State v. Van Beek

(N.D.1987); v. Federal Land Bank Speaker, is of the few measures this one (N.D.1986); by legislative help farmer act Bagge, aimed to ion....”); Halverson, Lillehaugen, N.W.2d at 456 Bank v. Federal Land (“These adopted by Legis (N.D.1986). were statutes The court N.W.2d district comprehensive part of a lature in 1933 as correctly did not determined Nevlands foreclosure, farm farm response to issues support affirmative properly raise and relief, prices debt, farm low farm debtor upon confiscatory price defense based agricultural and economic crisis of during the judgment statutes. The district court’s 1930s.”) Vogel, M. The (citing Law Sarah affirmed. therefore Farmer Times: Debtor and Hard Relief Legislative North Dakota the 19S8 Actions of WALLE, C.J., and [¶ VANDE (1984)). Session, Al N.D.L.Rev. 489 NEUMANN, SANDSTROM application to though the statutes’ we doubt KAPSNER, JJ., concur. peripherally persons property not least need agriculture, the issue not be related to today we

squarely because con addressed to properly failed raise a

clude the Nevlands

genuine of material fact under stat issue

utes. initially The Nevlands raised the confiscatory price defense an affidavit sub 1999 ND 53 opposing Norwest’s mitted with brief Dakota, Plaintiff STATE North only judgment summary motion. evi Appellee, support dence offered this defense was Jerry stating he “fa Nevland’s affidavit industry, farming miliar as has he BEEK, D. Paul VAN Defendant engaged family his members of who are Appellant. production ... [and] same costs commodity prices greater are than at the No. Criminal 980159. Kocourek, current time.” In Gress Supreme Dakota. Court North (citation (N.D.1988) 815, 816-17 omitted), sufficiency we addressed March pleading an affirmative defense under 28-29, and noted N.D.C.C. ch. N.D.R.Civ.P.

8(c) requires party asserting an affirmative specific showing “to set forth

defense genuine

that there is a issue for trial on that ad Although

defense.” trial courts “strong policy favoring hearing

here defense,” confiscatory price

on ... con-

clusory depressed agri statements about economy unsupported

cultural in an affidavit

by specific facts to raise the are insufficient standards.” defense even “sensitive (internal omitted). citations Nev- produc allegations

land’s “that costs commodity greater prices

tion are than the precisely type

at the current time” are

conclusory allegations previously we have sufficiently confiscatory

held raise do N.D.C.C.,

price ch. defenses found 28-29. Gosbee, 701;

Compare 536 N.W.2d at Feder Anderson,

al Land Bank v. occasions, On several discol- both strips aluminum foil were found. Sam-

ored drag ples strips were sent to the state proven to contain lab alu- testified the discolored residue. Becker personal minum foil use of metham- indicated March 6 phetamine. garbage The search on syringe casings, also found further evidence methamphetamine. personal of use of why sought a no- 4] When asked he [¶ only explanation Becker’s knock “Methamphetamine dis- was: could be of, pour[ed] toilet.” posed down the or a sink was' suffi- The determined there probable cause and issued a no-knock cient search warrant. hearing The held be-

[¶ 5] afternoon was Becker information received additional hearing, During the that from informant. requested scope Becker of the search garage warrant be extended to a detached Vinje Firm, Bis- Ralph Vinje, A. Law the same Becker he had N.D., address. testified marck, appellant. and for defendant from informant afternoon learned his Romanick, Assistant At- Brace A. State’s kept in a in the “that freezer N.D., Bismarck, plaintiff ap- torney, for and gone ... to garage and individuals had pellee. garage brings into the residence.” warrant was amended to include MARING, Justice. garage detached at 729 North 21st Street. appeals from an order Paul Van Beek [¶ 6] The search warrant was executed imposition for the deferring of sentence shortly hearing. after afternoon A sur- marijuana possessing and a con- crimes entry by veillance team made no-knoek argues Beek the dis- trolled substance. Van opening an unlocked door in back denying court his motion trict erred residence. One of the testified at officers suppress. We affirm. suppression hearing that he entered the male sitting and found a a bed basement I bedroom, halfway standing in a and a male Roger 2] On March Officer [¶ doorway in offi- another the bedroom. The Becker, investigator narcotics veteran standing cer testified the male in the door- Department, applied Bismarck Police doorway way sight backed out and into the a no-knock search warrant to search repeatedly. did not return until ordered st in Bis- premises 729 North Street Beek, person This was Van who had his hearings marck. Two were held on the mat- marijuana. possession methamphetamine and ter, morning one in the in the after- one charged subsequently posses- He noon. felony, methamphetamine, C sion Class possession of less than half ounce of one During morning hearing, 3] Officer marijuana, a B misdemeanor. Class mid-January Becker learned in testified he September that the Van Beek moved from confidential informant Street, Kristy suppress from occupant of 21st all evidence obtained 729 North Felch, search, dealing arguing in State using drags out of the this Court’s decision up residence. As a follow to the informant’s

tip, garbage Becker two searches invalidated the basis for the conducted February the mo- March warrant. district court denied at the residence on 27 and

