State v. Krall

                                                                           FILED
                                                                   IN THE OFFICE OF THE
                                                                CLERK OF SUPREME COURT
                                                                      JANUARY 20, 2023
                                                                 STATE OF NORTH DAKOTA




                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                

State of North Dakota,                            Plaintiff and Appellant
     v.
Shawnee Lynn Krall,                              Defendant and Appellee

                               No. 20220112

Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Stacy J. Louser, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Leah J. Viste, Assistant State’s Attorney, Fargo, ND, for plaintiff and
appellant.

Nicholas D. Thornton (argued), Fargo, ND, and Kiara C. Kraus-Parr, Grand
Forks, ND, for defendant and appellee.
                                State v. Krall
                                No. 20220112

VandeWalle, Justice.

[¶1] The State appealed from a district court order granting a motion to
suppress evidence in a case against Shawnee Krall. We conclude the district
court’s findings are supported by sufficient competent evidence. We also
conclude the inventory-search exception and the inevitable-discovery doctrine
do not apply to provide an exception to the exclusionary rule. The district court
did not err in granting Krall’s motion to suppress. We affirm.

                                       I

[¶2] The State charged Krall with murder and gross sexual imposition. Krall
entered a plea of not guilty.

[¶3] Krall moved to suppress evidence, arguing his Fourth Amendment rights
were violated when officers from the Minot Police Department committed an
illegal search of his motor vehicle, a Ford 500. Krall alleged he had a
reasonable expectation of privacy in the vehicle, the officers did not obtain a
search warrant or his consent to search the vehicle, other individuals did not
have authority to consent to the search, and no exceptions to the warrant
requirement existed to validate the warrantless search.

[¶4] The State opposed Krall’s motion to suppress. The State alleged Krall’s
roommate, Jane Doe, was reported missing; officers contacted Zachary Barnett
while searching for Jane Doe; Barnett indicated Krall left a vehicle on
Barnett’s property; and Barnett indicated he no longer wanted the vehicle on
his property. The State further alleged officers attempted to determine
ownership of the vehicle but it was not registered to Krall and the individual
it was registered to indicated it had been sold. The State claimed officers
arranged to tow the vehicle because Barnett requested it be removed from the
property, the officers conducted an inventory search before the vehicle was
loaded onto the tow truck, and they found a human body in the vehicle’s trunk.
The State argued Krall did not possess a reasonable expectation of privacy in
the vehicle; Krall did not have standing to contest any alleged trespass on the

                                       1
Barnett property; and multiple exceptions to the warrant requirement applied,
including that the evidence was found during an inventory search, that the
automobile exception applied, that there were exigent circumstances, and that
the inevitable-discovery doctrine applied.

[¶5] After a hearing, the district court granted Krall’s motion and suppressed
all of the evidence obtained in the search of the Ford 500. To summarize, the
court found a plain view search of the vehicle was conducted and nothing of
interest was found, Krall’s probation officer denied a request from police
officers to search the vehicle, the probation officer also denied the officers’
request to tow and impound the vehicle, and the state’s attorney’s office
advised officers there was not enough evidence to get a search warrant for the
vehicle. The court also found Krall had a reasonable expectation of privacy in
the vehicle, he did not consent to the search, one of the officers used a “slim
jim” to gain access into the vehicle, a search warrant had not been issued at
the time officers entered the vehicle, and Jane Doe’s body was discovered in
the trunk of the vehicle. The district court concluded none of the State’s
asserted exceptions to the warrant requirement applied, including the
exceptions for exigent circumstances, inventory search, and inevitable
discovery.

                                      II

[¶6] Krall argues this Court does not have jurisdiction to hear the appeal. He
contends the State did not comply with statutory requirements for appealing
from an order granting a motion to suppress evidence.

[¶7] Under N.D.C.C. § 29-28-07(5), the State may appeal from an order
suppressing evidence “when accompanied by a statement of the prosecuting
attorney asserting that the appeal is not taken for purpose of delay and that
the evidence is a substantial proof of a fact material in the proceeding. The
statement must be filed with the notice of appeal.”

[¶8] The State’s notice of appeal states, “This appeal is not taken for purpose
of delay and the evidence is a substantial proof of a fact material in the
proceeding.” The statement from the State’s notice of appeal merely recites the


                                      2
statutory language. We have said the State should do more than “parrot[ ] the
language of N.D.C.C. § 29-28-07(5).” State v. Cook, 

, 

 (quoting State v. Beane, 

, 

). However, in
other cases in which the State merely recited the statutory language we have
concluded the appeal was properly before us when it was clear the suppressed
evidence was substantial proof of a fact material in the proceeding because the
district court’s order suppressed all of the State’s evidence on elements of the
crimes charged. See Cook, at ¶ 9.

