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Mike Nowatzki, Published October 09 2007

Trash evidence in doubt

Agent Mark Nickel slipped on a blue jumpsuit and hopped into the garbage truck, just like the other city sanitation workers on the morning of April 13.

Fifteen minutes later, the truck rolled into a south Fargo cul-de-sac. Nickel got out and followed it on foot, tossing bags into the back.

But when the truck approached the bi-level home at 3227 39th Ave. S., Nickel, an agent with the state Bureau of Criminal Investigation, asked his crewmate to cycle the hopper and compact the trash.

This garbage, from this house, was too important to mix with the rest.

With the truck’s tailgate cleared, Nickel emptied several bags and loose items from a plastic garbage can sitting on the curb in front of the house, according to court documents.

Now, attorneys are arguing over whether Nickel lawfully grabbed the garbage, which helped lead to murder charges against a Fargo man.

Authorities used items collected from the trash – including a receipt for shotgun shells and several lighters – to obtain a warrant to search the home of Aron Nichols and his fiancee, Tamara Sorenson.

Nichols, 29, is charged in Wells County, N.D., with two counts of Class AA felony murder in the deaths of Donald Willey, 70, and his wife, Alice, 67, whose bodies were found in their rural Sykeston home after it was destroyed by fire.

Authorities said the Willeys died of gunshot wounds.

Nichols pleaded not guilty to both charges, and Sorenson pleaded not guilty to two Class AA felony charges of being an accomplice to murder.

Court records indicate the two battled with the Willeys over visitation rights to Sorenson’s daughter, who she had with the Willeys’ late son.

Nichols’ defense attorney, Robert W. Martin of Minot, N.D., has asked Judge James Bekken to suppress evidence gathered from what he calls the “tainted” garbage seizure, as well as evidence and facts obtained through warrants based on the garbage seizure.

Martin argues that investigators violated constitutional protections against warrantless searches and seizures when they took the garbage not from the curb but from the “curtilage” – the area immediately around the home considered private property.

Wells County State’s Attorney Kathleen Trosen filed a response stating that Nichols “had no reasonable expectation of privacy in his garbage set out for collection,” and that the trash was lawfully seized. Authorities also had additional probable cause for the search warrants based upon information from other sources, she wrote.

Martin and Trosen declined to comment on the motions Monday, citing a partial gag order in the case.

Fargo attorney Bruce Quick said garbage set on a city-owned boulevard is generally considered abandoned property and isn’t protected from law enforcement searches, which are common in drug cases. The area between the sidewalk and house is more of a gray area, handled on a case-by-case basis, he said.

The judge must determine whether there was an expectation of privacy, said Quick, an adjunct faculty member at North Dakota State University and the University of North Dakota School of Law.

“My guess is if it’s already sitting out there ready for pickup, the judge is going to say it’s valid,” he said of the garbage seizure.

Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528 Trash evidence in doubt Mike Nowatzki 20071009