State v. Herrick

NEUMANN, Justice.

[¶ 1] Curtis Herrick appeals the trial court’s judgment reinstating his criminal convictions on remand. We affirm, holding the exclusionary remedy allows law enforcement officers who acted in good faith on a no-knoek search warrant issued on a per se basis, prior to State v. Herrick, 1997 ND 155, 567 N.W.2d 336 [Herrick I], under N.D.C.C. § 19-03.1-32(3) to validly execute the warrant.

I

[¶ 2] On February 27, 1995, Officer LeRoy Gross of the Stutsman County Drug Task Force searched garbage in the alley behind Herrick’s home. Gross found a paper clip with marijuana residue, a sterile marijuana seed, and a marijuana stem.

[¶ 3] On January 2,1996, Officer Gross and Officer Corinne Becker, also with the task force, again searched garbage behind Herrick’s home. The officers found additional marijuana stems and seeds, two bent metal wires with marijuana residue, a torn check with Herrick’s name on it, and handwritten notes from a book on how to grow marijuana.

[¶4] Becker sought a warrant to search Herrick’s home, relying on the information obtained from the garbage searches. The judge issued a no-knock warrant and a search of Herrick’s home was conducted on January 2, 1996. In the home, the officers found marijuana, marijuana seeds and stems, equipment for indoor horticulture, and a book on growing marijuana indoors. The officers charged Herrick with possession of controlled drugs, possession of drugs with intent to manufacture, and possession of drug paraphernalia.

[¶ 5] Herrick moved to suppress the evidence. He argued the issuance and execution of the no-knock warrant violated his state and federal constitutional rights against unreasonable searches and seizures. The trial court denied his motion to suppress. Herrick pled guilty, under Rule 11(a)(2), N.D.R.Crim.P., conditionally preserving the denial of suppression for appellate review. Herrick appealed his convictions.

[116] We provisionally reversed the order denying suppression. Herrick I, at ¶ 28. We determined there was probable cause for a search and the issuing judge was neutral and detached. Id. at ¶¶ 11, 15. We held, however, N.D.C.C. § 19-03.1-32(3) required probable cause for a no-knoek entry, and a per se rule of the presence of drugs justifying the issuance of a no-knock warrant was unconstitutional. Id. at ¶ 21. We remanded for the trial court to consider whether a good-faith exception to the exclusionary remedy should apply. Herrick I, at ¶ 27. In the event of appeal after remand, we asked the parties to “brief the question of whether we should recognize a good-faith exception and, if so, whether it should be applied in this case.” Id. at ¶ 27.

[¶ 7] On remand and after further hearing, the trial court did not exclude the illegally obtained evidence. The court applied the good-faith exception to the exclusionary rule formulated by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 .(1984). The trial court reasoned:

It is significant to note that the invitation to address the good faith issue came in the same opinion in which the North Dakota Supreme Court was forced to abandon it[ ]s per se no-knock rule as result of Richards [v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) ]. Because this case was remanded back to this court to determine whether or not the good faith exception should be adopted, the discussion of the good faith exception in the previous cases and the fact that the U.S. Supreme Court adopted the good-faith exception thirteen years ago [in Leon], it appears the North Dakota Supreme Court will adopt the good faith exception.
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Officer Becker acted in good faith when she obtained and executed the search warrant because at the time it was authorized and executed it was legal in North Dakota to issue no-knock search warrants in all cases w[h]ere drugs are involved. The *849affidavit presented by Officer Becker to Judge Wright included evidence of drugs and drug paraphernalia. State v. Herrick, 567 N.W.2d at 340. This was sufficient under the per se rule in effect at this time for Judge Wright to issue the no-knock search warrant. The affidavit was not so lacking in indicia of probable cause to render official belief in its existence entirely unreasonable. None of the other Leon factors rendering the good faith exception not applicable would apply in this case. There is no indication that the magistrate was misled or abandoned his judicial role, nor is there evidence to indicate that the warrant was facially deficient. The good faith exception to the exclusionary rule applies to the facts in this case.

