FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 3, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 103
State of North Dakota, Plaintiff and Appellee
v.
James Scott Black, Defendant and Appellant
No. 20200256
Appeal from the District Court of Pembina County, Northeast Judicial District,
the Honorable Laurie A. Fontaine, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Rebecca L. Flanders, State’s Attorney, Cavalier, ND, for plaintiff and appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. Black
No. 20200256
Jensen, Chief Justice.
[¶1] James Scott Black appeals from a criminal judgment entered after his
conditional guilty plea to ten counts of possession of certain materials
prohibited, class C felonies. Black argues the district court was required to
suppress evidence obtained during an unreasonable search following an
improper initial entry into his home. Black also argues the court was required
to suppress evidence obtained during a subsequent search of his home
pursuant to a search warrant that lacked probable cause. We conclude the
initial search was not unreasonable and the subsequent search warrant was
valid. We affirm.
I
[¶2] On June 3, 2015, Pembina County deputies responded to a noise
complaint at an apartment complex. The complaint included information that
there was a male yelling he was going to kill someone in the apartment
adjacent to the complaining party. The complaining party stated he heard a
man inside the apartment throwing objects, yelling, and saying he was going
to kill everyone inside the apartment. The complaining party assumed there
was more than one person in the apartment even though he did not hear other
voices.
[¶3] When the deputies arrived at the apartment complex, the complaining
party directed the deputies to the noisy apartment. As the deputies approached
the apartment’s door, they could hear loud noises within the apartment but
were unable to ascertain any recognizable statements. The deputies knocked
and identified themselves three separate times. After the third knock and
identification, Black cracked the door open slightly. The deputies observed
through the slightly opened door that Black was wearing only his underwear.
The deputies did not observe any signs of injury on Black’s person but noted
that Black appeared to be intoxicated.
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[¶4] While the deputies spoke to Black through the slightly opened door,
Black appeared upset. Black was initially uncooperative with the deputies by
refusing to give identifying information. Black yelled at the deputies to leave
saying, “F—off;” “Come back with a warrant;” and “I will hold you in contempt
of court.” Black also made multiple attempts to close his door on the deputies.
To prevent Black from closing the door, a deputy would place his foot in the
doorway.
[¶5] Black eventually provided his name. The deputies told Black they would
not leave until they confirmed no one within the apartment was harmed. After
approximately five minutes, Black opened the door and said, “Look, nobody’s
here,” or something to a similar effect. The deputies then entered the
apartment and conducted a safety sweep.
[¶6] While inside the apartment, the deputies observed a computer monitor
displaying content they thought established probable cause to believe Black
was in possession of child pornography. The deputies subsequently applied for
a search warrant. The affidavit accompanying the application for a search
warrant described the image displayed on the computer monitor as a
prepubescent female, between the ages of nine and fourteen, in a body of water
and wearing underwear and a wet tee shirt which exposed the female’s areolas
and nipples through the shirt. The search tags associated with the image of
the prepubescent female included, “omg yes,” “first,” “puffy,” and “nipples.”
There were at least fourteen other open browser tabs, hidden by the active
window in the browser, with titles beginning with “Pic#” followed by a number.
The image was located on a website URL that includes the term “jail bait.” The
website contained other images of prepubescent girls posed in a lewd manner
and had a “13 age bracket” search bar. The warrant was granted, and Black
was subsequently charged with ten counts of possession of certain materials
prohibited.
[¶7] Black filed a motion to suppress evidence arguing the images were
illegally obtained pursuant to an unconstitutional warrantless search of his
residence. The district court denied Black’s motion, finding there were exigent
circumstances to search the apartment without a warrant.
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[¶8] Black filed a second motion seeking to suppress evidence obtained after
the issuance of the search warrant. Black argued the image displayed on the
computer monitor was not child pornography and was not probable cause for a
warrant. Further, Black argued the description of the image in law
enforcement’s affidavit in support of the search warrant was misleading and
resulted in a defective search warrant. The district court denied the motion
determining there was sufficient probable cause to issue the search warrant
and determining Black failed to make a substantial showing the statements in
the affidavit were false and the false statements were necessary to find
probable cause.
