State v. Stenhoff

925 N.W.2d 429

STATE of North Dakota, Plaintiff and Appellant

v.Shannon David Keola STENHOFF, Defendant and Appellee

No. 20180300

Supreme Court of North Dakota.

Filed April 11, 2019

Stephenie L. Davis, Assistant State’s Attorney, Watford City, ND, for plaintiff and appellant.

Jared W. Gietzen, Dickinson, ND, for defendant and appellee.

McEvers, Justice.

[¶1] The State appeals from a district court order granting Shannon Stenhoff’s motion to suppress evidence. We reverse and remand for further proceedings.

I

[¶2] In November 2017, Shannon Stenhoff was sentenced to two years of supervised probation, the terms of which included a search clause. The search clause provided:

You shall submit your person, place of residence and vehicle, or any other property to which you may have access, to search and seizure at any time of day or night by a parole/probation officer, with or without a search warrant.

After allegedly violating the conditions of his probation, a petition to revoke Stenhoff’s probation was filed on January 30, 2018 and an order to apprehend was issued.

[¶3] On February 5, 2018, law enforcement officers executed a "fugitive apprehension search warrant" for Stenhoff at the location they believed Stenhoff was living and arrested him sometime between 9:20 p.m. and 1:12 a.m., February 6, 2018. According to Stenhoff’s probation officer, it was believed to be Stenhoff’s residence because it was Stenhoff’s last reported address. While at that location, a cursory officer safety search of the residence was conducted. According to testimony of a deputy, while the officers were in the residence, a child residing there questioned if the officers were there for "the drugs and [alluded] to the presence of the illegal narcotics in the residence." A deputy who conducted the search testified the child’s statement caused him to attempt to contact Stenhoff’s probation officer to notify him of the search for Stenhoff, but the probation officer did not answer the call. The deputy testified there were no narcotics in plain view.

[¶4] Later on February 6, 2018, Stenhoff’s probation officer was notified. Approximately 14 hours after Stenhoff’s arrest, law enforcement officers and Stenhoff’s probation officer visited the residence where Stenhoff was apprehended to conduct a probationary search. During the course of that search, several items of drug paraphernalia, drugs, and a rifle were found.

[¶5] Based on the evidence seized during the probationary search, the State filed charges in February 2018. In May 2018, Stenhoff moved to suppress the evidence against him, claiming the warrantless probationary search violated his Fourth Amendment rights. The State opposed the motion. Following a suppression hearing, where testimony from various law enforcement officers and a probation officer was heard, the district court granted Stenhoff’s motion to suppress, concluding the search was unreasonable and violated the Fourth Amendment’s prohibition against unreasonable searches, because law enforcement should have sought a warrant to search the residence.

[¶6] On appeal, the State argues the search at the residence where Stenhoff was arrested was reasonable because probationers have a lesser expectation of privacy under the Fourth Amendment, and the statements made to law enforcement by the child living at the residence regarding drugs provided reasonable suspicion of criminal activity at the residence.

II

[¶7] The prosecution’s right to appeal in a criminal case is strictly limited by N.D.C.C. § 29-28-07. State v. Boehm , 2014 ND 154, ¶ 6, 849 N.W.2d 239. The State may appeal from an order suppressing evidence if the notice of appeal is accompanied by a statement of the prosecuting attorney asserting the appeal is not taken for the purpose of delay and the evidence is a substantial proof of a fact material in the proceeding. N.D.C.C. § 29-28-07(5). Here, the State included such a statement along with the notice of appeal, arguing the district court’s decision to grant the suppression eviscerated the State’s evidence of the alleged offenses. A review of the suppressed evidence demonstrates it was necessary to prove elements of the offenses charged, because the charges were based on items found at the residence. See Boehm , at ¶ 7. Therefore, the order granting the motion to suppress is appealable.

III

[¶8] This Court’s review of a district court’s decision to grant or deny a motion to suppress is well established:

A trial court’s findings of fact in preliminary proceedings of a criminal case will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court’s findings, and the decision is not contrary to the manifest weight of the evidence. We do not conduct a de novo review. We evaluate the evidence presented to see, based on the standard of review, if it supports the findings of fact.

