ND: “mere fear or speculation that evidence might be destroyed” is not exigent circumstances

The district court upheld the search but the parties did a woeful job of making a record by stipulation, so remanded. Here, exigent circumstances were relied on in the trial court, but the record didn’t support it. “[A]n officer’s mere fear or speculation that evidence might be destroyed does not justify a warrantless search and seizure under the exigent circumstances exception.” State v. Canfield, 2013 ND 236, 2013 N.D. LEXIS 234 (December 19, 2013):

[*P5] On appeal, Canfield argues the district court erred in finding the search of Canfield’s dormitory room was not unreasonable. He argues that consent, third-party consent, consent through his dormitory contract, and plain view and exigent circumstances did not justify the warrantless search, thus requiring suppression of all evidence seized under the exclusionary rule and fruit of the poisonous tree doctrine. The State argues that consent, consent through the dormitory contract, and plain view and exigent circumstances justified the warrantless search. Because the district court’s order upheld the warrantless search as reasonable only on the grounds of plain view and exigent circumstances, we limit our analysis to those exceptions.

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[*P7] “Prima facie evidence to support a motion to suppress is not required in a party’s moving papers.” State v. Fitterer, 2002 ND 170, ¶ 6, 652 N.W.2d 908 (citing Cohen v. United States, 378 F.2d 751, 761 (9th Cir. 1967)). Supporting affidavits or other evidence are permissive, but not required. Fitterer, at ¶ 6 (citing N.D.R.Crim.P. 47). The motion itself is enough to reach a hearing on the motion, provided it gives adequate notice of the issues raised. Id. at ¶ 9. A defendant then has the burden of establishing a prima facie case at the motion hearing before the State is required to put on evidence. Id. at ¶ 10 (citing City of Jamestown v. Jerome, 2002 ND 34, ¶ 6, 639 N.W.2d 478; State v. Glaesman, 545 N.W.2d 178, 182 n.1 (N.D. 1996)). To do so, the defendant must make an evidentiary showing that the search and seizure was illegal. Fitterer, at ¶ 10; Jerome, at ¶ 6. Once a prima facie case has been established, the burden of persuasion shifts to the State to justify its warrantless search. Jerome, at ¶ 6. While “[t]here may be some cases in which a suppression motion is capable of decision based on stipulated facts[,] … trial courts should be wary of dispensing with an evidentiary hearing when[] … the parties have raised a flurry of Fourth Amendment issues.” State v. Avila, 1997 ND 142, ¶ 18, 566 N.W.2d 410.

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[*P9] On remand, we caution the district court that this Court has held that an officer’s mere fear or speculation that evidence might be destroyed does not justify a warrantless search and seizure under the exigent circumstances exception. See State v. Ackerman, 499 N.W.2d 882, 886 (N.D. 1993). This Court has defined exigent circumstances as “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” State v. Gagnon, 2012 ND 198, ¶ 13, 821 N.W.2d 373 (quoting State v. DeCoteau, 1999 ND 77, ¶ 15, 592 N.W.2d 579).