State v. Ringquist

LEVINE, Justice,

concurring and dissenting.

Dissents are usually written to persuade the majority or, failing that, to register disagreement with the rationale or holding of the majority. This dissent serves the latter purpose. I have already expressed my view that in the area of search and seizure a state may and indeed should provide greater protection for its citizens under the state constitution than is provided by the United States constitution. See State v. Thompson, 369 N.W.2d 363 (N.D.1985) (Levine, J., concurring). I adhere to the position that our state constitution ought to have a life of its own in the area of fundamental rights and individual liberties. Otherwise it becomes a mere appendage to the United States constitution and I cannot accept the notion that a state’s sovereign law should be reduced to a mere “me too” or “ditto.” That flies in the face of federalism and disregards the structure and substance of the American polity.

I understand that I would have an easier row to hoe if the language of our state constitution, Article I, § 8, differed meaningfully from the fourth amendment to the United States constitution. See State v. Jackson, 102 Wash.2d 432 , 688 P.2d 136, 141 (1984); People v. Kershaw, 147 Cal.App.3d 750 , 195 Cal.Rptr. 311 , 312 n. 2 (2 Dist.1983). But see State v. Johnson, 68 N.J. 349 , 346 A.2d 66, 68 (1975) (indentically phrased provision of the New Jersey constitution gives greater protection than fourth amendment). It would help too if, before Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961) and its holding that illegally obtained evidence violates due process and must be excluded from state criminal trials, we had not historically applied the common law rule that illegally obtained evidence was admissible. State v. Lacy, 55 N.D. 83 , 212 N.W. 442 (1927); State v. Fahn, 53 N.D. 203 , 205 N.W. 67 (1925). Compare State v. Gibbons, 118 Wash. 171 , 203 P. 390 (1922) (Washington adopts exclusionary rule). However, the history of the adoption of our state constitution reveals an intention to make the state constitution’s array of basic rights broader than those in the federal constitution. See Boughey, An Introduction to North Dakota Constitutional Law: Contents and Methods of Interpretation, 63 N.D.L.Rev. 157, 255-59 (1987).

True to that proposition, we have applied the state constitution to afford more protection than the United States constitution. In State v. Stockert, 245 N.W.2d 266 (N.D. 1976) we held that whether or not a war-rantless search of an immobilized automobile located on private property violated the fourth amendment, it nonetheless violated the North Dakota state constitution. See also State v. Orr, 375 N.W.2d 171 (N.D.1985) (art. I, § 12, North Dakota constitution, provides a broader right to counsel than does federal constitution). We have *218 also viewed North Dakotans as placing a high value on privacy. See State v. Sakellson, 379 N.W.2d 779 (N.D.1985). Our constitution recognizes and protects that value. N.D. Const, art. I, § 8; N.D. Const, art. I, § 1. Cf. Grand Forks v. Grand Forks Herald, 307 N.W.2d 572 (N.D.1981). So has our legislature. See e.g., NDCC § 39-20-01 (Implied Consent law) (a driver of a vehicle must actually consent to a chemical test before it may be given).

Furthermore, there is another principle applicable to interpreting the state constitution to provide broader protection than its federal counterpart and that is a “nonin-terpretive” review proceeding from a judicial perception of sound policy, justice and fundamental fairness. See People v. P.J. Video, Inc., 68 N.Y.2d 296 , 508 N.Y.S.2d 907, 911 , 501 N.E.2d 556, 560 (1986).

As a matter of public policy we should afford more protection to our citizens to be free from unreasonable search and seizures than is now offered under the United States constitution because of the dilution of the Aguilar-Spinelli standards. We have relied on and applied the Aguilar-Spinelli probable cause standard for eighteen years. See State v. Dove, 182 N.W.2d 297 (N.D.1970). It has worked well in providing clear guidelines for law enforcement and the judiciary. The predictability and stability inherent in the Aguilar-Spinelli probable cause test are worth preserving and perpetuating under our state constitutional jurisprudence in order to ensure enforcement that is governed by clearly expressed and clearly reviewable guidelines, namely the basis of knowledge and veracity prongs of Aguilar-Spinelli, rather than the standardless standards and guideless guidelines of the Gates “totality of circumstances” test.

It is an exquisite irony that the very reason for the Gates decision, namely the misapplication and distortion of Aguilar-Spinelli so that it was applied hyper-technically and in effect unreasonably rigidly, has no application to North Dakota jurisprudence. The Gates court, in its criticism of the abuse of the Aguilar-Spinelli guidelines, could not possibly have had North Dakota in mind. It is telling that in Gates, the majority relied on United States v. Ventresca, 380 U.S. 102 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965) to support the adoption of its relaxed standards. Our court has been regularly applying United States v. Ventresca in its interpretation of Aguilar-Spinelli. In State v. Mertens, 268 N.W.2d 446, 448 (N.D.1978) Justice Sand, writing for a unanimous court, relied on the language of United States v. Ventresca, supra, in applying Aguilar-Spinelli:

“In determining whether or not the affidavit establishes the required probable cause for a search warrant, we apply practical rather than abstract concepts. The magistrates and the courts interpret the affidavits in a commonsense and realistic fashion. Usually such affidavits are drawn by non-lawyers and seldom under ideal conditions. Technical common law pleadings are no longer desirable or required, and likewise neither should technical language be required in an affidavit for a search warrant.”

