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Date: 04-01-2020

Case Style:

State of North Dakota v. Henry Lee Marcum

Case Number: 2020 ND 50

Judge: Daniel J. Crothers

Court: IN THE SUPREME COURT STATE OF NORTH DAKOTA

Plaintiff's Attorney: Isaac J. Zimmerman, State’s Attorney

Defendant's Attorney:


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On June 10, 2018, Marcum was charged with one count of possession of
a controlled substance, second or subsequent offense, in violation of N.D.C.C.
§ 19-03.1-23, a class C felony, and one count of possession of drug
paraphernalia, second or subsequent offense, in violation of N.D.C.C. §
19-03.4-03, a class C felony.
On June 6, 2018, Logan County Sheriff Bartholomaus had a conversation
with Jamestown Police Detective Gross. Gross told Bartholomaus if a warrant
came through the Central Warrant Information System (CWIS) for Marcum
that it would be a good warrant. Bartholomaus testified he saw the active
warrant on CWIS on June 7, 2018. The warrant cited criminal case no.
47-2018-CR-250 and accused Marcum of violating N.D.C.C. § 12.1-11-03 for
providing “False Information or Report to Law Enforcement.” Bartholomaus
testified he was familiar with Stutsman County case no. 47-2018-CR-250, and
knew Marcum had been served the warrant in that case in April 2018, and was
released.
On June 8, 2018, Bartholomaus responded to a noise complaint at the
Marcum residence. He spoke with Marcum’s wife (Ms. Marcum) and she
assured him everything was fine. Bartholomaus did not attempt to arrest
Marcum on the warrant. On the same day, Logan County Deputy Lewis
testified he received a call from either Stutsman County or Jamestown PD
informing him there was a warrant of arrest out for Marcum. Lewis testified
they told him the warrant is valid if it still is in CWIS.
3
Bartholomaus testified he arrested Marcum on June 10, 2018, on a
“Corrected Warrant of Arrest” that Jamestown police stated was valid. On that
same day, Bartholomaus received a call from Lewis regarding a possible
trespass involving Marcum. Law enforcement went to Marcum’s son’s
girlfriend’s residence to speak with Marcum about the possible trespass and
follow-up on the arrest warrant. Bartholomaus testified on the way to the
residence Lewis called dispatch to confirm the warrant was valid. Upon arrival
at the residence, law enforcement informed Marcum there was a warrant out
for his arrest. Marcum told police there was no active warrant in case no.
47-2018-CR-250 because he had been arrested and released on bond. Ms.
Marcum testified she pulled up public records on www.ndcourts.gov to show
law enforcement there was no active warrant. Marcum asked if he could go to
the bathroom. Bartholomaus testified he told Marcum he would allow him to
go to the bathroom, but since he was under arrest Marcum would need to be
searched first. Bartholomaus testified he patted down Marcum, and when he
moved to Marcum’s right boot Marcum stepped on the cuff of his pants with
his left foot, and he held his right leg tight up against his left leg. Bartholomaus
testified he felt a bulge on the inside of Marcum’s sock on his right leg.
Bartholomaus testified when he asked Marcum what was in his sock, Marcum
stated a knife. When Bartholomaus told Marcum he could not have a knife,
Marcum stated, “No. It’s not a knife; it’s a meth pipe.” Upon further search,
Bartholomaus found a glass pipe with methamphetamine residue wrapped in
tissue paper in Marcum’s sock in his right boot.
At trial Marcum argued he was not using drugs and had the pipe in his
sock because he found it at his house and went to confront his son’s girlfriend
about whether she or his son were using methamphetamine. He testified he
was concerned his son was using again because he had recently overdosed
when he was in Florida. Marcum described a recent event where he and his
wife went to Florida to visit their son after his overdose. When they returned
home, they found drug paraphernalia scattered throughout their home. They
found out that their other son, and the same girlfriend, who was dating the son
who was in North Dakota at the time, used their property as “a drug house.”
They took pictures of the drug paraphernalia but did not report the incident to
law enforcement.
4
A district court judge found Marcum guilty on a lesser included offense
of possession of a controlled substance, first offense, a class A misdemeanor,
and possession of drug paraphernalia, second or subsequent offense, a class C
felony. The district court judge explained the possession of drug paraphernalia