[¶9] Here, Krall argues the appeal should not proceed because the State
indicated to the district court that it had other evidence on the murder charge
and it would proceed with the prosecution without the suppressed evidence.
The court suppressed all of the evidence found during the search of the Ford
500, including the body of the deceased. Even if there is other evidence from
which the prosecution of the murder charge could proceed, Krall was also
charged with gross sexual imposition. The State’s motion to amend the
complaint to include the charge of gross sexual imposition states, “The State
had not filed the charge of Gross Sexual Imposition until now because it was
awaiting the results of the victim’s autopsy report and laboratory analysis.
Based upon these results and the opinion of the medical examiner, the State
believes the addition of this charge is appropriate.” The suppressed evidence
was substantial proof of a fact material in the proceeding for the gross sexual
imposition charge. We conclude the appeal is properly before us.

                                       III

[¶10] The State argues the district court erred in granting Krall’s motion to
suppress. It claims the court’s findings about the inventory search are not
supported by sufficient competent evidence. The State also asserts the doctrine
of inevitable discovery applies and provides an exception to the exclusionary
rule.

[¶11] In reviewing the district court’s decision on a motion to suppress, we
defer to the district court’s findings of fact and resolve conflicts in testimony in
favor of affirmance. State v. Mayland, 

, 

. We will
affirm the decision on a motion to suppress on appeal if there is “sufficient

                                         3
competent evidence fairly capable of supporting the [district] court’s findings,
and the decision is not contrary to the manifest weight of the evidence.” 

(quoting State v. Pouliot, 

, 

). Our standard of
review reflects the importance of the district court’s opportunity to observe
witnesses and assess their credibility. State v. Cochran, 

, 

. Questions of law are fully reviewable. Mayland, at ¶ 6. Whether
a finding of fact meets a legal standard is a question of law. Cochran, at ¶ 8.

[¶12] People are protected from unreasonable searches and seizures under the
United States and North Dakota constitutions. See U.S. Const. amend. IV; N.D.
Const. art. I, § 8. “When an individual reasonably expects privacy in an area,
the government, under the Fourth Amendment, must obtain a search warrant
unless the intrusion falls within a recognized exception to the warrant
requirement.” State v. Gregg, 

, 

. “[E]vidence
seized from a warrantless search, when no recognized exception to the warrant
requirement exists, must be suppressed under the exclusionary rule.” State v.
Friesz, 

, 

 (quoting State v. Hart, 

, 

).

                                       A

[¶13] A valid inventory search is one exception to the warrant requirement.
State v. Ressler, 

, 

. We have explained:

      Under the inventory search exception, “police need neither
      probable cause nor a warrant to search a vehicle.” State v. Holmes,
      

 (Minn. 1997) (citing Illinois v. Lafayette, 

 (1983)). In other words, the basis for an inventory
      search does not arise because the police suspect the vehicle
      contains contraband or evidence of crime. Rather, the basis for an
      inventory search rests on the administrative and caretaking
      functions which we identified in [State v.] Kunkel, 455 N.W.2d
      [208,] 211 [(N.D. 1990)] (citing Colorado v. Bertine, 

 (1987)). The Fourth Amendment examination of an inventory
      search, therefore, turns not on the issue of probable cause, which
      is the traditional basis for the warrantless search of vehicles, but
      on the issues of whether the vehicle was properly impounded and
      the search was carried out in accordance with standard police

                                       4
     procedures. Holmes, 

; see also State v. Goff, 

 (W. Va. 1980) (discussing the difference between
     inventory searches and the “automobile exception”).

State v. Syvertson, 

, 

 (quoting State v.
Garrett, 

, ¶ 18 n.3, 

). When an inventory search is
conducted in good faith for administrative and caretaking purposes it is
permissible under the Fourth Amendment. Ressler, at ¶ 23.

