concurring and dissenting.
I agree with most of what the majority has written, except its analysis under Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). The majority reverses the District Court for failing to specifically rule on an issue never raised.
“It is a well-established principle in this state that issues not raised below cannot be raised on appeal. ‘Generally, issues not raised in the trial court, even constitutional issues, will not be addressed on appeal’ State v. Miller, 388 N.W.2d 522 (N.D.1986) (emphasis added).”
State v. Tweed, 491 N.W.2d 412, 417 (N.D.1992).
Murray was not raised by either Winkler or the State either before the District Court or here. Even though the Murray decision was handed down in 1988, Winkler never asserted, before the District Court or here, that the officers would not have sought a search warrant but for their improper entry into the garage. Indeed, Winkler’s argument here presupposed the opposite. Wink-ler’s attorney conceded the officers had sufficient probable cause for a search warrant before they entered upon his property. During oral argument, Winkler’s attorney said:
“If you look at the events that occurred prior to the time they went there, they had found a man laying in the ditch at about 7:00 in the evening. By 8:00 they had gone to the local bars, had talked to two local bars, Stu’s Pub and Sammy’s Bar, and they had narrowed it down already to one person having left the bars during that 6:00 to 7:00 time period.
* * * * * *
“By the time they got there, they had already found evidence of a 1994 truck laying in the roadway near the accident— pieces of the lens from the lights. They knew that my client had driven or left the bars at about that time. They knew he had a 1994 pickup. They knew where he lived. They went right to his house.
* * * * * *
“As far as I’m concerned, at the time they went into the garage, there was sufficient evidence to get a search warrant without even going onto the property. They knew he had a vehicle. They knew he had been in the area. And they knew his vehicle was a ’94 vehicle, which they had.” (Emphasis added.)
*358In Murray, the Court of Appeals had said “there was no causal link whatever between the illegal entry and the discovery of the challenged evidence.” Murray, 487 U.S. at 543, 108 S.Ct. at 2536. But the District Court had made no such finding, and the Supreme Court said “it is the function of the District Court rather than the Court of Appeals to determine the facts.” Murray. In Murray, the District Court had only “found that the agents did not reveal their warrant-less entry to the Magistrate, and that they did not include in their application for a warrant any recitation of their observations in the warehouse.” Murray (internal citations omitted).
Unlike the District Court in Murray, however, the District Court in this case, in its Order Denying Defendant’s Motions for Suppression, specifically found “that discovery and seizure of the vehicle was inevitable.” I believe the District Court’s finding would satisfy Murray, if Murray had been raised in the District Court and here.
I would affirm.