charge was a second or subsequent offense because Marcum had drug
possession convictions of cocaine in Ohio. On appeal, Marcum argues the
district court erred when it denied his motion to suppress evidence from what
he argues was an unconstitutional arrest, and the evidence was insufficient to
convict him. Marcum requests that the verdict be reversed or that this Court
vacate the verdict and reverse the district court order denying his motion to
suppress.
II
The standard of reviewing a district court’s decision on a motion to
suppress is well established:
“We will defer to a trial court’s findings of fact in the disposition of
a motion to suppress. Conflicts in testimony will be resolved in
favor of affirmance, as we recognize the trial court is in a superior
position to assess credibility of witnesses and weigh the evidence.
Generally, a trial court’s decision to deny a motion to suppress will
not be reversed if there is sufficient competent evidence capable of
supporting the trial court’s findings, and if its decision is not
contrary to the manifest weight of the evidence.”
State v. Genre, 2006 ND 77, ¶ 12, 712 N.W.2d 624 (citing State v. Tollefson,
2003 ND 73, ¶ 9, 660 N.W.2d 575) (quoting State v. Heitzmann, 2001 ND 136,
¶ 8, 632 N.W.2d 1). Questions of law receive de novo review. Genre, at ¶ 12
(citing Tollefson, at ¶ 9).
“Our evidentiary standard of review for a criminal bench trial is the same
as if the case had been tried to a jury.” State v. Treis, 1999 ND 136, ¶ 9, 597
N.W.2d 664 (citing State v. Nehring, 509 N.W.2d 42, 44 (N.D. 1993)) (citing
State v. Johnson, 425 N.W.2d 903 (N.D. 1988)). “In cases challenging a
conviction, we do not weigh conflicting evidence, nor do we judge the credibility
of witnesses; instead, we look only to the evidence and its reasonable inferences
5
most favorable to the verdict to see whether substantial evidence exists to
warrant conviction.” Treis, at ¶ 9 (citing State v. Overby, 497 N.W.2d 408, 414
(N.D. 1993)). “The defendant bears the burden of showing the evidence reveals
no reasonable inference of guilt when viewed in the light most favorable to the
verdict.” State v. Mohamud, 2019 ND 101, ¶ 12, 925 N.W.2d 396.
III
Marcum argues the district court erred when it denied his motion to
suppress evidence because his arrest was unconstitutional.
The State argues law enforcement received and executed a valid arrest
warrant, that law enforcement took several steps to ensure the warrant was
valid, and each step confirmed the warrant was valid. The State argues since
the arrest was valid, the search incident to a lawful arrest was valid.
“Absent an exception, ‘all evidence obtained by searches and seizures in
violation of the Constitution is, by that same authority, inadmissible in a state
court.’” State v. Dodson, 2003 ND 187, ¶ 19, 671 N.W.2d 825. “The good faith
exception to the exclusionary rule under the Fourth Amendment of the United
States Constitution was recognized by the United States Supreme Court in
United States v. Leon, 468 U.S. 897 (1984).” Dodson, at ¶ 20. “The Court held
exclusion of evidence is not the proper remedy when an officer has acted in
good faith upon objectively reasonable reliance that a warrant was properly
issued by a neutral and detached magistrate.” Id. (citing Leon, 468 U.S. at 922).
“We have summarized four situations in which reliance cannot be objectively
reasonable under Leon as:
‘(1) when the issuing magistrate was misled by false
information intentionally or negligently given by the affiant; (2)
when the magistrate totally abandoned her judicial role and failed
to act in a neutral and detached manner; (3) when the warrant was
based on an affidavit “so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable;” and
6
(4) when a reasonable law enforcement officer could not rely on a
facially deficient warrant.’”
Id. (citing State v. Herrick, 1999 ND 1, ¶ 15, 588 N.W.2d 847). “The basis of the
good faith exception is that if an officer reasonably relies on a warrant in good
faith, there is no police misconduct to deter.” Id. (citing Leon, 468 U.S. at 916).
“It is not used to deter misconduct of judges or magistrates.” Id. “[T]his Court
and other state courts have stated federal precedent is controlling when
evaluating the good faith exception under the Fourth Amendment.” Id. at ¶ 26
(citing State v. Hughes, 1999 ND 24, ¶ 5, 589 N.W.2d 912) (‘“Federal precedent
controls’ when the defendant does not properly raise a state constitutional
issue”); see also State v. Thomas, 540 N.W.2d 658, 666 (Iowa 1995) (“In