H5 conditionally plead guilty Trosen, Beek tion. Van viction.” See State v. 11(a)(2), (N.D.1996). preserving under N.D.R.Crim.P. 737 n. 1 similarly con- argued suppression deferring issues his motion for clude the order imposition of sen- appeal. 14,1998, court May this The district entered an tence entered on complies with sentence, 32(b) deferring imposition requirements order of N.D.R.Crim.P. timely appealed purposes Thus, appeal.1 Van Beek from that order. ap- Van Beek’s

peal properly before us.

II reaching Before merits of Ill appeal, procedural we first this address again [¶ We are validity faced with the May day matter. On the same he of a no-knock search warrant issued at a time guilty plea, entered his conditional Van Beek “prior when our approved per-se rhetoric” a appeal filed his notice of to this Court. In justifying rule the issuance of no-knock war- appeal the notice of Van Beek states he in drug rants cases. appeals judgment “the of conviction.” The by May order entered the district court on state, In our law enforcement 14, 1998, however, deferring was an order entry make a provided no-knock sentence, imposition of and in the record on issuing magistrate probable has cause to be appeal, separate judgment there is no en lieve, proper if given, notice is evidence will tered, separate guilt nor is there a verdict of destroyed be or danger. the officers will inbe by submitted the court. 19-03.1-32(3). § See N.D.C.C. Van ar Beek Thus, our initial concern is gues the no-knock warrant was in issued jurisdiction whether we appeal have over an 19-03.1-32(3) § violation of N.D.C.C. “judgment from a of conviction” where no state and federal constitutions. The State separate judgment guilt or verdict of argues probable cause existed to issue the Although ever entered. the issue was not We, therefore, begin warrant. party, raised it prov either is within the analysis magistrate’s with the determination ince of this Court address whether an probable cause for this no-knock warrant. appeal properly is before us. See State v. Klocke, (N.D.1988) (stat 918, 419 N.W.2d 919 [¶ 13] Whether cause ex ing right appeal “[t]he in this state is ists to issue a search question warrant is a statute, governed by jurisdictional and is a ¶ Olson, 41, 19, law. State v. ND 1998 575 ”). matter which sponte we will consider sua N.W.2d 649. When a trial court reviews a 12.1-32-02(4) § provides

[¶ 10] N.D.C.C. validity search warrant’s it must determine part: deferring imposition order “[a]n of sen whether the magis information before the upon tence is appeal reviewable from a ver trate established cause as a matter ¶ judgment.” dict or 175, 10, statute does not Hage, law. State v. 1997 ND itself, allow a appeal direct from the order 568 741. issuing N.W.2d The task of the precedent. and neither does our See State v. tois make a common sense deci Himmerick, (N.D.1993) whether, 499 N.W.2d given sion all the information he or Kottenbroch, (citing State v. provided, 319 N.W.2d she is probability there is a fair (N.D.1982); Coutts, 364 N.W.2d contraband or evidence of a crime will be (N.D.1985)). 88, 89, n. 1 particular a more recent place. (citing found a Id. State case, however, (N.D.1994)). we held an deferring Rydberg, order 519 N.W.2d sentence, imposition purposes ap warrant, In the magis case of a no-knock peal, “complies requirements with the trate must decide whether there a fair 32(b) judgments, N.D.R.Crim.P. for criminal probability destroyed evidence will be or law judgment therefore serves as the danger by of con- enforcement will knocking be 1. We note that deferring imposition our conclusion here is judg- consistent of sentence is not a 32.1, However, recently enacted purposes appeal, N.D.R.Crim.P. ment. an or- explanato- which took effect March deferring imposition equivalent 1999. The der of sentence is ry part: 32(b), judgment note to Rule 32.1 states in "An order to a under Rule N.D.R.Crim.P.” (cid:127) (“Insofar presence. as our rheto announcing N.W.2d 19-03.1-32(3). per:se drug approves ric warrants, justifying the of no-knock issuance appeal, we review the On overruled.”). they are Probable cause for independent of trial search warrant therefore, longer can no review, using “totality-of-the-cir court’s merely pres be because of the established Hage, at approach. cumstances” suspect’s in a Id. ence of residence. mag before the consider all the information (“[m]ere allegations present” piecemeal hyper- together, istrate longer will a no- no “result in issuance of manner, giving deference to the

