State v. Leavitt

864 N.W.2d 472

STATE of North Dakota, Plaintiff and Appellee

v.Heather Athena Ipsico LEAVITT, Defendant and Appellant.

No. 20140404.

Supreme Court of North Dakota.

June 11, 2015.

Kelly A. Dillon, Assistant State's Attorney, Minot, ND, for plaintiff and appellee.

Scott O. Diamond, Fargo, ND, for defendant and appellant.

Opinion

KAPSNER, Justice.

[¶ 1] Heather Leavitt appeals from a criminal judgment entered after a jury found her guilty of attempted murder. We affirm the criminal judgment.

I

[¶ 2] On February 1, 2014, Timothy Leavitt woke up to being stabbed by an assailant in his home in Minot; he sustained serious injuries during the ensuing struggle, but was ultimately able to flee to safety. Although he was unable to positively identify his attacker, he described the assailant to authorities as “having a pony-tail, the same stature as his wife [Heather Leavitt].” He described the knife used in the attack as having a black handle with metal dots and a long silver blade and noted it was identical to a set of knives he and his wife owned, which were no longer in his home, but were in his wife's possession. He also informed officers he lived in the house alone, he and his wife were separated, and they were sharing custody of their children. Officers observed evidence of an attack at the home and “bloody footprints (stocking feet)” throughout the home and adjacent yards. A black stocking hat with darker blonde hair was found under the bed and a pony-tail band was also found in his home.

[¶ 3] Based on the authorities' investigation, Sergeant David Goodman applied for a search warrant to search Heather Leavitt's person, home, and vehicle, and Goodman provided an affidavit in support of his application. A search warrant was issued, officers executed the warrant, and evidence was collected. During the search of Heather Leavitt's home, officers seized her cell phone. Officers later applied for and received a warrant to search the phone's contents. Heather Leavitt was charged with attempted murder, and before trial, she moved to suppress evidence obtained from the two search warrants. At the hearing on the motion, the State conceded that any evidence obtained from Heather Leavitt's cell phone should be suppressed. The district court granted Heather Leavitt's motion to suppress as to the search of her cell phone, but denied it as to the search of her person, home, and vehicle. A jury ultimately convicted Heather Leavitt of attempted murder.

II

[¶ 4] On appeal, Heather Leavitt argues the district court erred by failing to suppress evidence obtained through a search warrant lacking probable cause and lacking a nexus to support a search of her vehicle and home. She also argues the district court erred by admitting a photograph into evidence, which she alleged had been improperly altered by the State and lacked proper foundation and authentication.

[¶ 5] This Court will affirm a district court's decision on a motion to suppress if there is “sufficient competent evidence fairly capable of supporting the trial court's findings,” and it is not contrary to the manifest weight of the evidence. State v. Doohen, 2006 ND 239, ¶ 8, 724 N.W.2d 158 (citation omitted). “Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.” Id. (citation omitted). “Whether probable cause exists to issue a search warrant is a question of law.” State v. Roth, 2004 ND 23, ¶ 5, 674 N.W.2d 495. This Court generally defers to a magistrate's probable cause determination if there is a substantial basis for the conclusion. Id. at ¶ 6.

III

[¶ 6] Before a search warrant may be issued, the Fourth Amendment to the United States Constitution and Article 1, Section 8, of our state's constitution require probable cause to be established. State v. Duchene, 2001 ND 66, ¶ 11, 624 N.W.2d 668. “Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.” State v. Schmalz, 2008 ND 27, ¶ 11, 744 N.W.2d 734. In order to establish probable cause, a nexus between the place to be searched and the evidence sought must be found, and circumstantial evidence may be used to establish such a nexus. State v. Ebel, 2006 ND 212, ¶ 13, 723 N.W.2d 375. “The Fourth Amendment does not require an unbroken trail of evidence.” State v. Damron, 1998 ND 71, ¶ 24, 575 N.W.2d 912 (citation omitted). While each piece of information, on its own, may be insufficient to establish probable cause and some information may have an innocent explanation, “probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.” State v. Guthmiller, 2002 ND 116, ¶ 10, 646 N.W.2d 724 (citation omitted). Probable cause to search does not require the same standard of proof that is used to establish guilt at trial. Duchene, at ¶ 13. This Court resolves “doubt about the sufficiency of an affidavit in support of a request for a search warrant in favor of sustaining the search.” State v. Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861.

