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A Surrey man facing a murder charge won't be able to argue intoxication as a defense or obtain additional cell phone records of the victim and a witness under an Aug. 25 court ruling. However, the judge's ruling did allow certain state evidence to be suppressed.
Daniel Breijo is charged with Class AA felony murder; aggravated assault, Class B felony; reckless endangerment, terrorizing and simple assault on a peace or correction officer, all Class C felonies, in North Central District Court. He is accused in the shooting death of Nicholas Van Pelt on Dec. 24, 2023.
According to court information, Van Pelt invited Breijo to his apartment, where Breijo became intoxicated and stumbled down a hallway to a spare bedroom. In checking on Breijo, Van Pelt and another individual in the apartment were shot. Van Pelt was declared deceased by paramedics who responded.
District Judge Daniel El-Dweek wrote that the North Dakota Supreme Court has long held that voluntary intoxication doesn't relieve a defendant of criminal responsibility. His ruling precludes the defense from introducing expert testimony regarding Breijo's intoxication and cognitive effects at trial, as requested by the prosecution.
In requesting the state to release additional phone records, Breijo argued communications between himself and the victims are material and relevant to his defense. The prosecution argued unfettered access to the cell phones would be an invasion of privacy. El-Dweek's ruling stated turning over the phone data would constitute an illegal search by the state because it would fall outside the state's search warrant. He added Breijo's request did not meet the prerequisites for a court review to determine whether the cell phones contain material evidence.
Breijo asked to suppress all evidence derived from police searches executed at night on a daytime search warrant or that exceeded the scope of a warrant. He argued a firearm and his clothing were unlawfully seized.
El Dweek noted warrants, by law, are required to be executed during the daytime, between 6 a.m.-10 p.m., unless specifically authorized to be executed at other times. He excluded items obtained from the original search and the amended search warrant from being introduced in court but ruled the firearm found in plain view during response to the incident and taken later by police, as well as items found while searching the defendant and his clothing, are legal evidence. Evidence taken in the apartment building hallway where Breijo did not have an expectation of privacy also was not suppressed.
A jury trial remains scheduled to start Oct. 19.