IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 103

State of North Dakota, Plaintiff and Appellee

v.

James Scott Black, Defendant and Appellant

No. 20200256

Appeal from the District Court of Pembina County, Northeast Judicial District, 

the Honorable Laurie A. Fontaine, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Rebecca L. Flanders, State’s Attorney, Cavalier, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JUNE 3, 2021 

STATE OF NORTH DAKOTA
1

State v. Black

No. 20200256

Jensen, Chief Justice.

[¶1] James Scott Black appeals from a criminal judgment entered after his

conditional guilty plea to ten counts of possession of certain materials

prohibited, class C felonies. Black argues the district court was required to 

suppress evidence obtained during an unreasonable search following an 

improper initial entry into his home. Black also argues the court was required 

to suppress evidence obtained during a subsequent search of his home 

pursuant to a search warrant that lacked probable cause. We conclude the 

initial search was not unreasonable and the subsequent search warrant was 

valid. We affirm.

I

[¶2] On June 3, 2015, Pembina County deputies responded to a noise 

complaint at an apartment complex. The complaint included information that 

there was a male yelling he was going to kill someone in the apartment

adjacent to the complaining party. The complaining party stated he heard a 

man inside the apartment throwing objects, yelling, and saying he was going 

to kill everyone inside the apartment. The complaining party assumed there 

was more than one person in the apartment even though he did not hear other 

voices.

[¶3] When the deputies arrived at the apartment complex, the complaining 

party directed the deputies to the noisy apartment. As the deputies approached 

the apartment’s door, they could hear loud noises within the apartment but 

were unable to ascertain any recognizable statements. The deputies knocked 

and identified themselves three separate times. After the third knock and 

identification, Black cracked the door open slightly. The deputies observed 

through the slightly opened door that Black was wearing only his underwear. 

The deputies did not observe any signs of injury on Black’s person but noted 

that Black appeared to be intoxicated.
2

[¶4] While the deputies spoke to Black through the slightly opened door, 

Black appeared upset. Black was initially uncooperative with the deputies by 

refusing to give identifying information. Black yelled at the deputies to leave 

saying, “F—off;” “Come back with a warrant;” and “I will hold you in contempt 

of court.” Black also made multiple attempts to close his door on the deputies. 

To prevent Black from closing the door, a deputy would place his foot in the 

doorway.

[¶5] Black eventually provided his name. The deputies told Black they would 

not leave until they confirmed no one within the apartment was harmed. After 

approximately five minutes, Black opened the door and said, “Look, nobody’s 

here,” or something to a similar effect. The deputies then entered the 

apartment and conducted a safety sweep.

[¶6] While inside the apartment, the deputies observed a computer monitor 

displaying content they thought established probable cause to believe Black 

was in possession of child pornography. The deputies subsequently applied for 

a search warrant. The affidavit accompanying the application for a search 

warrant described the image displayed on the computer monitor as a 

prepubescent female, between the ages of nine and fourteen, in a body of water 

and wearing underwear and a wet tee shirt which exposed the female’s areolas 

and nipples through the shirt. The search tags associated with the image of 

the prepubescent female included, “omg yes,” “first,” “puffy,” and “nipples.” 

There were at least fourteen other open browser tabs, hidden by the active 

window in the browser, with titles beginning with “Pic#” followed by a number. 

The image was located on a website URL that includes the term “jail bait.” The 

website contained other images of prepubescent girls posed in a lewd manner 

and had a “13 age bracket” search bar. The warrant was granted, and Black 

was subsequently charged with ten counts of possession of certain materials

prohibited.

[¶7] Black filed a motion to suppress evidence arguing the images were 

illegally obtained pursuant to an unconstitutional warrantless search of his 

residence. The district court denied Black’s motion, finding there were exigent 

circumstances to search the apartment without a warrant.
3

[¶8] Black filed a second motion seeking to suppress evidence obtained after 

the issuance of the search warrant. Black argued the image displayed on the 

computer monitor was not child pornography and was not probable cause for a 

warrant. Further, Black argued the description of the image in law 

enforcement’s affidavit in support of the search warrant was misleading and 

resulted in a defective search warrant. The district court denied the motion 

determining there was sufficient probable cause to issue the search warrant 

and determining Black failed to make a substantial showing the statements in 

the affidavit were false and the false statements were necessary to find 

probable cause.