[¶ 7] On appeal, this Court reviews the sufficiency of the information that was before the magistrate, independent of the trial court's decision, and employs the totality-of-the-circumstances test. Roth, 2004 ND 23, ¶ 5, 674 N.W.2d 495. In making an independent decision of whether or not probable cause exists, a reviewing court “may not look beyond the four corners of the affidavit” for the issuance of the search warrant. State v. Lunde, 2008 ND 142, ¶ 12, 752 N.W.2d 630 (citation omitted).

[¶ 8] The affidavit noted: 1) Timothy Leavitt told law enforcement he woke up to someone attacking him with a knife in his home in Minot, 2) he could not specifically identify the attacker as his wife, except to say the assailant had a pony-tail and was “the same stature as his wife,” 3) he and his wife were in the process of getting a divorce and were sharing custody of their children, 4) Timothy Leavitt described the knife as having a black handle with metal dots and a long silver blade, the knife was “identical” to a set of knives he and his wife had owned, and the knife set was no longer in the marital home, but in his wife's possession, 5) his wife still had an ownership interest in the marital home, where the attack took place, but he lived alone and no one should have been in his home, 6) “bloody footprints (stocking feet)” were found at his home and throughout adjacent yards, 7) a black stocking hat, darker blonde hair, and a pony-tail band were found at his home, and 8) a description of Heather Leavitt's vehicle and her residential address at the Minot Air Force Base.

[¶ 9] Heather Leavitt argues the affidavit only contains three statements actually relating to her, namely that she and Timothy Leavitt were “in the process of getting a divorce,” that Timothy Leavitt described his attacker as being “the same stature as his wife,” and the knife used “was identical to a set of knives he and his wife had, which were no longer in the marital residence, but rather in this wife's possession.” Heather Leavitt maintains her marital status is immaterial, the affidavit was inaccurate because neither had filed for divorce, and the affidavit did not indicate there was any unusual animosity between her and Timothy Leavitt. Heather Leavitt also stresses “stature” only refers to a person's height, not their build or body type. She argues the described knife is a very common model, and the affidavit failed to provide a temporal link between herself and the ownership of such a knife. Heather Leavitt contends the only two facts tying her to the attacker are the description of the attacker's height and the use of a common knife of the same type that was in her possession at some unknown point in time, and these facts are insufficient to rise to the level of probable cause. She also argues the affidavit lacked the necessary information to provide a nexus to search her vehicle and her home.

[¶ 10] The State argues the affidavit established probable cause that the attacker tracked blood out of the home and through the neighborhood and resembled Heather Leavitt. In addition, the State argues there was probable cause that Heather Leavitt's person may contain evidence of the attack, including footprints and DNA for comparison purposes. The State also contends the affidavit established probable cause that the attacker used a weapon “identical to one in the defendant's possession at her home some 15 miles away,” and “[i]t is logical for the magistrate to conclude from the affidavit that the defendant's only vehicle may contain evidence of this crime.” The State argues, “giving due weight to the deference accorded a magistrate's finding, the affidavit establishes probable cause for the issuance of the search warrant for [Heather] Leavitt's person, residence and vehicle.”

[¶ 11] The affidavit notes Timothy Leavitt described the attacker as being “the same stature as his wife,” he and his wife were “in the process of getting a divorce,” “bloody footprints (stocking feet)” were found at the scene, and the knife used in the attack was “identical” to a set of knives that were in Heather Leavitt's possession. However, the affidavit contains no mention of Heather Leavitt's hair color or length to link her to the description of the attacker's pony-tail or the darker blonde hair and pony-tail band found at the scene. We acknowledge the facts alleged in the affidavit supporting this search warrant constitute a marginal case; however, in light of all the evidence presented to the magistrate, we conclude there was a fair probability that evidence would be found on Heather Leavitt's person, in her vehicle, or in her home. See Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861 (noting this Court resolves “doubt about...