § 19-03.1-32(3); Richards v. Wisconsin,
[¶ 40] Our Court, in State v. Van Beek, stated:
The federal good faith exception originated from the landmark case United States v. Leon,468 U.S. 897 , 923[,] [104 S.Ct. 3405 ,82 L.Ed.2d 677 ] (1984). The good faith inquiry is “confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Id. [at 922-23] n. 23[,] [104 S.Ct. 3405 ]. An officer may not always reasonably rely on the validity of a search warrant issued by a magistrate, however, and Leon identified four exceptions when this is the case. Id. at 923[,] [104 S.Ct. 3405 ]. Under the third exception, which Van Beek argues applies here, the good faith exception will not apply when the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id.
[¶ 41] In Richards, decided in April 1997, the United States Supreme Court held that “[i]n order to justify a ‘no-knock’ entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.”
Probable cause for a no-knock warrant, therefore, can no longer be established merely because of the presence of drugs in a suspect’s residence. [Herrick, at ¶ 21] (“[m]ere allegations that drugs are present” will no longer “result in the issuance of a no-knock warrant”).
Van Beek,
[¶ 42] In the instant case, the majority carefully reviews the facts presented to the magistrate for the no-knock warrant. The no-knock search warrant was for Utvick’s motel room, but the majority states, “[t]here is no indication Officer Hanson alleged the location of the drugs in the hotel room contributed to easy disposal.” Officer Hanson did not provide any information in his affidavit of the layout of the
[¶ 43] However, in concluding that the good-faith exception applies, the majority states, “Officer Hanson did more than merely allege drugs were present to justify issuance of a no-knoek warranty” because he presented information “regarding Utvick’s prior flushing history.” (Citation omitted.) Officer Hanson’s affidavit states:
In addition your Affiant is aware that Ryan Utvick is usually accompanied by a group of people inside motel rooms and if Law Enforcement would have to knock and announce their presence, those people could pitch their illegal drugs aside or flush potential evidence down a sink or toilet. Your Affiant has seen this on other search warrants and did see this happen when the warrant was served at the Super 8 Motel on June 1st, 2002 where Ryan Utvick was listed on the room registration card.
The incident referred to in Officer Hanson’s affidavit involved a search warrant at a motel room where Utvick was found with five other people on June 1, 2002. Approximately seven grams of methamphetamine were seized, and Rory Kendall was charged with possession of methamphetamine. The affidavit does not state that Utvick possessed drugs, that he flushed drugs down a toilet, or that he poured drugs down a sink. The affidavit merely states that one month ago, Utvick was in a motel room that was searched and others attempted to destroy evidence. Even if this information suggests Utvick’s predisposition to destroy evidence, standing alone, it is not sufficient to obtain a no-knock warrant. In the instant case, we do not have any particularized facts or even an estimation of the quantity of the drugs, the location of the drugs, or the layout of the motel room.
[¶ 44] The search warrant issued by the magistrate indicates that there is probable cause to believe the property described is being concealed at the premises described, Utvick’s motel room, but the magistrate never addresses that there is probable cause for the no-knock entry other than to check “yes” to authorizing the search without knocking-and-announcing. “The basis of the good faith exception is that if an officer reasonably relies on a warrant in good faith, there is no police misconduct to deter.” State v. Dodson,
[¶ 45] Probable cause, here, means that the facts and circumstances would warrant a person of reasonable caution to believe the evidence or contraband sought probably will be destroyed. Under this standard, I am of the opinion such an inference cannot be drawn without a factual basis and there is none in this case.
[¶ 46] Finally, I agree with Robert J. Driscol in Unannounced Police Entries and Destruction of Evidence After Wilson v. Arkansas, that in the context of destruction of evidence, “[a] requirement of announcement prior to entry neither provides a great barrier to effective searches nor affords criminals an extensive opportunity to destroy evidence, because the time that police are required to wait between announcement, refusal of admittance, and entry is usually minuscule.” 29 Colum. J.L. & Soc. Probs. 1, *29-30 (1995) (footnote omitted). Recently, in United States v. Banks, the United States Supreme Court held that when executing a warrant to search for cocaine, a wait of 15-to-20-seconds after knocking on the door with no response was sufficient to proceed with a forced entry. — U.S.-,
[¶ 47] For these reasons, I respectfully dissent. I would affirm the trial court.
[¶ 48] Mary Muehlen Maring
Concurrence Opinion
concurring specially.
[¶ 36] Although I believe the majority continues to misanalyze the requirements for a no-knock search, see, e.g., State v. Van Beek,
[¶ 37] Dale Sandstrom