[¶9] Black entered a conditional plea of guilty, preserving for appeal the 

issues raised in the denied motions to suppress. On appeal, Black challenges 

the district court’s ruling on both of his motions to suppress.

II

[¶10] This Court’s standard of review on a district court’s decision on a motion 

to suppress is well-established: 

[T]his Court defers to the district court’s findings of fact and 

resolves conflicts in testimony in favor of affirmance. This Court 

will affirm a district court decision regarding a motion to suppress 

if there is sufficient competent evidence fairly capable of 

supporting the district court’s findings, and the decision is not 

contrary to the manifest weight of the evidence. Questions of law 

are fully reviewable on appeal, and whether a finding of fact meets 

a legal standard is a question of law. This standard of review on a 

motion to suppress reflects the importance of the district court’s 

opportunity to observe witnesses and assess their credibility.

State v. Morin, 2012 ND 75, ¶ 5, 815 N.W.2d 229 (internal quotations and 

citations omitted) (formatting omitted). 

III

[¶11] Black asserts the deputies’ warrantless search of his apartment was

unreasonable and in violation of both the North Dakota and United States 
4

constitutions. Black argues the district court erred in finding exigent 

circumstances eliminated the need for the deputies to obtain a warrant before 

entry into his apartment because there was not an existing emergency nor was 

it reasonable to believe an emergency was occurring. He also argues the 

deputies were primarily motivated by an intent to arrest and seize evidence.

[¶12] The right to be secure in one’s home from unreasonable searches and 

seizures is secured by the Fourth Amendment of the United States 

Constitution and by Article I, Section 8 of the North Dakota Constitution. City 

of Fargo v. Lee, 1998 ND 126, ¶ 8, 580 N.W.2d 580. Warrantless searches and 

seizures inside a residence are presumptively unreasonable. Id. The 

government bears the burden of showing the warrantless search falls within 

an exception to the warrant requirement. Id.

[¶13] Exigent circumstances, also referred to as the “emergency exception,” is 

a recognized exception to the warrant requirement. State v. Stewart, 2014 ND 

165, ¶ 13, 851 N.W.2d 153. Exigent circumstances are defined 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. DeCoteau, 1999 ND 77, ¶ 15, 592 N.W.2d 

579 (quoting Lee, 1998 ND 126, ¶ 10). When this Court reviews a district court’s 

finding of exigent circumstances, the findings of fact are reviewed giving due 

weight to the inferences drawn from those facts by judges and law enforcement. 

Morin, 2012 ND 75, ¶ 9. We apply a de novo standard of review to the ultimate 

determination of whether the facts constitute exigent circumstances.

DeCoteau, at ¶ 15.

[¶14] This Court has recognized three requirements to apply the emergency 

exception to a warrantless entry: 

(1) The police must have reasonable grounds to believe that there 

is an emergency at hand and an immediate need for their 

assistance for the protection of life or property. 

(2) The search must not be primarily motivated by intent to arrest 

and seize evidence.
5

(3) There must be some reasonable basis, approximating probable 

cause, to associate the emergency with the area or place to be 

searched.

State v. Nelson, 2005 ND 11, ¶ 12, 691 N.W.2d 218. An officer’s reasonable 

belief an emergency existed is reviewed under an objective standard. Id. 

Information obtained from an informant whose identity is easily ascertainable 

has a higher indicia of reliability compared to information obtained from a 

purely anonymous informant. State v. Karna, 2016 ND 232, ¶ 9, 887 N.W.2d 

549.

[¶15] The district court found there were exigent circumstances to search 

Black’s apartment without a warrant. Black’s neighbor reported hearing a 

person throwing objects, angrily yelling, and making threats to kill everyone 

inside Black’s apartment. The neighbor was on site, met the deputies when 

they arrived, and directed the deputies to the apartment with the noise. 

Although the deputies could not understand what was being said, they heard 

what they described as loud, agitated noises while standing outside Black’s 

door. When Black appeared in the doorway he was wearing only underwear, 

upset, and uncooperative. The deputies indicated the purpose of their entry 

into the apartment was to conduct a safety sweep.