[¶9] Black entered a conditional plea of guilty, preserving for appeal the
issues raised in the denied motions to suppress. On appeal, Black challenges
the district court’s ruling on both of his motions to suppress.
II
[¶10] This Court’s standard of review on a district court’s decision on a motion
to suppress is well-established:
[T]his Court defers to the district court’s findings of fact and
resolves conflicts in testimony in favor of affirmance. This Court
will affirm a district court decision regarding a motion to suppress
if there is sufficient competent evidence fairly capable of
supporting the district court’s findings, and the decision is not
contrary to the manifest weight of the evidence. Questions of law
are fully reviewable on appeal, and whether a finding of fact meets
a legal standard is a question of law. This standard of review on a
motion to suppress reflects the importance of the district court’s
opportunity to observe witnesses and assess their credibility.
State v. Morin, 2012 ND 75, ¶ 5, 815 N.W.2d 229 (internal quotations and
citations omitted) (formatting omitted).
III
[¶11] Black asserts the deputies’ warrantless search of his apartment was
unreasonable and in violation of both the North Dakota and United States
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constitutions. Black argues the district court erred in finding exigent
circumstances eliminated the need for the deputies to obtain a warrant before
entry into his apartment because there was not an existing emergency nor was
it reasonable to believe an emergency was occurring. He also argues the
deputies were primarily motivated by an intent to arrest and seize evidence.
[¶12] The right to be secure in one’s home from unreasonable searches and
seizures is secured by the Fourth Amendment of the United States
Constitution and by Article I, Section 8 of the North Dakota Constitution. City
of Fargo v. Lee, 1998 ND 126, ¶ 8, 580 N.W.2d 580. Warrantless searches and
seizures inside a residence are presumptively unreasonable. Id. The
government bears the burden of showing the warrantless search falls within
an exception to the warrant requirement. Id.
[¶13] Exigent circumstances, also referred to as the “emergency exception,” is
a recognized exception to the warrant requirement. State v. Stewart, 2014 ND
165, ¶ 13, 851 N.W.2d 153. Exigent circumstances are defined as “an
emergency situation requiring swift action to prevent imminent danger to life
or serious damage to property, or to forestall the imminent escape of a suspect
or destruction of evidence.” State v. DeCoteau, 1999 ND 77, ¶ 15, 592 N.W.2d
579 (quoting Lee, 1998 ND 126, ¶ 10). When this Court reviews a district court’s
finding of exigent circumstances, the findings of fact are reviewed giving due
weight to the inferences drawn from those facts by judges and law enforcement.
Morin, 2012 ND 75, ¶ 9. We apply a de novo standard of review to the ultimate
determination of whether the facts constitute exigent circumstances.
DeCoteau, at ¶ 15.
[¶14] This Court has recognized three requirements to apply the emergency
exception to a warrantless entry:
(1) The police must have reasonable grounds to believe that there
is an emergency at hand and an immediate need for their
assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest
and seize evidence.
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(3) There must be some reasonable basis, approximating probable
cause, to associate the emergency with the area or place to be
searched.
State v. Nelson, 2005 ND 11, ¶ 12, 691 N.W.2d 218. An officer’s reasonable
belief an emergency existed is reviewed under an objective standard. Id.
Information obtained from an informant whose identity is easily ascertainable
has a higher indicia of reliability compared to information obtained from a
purely anonymous informant. State v. Karna, 2016 ND 232, ¶ 9, 887 N.W.2d
549.
[¶15] The district court found there were exigent circumstances to search
Black’s apartment without a warrant. Black’s neighbor reported hearing a
person throwing objects, angrily yelling, and making threats to kill everyone
inside Black’s apartment. The neighbor was on site, met the deputies when
they arrived, and directed the deputies to the apartment with the noise.
Although the deputies could not understand what was being said, they heard
what they described as loud, agitated noises while standing outside Black’s
door. When Black appeared in the doorway he was wearing only underwear,
upset, and uncooperative. The deputies indicated the purpose of their entry
into the apartment was to conduct a safety sweep.