The trial court reinstated Herrick’s convictions, and Herrick appealed.

II

[¶ 8] The North Dakota Legislative Assembly has provided greater protections in the no-knock forum than the Fourth Amendment. Section 19-03.1-32(3), N.D.C.C., requires a law enforcement officer have probable cause in suspecting evidence may be destroyed or that the officer may be in danger if he or she knocks and announces their presence before entering in order to justify a no-knock warrant. Herrick I, at ¶ 21 (emphasis added).

[¶ 9] In Wilson v. Arkansas, 514 U.S. 927, 936, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), the Supreme Court held the common-law knock and announce rule formed a part of the Fourth Amendment reasonableness inquiry. Subsequently, in Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the Supreme Court found the Fourth Amendment does not permit a blanket exception to the knock and announce rule in drug cases, rather the Fourth Amendment requires a reasonable suspicion by the law enforcement officer that knocking and announcing would be dangerous or futile. Id., at 1421 (emphasis added).

[¶ 10] In light of the recent Supreme Court cases concerning the knock and announce rule and no-knock warrants it cannot be disputed N.D.C.C. § 19-03.1-32(3), while providing greater protections than announced in those cases, implicates a substantial right under the Fourth Amendment. The Legislative Assembly when enacting N.D.C.C. § 19-03.1-32(3) did not specify any remedy for violations of the statute. In this instance, when a violation of N.D.C.C. § 19-03.1-32(3) is so closely associated with Fourth Amendment and Article I, Section 8, rights, it is appropriate, and arguably necessary for us to consider similar remedies for this statutory violation as granted for constitutional violations. See Wayne R. Lafave, Search & Seizure § 1.5(b), 132-36 (1996).

[¶ 11] Professor Lafave notes if there is no pertinent legislative history, as is the case with N.D.C.C. § 19-03.1-32(3), then it is appropriate to use suppression as a remedy when the statute “concerns the quality of evidence needed for issuance of the warrant ... without concern for whether the rule or statute exceeds the requirements of the Fourth Amendment.” Id. at 136.

[¶ 12] If the exclusionary remedy is what we must look to when a statute implicating substantive constitutional rights is violated, and the source of the exclusionary remedy in this state is the Fourth Amendment, then we must also consider the application of the good-faith exception delineated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See State v. Manning, 134 N.W.2d 91, 98 (N.D.1965) (holding the state rule of allowing illegally obtained evidence at trial has been overruled by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)).

[¶ 13] Responding to our request in Herrick I, both parties submitted well-developed arguments and briefs on the reasons for and against applying a good-faith exception to the exclusionary remedy in this case. The landmark precedent first recognizing a good-faith exception to the federal exclusionary rule was United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Leon also carved out four categories when good faith does not override the exclusionary remedy. Id. at 923,104 S.Ct. 3405.

[¶ 14] In Leon, the trial court suppressed evidence of drugs found with a facially valid *850warrant issued without probable cause. Id. at 903, 104 S.Ct. 3405. The court of appeals refused to apply a good-faith exception and affirmed suppression. IcL at 905, 104 S.Ct. 3405. In his concurrence, Justice Blackmun aptly summarized the holding of the six-member majority:

[Ejvidenee obtained in violation of the Fourth Amendment by officers acting in objectively reasonable reliance on a search warrant issued by a neutral and detached magistrate need not be excluded, as a matter of federal law, from the case in chief of federal and state criminal prosecutions.

Id. at 927, 104 S.Ct. 3405. Thus, the good-faith exception became federal doctrine.

[¶ 15] The Leon Court reasoned that “marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Id. at 922, 104 S.Ct. 3405. As noted, an officer’s reliance on the particular probable cause for the warrant must be objectively reasonable. Id. “Accordingly, our 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 n. 23, 104 S.Ct. 3405. Leon identified four situations when police reliance on a warrant cannot be objectively reasonable: (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. Id. at 923, 104 S.Ct. 3405.