[¶16] While engaging in conversation with Black, the deputies made their 

initial entry into his apartment by extending a foot into the doorway to prevent

Black from closing the door. The deputies continued speaking with Black

through the slight opening of his door until Black opened the door further, and 

deputies entered to conduct a safety sweep. Black directs specific attention to 

the fact the deputies did not engage in overwhelming physical force to 

immediately gain entry into the apartment for the purpose of conducting a 

safety sweep after they initially entered his apartment with their foot. Black 

contends the deputies’ delay and the lack of an immediate safety sweep after 

their initial entry prevents a finding the deputies were acting under exigent 

circumstances. We reject his argument.

[¶17] We conclude there is sufficient competent evidence fairly capable of 

supporting the findings that the deputies had reasonable grounds to believe 
6

that there was an emergency at hand and an immediate need for their 

assistance for the protection of life or property; that the search was not 

primarily motivated by intent to arrest and seize evidence; and that there was 

a reasonable basis, approximating probable cause, to associate the emergency 

with Black’s apartment. When reviewing the district court’s findings of fact 

supporting exigent circumstances, we give due weight to the inferences drawn 

from those facts by judges and law enforcement. Morin, 2012 ND 75, ¶ 9. The 

court’s decision that there were exigent circumstances justifying a warrantless 

entry into Black’s apartment was not contrary to the manifest weight of the 

evidence. 

[¶18] There is sufficient competent evidence fairly capable of supporting the 

district court’s finding of exigent circumstances. The finding is supported even 

though the deputies did not immediately employ overwhelming physical force

to gain entry into the apartment and instead engaged in a short conversation 

with Black in an effort to conduct a nonconfrontational safety sweep. We affirm 

the court’s denial of Black’s motion to suppress and the finding that the 

warrantless entry and search of his apartment was lawful.

IV

[¶19] Subsequent to leaving the apartment after the initial entry, and before 

securing a search warrant, at least one deputy reentered Black’s apartment. 

For the first time on appeal, Black challenges the constitutionality of the 

subsequent pre-warrant reentries into his residence. “It is well-established 

that ‘issues which are not raised before the district court, including 

constitutional issues, will not be considered for the first time on appeal.’” State 

v. Gray, 2017 ND 108, ¶ 13, 893 N.W.2d 484 (quoting State v. Kieper, 2008 ND 

65, ¶ 16, 747 N.W.2d 497). We decline to address the subsequent reentries into 

the apartment because they were not adequately raised and argued in the 

district court.

V

[¶20] In his second motion to dismiss, Black challenged the search warrant 

issued subsequent to the entry and safety sweep of his apartment. The search 
7

warrant was supported by an affidavit describing what the deputies observed 

in the apartment during their initial entry under exigent circumstances. Black 

argues the image the deputies observed on his computer monitor during their 

initial entry was not sufficient to obtain a search warrant for possession of 

certain materials prohibited. Black also argues the application for the search 

warrant contained misleading omissions regarding the characterization of the 

photo, how the information was obtained, and by whom.

[¶21] “Probable cause is required for a search warrant under the Fourth 

Amendment to the United States Constitution, and Article 1, Section 8 of the 

North Dakota Constitution.” State v. Odum, 2019 ND 105, ¶ 5, 925 N.W.2d 

451. “Probable cause to search exists if the facts and circumstances relied on 

by the magistrate would warrant a person of reasonable caution to believe the 

contraband or evidence sought probably will be found in the place to be 

searched.” State v. Rogahn, 2016 ND 93, ¶ 7, 879 N.W.2d 454 (quoting State v. 

Ballweg, 2003 ND 153, ¶ 11, 670 N.W.2d 490). “Whether probable cause exists 

to issue a search warrant is a question of law.” State v. Ebel, 2006 ND 212, ¶ 

12, 723 N.W.2d 375. “We defer to a magistrate’s determination of probable 

cause so long as a substantial basis for the conclusion exists, and we resolve 

doubtful or marginal cases in favor of the magistrate’s determination.” Id. 

(quoting State v. Stewart, 2006 ND 39, ¶ 6, 710 N.W.2d 403) (quotation marks 

omitted). 

[¶22] In reviewing the sufficiency of information before the magistrate, this 

Court uses the totality-of-the-circumstances test, independent of the district 

court’s decision. Ebel, 2006 ND 212, ¶ 13. We have stated:

To establish probable cause, there must be a nexus between the 

place to be searched and the contraband sought. Circumstantial

evidence may be used to establish that nexus. Probable cause 

exists when there is a fair probability contraband or evidence of a 

crime will be found in a particular place.