So too, the same position was expressed in State v. Ronngren, 361 N.W.2d 224, 230 (N.D.1985), by Justice VandeWalle writing for a unanimous court: “Under the Aguilar-Spinelli requirements, the determination of whether or not probable cause exists to issue a search warrant is to be based on a common-sense interpretation of the entire evidence presented to the magistrate.” To the same effect is State v. Klosterman, 317 N.W.2d 796, 801 (N.D.1982).

My point is that the United States Supreme Court’s handwringing in Gates is, as far as North Dakota is concerned, preaching to the choir. We have never reduced Aguilar-Spinelli to a mechanical, rigid, technical set of rules. If other states have, let them adopt Gates since they have been unable to work with Aguilar-Spinelli.

In all the cases I have reviewed, I have found but a scant few that have ruled in favor of suppression for failure to meet the Aguilar-Spinelli two-prong test. See e.g., State v. Schmeets, 278 N.W.2d 401 (N.D.1979); State v. Spoke Comm. Univ. Ctr., 270 N.W.2d 339 (N.D.1978). That tells me *219 that law enforcement officers in North Dakota have successfully educated themselves to comply with Aguilar-Spinelli and that magistrates and judges have avoided stultifying reasonable police practice by demanding nothing more than reasonable disclosure of the underlying basis for a search warrant. Our North Dakota experience validates Justice Brennan’s opinion that the Aguilar-Spinelli standard “help[s] to structure-probable cause inquiries and, properly interpreted, may actually help a nonlawyer magistrate in making a probable cause determination.” Gates, 462 U.S. at 288,103 S.Ct. at 2358 (Brennan, J., dissenting).

By adopting Gates, we set law enforcement adrift with nothing but our pious exhortations that they not forget about Aguilar-Spinelli, although we give them nothing to replace it except some amorphous standard of “totality of the circumstances.” It is one thing to bestow such wide-ranging discretion on trial judges. It is quite another to do the same for law enforcement personnel.

There is nothing sinister or untoward in interpreting our state constitution to provide greater protection to our citizens than is afforded by the federal constitution. The federal constitution simply sets a floor of protections, not a ceiling. State courts are free to interpret their own law and to supplement or expand upon the rights guaranteed by the federal constitution. See e.g., City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 292 , 102 S.Ct. 1070, 1076 , 71 L.Ed.2d 152 (1982); Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81 , 100 S.Ct. 2035, 2040-2041 , 64 L.Ed. 2d 741 (1979); see S. Herman, How to Defend and Decide Constitutional Law Claims, 14 Search and Seizure Law Report, No. 11 at 169 (2 ed. 1987).

I would thus apply the Aguilar-Spinelli test to the facts at hand and would reverse the trial court’s suppression on the grounds that both prongs of the Aguilar-Spinelli test have been satisfied. There is little question that the basis-of-knowledge prong has been fulfilled. The anonymous informant’s tip was based here on firsthand observation which is the most acceptable way of proving that the informer obtained the information in a reliable way. See W. LaPave, Search and Seizure § 3.3(a) (1987).

It is the veracity prong that creates the problem. However, we have often stated that in a close case any doubt should be resolved in favor of the magistrate’s determination of probable cause. E.g., State v. Metzner, 338 N.W.2d 799 (N.D.1983). To establish the veracity prong, when the informant’s track record is unknown, as is the case here, reliance may be had on independent police investigation that corroborates the tip. In State v. Thompson, supra at 364 , we recognized that “completely innocent activity can provide sufficient corroboration in some circumstances.” Here, I believe that the police investigation and discovery of Ringquist’s prior drug conviction, his co-tenancy with Kitchen, also a person with a drug-background, police information garnered from the prior informant about continuous drug activity (and therefore, as the majority correctly analyzes, not “stale”) are sufficient to provide the anonymous informant’s tip with the reliability necessary to fulfill the veracity prong of the Aguilar-Spinelli test for probable cause. Whether the tip by itself is sufficient is not the point. Here, the police did undertake investigation and did obtain information that I believe fulfilled the probable cause requirements when viewed nontechnically and in commonsense fashion. Therefore, I believe that the majority does not have to proceed beyond analyzing the trial court’s suppression on the basis of Aguilar-Spinelli because the trial court erred under that standard, much the same as the majority in Gates erred by failing to properly analyze the facts under Aguilar-Spinelli in that case. See Gates (White, J., concurring). In a fit of pique, the majority in Gates, literally abandoned the baby with the bath water. Instead of overruling suppression on the grounds that the Aguilar-Spinelli two-prong test had *220 been applied over-rigorously and hypertech-nically by the Illinois courts, as Justice White suggested, the majority simply threw up its hands and threw out Aguilar-Spinelli. I fear that is what we do in the present case. Therefore, while I concur in the reversal, I dissent from the adoption and application of Gates as a matter of state constitutional law.