assessing Fourth Amendment violations, this court is bound by federal law.”);
State v. Saiz, 427 N.W.2d 825, 828 (S.D. 1988) (“the Fourth Amendment
question in this case is controlled by Leon.”).
Here, the original arrest warrant in Stutsman County case no.
47-2018-CR-250 was issued on April 3, 2018. The arrest warrant was served
on Marcum and he was arrested even though the name on the warrant was
Angela Louise Marcum, who also had been arrested for false information or
report to law enforcement. He posted a $1,000 bond, and was released. On
June 5, 2018, a “Corrected Warrant of Arrest” was issued. The corrected
warrant had Henry Lee Marcum’s name on it. Marcum was arrested and
searched on June 10, 2018, based on the June 5, 2018 warrant.
In denying the motion to suppress the district court stated:
“In this case, I don’t find anything at all troubling with the
way the law enforcement officers executed the warrant. In fact, it
appears to me, based on the testimony of the sheriff, that in
addition to checking with State Radio, which is I think a CJIS
check, to inquire as to the validity of the warrant, the—when the
defendant complained that the warrant was not valid and there
was some mistake they checked with the specific issuing agency
and were told ‘No. This is our warrant, and we want the defendant
arrested.’
7
“That’s good faith reliance on a facially valid warrant, and
therefore, the motion to suppress is denied.”
In the findings of the court at bench trial the judge addressed the
warrant again and referenced the motion to suppress. The district court stated:
“An arrest warrant is a court order. Law enforcement is
ordered to take an individual into custody. In this particular case,
for reasons that aren’t clear to me, there was a second warrant
issued, apparently to correct the language; that part’s clear to me.
Law enforcement, I think, fell over themselves to confirm that this
warrant was a valid warrant. They’re in a jurisdiction that’s not
the jurisdiction that issued the warrant. They contacted the
jurisdiction that issued the warrant multiple times and were told
it’s a valid warrant. They don’t have the authority to go behind the
warrant and try to investigate whether or not it’s a valid warrant.
They receive information from the agency that is issuing the
warrant, and they’re told it’s valid. They’re—that becomes a court
order. They’re bound by their oath of office, I think, to execute that
warrant, and they did so.
“Once they do that, they conduct a valid search incident to
arrest.”
Assuming without deciding the Corrected Warrant of Arrest was not
valid, law enforcement relied on the warrant in good faith. At trial
Bartholomaus testified Gross told him that if there is a warrant for Henry
Marcum in the Central Warrant Information System (CWIS) “it’s good.” He
also testified at the time of the arrest he did not have possession of the
corrected warrant of arrest but saw what was in CWIS and Lewis called
dispatch to confirm the warrant was valid.
Lewis testified either Stutsman County or Jamestown PD contacted him
two days before the incident and informed him there was a warrant out for
Marcum. He stated they told him the warrant was valid if it still was in CWIS.
He testified on June 10, 2018, while driving to the residence he verified the
warrant was still in CWIS. He also testified he confirmed the warrant through
dispatch, they told him it was a valid warrant, and that they would send a
deputy to meet Lewis to transport Marcum the rest of the way to Jamestown.
8
After being asked if he spoke to Marcum about whether he had taken care of
this arrest warrant previously Lewis stated,
“I don’t believe so. I believe he made a reference to it, and I
discussed it, and I said, ‘well, I’m being told by the agency that
issued it that it’s valid.’ I don’t—I can’t go through their reports,
so I take the word from a fellow law enforcement officer saying a
warrant is valid as valid. I had no reason to believe it wasn’t at the
time.”
Exclusion of evidence is not the proper remedy when law enforcement
acts in good faith upon objectively reasonable reliance that a warrant was
properly issued. There is sufficient competent evidence capable of supporting
the district court’s findings, and its decision is not contrary to the manifest
weight of the evidence. Therefore, we affirm the district court’s denial of the
motion to suppress.
IV
Marcum argues the evidence was insufficient to convict him of enhanced
charges because he has no equivalent conviction of possession of drug
paraphernalia and residue in a pipe is insufficient to support a conviction for