[¶14] The district court found the inventory-search exception did not apply.
The court noted there was conflicting testimony about when Barnett requested
the officers remove the vehicle from the property and about when the search
began. The court explained the officers claimed a tow truck was contacted and
officers began the inventory search after Barnett requested the vehicle be
removed from the property, but Barnett testified he requested officers remove
the vehicle after they opened the vehicle and started searching. The court
found Barnett’s testimony about the officers’ entry into the vehicle was
consistent and credible. The court further explained its decision, stating:

           Notably, law enforcement only offered to tow the vehicle from
     Barnett’s property after [Krall’s probation officer] denied entry
     into the vehicle as part of a probationary search, after [the
     probation officer] denied law enforcement’s request to tow the
     vehicle and after the Ward County State’s Attorney’s [O]ffice
     informed law enforcement that a search warrant for the vehicle
     could not be obtained. [One officer] testified he had ‘a strong
     suspicion of what was in there. I would have liked to get in the car.’
           Based on these facts, the Court must conclude the
     motivation behind law enforcement’s offer to tow the vehicle was
     not premised on ‘reasonable police regulations relating to
     inventory proceedings administered in good faith’ nor as routine
     caretaking procedure. Rather, the motivation for offering to tow
     the vehicle was for investigatory purposes, rendering the
     warrantless search of the Ford 500 impermissible under the
     inventory/impound search warrant exception.

The court determined the inventory-search exception did not apply because the
officers’ motivation for offering to tow the vehicle was for investigatory
purposes and was not premised on reasonable police regulations relating to

                                       5
inventory proceedings administered in good faith or as a routine caretaking
procedure.

[¶15] The State argues the district court’s findings about the inventory search
are not supported by the evidence because other evidence does not support
Barnett’s testimony that officers opened the vehicle and began searching before
he asked them to remove the vehicle from his property. The State claims the
officers testified that they told Barnett they were going to leave before they
opened the vehicle and that Barnett asked them to remove the vehicle from the
property at that time. The State asserts that when the testimony of all of the
witnesses is considered it is clear competent evidence does not support the
court’s finding that Barnett did not ask for the vehicle to be removed until after
officers entered the vehicle.

[¶16] Although two officers testified that they did not enter the vehicle until
after Barnett asked them to remove it from the property Barnett’s testimony
was conflicting. Barnett was asked, “[A]t some point in time did you ask that
the vehicle be removed?” and he testified:

      That was after they started investigating everything. And by that
      time I think there was the detective and lieutenant and then I
      think there was another officer there. But more cop cars started
      coming up and arriving and whatnot. So there was just cops
      everywhere and neighbors were coming out. And I asked the
      detective if we could get the car towed and they said, yeah, not a
      problem.

Barnett repeatedly testified that he asked the officers to remove the vehicle
from the property after they entered the vehicle and began searching.

[¶17] We defer to the district court’s assessment of a witness’s credibility in
reviewing a district court’s decision on a motion to suppress. Cook, 

. We decline the State’s request to reassess the witnesses’ credibility or
reweigh the evidence.

[¶18] Moreover, the district court found the inventory search was not premised
on reasonable police regulations relating to inventory proceedings


                                        6
administered in good faith or as a routine caretaking purpose. The court found
the officers’ motivation for the search was for investigatory purposes. An
inventory search is not an exception to the warrant requirement if it is carried
out in the midst of a criminal investigation and there is no evidence the police
were concerned with protecting or safeguarding either their interests or the
owner’s property interests. See Ressler, 

.

[¶19] Evidence established the officers’ request for a probation search was
denied and the State’s Attorney’s Office informed the officers a search warrant
could not be obtained. An officer testified, “I had a strong suspicion of what was
in there. I would have liked to get in the car.” Evidence supports the district
court’s finding that the officers opened the vehicle and began searching before
Barnett requested it be removed from the property. We conclude there is
sufficient competent evidence in the record to support the court’s finding that
the officers’ motivation for offering to tow the vehicle was for investigatory
purposes.

[¶20] There is sufficient competent evidence supporting the district court’s
findings about the inventory search and its decision is not contrary to the
manifest weight of the evidence. Therefore, the inventory-search exception to
the warrant requirement does not apply.

                                        B

[¶21] The State argues the district court erred in determining the evidence
was not admissible under the inevitable-discovery doctrine.

[¶22] “The inevitable-discovery doctrine provides that evidence obtained from
information procured in an unlawful search or seizure is admissible under the
fruit-of-the-poisonous-tree doctrine if the evidence would inevitably have been
discovered without the unlawful conduct.” State v. Stewart, 

,

 (quoting State v. Smith, 

, 

).
We have adopted a two-part test to determine when the inevitable-discovery
doctrine applies:




                                        7
      First, use of the doctrine is permitted only when the police have
      not acted in bad faith to accelerate the discovery of the evidence in
      question. Second, the State must prove that the evidence would
      have been found without the unlawful activity and must show how
      the discovery of the evidence would have occurred.