technical warrant”). Rather, probable knock cause for findings on magistrate’s factual a no-knock warrant must determined Birk, (citing State v. 484 N.W.2d cause. Id. in a presented particular on the facts based (N.D.1992)). magistrate’s con case. clusion not be disturbed there is will prob for the conclusion that substantial basis A (citing v. Froh able exists. State Turning this (N.D.1993); lich, 506 case, argues Van Beek under (N.D. Lewis, 661-62 the district court 1995)). Here, the district court concluded enough was not information to make provided specific “the information to the probable cause determination for a no-knock magistrate regarding existence of meth Herrick, In warrant. law enforcement offi amphetamine within the residence and the garbage cers two at the conducted searches destructibility provided of meth” ease of suf paper clips home with defendant’s and found probable ficient cause for a war residue, marijuana marijuana stems disagree. rant. We seeds, grow and handwritten notes on how to marijuana. ¶¶2, at 3. In the search to in 15] Prior our decision State [¶ application, the officer she warrant stated Herrick, ND 567 N.W.2d looking “grow operation, simply was for a not general to a cause obtain search personal for reflecting controlled substances drugs effectively warrant for a residence ¶22. why use.” Id. at asked a no- When required supplied cause under sought, knock was re warrant officer 19-03.1-32(3) for the issuance of plied, [m]arijuana easily “because is an dis ¶ (“our at a warrant. id. See posed dry, pro when of item it’s when it’s per-se approve[d] a rule in rhetoric easily cessed. It could be flushed down a drug justifying the issuance of no- ¶ (internal omitted). quotes toilet.” Id. at warrants”); Knudson, knock State Although we found cause dem was (N.D.1993) (applying N.W.2d general onstrated for a search we Loucks, per-se rule); concluded (N.D.1973) (adopting a per-se 777-78 no reason no- the officer offered for the judicial rule to “take which allowed courts marijuana knock warrant than was other drugs easily may disposed notice ... that easily disposed of and that Herrick would of’). April In the United States Su destroy the if evidence forewarned.... preme Court found unconstitutional similar record, is no evidence in this other There per-se adopted by had rule which been possible drugs than the existence of and an Supreme Court. Wisconsin See Richards v. explained belief Herrick would dis- Wisconsin, 520 U.S. S.Ct. pose forewarned, evidence demon- (1997) (rejecting 137 L.Ed.2d Wis why a no- the officers needed strating police rule” consin’s that when have “blanket apparent knock warrant. It is to us the by probable supported a search warrant applied] magistrate [wrongfully per-se to cause search residence evidence of rule[.] delivery, drug they necessarily felonious have ¶ Id. at 23. entry). a no-knock reasonable similarly attempts Four we distinguish [¶ months later overruled our 17] State Here, 155, 21, per-se argues, magis- rule. See Herrick.

H7 provided specific showing trate was evidence the issue the Richards Court faced was drug sought methamphetamine in justified per-se whether this fact alone form, powdered disposa- “dispensing case-by-case which is more evaluation of addition, marijuana. ble than Becker’s the manner which a search was executed.” Richards, garbage two searches found discolored alumi- 117 S.Ct. at 1420. The Court rea- indicating powdered liquid per-se num foil or form pri- soned a rule is unconstitutional use, personal marily while the statements made “exception” because such an to the agent in Herrick indicated she did not requirement knock-and-announce “contains marijuana plant whether the overgeneralization.” Id., know considerable Finally, agents form. harvested unlike the allegedly looking