[¶16] While engaging in conversation with Black, the deputies made their
initial entry into his apartment by extending a foot into the doorway to prevent
Black from closing the door. The deputies continued speaking with Black
through the slight opening of his door until Black opened the door further, and
deputies entered to conduct a safety sweep. Black directs specific attention to
the fact the deputies did not engage in overwhelming physical force to
immediately gain entry into the apartment for the purpose of conducting a
safety sweep after they initially entered his apartment with their foot. Black
contends the deputies’ delay and the lack of an immediate safety sweep after
their initial entry prevents a finding the deputies were acting under exigent
circumstances. We reject his argument.
[¶17] We conclude there is sufficient competent evidence fairly capable of
supporting the findings that the deputies had reasonable grounds to believe
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that there was an emergency at hand and an immediate need for their
assistance for the protection of life or property; that the search was not
primarily motivated by intent to arrest and seize evidence; and that there was
a reasonable basis, approximating probable cause, to associate the emergency
with Black’s apartment. When reviewing the district court’s findings of fact
supporting exigent circumstances, we give due weight to the inferences drawn
from those facts by judges and law enforcement. Morin, 2012 ND 75, ¶ 9. The
court’s decision that there were exigent circumstances justifying a warrantless
entry into Black’s apartment was not contrary to the manifest weight of the
evidence.
[¶18] There is sufficient competent evidence fairly capable of supporting the
district court’s finding of exigent circumstances. The finding is supported even
though the deputies did not immediately employ overwhelming physical force
to gain entry into the apartment and instead engaged in a short conversation
with Black in an effort to conduct a nonconfrontational safety sweep. We affirm
the court’s denial of Black’s motion to suppress and the finding that the
warrantless entry and search of his apartment was lawful.
IV
[¶19] Subsequent to leaving the apartment after the initial entry, and before
securing a search warrant, at least one deputy reentered Black’s apartment.
For the first time on appeal, Black challenges the constitutionality of the
subsequent pre-warrant reentries into his residence. “It is well-established
that ‘issues which are not raised before the district court, including
constitutional issues, will not be considered for the first time on appeal.’” State
v. Gray, 2017 ND 108, ¶ 13, 893 N.W.2d 484 (quoting State v. Kieper, 2008 ND
65, ¶ 16, 747 N.W.2d 497). We decline to address the subsequent reentries into
the apartment because they were not adequately raised and argued in the
district court.
V
[¶20] In his second motion to dismiss, Black challenged the search warrant
issued subsequent to the entry and safety sweep of his apartment. The search
6
warrant was supported by an affidavit describing what the deputies observed
in the apartment during their initial entry under exigent circumstances. Black
argues the image the deputies observed on his computer monitor during their
initial entry was not sufficient to obtain a search warrant for possession of
certain materials prohibited. Black also argues the application for the search
warrant contained misleading omissions regarding the characterization of the
photo, how the information was obtained, and by whom.
[¶21] “Probable cause is required for a search warrant under the Fourth
Amendment to the United States Constitution, and Article 1, Section 8 of the
North Dakota Constitution.” State v. Odum, 2019 ND 105, ¶ 5, 925 N.W.2d
451. “Probable cause to search exists if the facts and circumstances relied on
by the magistrate would warrant a person of reasonable caution to believe the
contraband or evidence sought probably will be found in the place to be
searched.” State v. Rogahn, 2016 ND 93, ¶ 7, 879 N.W.2d 454 (quoting State v.
Ballweg, 2003 ND 153, ¶ 11, 670 N.W.2d 490). “Whether probable cause exists
to issue a search warrant is a question of law.” State v. Ebel, 2006 ND 212, ¶
12, 723 N.W.2d 375. “We defer to a magistrate’s determination of probable
cause so long as a substantial basis for the conclusion exists, and we resolve
doubtful or marginal cases in favor of the magistrate’s determination.” Id.
(quoting State v. Stewart, 2006 ND 39, ¶ 6, 710 N.W.2d 403) (quotation marks
omitted).
[¶22] In reviewing the sufficiency of information before the magistrate, this
Court uses the totality-of-the-circumstances test, independent of the district
court’s decision. Ebel, 2006 ND 212, ¶ 13. We have stated:
To establish probable cause, there must be a nexus between the
place to be searched and the contraband sought. Circumstantial
evidence may be used to establish that nexus. Probable cause
exists when there is a fair probability contraband or evidence of a
crime will be found in a particular place.