willful possession of methamphetamine.
The State argues the district court’s findings provide more than an
adequate basis for the court’s ultimate conclusion and sufficient evidence
supports Marcum’s convictions.
A
In State v. Kuruc, 2014 ND 95, ¶ 32, 846 N.W.2d 314, we described rules
for construing statutes:
“Statutory interpretation is a question of law. Statutes must be
construed as a whole and harmonized to give meaning to related
provisions, and are interpreted in context to give meaning and
effect to every word, phrase, and sentence. In construing statutes,
we consider the context of the statutes and the purposes for which
they were enacted. When a general statutory provision conflicts
9
with a specific provision in the same or another statute, the two
must be construed, if possible, so that effect may be given to both
provisions. When statutes relate to the same subject matter, this
Court makes every effort to harmonize and give meaningful effect
to each statute.”
(Internal citations and quotation marks omitted.)
Section 19-03.4-03(2), N.D.C.C., states:
“A person may not use or possess with the intent to use drug
paraphernalia to inject, ingest, inhale, or otherwise induce into the
human body a controlled substance, other than marijuana,
classified in schedule I, II, or III of chapter 19-03.1. A person
violating this subsection is guilty of a class A misdemeanor. If a
person previously has been convicted of an offense under this title,
other than an offense related to marijuana, or an equivalent
offense from another court in the United States, a violation of this
subsection is a class C felony.”
Here, the district court concluded, “if a person previously has been
convicted of an offense under this title, other than an offense related to
marijuana, or an equivalent offense from another court in the United States, a
violation of this subsection is a class C felony,” meant equivalent out-of-state
convictions under the entire drug code leads to enhancement. (Emphasis
added.) The court explained N.D.C.C. § 19-03.4-03 refers to a conviction “under
this title” and that “under this title” means a conviction under the entire drug
code, title 19. The court’s reasoning is that previous equivalent drug offenses
(and not just paraphernalia charges) would be equivalent out-of-state
convictions. The court found this included the Ohio convictions for possession
of cocaine that were submitted by certified criminal judgment.
This Court discussed N.D.C.C. § 19-03.4-03(2) in State v. Johns,
2019 ND 227, 932 N.W.2d 893. Section 19-03.4-03(2), N.D.C.C., “enhances the
charge from a class A misdemeanor to a class C felony if the person previously
has been convicted of an offense under N.D.C.C. title 19.” Johns, at ¶ 2.
Therefore, this Court stated N.D.C.C. § 19-03.4-03(2) refers to a conviction
10
under title 19, the entire drug code. This is consistent with the unambiguous
language in N.D.C.C. § 19-03.4-03(2) “offense under this title.”
Marcum was convicted in Ohio on two counts of possession of cocaine
under Ohio Revised Code 2925.11. At that time Ohio Revised Code stated, “No
person shall knowingly obtain, possess, or use a controlled substance.” It then
separates the charges dependent on the type of drug. For example,
2925.11(C)(4) prohibits possession of cocaine. In North Dakota “it is unlawful
for any person to willfully . . . possess a controlled substance.” N.D.C.C. §
19-03.1-23(8). Cocaine is a controlled substance as defined in N.D.C.C. §§
19-03.1-01(6) and 19-03.1-07(3)(d). North Dakota does not separate the charges
like Ohio. Nonetheless, the Ohio convictions for possession of a controlled
substance are an equivalent offense to the North Dakota conviction under title
19.
Marcum also argues N.D.C.C. § 19-03.4-03(2) requires the intent to use
drug paraphernalia to inject, ingest, inhale, or otherwise induce into the
human body a controlled substance, other than marijuana, classified in
schedule I, II, or III of chapter 19.03-1, and insufficient evidence established
he intended to possess the pipe to inject, ingest, inhale, or otherwise induce
into the human body methamphetamine.
The district court explained intent:
“So looking at ‘intent’ in general, the Court listened to the
testimony. The Court heard testimony about and received
testimony about when Mr. Marcum and his wife came home from
Florida a number of, I think, months prior to his arrest on June
10th, during which their house was slathered in drug
paraphernalia, and they didn’t call law enforcement. They didn’t