Herrick who for a were drug investigation frequently [W]hile does grow operation, the officer here indicated he pose special safety risks to officer sought a warrant for evidence, preservation every drug primarily user amounts. investigation pose will these risks to a degree. example, substantial For a search Although particularized some only could be conducted at a time when the presented have been present individuals in a residence have no case, in this none of those facts demonstrated drug activity connection with the and thus any suspects’ ability destroy evi- unlikely will be to threaten officers or de- dence. Officer Becker offered no details stroy police evidence. theOr could know showing probability drug a fair evidence drugs being that the searched for were of destroyed would be without a no-knock war- type or in a location that made them Indeed, testimony rant.2 Becker’s impossible destroy quickly. In those hearing kept afternoon “that situations, governmental the asserted in- garage,” freezer in the casts more doubt on preserving terests in evidence and main- proposition destroyed would be taining safety may outweigh not the indi- view, without a no-knock warrant. In our privacy upon by vidual interests intruded magistrate presented the facts before the entry. nothing allegedly more than an small amount easily disposable drug probably of an (footnote omitted). Id. The Court made located in somewhere the residence. scrutiny reviewing clear the neutral of a dispensed merely cannot be Thus, dispositive the issue is wheth- drug investigations frequently pres- because probable er cause that justifying ent circumstances a no-knock en- easily disposable an form is located in a Rather, try. duty reviewing Id. it is the of a suspect’s supplies requisite residence the magistrate to determine “whether the probable dispense cause to with the constitu- particular entry and circumstances the requirement knocking tional and announc- justified dispensing with the knock-and-an- 19-03.1-32(3). ing § under N.D.C.C. Based added). requirement.” (emphasis nounce Id. Wisconsin, upon 385, Richards v. 520 U.S. 1416, 615, 117 S.Ct. 137 L.Ed.2d Richards, by [¶ 21] Guided we us, record before we are not convinced that it probable conclude cause is not established effectively does. To decide otherwise would for a no-knock search warrant where the per-se easily disposable create a rule reviewing court is information indicat drugs, only previously rejected and couch our ing nothing probable more than cause an per-se guise. a different easily disposable drug is located a sus pect’s exception residence. Such an to the

B requirement knock-and-announce would con Recognizing drug investigations overgeneralization,” tain “considerable and nearly always danger requirement involve both to law would remove the constitutional evidence, reviewing magistrate determining enforcement and the destruction of of a support announcing entry. 2. There was also no the officers their factual any danger by knocking would have been and exception apply good the we the faith facts and circumstances whether “whether the ” exclusionary rule. justify dispensing entry particular (em- requirement. Id. knoek-and-announce good The federal faith ex added). pass phasis To constitutional mus- ception landmark originated from the case ter, particularized have some must officers Leon, 923, 104 United 468 U.S. States suspicion will be dis- for their basis (1984). good S.Ct. 82 L.Ed.2d 677 destroyed if posed presence their is of or inquiry objectively faith is “confined announced.3 question reasonably whether a ascertainable well would have known that trained officer Contrary to the assertion in the [¶22] illegal despite' magis the search was concurrence, special have we not chosen n. 23. An trate’s authorization.” Id. officer probable showing required cause for the issu- always reasonably rely on the validi Leg- of a no-knock search ance by ty magis of a search warrant issued 19-03.1-32(3). If islature has. trate, however, Leon identified four ex cause Legislature finds ceptions when this is the case. at drug prosecutions “imperils” standard exception, 104 S.Ct. 3405. Under the third officers, safety it of law enforcement here, argues applies Van Beek which showing prerogative to reduce good apply exception faith will not when the suspicion.” articulable “reasonable and See lacking warrant an “so was based on affidavit Wisconsin, 117 1421-22. Richards v. S.Ct. at indicia of cause as to render rights we seek to vindicate are not “The entirely official belief in its existence unrea Stevens, ones,” 213 Wis.2d trivial sonable.” Id. (App.1997), argument Recently, [¶26] the same implicated by interests “the individual defendant, by rejected us, by raised unannounced, entry forcible should not be II, in Herrick ND at Richards, unduly minimized.” S.Ct. rejected argument N.W.2d 847. be- We 1421n. 5. I, prior to Herrick case, offered N.W.2d In this Officer Becker law enforcement had indicia of cause, magis- supplied indicia particularized no information to the approving per-se rule for demonstrating any suspects’ abil- trate II, in drug warrants cases. See Herrick ity sought dispose or that the ¶20. accordingly held “under federal danger have been officers would precedent, exception good-faith the presence. con- officers announced exclusionary apply to rule would fact a no- was clude the search unreasonable because per by knock warrant issued on a se basis a there no cause under N.D.C.C. was judge § or magistrate under N.D.C.C. 19- 19-03.1-32(3) § the of no- for issuance the 03.1-32(3).” (citing United v. States knock search warrant. Moore, (8th Cir.1992)). 843, 956 F.2d 851 Similarly here, good exception faith the to IV exclusionary applies, the and the evi- the illegal Whether evidence of this [¶ 24] dence obtained from the search is depends upon Hughes, v. unlawful search is excluded admissible.4 See State 1999 ND Meyer, grounds State v. Wis.2d 576 N.W.2d been valid of evidence on destruction Cf. (1998) (rejecting argument the because the State's the court was informed defendant generalized experience underlings” keep “instructed a an officer’s discloses that his to bucket drug lye drug being caught cases will take near "to defendants steps immediate stashes avoid with evidence”); destroy upon learning Wayne of an narcotics to evidence see also R. La- Fave, Seizure, 4.8(d), presence, § thus meets the Richards at 615 officer’s and Search and n. 86 standard, (3rd ed.1996) suspicion (citing requiring particular- reasonable because such a relating to rule would be tantamount the blanket rule ized facts to the defendant in order to Richards); Stevens, justify entry). a struck down in no-knock (App.1997) Wis.2d (same); Grogins, 4. Van United States v. 163 F.3d Beek has also claimed a violation (4th Cir.1998) (no-knock constitution, argument state extent his search valid on but the officers, I, grounds danger quote to also is to Section of the would have Article North. ¶24, 8, (applying good toilet, quickly flushing down the or exception being felony, person faith when a no-knock warrant was convicted a in the 19-03.1-32(3) § great under on a would have issued N.D.C.C. residence incentive and I). ability dispose to per-se basis Herrick The order of the evidence. strict statute, conformity “magistrate deferring imposition of sentence entered issuing the warrant ha[d] the district court is therefore affirmed. cause to given that if such