State v. Whitman , 2013 ND 183, ¶ 20, 838 N.W.2d 401. "Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law." State v. Graf , 2006 ND 196, ¶ 7, 721 N.W.2d 381.

Boehm , 2014 ND 154, ¶ 8, 849 N.W.2d 239. "Whether a violation of the constitutional prohibition against unreasonable searches and seizures has occurred is a question of law." State v. Ballard , 2016 ND 8, ¶ 6, 874 N.W.2d 61.

[¶9] In Ballard , this Court reiterated the link between Fourth Amendment protections and probationary searches:

The Fourth Amendment to the United States Constitution and art. I, § 8, of the North Dakota Constitution protect individuals from unreasonable searches and seizures. "When reviewing the constitutionality of probationary searches, we have interpreted the North Dakota Constitution to provide the same protections for probationers as provided by the United States Constitution." Maurstad , 2002 ND 121, ¶ 11, 647 N.W.2d 688 (citations omitted). "[U]nder our general Fourth Amendment approach we examin[e] the totality of the circumstances to determine whether a search is reasonable within the meaning of the Fourth Amendment." Samson v. California , 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (citation omitted) (quotation marks omitted).

2016 ND 8, ¶ 8, 874 N.W.2d 61 (emphasis added). "The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Ballard , at ¶ 30 (quoting U.S. v. Knights , 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) ). "We consider the totality of the circumstances to balance the degree to which the search intrudes upon an individual’s privacy against the degree to which the search is needed to promote legitimate government interests." State v. White , 2018 ND 266, ¶ 7, 920 N.W.2d 742. A probationary search based on reasonable suspicion meets constitutional muster. State v. Maurstad , 2002 ND 121, ¶ 37, 647 N.W.2d 688 ; see also U.S. v. Knights , 534 U.S. 112, 122 S.Ct. 587, 593, 151 L.Ed.2d 497 (2001) ("When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.").

[¶10] In White , we stated "a supervised probationer has a lower expectation of privacy than an unsupervised probationer, and the State has a greater interest in monitoring probationers on supervised probation." 2018 ND 266, ¶ 11, 920 N.W.2d 742. We held a probationary search was constitutionally reasonable because law enforcement had reasonable suspicion unlawful activity was afoot when an individual on supervised probation failed to fulfill a condition of his probation. Id. at ¶ 13. The defendant in White was on supervised probation for felony drug charges, was subject to residential probationary searches as a condition of probation, and was living with another individual also on supervised probation. Id. at ¶ 2.

[¶11] Here, Stenhoff’s supervised probation conditions also included a search clause. The child’s statement alluding to the presence of drugs in the residence to officers during the initial officer safety sweep provided reasonable suspicion that unlawful activity was afoot. Stenhoff does not dispute this point.

[¶12] The district court’s order stated:

Approximately fourteen hours after Stenhoff’s arrest, a warrantless probation search was conducted of the residence in which he was found. There is no exigency or indication that the officer was under any time constraints in obtaining a warrant. In this court’s opinion, the warrantless search was unreasonable and a violation of the Fourth Amendment’s prohibition against unreasonable searches.

The court’s analysis that because there may have been time to obtain a search warrant, it was unreasonable not to seek a warrant, while noble, is legally flawed.

[¶13] No argument has been made that the information relied upon for reasonable suspicion 14 hours later is stale. Relying on U.S. v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), Stenhoff argues that once a probationer is arrested and is in custody, they are no longer subject to the conditions of probation. In Knights , the United States Supreme Court stated: "Probation is ‘one point ... on a continuum of possible punishments ranging from solitary confinement in a maximum–security facility to a few hours of mandatory community service.’ " Id. at 119, 122 S.Ct. 587 (citing Griffin v. Wisconsin , 483 U.S. 868, 874, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (citation omitted) ). While we agree that probation is a point on the continuum of punishments, we disagree that being in custody for a probation violation somehow...