take the necessary steps to try to, if we’re assuming, and there’s
no evidence to the contrary, in regard to that defense exhibit, that
the paraphernalia in their house was not theirs. They didn’t take
steps to try to involve law enforcement to figure out whose it was
and get help or treatment to those who had been using, and it
looked like using substantial amounts and in so doing destroying
their home.
11
“And that’s the backdrop to looking at now, on June 10th, we
have testimony that Mr. Marcum finds paraphernalia in his house,
and he’s going to go confront the neighbor about paraphernalia she
may have possessed in his house.
“The testimony regarding why the item of paraphernalia is
in his sock I find to be utterly and wholly not credible testimony.
When someone has a methamphetamine pipe in their sock and
they are [a] person who has an admitted drug history and an
admitted methamphetamine history and—there’s just so many
things in the description of that story: going to her house to fix the
screen door and also confront her about the meth pipe that I found
in my garage, and I carried that in my sock to keep it from
breaking. I don’t know how you carry a meth pipe around if you’re
going to confront the neighbor about it, but in your sock would be
the last place you would put it if that was your purpose.
“The circumstantial evidence is that that meth pipe was in
your sock because you hid it there and intended to use it for its
designed purpose, and that is to consume methamphetamine.
“Therefore, I find beyond a reasonable doubt that is why you
possessed the methamphetamine paraphernalia and the
methamphetamine that was within that paraphernalia, the pipe.”
In most cases involving possession of drug paraphernalia, intent to use
the device for ingesting, preparing, or storing a controlled substance must be
proven by circumstantial evidence. State v. Christian, 2011 ND 56, ¶ 16, 795
N.W.2d 702. In State v. Demarais, 2009 ND 143, ¶ 10, 770 N.W.2d 246,
circumstantial evidence demonstrated intent to possess drug paraphernalia
with the intent to use it for the purpose of ingesting when the device was in
the woman’s purse inside a dresser drawer in a bedroom she shared with her
boyfriend, and the defendant was within arm’s reach of it when officers began
the search. Further, law enforcement found two scales inside the woman’s
purse, and the pipe, Q-tips and torn baggies tested positive for
methamphetamine. Id. at ¶¶ 11, 19.
Like in Demarais, circumstantial evidence provides proof of Marcum’s
intent to use paraphernalia to inject, ingest, inhale, or otherwise induce into
the human body a controlled substance. Marcum hindered law enforcement’s
efforts to pat down his leg, and when the object was found, Marcum first told
12
law enforcement the object in his sock was a knife. Marcum then admitted the
object was a methamphetamine pipe. Bartholomaus uncovered the pipe which
tested positive for methamphetamine. Further, Marcum was a known drug
user, and the Marcums did not call law enforcement when they found the
paraphernalia in their home upon their return from Florida. Therefore,
Marcum’s possession of a pipe that he lied about and tried to hide is substantial
circumstantial evidence supporting Marcum’s conviction. Together with the
unwillingness to call law enforcement, this is evidence of Marcum’s intent to
inject, ingest, inhale, or otherwise induce into the human body a controlled
substance.
B
Marcum argues residue in the pipe was not sufficient to support the
charge of possession of a controlled substance. Section 19-03.1-23(8)(a) and (b),
N.D.C.C., states:1
“8. a. It is unlawful for any person to willfully, as defined in section
12.1-02-02, possess a controlled substance or a controlled
substance analog unless the substance was obtained directly from,
or pursuant to, a valid prescription or order of a practitioner while
acting in the course of the practitioner’s professional practice, or
except as otherwise authorized by this chapter, but any person who
violates section 12-46-24 or 12-47-21 may not be prosecuted under
this subsection.
b. Except as otherwise provided in this subsection, any person who
violates this subsection is guilty of a class A misdemeanor for the
first offense under this subsection and a class C felony for a second
or subsequent offense under this subsection.”
Marcum’s argument is unavailing. In Christian, 2011 ND 56, ¶ 18, 795
N.W.2d 702, we rejected the argument that under N.D.C.C. § 19-03.1-23(7)
“dirty” paraphernalia alone is not evidence sufficient to prove possession of