Stewart, at ¶ 17 (quoting State v. Phelps, 

 (N.D. 1980)).

[¶23] The requirement that the police did not act in bad faith to accelerate the
discovery of the evidence is necessary because one of the purposes of the
exclusionary rule is to prevent and deter shortcuts in law enforcement. Friesz,

. We have recognized other courts have held that the
inevitable-discovery doctrine does not apply when officers knowingly or
intentionally violate the accused’s rights and that bad faith means something
more than just acting unlawfully. State v. Holly, 

, 

. The State has the burden to prove the absence of bad faith. Id. at ¶ 58.

[¶24] The State must also establish that the evidence inevitably would have
been discovered through an independent, lawful investigative procedure. See 3
Wayne R. LaFave, Criminal Procedure § 9.3(e) (4th ed. 2021). “‘Inevitably,’ for
this purpose, means that the discovery definitely would have occurred, not that
it ‘might’ or ‘could’ have occurred.” Id.; see also Smith, 

 (stating
a showing the discovery might have occurred is inadequate); 1 McCormick on
Evid. § 181 (8th ed. 2022) (stating courts generally agree the exception requires
proof that the prosecution would, not might or could, have obtained the
evidence in a proper manner).

[¶25] The district court concluded the inevitable-discovery doctrine did not
apply because the State failed to establish either part of the two-part test. The
court stated law enforcement acted in bad faith to accelerate the discovery of
the evidence. The court also determined the State did not present any evidence
to support its claim that Krall’s probation officer would have authorized a
search of the vehicle upon confirmation of Krall’s possessory interest in the
vehicle, and the State’s claim that the probation officer would have authorized
the search was speculation.




                                         8
[¶26] The State argues that the officers’ actions did not show bad faith and
that the evidence would have been found without the inventory search. It
claims officers would have been granted access to search the vehicle after
ownership of the vehicle was determined. The State contends evidence
established Krall’s probation officer would have authorized a search and the
evidence would have been found if the probation officer had been aware Krall
owned the vehicle. The State claims Krall was required to inform the probation
officer he owned the vehicle and he should not benefit from failing to provide
the required information.

[¶27] Although the State argues it established both parts of the two-part test,
we conclude the State failed to establish the evidence would have been found
without the unlawful activity. Therefore, we do not need to address whether
the State established the officers did not act in bad faith to accelerate the
discovery of the evidence.

[¶28] The State’s argument that the evidence would have been discovered
through a probation search is speculation. There was testimony officers
requested Krall’s probation officer authorize a search of the vehicle before the
officers began the search. The probation officer testified she denied the officers’
requests to tow and search the vehicle because she did not know anything
about the vehicle, including whether it belonged to Krall.

[¶29] Although the State claims Krall had an obligation to report his
ownership of the vehicle to his probation officer, the district court found there
was no requirement in the ordered conditions of probation that Krall notify his
probation officer that he had the vehicle. The probation conditions contained
in “Appendix A” required Krall to answer all reasonable inquiries from his
probation officer and notify his probation officer of any change in address or
employment, but the probation conditions did not explicitly require Krall to
notify his probation officer of his vehicle ownership. Although the probation
officer could have asked Krall if the vehicle was his and could have potentially
authorized a probation search, there was no evidence the probation officer
planned or attempted to contact Krall to inquire about his ownership of the
vehicle.


                                        9
[¶30] The probation officer testified that she did not approve a probation
search of any other vehicles belonging to Krall and that she declined to
authorize the search of the Ford 500. The probation officer declined to
authorize a search of the vehicle and there is no evidence that decision would
have changed if the illegal search had not occurred. Under different facts, a
probation search might have been authorized. However, that is speculation. On
this record, there was no evidence the probation officer would have authorized
a probation search of the Ford 500 if the illegal search had not occurred and
the investigation continued.

[¶31] The State failed to show a probation search of the vehicle would have
been conducted if the officers had not attempted the illegal search. See State v.
Handtmann, 

 (N.D. 1989) (holding the inevitable-discovery doctrine did not apply when the State alleged another search would
have been conducted pursuant to a hypothetical search warrant based on
evidence that had been subsequently discovered). We conclude the State failed
to establish the inevitable-discovery exception applies in this case and the
district court did not err in granting Krall’s motion to suppress.

                                      IV

[¶32] We affirm the order suppressing evidence.

[¶33] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




                                       10