FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 23, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 239
State of North Dakota, Plaintiff and Appellant
v.
Damian Carrillo, Defendant and Appellee
No. 20210223
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable John A. Thelen, Judge.
REVERSED AND REMANDED.
Opinion of the Court by McEvers, Justice.
Carmell Mattison (argued), Assistant State’s Attorney, and Dierra Diegel (on
brief), third-year law student, under the Rule on Limited Practice by Law
Students, Grand Forks, ND, for plaintiff and appellant.
Kiara Kraus-Parr, Grand Forks, ND, for defendant and appellee.
State v. Carrillo
No. 20210223
McEvers, Justice.
[¶1] The State appeals from a district court order dismissing a charge of class
C felony unlawful possession of drug paraphernalia against Damian Carrillo
for lack of probable cause. We conclude the State produced sufficient evidence
to establish probable cause for the charge. We reverse and remand for further
proceedings.
I
[¶2] The State charged Carrillo with unlawful possession of drug
paraphernalia, a class C felony, and driving under suspension following an
arrest in March 2021. At the preliminary hearing on the paraphernalia charge,
Officer Jerad Braaten was the only witness.
[¶3] Officer Braaten testified he initiated a traffic stop on March 2, 2021.
Officer Braaten testified he identified the driver as Carrillo and there were
also two passengers in the vehicle. Carrillo informed Officer Braaten that his
license was suspended. Officer Braaten confirmed through dispatch the
suspension of Carrillo’s driver’s license and that he had numerous priors.
[¶4] Officer Braaten testified he detected the odor of marijuana coming from
the vehicle and asked Carrillo to come to his patrol car to receive a citation for
driving under suspension. At that time, dispatch notified Officer Braaten that
Carrillo had a history of drug-related activity. Officer Braaten requested
assistance from a canine unit, which alerted on Carrillo’s vehicle. Officers then
conducted a probable-cause search of the vehicle.
[¶5] Officer Braaten testified the search resulted in the discovery of two
needle syringes. He stated one syringe contained blood, which was located in a
purse claimed by the front seat passenger who indicated she previously used
the needle to ingest methamphetamine. Officer Braaten testified the other
needle was located within the left hand reach of the driver’s seat, and
contained what he suspected was methamphetamine. Officer Braaten could
1
not recall whether Carrillo or a passenger had indicated the substance to be
methamphetamine. No one in the vehicle claimed ownership of the second
needle. Officer Braaten testified the back seat passenger was seated behind
the front seat passenger and Carrillo was closest to the needle and would
“potentially have been able to get to it.”
[¶6] Officer Braaten arrested Carrillo for driving under suspension, and
arrested the front seat passenger for possession of drug paraphernalia. Officer
Braaten testified he “decided to use officer discretion at the time to not cite
[Carrillo] for the paraphernalia,” leaving it up to the prosecutor whether to
charge Carrillo for the second needle. However, he believed probable cause
existed that Carrillo was in possession of the paraphernalia. Officer Braaten
also testified Carrillo “did indicate at one point that he used
methamphetamine just the previous day.”
[¶7] On cross-examination, Officer Braaten stated the paraphernalia was not
discovered until after Carrillo had been removed from the vehicle. He also
acknowledged that the other passengers “were unsupervised in the suspect
vehicle even for a brief period of time.” Officer Braaten testified that Carrillo
had physical access to the location where the needle was found, but the other
passengers could “throw anything through a car.” Officer Braaten did not recall
whether the needle was field tested. He did recall the front seat passenger
stating when asked what the needle contained, “it’s probably meth.” Officer
Braaten further testified although that passenger tried to “take the charge for
[Carrillo],” the passenger told Officer Braaten “numerous times that [the
syringe] wasn’t hers or would not claim ownership of it but that she didn’t want
[Carrillo] to get in trouble.” At the State’s request, the district court also took
judicial notice of Carrillo’s prior conviction for possession of drug
paraphernalia.
[¶8] The district court dismissed the charge for possession of paraphernalia
for lack of probable cause. The court stated:
[T]he Court’s at this point’s concerned that there’s been no testing
presented to the Court that there was methamphetamine.
Suspected methamphetamine, but no field test done. It was
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nothing showing it’s been sent into the lab and confirmed. And so
that’s a concern for the Court at this point in time.
The court further noted that “the driver of the vehicle is in charge of the
vehicle” but having “two other people that were both unattended in the vehicle
when he was removed” led to concerns “about the level of probable cause to
charge [Carrillo].”