1 Amendments to N.D.C.C. § 19-03.1-23(8) were effective on August 1, 2019. The amendments were
not substantive, but changed the numeric ordering from N.D.C.C. § 19-03.1-23(8) to N.D.C.C. § 19-
03.1-23(7).
13
cocaine and the district court erred by instructing the jury that “[c]ocaine
residue is cocaine.”2 We held, “the provision does not specify a minimum
amount of cocaine—beyond its mere presence—necessary to be convicted of
possessing cocaine. Section 19-03.1-23(7), N.D.C.C., prohibits possession of
cocaine, regardless of the amount.” Id. at ¶ 19.
Troy Goetz, a forensic scientist, testified he wrote the drug laboratory
report and analyzed the pipe in this case. Under “Substance Found” the report
stated “Methamphetamine residue.” On cross-examination Goetz was asked,
“When you say ‘residue,’ it’s just—what do you mean by that?” In response he
stated:
“Basically, what’s inside the piece of paraphernalia that under—
unless you use like an analytical scale, sometimes you might be
able to get a weight. Or it’s adhered to or stuck inside the piece of
paraphernalia, and we didn’t try to scrape it out to weigh it, so we
just called it residue because it was in a piece of paraphernalia.”
Like in Christian, where the residue was cocaine for purposes of
possession, the residue in the pipe found on Marcum is sufficient for purposes
of the offense of possession of methamphetamine. That holding, plus Goetz’s
testimony provided sufficient evidence supporting the district court finding
that Marcum was in possession of a controlled substance.
Further, Bartholomaus testified there was substance in the pipe, the
substance was field tested, the test turned bright blue indicating it was positive
for methamphetamine, the substance was scraped out and weighed on a scale,
and the scale showed .4 grams of methamphetamine. Bartholomaus further
testified, in his experience in law enforcement, .4 grams of methamphetamine
was a usable amount. This evidence also supports Marcum’s conviction for
possession of a controlled substance.

Outcome: We affirm denial of the motion to suppress because law enforcement
acted in good faith on the arrest warrant and representations about its validity.
We affirm the criminal judgment because sufficient evidence supports finding
Marcum had a prior conviction for an equivalent offense, and the residue in
the pipe found supports the conviction for possession of methamphetamine.

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