State v. Nelson

691 N.W.2d 218

2005 ND 11

STATE of North Dakota, Plaintiff and Appellee v. Dawn Marie NELSON, Defendant and Appellant.

No. 20040084.

Supreme Court of North Dakota.

January 19, 2005.

Michael R. Hoffman, Bismarck, N.D., for defendant and appellant.

Michel W. Stefonowicz, Assistant State's Attorney, Crosby, N.D., for plaintiff and appellee.

NEUMANN, Justice.

[¶ 1] Dawn Nelson appeals from the trial court's order deferring imposition of sentence entered on a conditional plea of guilty. Nelson challenges the trial court's denial of her motion to suppress evidence obtained from her home. We reverse and remand for further proceedings consistent with this opinion.

I

[¶ 2] Law enforcement were dispatched to pick up Dawn Nelson at her home in Stanley, North Dakota, and transport her to Trinity Hospital in Minot pursuant to a district court emergency treatment order. Nelson lives in a multi-level home with three levels and a basement. The first level has a den with a door to the garage; the second level has a living room, dining room, and bathroom; and, the third level has three bedrooms. When law enforcement arrived Nelson was in the den, on the first level. As she was escorted out the door into the garage, Nelson allegedly stated, "he made it right here." Law enforcement interpreted that statement to mean her husband had manufactured methamphetamine at the residence. Nelson also stated she needed to find her inhaler because she was having an asthma attack. Nelson indicated she thought the inhaler was in the den in a milk crate. The officers and Nelson searched for her inhaler. Chief Deputy Bristol and Chief Halvorson searched other areas of the home while the remaining officers and Nelson searched in the den. Bristol testified he entered an upstairs bedroom and found a "foil bindle" sitting on a dresser. Immediately after discovering the bindle, he heard someone say they found the inhaler. He confiscated the foil bindle and returned to the den where the inhaler was found in Nelson's purse. Nelson testified the length of the search was less than a minute. Bristol testified the search was about a minute to a minute and a half. Whether Nelson told Bristol the inhaler was not in any other part of the house is disputed.

[¶ 3] Bristol applied for a search warrant of Nelson's home based, in part, on the foil bindle found in her home. The search warrant was granted and executed. Halvorson requested the presence of Gary Nelson, Dawn Nelson's father-in-law, during the search. The State argues Gary Nelson was present to allow entry to the home and ensure against future allegations of officer impropriety. Gary Nelson called Tammy Chrest, a child protection worker, and requested she come to the home to observe the home's condition. Neither Gary Nelson or Tammy Chrest participated in the search.

[¶ 4] The search resulted in Dawn Nelson's arrest for possession of marijuana and drug paraphernalia. The trial court denied her motion to suppress evidence. She conditionally pled guilty and reserved the right to appeal.

II

[¶ 5] Dawn Nelson's notice of appeal indicates she is appealing from the order deferring imposition of sentence. Under N.D.C.C. § 29-28-06, an order deferring imposition of sentence is not an appealable order. The trial court did not enter a separate judgment of conviction. However, when the order deferring imposition of sentence complies with the requirements of N.D.R.Crim.P. 32(b) for criminal judgments and no separate judgment of conviction has been entered, the order serves as the judgment of conviction. State v. Berger, 2004 ND 151, ¶ 8, 683 N.W.2d 897. In this case, the order satisfies the requirements of N.D.R.Crim.P. 32(b) and serves as the judgment of conviction. Therefore, the appeal is properly before us.

III

[¶ 6] When reviewing a trial court's ruling on a motion to suppress, we defer to the trial court's findings of fact and resolve conflicts in testimony in favor of affirmance. City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774 (N.D.1996). After resolving conflicting evidence in favor of affirmance, we affirm the trial court's decision unless there is insufficient competent evidence to support the decision, or the decision goes against the manifest weight of the evidence. State v. Haverluk, 2000 ND 178, ¶ 7, 617 N.W.2d 652. Questions of law are fully reviewable. Id.