[¶ 16] Herrick argues the affidavit and application for the noknock warrant in this case were so lacking in indicia of probable cause and specificity that a reasonable person could not believe the warrant was valid. His argument is based on the third exception to the good-faith rule announced by the Supreme Court in Leon. Id. We disagree with Herrick’s argument.

[¶ 17] In 1973, in State v. Loucks, 209 N.W.2d 772 (N.D.1973), this Court determined an affidavit which did not contain any affirmative statement that giving notice would result in destruction of evidence was valid under N.D.C.C. § 19-03.1-32(3). We held, “[t]he court may take judicial notice of matters of common knowledge and science as may be known to all men of ordinary understanding and intelligence. It is common knowledge that drugs may be easily disposed of.” Id. at 777-78 (citations omitted). In 1992, in State v. Knudson, 499 N.W.2d 872 (N.D.1993), this Court again discussed drugs and no-knock warrants stating, “[a] no-knock warrant in drug cases is available under this statute, because we have taken judicial notice that those in possession of controlled substances ordinarily are on the alert to destroy the typically easily disposable evidence quickly at the first sign of a law enforcement officer’s presence.” Id. at 876.

[¶ 18] As we noted in Herrick I, these cases effectively constituted a per se rule in North Dakota that the suspected presence of drugs justified a no-knock warrant under N.D.C.C. § 19-03.1-32(3). Herrick I, at ¶ 21. Under these prior eases, law enforcement officers would have no reason to doubt the validity of a no-knock warrant issued in a drug case by a magistrate or judge.

[¶ 19] Arnie Rummel, Special Agent of the Bureau of Criminal Investigation, was the officer in charge of the task force in Stuts-man County. Rummel testified at the remand hearing that he understood the standard for obtaining a no-knoek warrant was if the officer suspected drugs were on the premises. Rummel also stated the reasoning behind the thirty-one no-knoek warrants the task force had previously obtained was a belief drugs were present. Furthermore, in this case, Officer Becker also testified she was not aware anything more than the presence of marijuana was required to get the no-knock warrant she had obtained from the judge.

[¶ 20] Contrary to Herrick’s assertion, the officers here had indicia of probable cause *851with which to seek a no-knock search warrant, indicia supplied by Loucks and Knud-son. Law enforcement in North Dakota generally, and specifically in this case, operated under the belief that if drugs were present a no-knock warrant was justifiably obtainable. This belief was directly traceable to our prior rulings in cases like Loucks and Knudson in which we took judicial notice under N.D.C.C. § 19-03.1-32(3) that drugs were easily disposed of. Therefore, under federal precedent, the good-faith exception to the exclusionary rule would in fact apply to a no-knock warrant issued on a per se basis by a judge or magistrate under N.D.C.C. § 19-03.1-32(3). See United States v. Moore, 956 F.2d 843, 851 (8th Cir.1992) (finding the good-faith exception applied in a federal prosecution in which a Nebraska judge issued a no-knock warrant under a blanket rule permitting no-knocks in all drug cases). We find the officers acted in objective reasonable reliance on the no-knock warrant issued by the judge.

[¶ 21] Herrick also argues the North Dakota Constitution recognizes greater protections than the federal constitution, and therefore the good-faith exception does not apply to a search warrant issued under state law.

[¶ 22] It is axiomatic our state constitution may provide greater protections than its federal counterpart. State v. Ringquist, 433 N.W.2d 207, 212 (N.D.1988); State v. Matthews, 216 N.W.2d 90, 99 (N.D.1974). However, the constitution must be interpreted in light of the rights and liberties it was created to uphold, and not the philosophical viewpoints of the judiciary who hold the responsibility of interpretation. See Ringquist, 433 N.W.2d at 217 (VandeWalle, J., concurring specially).