[¶9] In concluding the State failed to demonstrate probable cause existed for
the possession charge, the district court stated:
It can be brought at a later date should additional information
concerning the substance—as I mention that at this point, they
can’t assume that there’s probable cause that it was
methamphetamine, based on the information testimony presented
to the State. And combined with other issues concerning the—even
if it was probable cause—even if it was methamphetamine, from
being definitive and showing me that combined with the other
circumstances as to a—as to a possession, the case would be very
difficult to prove in any event.
But as I mentioned, it’s not a question of ownership. Is this yours,
does it belong to you; it’s a question of possession, within access
reach and a knowledge of a particular person in charge. So I see
this charge and I dismiss it, based on that probable cause.
[¶10] The district court later issued an order dismissing the charge for lack of
probable cause. The State appeals.
II
[¶11] On appeal, the State argues the district court erred by failing to find
probable cause to support the charge of possession of drug paraphernalia. The
State asks this Court to reverse the court’s order of dismissal and remand for
further proceedings. Carrillo argues the court properly dismissed the charge
because the State did not establish the needle contained a schedule I, II, or III
controlled substance.
3
A
[¶12] “The State’s right to appeal must be expressly granted by statute.” State
v. Mitchell, 2021 ND 93, ¶ 5,
960 N.W.2d 788 (quoting State v. Goldmann,
2013
ND 105, ¶ 6,
831 N.W.2d 748).
[I]n a criminal case the State is authorized to appeal from “[a]n
order quashing an information or indictment or any count thereof.”
N.D.C.C. § 29-28-07(1). We have consistently held that an order
dismissing a criminal complaint, information, or indictment is the
equivalent of an order quashing an information or indictment and
is therefore appealable under the statute.
State v. Gratton, 2020 ND 41, ¶ 7,
938 N.W.2d 902 (quoting State v. Gwyther,
1999 ND 15, ¶ 11,
589 N.W.2d 575). Accordingly, we have jurisdiction over the
State’s appeal from the district court order dismissing the charge.
B
[¶13] This Court reviews the dismissal of a criminal complaint under an abuse
of discretion standard. State v. Erickson, 2011 ND 49, ¶ 12,
795 N.W.2d 375. “A
trial court abuses its discretion only when it acts in an arbitrary, unreasonable,
or capricious manner, or misinterprets or misapplies the law.” State v. Cain,
2011 ND 213, ¶ 16,
806 N.W.2d 597.
[¶14] In determining whether probable cause exists, “the court may judge
credibility and make findings of fact and we will not reverse the findings if,
after resolving conflicts in the evidence in favor of affirming, sufficient evidence
exists that support the court’s findings and the decision is not contrary to the
manifest weight of the evidence.” Gratton,
2020 ND 41, ¶ 8 (quoting State v.
Blunt,
2008 ND 135, ¶ 14,
751 N.W.2d 692). Whether the facts found by the
court constitute probable cause is a question of law, fully reviewable on appeal.
Id. The district court’s authority to weigh evidence and judge credibility of
witnesses in a preliminary hearing is limited.
Id. ¶ 10 (citing Blunt, at ¶ 17).
The “court’s ‘role is not a trier of fact,’ but its ‘function is solely to determine
the existence or absence of probable cause.’” Blunt, at ¶ 17.
4
[¶15] The district court “should consider the context of the minimal burden of
proof placed upon the State and the limited purpose of the preliminary
hearing” in making findings of fact. Gratton, 2020 ND 41, ¶ 9. The preliminary
hearing “‘is not a trial on the merits’ and the purpose of the hearing is not to
determine if a defendant is guilty.”
Id. (quoting State v. Turbeville,
2017 ND
139, ¶ 12,
895 N.W.2d 758). Preliminary hearings are held to determine
whether there is probable cause.
The standard of probable cause at the preliminary hearing is the
same standard of probable cause required for a valid arrest. Under
that standard, probable cause exists when the facts and
circumstances are sufficient to warrant a person of reasonable
caution in believing an offense has been or is being committed.
Mitchell, 2021 ND 93, ¶ 6. Knowledge of facts sufficient to establish guilt is not
necessary to establish probable cause; “all that is necessary is knowledge that
would furnish a prudent person with reasonable grounds for believing a
violation has occurred.” Turbeville, at ¶ 6. “The State is not required to prove
with absolute certainty or beyond a reasonable doubt that a crime occurred,
but rather need only produce sufficient evidence to satisfy the court that a
crime has been committed and that the accused is probably guilty.” Blunt, at ¶
15.
[¶16] The State charged Carrillo with unlawful possession of drug
paraphernalia in violation of N.D.C.C. § 19-03.4-03(2). An individual violates
the statute upon “us[ing] or possess[ing] with the intent to use drug
paraphernalia to inject, ingest, inhale, or otherwise induce into the human
body a controlled substance, other than marijuana or tetrahydrocannabinol,
classified in schedule I, II, or III of chapter 19-03.1.” N.D.C.C. § 19-03.4-03(2).
