State v. Thompson

¶1concurring specially.

¶2I join in the majority opinion authored by the Chief Justice and write specially only to direct attention to the caveat, contained in footnote 5 of the majority opinion, that we have not yet adopted either United States v. Leon or Illinois v. Gates. Although the *373footnote serves as a red flag, it may not alert the color blind.

¶3United States v. Leon, 468 U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), was released contemporaneously with the decisions of the two trial courts in this case. As a result neither party addressed Leonin the proceedings below and the trial courts did not consider the case when reaching their respective conclusions.

¶4The issue of the application of Leonto this case is thus not yet ripe for review by this Court and any decision in this regard would be tantamount to rendering an advisory opinion, an action we are not authorized to take. City of Minot v. Central Ave. News, Inc., 325 N.W.2d 243 (N.D.1982).

¶5The majority opinion has precedential value therefore only insofar as it addresses the probable cause standard set forth in Aguilar v. Texas, 378 U.S.. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), which has been our State’s benchmark in this area since State v. Dove, 182 N.W.2d 297 (N.D.1970).

¶6Gates concluded the Aguilar-Spinelli test was unduly rigid and encouraged excessive dissection of informants’ tips. Gates, 103 S.Ct. at 2230. In place of the Aguilar-Spinelli rules, Gates adopted a “totality of the circumstances” approach where “the task of the issuing magistrate is simply to make a practical, common sense decision whether ... there is a fair probability that contraband or evidence of a crime will be found at a particular place.” Gates, 103 S.Ct. at 2332.

¶7North Dakota’s Aguilar-Spinelli guidelines do not appear to have been applied in a “hypertechnical” or “unduly rigid” manner, our magistrates seemingly making “practical, common sense decisions” in issuing warrants. See, Gates, 103 S.Ct. at 2350-2351, White, J., concurring. See also, e.g., State v. Ronngren, 361 N.W.2d 224 (N.D.1985). State v. Klosterman, 317 N.W.2d 796 (N.D.1982) State v. Spoke Com., University Ctr., Etc., 270 N.W.2d 339 (N.D.1978); State v. Mertens, 268 N.W.2d 446 (N.D.1978); Therefore, resort to Gates may be akin to summoning the repairman to fix what “ain’t broke.”

¶8Underlying the Aguilar-Spinelli test is the basic belief that the determination of probable cause to issue a warrant must be made by a magistrate and not by law enforcement officers who seek warrants. To perform this constitutionally prescribed function, a magistrate must be provided an affidavit containing the underlying circumstances for the officer’s conclusion that the informant was credible and the information reliable. This process enables the magistrate to exercise an informed, independent judgment about the persuasiveness of the facts relied upon by the officer to show probable cause. Spinelli, 393 U.S. at 412-lb, 89 S.Ct. at 586-89; Aguilar, 378 U.S. at 110-115, 84 S.Ct. at 1115-14, as found in State v. Jackson, 102 Wash.2d 432, 688 P.2d 136 (1984). Nor does this approach preclude examining, in a practical and realistic fashion rather than hypertechnically, affidavits executed in support of a search warrant. State v. Klosterman, supra at 801.

¶9For our purposes Gates may represent an unwise1 evisceration of the Aguilar-Spinelli probable cause standard which has well served North Dakota in effectuating the safeguards contained in Article I, § 8, of the North Dakota Constitution, which Article states;

“The rights of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall be issued but upon probable cause, supported by oath or affirmation, particularly describing the place to *374be searched and the persons or things to be seized.”

¶10We may provide the citizens of our State, as a matter of State constitutional law, greater protection in interpreting Article I, § 8 than the safeguards guaranteed in the Federal Constitution. City of Bismarck v. Altevogt, 353 N.W.2d 760 (N.D.1984); State v. Stockert, 245 N.W.2d 266 (N.D.1976); State v. Matthews, 216 N.W.2d 90 (N.D.1974).2 Other jurisdictions have rejected the Gates “totality of the circumstances” approach and retained the Aguilar-Spinelli rules as appropriate under their respective state constitutions. Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985); State v. Jackson, 102 Wash.2d 432, 688 P.2d 136 (1984); People v. Kershaw, 147 Cal.App.3d 750, 195 Cal. Rptr. 311 (1983) (prior to the amendment of the State Constitution by Proposition 8). The reasoning of these states will warrant our careful consideration in the future when we decide whether or not to follow the United States Supreme Court’s lead in abandoning the well-established protections against unreasonable searches and seizures offered by Aguilar-Spinelli.

¶11GIERKE, J., concurs.

¶14concurring specially.

¶15Neither of the trial courts involved in these appeals considered the application of United States v. Leon, 468 U.S.-, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), in reaching their separate conclusions because the decision in Leonwas released either after the trial court’s decision [county court] or simultaneously with the trial court’s decision [district court]. The application of Leonwould be of prime significance because, as the majority opinion observes, and with which observation I agree, the search warrant does not meet the standard of the “totality of the circumstances” approach adopted in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Therefore, we are discussing an issue which has not been presented to nor considered by the trial court. Although that is contrary to normal procedure in this court, it appears to me that the issue is essentially one of law. A remand to the trial court for consideration of the application of the “good-faith” exception announced in Leon, although it would provide us with the legal analysis of the learned trial judges, would again place the issue before us on appeal with little additional facts or evidence to assist us.

¶16With respect to the application of Leonto these cases, I am not so convinced, as is the majority, that the “officer’s reliance on the magistrate’s determination of probable cause was objectively unreasonable, he having supplied the information on which the search warrant was issued, ...” Although, as the majority opinion points out, even if analyzed in a “commonsense, non-hypertechnical way, the affidavit in the instant case does not supply anything more than a most tenuous and conclusory suggestion that the Thompsons were involved in criminal activity,” Leonnevertheless reversed a decision by the Ninth Circuit Court of Appeals that concluded the affidavit in that ease contained no facts indicating the basis for the informants’ statements concerning Leon’s criminal activities and was devoid of information establishing the informants’ reliability and that these defects were not cured by the police investigation. Despite those facts the Supreme Court determined that the reliance by the police officers on the warrant was “objectively reasonable.”

¶17The majority opinion may thus appear to apply the “good-faith” exception in a more narrow manner than the Supreme Court did in Leon. However, I agree with the majority opinion that in this instance, contrary to Leon, the affidavit contains no indication as to what, if anything, the officer did to verify that the informant had, in fact, given the officers information which had led to a previous arrest and conviction of Stockert and that Stockert was presently *375serving time in the State Penitentiary for that conviction. Had the affidavit revealed clearly that such information was verified by Deputy Sheriff Berg, in order to determine that there was an informant in the Stockert matter, that only the person who was the informant in that matter would have had the information, and thus attempted to establish the reliability of the informant, the officer’s reliance on the warrant would have been “objectively reasonable.” Instead, as the majority notes, the information verified was information that would have been commonly known to most people living in an area with so few people.

¶18Perhaps information concerning the reliability of the informant was known by the Deputy Sheriff. If so, it should have been revealed in the affidavit. The United States Supreme Court has not extended the “good-faith” exception to encompass the subjective attitude of the police officer. Although I suspect that the Deputy Sheriff and others relying on the search warrant in this instance were acting in good faith, as that term might ordinarily be used, we must nevertheless view it from an objective standpoint. In so doing, it may appear that we are giving little more than token recognition to the “good-faith” exception to the exclusionary rule and that our application of that exclusion will be little different from the “totality of the circumstances” standard of review of Gates, supra.