[¶23] Article I, Section 8 of the North Dakota Constitution is almost identical to the Fourth Amendment. Article I, Section 8, provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.1

[¶24] The sources of the declaration of the right to be free of unreasonable searches and seizures in Article I, Section 8 have been identified as “Penna., I, and Constitutions generally.” Herbert L. Meschke and Lawrence D. Spears,’ Digging for Roots: The North Dakota Constitution and the Thayer Correspondence, 65 N.D. L.Rev. 343, 379 n. 251, 481 (1989). As Meschke and Spears explained: “[I]t is important to look for guidance in similar provisions in other state constitutions and in their constructions, particularly when the constitutional provisions are linked historically.” Meschke & Spears, at 381.

[¶ 25] The Supreme Court of Pennsylvania held in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 905-06 (Pa.1991), under their Article I, Section 8 (nearly identical and numbered the same as our provision), there is no good-faith exception to the exclusionary remedy for an unconstitutional search. However, the independent history of Pennsylvania’s declared right to be free from unreasonable searches and seizures was an important factor in the Edmunds reasoning. See Id. 586 A.2d at 897-98 (recognizing numerous Pennsylvania cases in which the courts explicitly state Article I, Section 8, is “tied into the implicit right to privacy in this Commonwealth”). ■ The Pennsylvania Supreme Court asserts this is clear evidence that Pennsylvania has always viewed Article I, Section 8 as providing more protection than the Fourth Amendment, and therefore, adoption of Leon would be repugnant to their constitution. Id. at 899.

[¶26] North Dakota precedent does not contain such clear guidance. While we cer*852tainly recognize privacy as an important right under Article I, Section 8, see, e.g., State v. Sakellson, 379 N.W.2d 779 (N.D. 1985), we have not unequivocally distinguished privacy as the major factor in applying the exclusionary rule to Article I, Section 8. See, e.g., State v. Wahl, 450 N.W.2d 710, 714 (N.D.1990) (citing Leon for the proposition that the exclusionary rule acts to deter police misconduct and to bolster judicial integrity by not allowing convictions based on unconstitutionally obtained evidence). But see State v. Phelps, 286 N.W.2d 472, 475 (N.D.1979) (stating the Fourth Amendment is intended to operate as a safeguard for personal privacy and dignity by preventing against unwarranted intrusions by the State, and the exclusionary remedy furthers that intention). However, notwithstanding the differences between North Dakota and Pennsylvania constitutional histories we need not decide today the question of whether North Dakota’s Constitution may indeed provide greater protections than the United States Constitution. The issue before us in this case is a violation of a statute, N.D.C.C. § 19-03.1-32(3), and not a violation of Article I, Section 8.

[¶ 27] Today, this Court has found only that a violation of N.D.C.C. § 19-03.1-32(3), based on a no-knock warrant issued on a per se basis prior to Herrick I is subject to the good-faith exception as outlined in Leon. While noting the historical common law of North Dakota and the differing constitutional relationship to Pennsylvania, we do not decide if in fact North Dakota does provide greater state constitutional protections than the Fourth Amendment, and if so, whether such heightened protection would preclude a good-faith exception to North Dakota’s exclusionary rule.

Ill

[¶ 28] We hold when, prior to our decision in State v. Herrick, 1997 ND 155, 567 N.W.2d 336, a no-knock search warrant was issued on a per se basis under N.D.C.C. § 19.1-03.1-32(3) because drugs were alleged to be present in the place to be searched, the good-faith exception to the exclusionary rule applies. The judgment of the trial court is affirmed.

[¶ 29] VANDE WALLE, C.J., and SANDSTROM, J., concur.

[¶ 30] The Honorable Herbert L. Meschke, a member of the Court when this case was heard, resigned effective October 1, 1998, and did not participate in this decision.

[¶ 31] The Honorable Carol Ronning Kaps-ner was not a member of the Court when this ease was heard and did not participate in this decision.

. The Fourth Amendment of the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons and things to be seized. (Emphasis added.)

This language is identical to Article I, Section 8 except for the conjunction “and."