Drug paraphernalia includes “[h]ypodermic syringes, needles, and other
objects used, intended for use, or designed for use in parenterally injecting
controlled substances into the human body.” N.D.C.C. § 19-03.4-01(11). To
satisfy its burden, the State was required to present evidence showing
reasonable grounds to believe that Carrillo possessed drug paraphernalia with
the intent to inject a schedule I, II, or III controlled substance, other than
marijuana or tetrahydrocannabinol, into a human body.
5
[¶17] Officer Braaten testified he located two needles, one of which was
discovered “within left hand’s reach” of Carrillo. Officer Braaten stated Carrillo
was closest to the needle and would have had access to its location.
“Constructive possession may be established by showing the defendant had the
power and ability to exercise dominion and control over the controlled
substance” and “can be inferred from the totality of the circumstances.” State
v. Woinarowicz, 2006 ND 179, ¶ 29,
720 N.W.2d 635. No other passenger
claimed ownership of the needle found near the driver’s seat, and it was easily
accessible by Carrillo. The testimony was sufficient to show reasonable
grounds to believe Carrillo constructively possessed the needle or syringe. The
district court’s determination that “as to a possession, the case would be very
difficult to prove in any event” was the improper test at the preliminary
hearing.
[¶18] Officer Braaten further testified the needle appeared to be “loaded with
methamphetamine.” Although he did not recall whether the substance had
been tested, another passenger informed Officer Braaten the substance was
“probably meth” and that the other needle found in the search was used to
inject methamphetamine. Officer Braaten testified Carrillo had “indicate[d] at
one point that he used methamphetamine just the previous day.” Officer
Braaten was also notified that Carrillo had prior convictions for possession of
drug paraphernalia. The district court took judicial notice of Carrillo’s prior
conviction for unlawful possession of drug paraphernalia for a schedule I, II,
or III controlled substance.
[¶19] Carrillo argues the district court correctly dismissed the charge because
it is a necessary fact to establish what is in the needle is a schedule I, II, or III
controlled substance. At the preliminary hearing, the State need only show
reasonable grounds to believe the substance in the syringe was likely a
controlled substance under either schedule I, II, or III, other than marijuana
or tetrahydrocannabinol. The State is not required to conclusively identify the
substance as methamphetamine or prove the class of drug to establish probable
cause. “Probable cause does not require that commission of the offense be
established with absolute certainty, or proved beyond a reasonable doubt.”
Woinarowicz,
2006 ND 179, ¶ 30. Officer Braaten suspected the substance in
6
the needle was methamphetamine, and his suspicions were strengthened by
another passenger’s admissions regarding the other syringe. Officer Braaten’s
belief was further substantiated by Carrillo’s admission of recent
methamphetamine use and his prior convictions for felony possession of drug
paraphernalia. The testimony was sufficient to show reasonable grounds to
believe the syringe contained methamphetamine, a schedule II controlled
substance. The State was not required to introduce results of a field test or the
state lab to establish probable cause, contrary to the court’s concern there was
“nothing showing it’s been sent into the lab and confirmed.” Id. The court
misapplied the law by requiring the State to introduce some type of testing to
show probable cause.
[¶20] Carrillo also argues his “prior criminal history alone was not sufficient
to establish even reasonable suspicion,” and “[h]is prior history and his
admission of drug use the day before may establish reasonable articulable
suspicion” but did not establish probable cause. When making a probable cause
determination, courts consider the totality of the circumstances. State v.
Berger,
2004 ND 151, ¶ 11,
683 N.W.2d 897 (determining whether probable
cause existed to effect an arrest); State v. Morrissey,
295 N.W.2d 307, 311 (N.D.
1980) (“the term ‘probable cause’ has the same meaning in the context of a
decision to bind over a defendant for trial” as in the context of an arrest).
“[P]robable 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.” Berger, at ¶ 11. The district court must analyze all the information
presented at the preliminary hearing when determining whether probable
cause was established, including Carrillo’s criminal history and admission to
drug use. See State v. Duchene,
2001 ND 66, ¶ 16,
624 N.W.2d 668 (“When used
in connection with other evidence, a suspect’s criminal history can support a
determination of probable cause.”). Considering the “minimal burden of proof”
required at a preliminary hearing, we conclude the State produced sufficient
evidence to warrant a person of reasonable caution to believe Carrillo
possessed drug paraphernalia as alleged by the State.
7
III
[¶21] We conclude the district court erred in concluding the evidence presented
failed to establish probable cause to support the charge of possession of drug
paraphernalia. We reverse the court’s order and remand for further
proceedings.
[¶22] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
8
