State v. Everson, Cr. N
Citation | 474 N.W.2d 695 |
Decision Date | 16 August 1991 |
Docket Number | Cr. N |
Parties | STATE of North Dakota, Plaintiff and Appellee, v. Keith EVERSON, Defendant and Appellant. os. 900342, 900343. |
Court | United States State Supreme Court of North Dakota |
James A. Hope, Asst. State's Atty., Dickinson, for plaintiff and appellee.
Ralph A. Vinje, of Vinje Law Firm, Bismarck, for defendant and appellant.
Keith Everson appealed from two judgments of conviction for class C felony possession of a controlled substance. He asserts on appeal that the trial court erred in refusing to suppress the controlled substances which were discovered by law enforcement officers when he was stopped at a multi-purpose highway checkpoint. We disagree, and accordingly, affirm the judgments of conviction.
During the summer of 1989, Larry Buck, a detective with the Stark County Sheriff's Office, Sgt. Don Glarum of the State Highway Patrol, and Stark County Deputy Sheriff Mike Adolph, were assigned by their supervisors to establish a highway checkpoint in Stark County to coincide with the upcoming annual motorcycle rally in Sturgis, South Dakota. On June 26, 1989, District Eight Highway Patrol Captain David Messer issued Operation Order 2-89 which stated in part:
On July 17, 1989, Stark County Sheriff James Rice issued a memorandum in preparation for the operation which stated:
On August 5-6 and 13-14, 1989, law enforcement officers conducted a checkpoint 12 miles south of Belfield on U.S. Highway 85. Personnel from the Stark, Billings, and Slope County Sheriff's Offices, the State Highway Patrol, the State Drug Enforcement Unit, the United States Border Patrol, and the Minot Police Department participated in the operation. On August 5 and 6, which coincided with the beginning of the motorcycle rally, all southbound traffic was stopped. On August 13 and 14, which coincided with the conclusion of the rally, all northbound traffic was stopped. The checkpoint was located in a small valley so oncoming traffic could not see it from a long distance. A driver would first see a large sign that said "Please stop." The actual checkpoint was located approximately two-tenths of one mile from the sign. The checkpoint was conducted only during daylight hours.
Every vehicle was stopped at the checkpoint. The driver would first encounter three fluorescent orange traffic cones and an officer referred to as the "point man" who was located at an intersection of the highway and a gravel road. Parked on the gravel road to the driver's right were sheriff's cars, a camper used as a command post, and Drug Enforcement Unit vehicles. Drug Enforcement Unit officers and sheriff's deputies conducted searches of vehicles referred to this area if the driver consented to a search. Two Highway Patrol officers were stationed further down The point man made the initial determination whether a vehicle would be sent to the search area or the inspection area, but any officer had the authority to send a vehicle to the search area. The point man would tell drivers that a vehicle safety check was being conducted and that they should have their drivers' licenses and vehicle registrations ready for inspection. The point man could send a vehicle to the search area based on the observation of any illegal activity. Before the law enforcement officers went on duty, they were also given a drug courier profile containing a list of "indicators" of narcotics traffickers. These "indicators" included the following:
the highway to conduct vehicle-safety inspections.
If a driver or other occupant caused the point man to become suspicious, the driver was sent to the search area where the driver was asked to consent to a search of the vehicle. Otherwise, the driver was sent to the vehicle safety inspection area. If a driver refused to consent to a search, the officers were instructed to allow the driver to proceed without a search.
On August 13, 1989, Everson, traveling from Sturgis to Williston, was stopped at the checkpoint. Everson was driving a 1981 Mazda GLC and pulling a trailer which contained a Harley Davidson motorcycle. The license plate on Everson's trailer was partially broken off. The point man informed Everson that the officers were conducting vehicle safety inspections and that he should get out his driver's license and vehicle registration. The point man then directed Everson toward the vehicle safety inspection area. Sgt. Glarum of the Highway Patrol, who was conducting safety inspections at the time, checked Everson's driver's license and vehicle registration and conducted a safety check. Sgt. Glarum then had Everson pull his vehicle over to the side of the road. Apparently, other drivers who were given vehicle safety inspections were not required to pull over to the side of the road. Sgt. Glarum explained:
highway trooper that there--that was inspecting.
The search of Everson's vehicle resulted in the discovery of methamphetamine and hashish. Everson was arrested and ultimately charged with possession of controlled substances. Everson pled not guilty to the charges and moved to suppress the evidence on the ground that it was obtained in violation of the Fourth Amendment to the United States Constitution. Following an evidentiary hearing, the trial court agreed with Everson that the checkpoint was unconstitutional, in part because it was pretextual:
However, the trial court refused to suppress the evidence, concluding that Everson gave a valid, uncoerced consent to the search which purged any taint of illegality stemming from the initial stop:
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