believe notice were to be property sought may easily in the case be WALLE, C.J., VANDE and quickly destroyed disposed and or of.” NEUMANN, J., concur. magistrate Honorable CAROL RONNING applying [¶ was not a member of the KAPSNER Court per drug prohibited se rule in all cases as partici- Wisconsin, when this case was heard and did not Richards 520 U.S. pate in this decision. (1997), S.Ct. 137 L.Ed.2d 615 and State 1997 ND 567 N.W.2d 336. easy The no-knoek warrant was based on the

SANDSTROM, Justice, concurring special- disposability particular drugs of the there ly- present. cause' to believe were 19-03.1-32(3)provides: § 29] N.D.C.C. Rickards, entry justified Under Any officer authorized to execute a search “knocking announcing [police] when warrant, without notice of the officer’s au- circumstances, presence, particular under the thority may purpose, open break an futile, dangerous would be or or that it would outer or inner door or window of a build- investigation fehibit effective of the crime any ing, part building, any- or or by, example, allowing for the destruction of therein, thing judge or if Richards, (emphasis evidence.” at 1421 issuing 'probable the warrant has cause to added). believe that such notice were to be validity I would affirm the the no- property sought may in the case majority opinion knock warrant. The cre- quickly destroyed disposed high ates a standard so for a no-knock war- of, danger or that to the life or limb of the rant, anything required by it result, exceeds officer or another and has in- Supreme United States Court Richards cluded the warrant a direction that the statute, plain language making and the of our executing required give it officer is not excessively justify it difficult officer Any acting notice. such officers under entry. Perhaps legislature practicable such as soon as after quickly replace “probable will cause” entering premises, identify shall them- 19-03.1-32(3) Richards’ purpose entering selves and state the standard, suspicion” lesser “reasonable be- premises authority doing safety drug prosecutions fore law so. unnecessarily im- enforcement officers are ¶ added). (Emphasis majority, periled. acknowledges magistrate “probable had easily [¶ Dale V. Sandstrom disposable suspect’s form is located in a resi- ¶4, majority dence.” As the notes applying for the search Officer “ testified, ‘Methamphetamine Becker could of, easily disposed pour[ed] down the sink ” or a toilet.’ The knew the sei- provide zure of the would evidence aof felony. Given the choice between Garrett, e.g., Dakota Constitution in his brief. This is insuffi- 1998 ND 9 n. Patzer, 502; cient to raise for our consideration a state consti- issue, See, (N.D.1986). tutional and we decline to address it. 639 n. 5

Case Details

Case Name: State v. Van Beek

Court Name: North Dakota Supreme Court

Date Published: Mar 19, 1999

Citation: 591 N.W.2d 112

Docket Number: Criminal 980159

Court Abbreviation: N.D.