Mere suspicion criminal activity is taking place, which may
warrant further investigation, does not rise to a level of probable
cause to search. The relevant inquiry is not whether conduct is
innocent or guilty, but what degree of suspicion attaches to it.
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Id. at ¶¶ 13-14 (internal quotation marks and citations omitted).
[¶23] The search warrant was issued after a determination there was probable
cause Black was in possession of certain materials prohibited. Possession of
certain materials prohibited is statutorily defined as, “A person is guilty of a
class C felony if, knowing of its character and content, that person knowingly
possesses any motion picture, photograph, or other visual representation that
includes sexual conduct by a minor.” N.D.C.C. § 12.1-27.2-04.1.
[¶24] The affidavit accompanying the search warrant described an image
displayed on the computer of a prepubescent female in a body of water wearing
underwear and a wet shirt exposing the child’s nipples and areolas through
her shirt. The image was located on a website URL that references the term
“jail bait.” A deputy testified the term “jail bait” is a colloquialism used to
describe an individual under the age of eighteen. The search tags associated
with the image of the prepubescent female included, “omg yes,” “first,” “puffy,”
and “nipples.” There were at least fourteen other open browser tabs, hidden by
the active window in the browser, with titles beginning with “Pic#” followed by
a number. A substantial basis for the conclusion that there was a fair
probability contraband or evidence of a crime would be found in Black’s
apartment was presented in support of the search warrant, and we therefore
defer to the magistrate’s determination regarding probable cause. We affirm
the denial of Black’s second motion to suppress and the district court’s finding
that there was probable cause to support the issuance of a search warrant.
[¶25] Black also challenges the truthfulness of the information provided to the
magistrate in support of the request for a search warrant. In State v. Rogahn,
2016 ND 93, ¶ 13, 879 N.W.2d 454, this Court stated:
When a defendant alleges false or misleading statements have
been made in the application for a search warrant, we address the
issue under the standard set forth in [Franks v. Delaware, 438 U.S.
154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)]. An affidavit in support
of a search warrant must contain “truthful” statements. Under
Franks, this does not require every statement contained in the
affidavit necessarily be correct, but rather requires the statement
be truthful in the sense that the information put forth is believed
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or appropriately accepted by the affiant as true. A false statement
under Franks is one that misleads a neutral and detached
magistrate into believing the stated facts exist, and those facts in
turn affect the magistrate’s evaluation of whether or not there is
probable cause. That standard may also apply to statements that
are deliberately false or misleading by omission.
(Internal quotation marks and citations omitted.)
[¶26] The defendant bears the burden of making a (1) substantial preliminary
showing, accompanied by an offer of proof, that false or misleading statements
in support of the search warrant were either made knowingly and intentionally
or with reckless disregard for the truth; and (2) the allegedly false or
misleading statements are necessary to a finding of probable cause. Rogahn,
2016 ND 93, ¶ 14 (quoting Ebel, 2006 ND 212, ¶ 22). The district court’s ruling
on whether a “substantial preliminary showing” was made is considered a
finding of fact. Rogahn, at ¶ 15 (quoting Ebel, at ¶ 23).
[¶27] Black contends the description of the image displaying the prepubescent
female was misleading or false. Regarding this issue, he argues the affidavit’s
description of the individual as “prepubescent” was misleading or false because
the deputy testified that he believed the individual in the image appeared to
be prepubescent but also gave an age of between nine and fourteen years old,
an age range Black contends is outside “prepubescent.” Black also asserts the
affidavit did not indicate the location of the picture was on a public beach with
other individuals in the photo, implying those facts would have shown the
photograph did not include a representation of sexual conduct by a minor.
[¶28] Based on our review of the record, we conclude Black failed to satisfy his
burden of showing that the false or misleading statements in support of the
search warrant were either made knowingly and intentionally or with reckless
disregard for the truth, or that the allegedly false or misleading statements
were necessary to a finding of probable cause.
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VI
[¶29] We affirm the denial of Black’s first motion to suppress evidence
challenging the district court’s finding of exigent circumstances justifying a
warrantless entry into Black’s apartment. We affirm the denial of Black’s
second motion to suppress evidence challenging the probable cause for the
search warrant issued to search his apartment. We affirm the criminal
judgment based on Black’s conditional plea of guilty.
[¶30] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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