State v. Birk

LEVINE, Justice,

dissenting.

“Home is where the heart is,” said Pliny the Elder. Home is also the place where police need a warrant based on probable cause, if they are going to enter uninvited to search. In this case, the basis for that *842probable cause is the information provided by an anonymous caller over the telephone.

We know the anonymous caller knew Birk’s place of residence, the auto he drove and its location at the time of the telephone call. We know also that the anonymous caller knew Birk had a motorcycle, was unemployed and where he worked before. The caller had additional information that Birk had a green pickup for sale which was parked at Birk’s residence. The caller apparently knew Birk and knew of his previous drug conviction. The caller also knew Birk’s cousin.

All of the above is innocent information that really has little to do with whether or not the caller actually was “personally present” in Birk’s residence and actually “observed a number of people coming and going” and “marijuana on a plate in the living room” of approximately Vs of an ounce and a “scale and approximately ¼ pound of marijuana.” It is one thing to provide otherwise innocent facts which would only be known to one with close access to the subject; it is quite another to provide information consisting of “easily obtainable facts and conditions existing at the time of the tip.” State v. Thompson, 369 N.W.2d 363, 370 (N.D.1985); Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

The problem I have is with the veracity of the anonymous caller and the reliability of the information he or she provided concerning the illegal drug activity. Anyone with enough knowledge about a person can make that person the target of a prank or a grudge by fabricating a “tip” like the one in this case. All the police did here was verify that the easily obtainable information regarding Birk’s automobile, residence and possession of a motorcycle was accurate. The police conducted no current surveillance, as they did in State v. Ringquist, 433 N.W.2d 207 (N.D.1988), and had no recent corroborating information, as they did in Ringquist. Nor was there surveillance or observation of either “unusual civilian or vehicular traffic at the address” or “very short visits characteristic of drug trafficking.” United States v. Gibson, 928 F.2d 250, 253 (8th Cir.1991). Instead, the police relied on rumor and stale information. As a policy matter, we should not condone lackadaisical police work.

It is true that the informant had enough good sense to give accurate vital statistics so that when the police checked the obvious, there were no inconsistencies. And, the obvious is all the police verified here. Police corroboration of easily obtained facts and conditions, which by themselves are inadequate for probable cause, does not establish the caller’s credibility. State v. Albrecht, 465 N.W.2d 107 (Minn.App.1991). Conducting no surveillance and little investigation, the police relied on old suspicion which, as the majority concedes, is not enough to justify a search warrant. They relied also on stale information. In Ringquist, we concluded that one-month-old information from a reliable confidential informant about drug trafficking was reliable information. In this case, the majority, in effect, concludes that information that is over eight months old is similarly reliable. I disagree. First of all, the “information” received eight months earlier was nothing more than rumor. But even if it had been other than rumor, it should make no difference in this case. After all, the police did not use the eight-month interval to corroborate the “information” earlier received or to maintain surveillance of the defendant's activities to support the issuance of the warrant. Compare with Cauchon v. United States, 824 F.2d 908 (11th Cir.1987), cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98 L.Ed.2d 380 (1987); United States v. Amorin, 810 F.2d 1040 (11th Cir.1987). Here, the police did nothing.

While the majority correctly notes that we give deference to a magistrate’s determination of probable cause, we only do so when there is a factual dispute. See State v. Placek, 386 N.W.2d 36 (N.D.1986); State v. Ronngren, 361 N.W.2d 224 (N.D.1985). Here, there is no factual dispute. The question is whether the undisputed facts constitute probable cause to justify a search warrant. That is'a question of law which we should review anew. See United States v. Alvarez, 899 F.2d 833 (9th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. *843671, 112 L.Ed.2d 663 (1991); United States v. McConney, 728 F.2d 1195 (9th Cir.1984), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

I thought Ringquist went overboard in abandoning the Aguilar-Spinelli guidelines to convince everyone that in North Dakota, we do not observe hypertechnicalities in determining the question of probable cause. I think this case goes overboard in upholding a search warrant for a home that is based on information not shown to be reliable from an informant not shown to be credible. In so doing, we assure police officers that in North Dakota, slipshod police work is good enough. We also establish a rule that, instead of requiring more corroboration to establish an anonymous informant’s credibility, requires less. I suppose that means that in North Dakota, the credo of Mies Van Der Rohe, the international style architect, that “less is more” reigns not only in the field of architecture but also in the Fourth Amendment arena of probable cause.

I respectfully dissent.