[¶ 7] On appeal, Dawn Nelson argues the evidence should be suppressed because the search warrant was obtained based on evidence illegally seized during the warrantless search of her home. The State argues the officer's presence in Nelson's bedroom, where he saw and seized the foil bindle, was justified because it fell under the emergency exception to the warrant requirement.

[¶ 8] The trial court did not clearly articulate the legal basis for its decision permitting the use of the foil bindle as evidence supporting the issuance of the search warrant. The officers did not have a search warrant at the time the bindle was discovered. Therefore, an exception to the warrant requirement must apply before the foil bindle can support probable cause for the search warrant that was subsequently issued. In its initial order denying suppression, the trial court failed to explain what exception to the warrant requirement, if any, applied. On a subsequent motion for reconsideration, the trial court held whether Nelson's asthma attack presented officers with an actual emergency was debatable, however, the emergency exception did not apply because the officers were already legitimately inside Nelson's home. The trial court erred in denying Nelson's motion to suppress without clearly explaining why the bindle could be considered, and it misinterpreted the law regarding the application of the emergency doctrine.

[¶ 9] The Fourth Amendment of the United States Constitution and Article I, Section 8, of the North Dakota Constitution protect individuals from unreasonable searches and seizures. City of Fargo v. Ternes, 522 N.W.2d 176, 178 (N.D.1994). The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, 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 or things to be seized.

U.S. Const. amend. IV. The United States Supreme Court has noted that searches and seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). A warrantless search is not unreasonable if the government can prove the search or seizure is subject to one of the few well-delineated exceptions. State v. DeCoteau, 1999 ND 77, ¶ 7, 592 N.W.2d 579. One such exception is the emergency doctrine. Ternes, 522 N.W.2d at 178. "The emergency doctrine allows police to enter a dwelling without a warrant to render emergency aid and assistance to a person whom they reasonably believe to be in distress." Id.

[¶ 10] Generally, the emergency exception is used when the police need to gain entry into a residence without a warrant. E.g., Lubenow v. ND State Highway Comm'r, 438 N.W.2d 528 (N.D.1989) (holding emergency exception applied when officer entered a garage to check on a person lying on the garage floor beside a vehicle). In the present case, the trial court correctly noted the officers were already legally inside Nelson's home. However, the trial court incorrectly concluded that because the officers were legally inside, the emergency exception could not apply.

[¶ 11] In State v. Mitzel, 2004 ND 157, 685 N.W.2d 120, we analyzed whether the exigent circumstances exception to the warrant requirement applied when a police officer was already inside a residence. Id. at ¶¶ 19-23. Although we ultimately determined exigent circumstances did not exist in Mitzel, the application of the doctrine is analogous to applying the emergency exception in Nelson's case. See id. at ¶ 23.

[¶ 12] This Court has outlined the requirements for applying the emergency exception:

(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.

(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

State v. Matthews, 2003 ND 108, ¶ 28, 665 N.W.2d 28. The officer's reasonable belief an emergency existed is judged by an objective standard. Lubenow, 438 N.W.2d at 532.

[¶ 13] Under the first requirement that law enforcement have reasonable grounds to believe an emergency is at hand and an immediate need for their assistance exists for the protection of life or property, we have applied the emergency doctrine when officers have a reasonable belief a situation involves a serious threat to an individual's health. See, e.g., Lubenow, 438 N.W.2d at 533 (holding an officer had a reasonable belief an emergency existed when he observed a body lying beside a vehicle in a garage); Ternes, 522 N.W.2d at 178 (holding officers had reasonable grounds to believe an emergency existed when they knew Ternes was in a serious vehicle accident and a large amount of blood was inside the vehicle and led to his home). A review of other jurisdictions applying the emergency exception in cases involving a health risk yields similar results. See, e.g., Sheik-Abdi v. McClellan, 37 F.3d 1240, 1244 (7th Cir.1994) (holding police entry proper when called by paramedics to assist with a person who consumed too much alcohol); Arizona v. Mata, 125 Ariz. 233, 609 P.2d 48, 54 (1980) (holding police entry justified when a man repeatedly stated his baby was shot); Illinois...