Mere suspicion criminal activity is taking place, which may 

warrant further investigation, does not rise to a level of probable 

cause to search. The relevant inquiry is not whether conduct is 

innocent or guilty, but what degree of suspicion attaches to it. 
8

Id. at ¶¶ 13-14 (internal quotation marks and citations omitted).

[¶23] The search warrant was issued after a determination there was probable 

cause Black was in possession of certain materials prohibited. Possession of 

certain materials prohibited is statutorily defined as, “A person is guilty of a 

class C felony if, knowing of its character and content, that person knowingly 

possesses any motion picture, photograph, or other visual representation that 

includes sexual conduct by a minor.” N.D.C.C. § 12.1-27.2-04.1.

[¶24] The affidavit accompanying the search warrant described an image 

displayed on the computer of a prepubescent female in a body of water wearing 

underwear and a wet shirt exposing the child’s nipples and areolas through 

her shirt. The image was located on a website URL that references the term 

“jail bait.” A deputy testified the term “jail bait” is a colloquialism used to 

describe an individual under the age of eighteen. The search tags associated 

with the image of the prepubescent female included, “omg yes,” “first,” “puffy,” 

and “nipples.” There were at least fourteen other open browser tabs, hidden by 

the active window in the browser, with titles beginning with “Pic#” followed by 

a number. A substantial basis for the conclusion that there was a fair 

probability contraband or evidence of a crime would be found in Black’s 

apartment was presented in support of the search warrant, and we therefore 

defer to the magistrate’s determination regarding probable cause. We affirm 

the denial of Black’s second motion to suppress and the district court’s finding 

that there was probable cause to support the issuance of a search warrant.

[¶25] Black also challenges the truthfulness of the information provided to the 

magistrate in support of the request for a search warrant. In State v. Rogahn, 

2016 ND 93, ¶ 13, 879 N.W.2d 454, this Court stated:

When a defendant alleges false or misleading statements have 

been made in the application for a search warrant, we address the 

issue under the standard set forth in [Franks v. Delaware, 438 U.S. 

154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)]. An affidavit in support 

of a search warrant must contain “truthful” statements. Under 

Franks, this does not require every statement contained in the 

affidavit necessarily be correct, but rather requires the statement 

be truthful in the sense that the information put forth is believed 
9

or appropriately accepted by the affiant as true. A false statement 

under Franks is one that misleads a neutral and detached 

magistrate into believing the stated facts exist, and those facts in 

turn affect the magistrate’s evaluation of whether or not there is 

probable cause. That standard may also apply to statements that 

are deliberately false or misleading by omission.

(Internal quotation marks and citations omitted.)

[¶26] The defendant bears the burden of making a (1) substantial preliminary 

showing, accompanied by an offer of proof, that false or misleading statements 

in support of the search warrant were either made knowingly and intentionally 

or with reckless disregard for the truth; and (2) the allegedly false or 

misleading statements are necessary to a finding of probable cause. Rogahn, 

2016 ND 93, ¶ 14 (quoting Ebel, 2006 ND 212, ¶ 22). The district court’s ruling 

on whether a “substantial preliminary showing” was made is considered a 

finding of fact. Rogahn, at ¶ 15 (quoting Ebel, at ¶ 23).

[¶27] Black contends the description of the image displaying the prepubescent 

female was misleading or false. Regarding this issue, he argues the affidavit’s 

description of the individual as “prepubescent” was misleading or false because 

the deputy testified that he believed the individual in the image appeared to 

be prepubescent but also gave an age of between nine and fourteen years old, 

an age range Black contends is outside “prepubescent.” Black also asserts the 

affidavit did not indicate the location of the picture was on a public beach with 

other individuals in the photo, implying those facts would have shown the 

photograph did not include a representation of sexual conduct by a minor.

[¶28] Based on our review of the record, we conclude Black failed to satisfy his 

burden of showing that the false or misleading statements in support of the 

search warrant were either made knowingly and intentionally or with reckless 

disregard for the truth, or that the allegedly false or misleading statements 

were necessary to a finding of probable cause.
10

VI

[¶29] We affirm the denial of Black’s first motion to suppress evidence 

challenging the district court’s finding of exigent circumstances justifying a 

warrantless entry into Black’s apartment. We affirm the denial of Black’s 

second motion to suppress evidence challenging the probable cause for the 

search warrant issued to search his apartment. We affirm the criminal 

judgment based on Black’s conditional plea of guilty.

[¶30] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte