State v. Albaugh, s. 970074

• Decision Date: 02 December 1997
• Docket Number: 970075,Nos. 970074,s. 970074
• Citation: 571 N.W.2d 345
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Harold ALBAUGH, Defendant and Appellee. Criminal
• Court: North Dakota Supreme Court

Page 345

571 N.W.2d 345

1997 ND 229

STATE of North Dakota, Plaintiff and Appellant, v. Harold ALBAUGH, Defendant and Appellee.

Criminal Nos. 970074, 970075.

Supreme Court of North Dakota.

Dec. 2, 1997.

Larry W. Quast (argued), State's Attorney, Stanton, for plaintiff and appellant.

Loren C. McCray (argued), Beulah, for defendant and appellee.

MESCHKE, Justice.

¶1 The State appeals from an order suppressing evidence discovered after Harold Albaugh's van was stopped at a checkpoint for the North Dakota Game and Fish Department. We conclude that the checkpoint was constitutional, and that the game warden had authority, after seeing open beer cans in Albaugh's van, to briefly detain him until a nearby police officer could investigate. Accordingly, we reverse the suppression order and remand for trial.

I. FACTS

¶2 On October 13, 1996, the North Dakota Game and Fish Department conducted a checkpoint on Highway 200 at the west end of Garrison Dam, near one mile east of Pick City. Two game warden supervisors, two game wardens, a Department biologist, the superintendent of Lake Sakakawea State Park, a sheriff's deputy, and the Chief of Police of Pick City, all in uniform, conducted the checkpoint under a specific written policy adopted by the Department. Appropriate signs warned approaching drivers about the checkpoint; six vehicles with official insignias and top red lights were parked there; and orange cones marked the checkpoint area.

¶3 Game Warden Supervisor Floyd Chrest served as the point man, stopping vehicles with a hand-held stop sign as they approached the checkpoint. Chrest testified he stopped all eastbound traffic except semi-trailer trucks that would not ordinarily be used in hunting and that would have difficulty stopping and restarting. Chrest told each driver this was a game-and-fish check and asked the occupants if they had been hunting. If they said no, he sent them on their way. If they said yes, he asked them to pull into a separate lane for further inspection by the other game officials.

¶4 Albaugh came to the checkpoint in his van and stopped when Chrest displayed the stop sign. Chrest approached the driver's door and, while ascertaining Albaugh had not been hunting, saw two open cans of beer in the center console of the van. After telling Albaugh to wait there, Chrest called over Police Chief Dean Danzeisen, who was standing about 25 feet away, and told him there were open containers. Chief Danzeisen investigated, conducted field sobriety tests, and arrested Albaugh for driving under suspension and for driving while impaired. Albaugh was also charged with an open-receptacle violation, but that charge has not been appealed in this case.

¶5 Albaugh moved to suppress all evidence, arguing that the game-and-fish checkpoint violated the Fourth Amendment of the United States Constitution or Section 8, Article I of the North Dakota Constitution, and that Chrest had no authority to detain him until Chief Danzeisen could investigate. The trial court did not decide the constitutional challenge, but concluded that Chrest had no authority to detain Albaugh for the open-receptacle violation once he saw no game violations. The court therefore suppressed all evidence discovered after Chrest detained Albaugh. The State appealed.

II. CHECKPOINT CONSTITUTIONALITY

¶6 A Fourth Amendment "seizure" occurs when a vehicle is stopped by police at a checkpoint. Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990); State v. Everson, 474 N.W.2d 695, 698 (N.D.1991); State v. Wetzel, 456 N.W.2d 115, 117-118 (N.D.1990). However, individualized reasonable suspicion is not required for checkpoint stops. United States v. Martinez-Fuerte, 428 U.S. 543, 561-562, 96 S.Ct. 3074, 3084-3085, 49 L.Ed.2d 1116 (1976). Checkpoint stops nevertheless present important concerns under the Fourth Amendment and Section 8, Article I of the North Dakota Constitution. See Sitz, 496 U.S. at 450, 110 S.Ct. at 2485; Everson, 474 N.W.2d at 698-699. The basic question is whether the seizure is reasonable.

¶7 To assess the reasonableness of a checkpoint stop under both the federal and state constitutions, we employ a three-part analysis, balancing the State's interest in the checkpoint's purpose against the degree that the checkpoint advances that interest and the severity of the intrusion upon the individual's liberty. Sitz, 496 U.S. at 448-449, 110 S.Ct. at 2484-2485; City of Bismarck v. Uhden, 513 N.W.2d 373, 378 (N.D.1994). We have approved other types of highway checkpoints under this constitutional standard. See Uhden, 513 N.W.2d at 379 (sobriety checkpoint); Everson, 474 N.W.2d at 703 (checkpoint for drugs, drivers license, and vehicle registration); Wetzel, 456 N.W.2d at 121 (safety inspection checkpoint). This is the first time we have considered a game-and-fish checkpoint.

¶8 Courts elsewhere have employed the same balancing analysis to uphold the constitutionality of game-and-fish checkpoints. See People v. Perez, 51 Cal.App.4th 1168, 59 Cal.Rptr.2d 596 (1996); State v. McHugh, 630 So.2d 1259 (La.1994); State v. Sherburne, 571 A.2d 1181 (Me.1990); Drane v. State, 493 So.2d 294 (Miss.1986); State v. Tourtillott, 289 Or. 845, 618 P.2d 423 (1980); State v. Halverson, 277 N.W.2d 723 (S.D.1979); see also John Wesley Hall, Jr., Search and Seizure § 17:11 (2d ed.1991); Jeffrey F. Ghent, Annotation, Validity of Roadblocks by State or Local Officials for Purpose of Enforcing Fish or Game Laws, 87 A.L.R.4th 981 (1991). ¹ We use the three-part balancing analysis here.

¶9 The first part of the analysis requires us to assess the importance of the public interest served by the checkpoint. The State owns all wildlife within its borders "for the purpose of regulating the enjoyment, use, possession, disposition, and conservation thereof." NDCC 20.1-01-03. This court has long recognized "the great and urgent need of legislation for protection and conservation of our big game." State v. Miller, 129 N.W.2d 356, 364 (N.D.1964); see also State v. Reich, 298 N.W.2d 468, 473 (N.D.1980). As precedents elsewhere have recognized, see Perez, 59 Cal.Rptr.2d at 600; State v. Medley, 127 Idaho 182, 898 P.2d 1093, 1097 (1995); McHugh, 630 So.2d at 1264-1265; Sherburne, 571 A.2d at 1184; Halverson, 277 N.W.2d at 724, the State has a compelling interest in managing and preserving its wildlife.

¶10 We analyze the degree that this checkpoint advanced the State's legitimate interest in protecting and preserving wildlife. In doing so, we bear in mind the Supreme Court's admonition that this part of the balancing analysis

was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger.... [F]or purposes of Fourth Amendment analysis, the choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers.

Sitz, 496 U.S. at 453-454, 110 S.Ct. at 2487; see also Everson, 474 N.W.2d at 700. Game wardens surely face a daunting task when attempting to enforce the game laws in a rural region like North Dakota. In assessing the need for checkpoints to do so, courts have stressed the limited manpower available to game officials, the vast and remote areas where hunting usually occurs, and the difficulty in detecting game violations without suspicionless stops. See Perez, 59 Cal.Rptr.2d at 600; Medley, 898 P.2d at 1097-1098; McHugh, 630 So.2d at 1267; Sherburne, 571 A.2d at 1184-1185; Tourtillott, 618 P.2d at 430; Halverson, 277 N.W.2d at 724. As McHugh at 1270, explained, checkpoints are often the least restrictive means of effectively enforcing the game-and-fish laws.

¶11 This checkpoint was designed to maximize its effectiveness. It was set up on a highway coming out of probable hunting areas. It was conducted between 3:00 P.M. and 6:00 P.M. on a Sunday afternoon during hunting season, when many hunters would be returning home. We conclude this checkpoint was an effective means of advancing the State's interest in preserving and managing wildlife.

¶12 Albaugh asserts the State failed to meet its burden of demonstrating the effectiveness of this checkpoint because the State did not present statistical evidence comparing the total number of vehicles stopped to the number of violations discovered. That ratio may be viewed as one indicator of the effectiveness of a checkpoint. See, e.g., Sitz, 496 U.S. at 454-455;, 110 S.Ct. at 2487-2488 Everson, 474 N.W.2d at 702-703. However, there is no absolute requirement that such a ratio be determined in every case. The effectiveness of the checkpoint is but one factor to be weighed under the balancing test, Everson, 474 N.W.2d at 703 n. 3, and the ratio of violations to total vehicles stopped is but one evidentiary means of assessing effectiveness. See 4 Wayne R. LaFave, Search and Seizure § 10.8(d) (1996) (" 'effectiveness' ... is a matter which need not be measured solely in terms of the number of perpetrators apprehended"). Besides apprehending violators, checkpoints serve the additional purpose of deterring illegal conduct. See 4 LaFave, at § 10.8(d); Martinez-Fuerte, 428 U.S. at 557, 96 S.Ct. at 3082-3083. The constitutionality of a checkpoint calls for balancing several competing interests, and it is not susceptible of a precise mathematical calculation.

¶13 This checkpoint was conducted for three hours on a Sunday afternoon in a rural area. In that short time, the Department stopped 117 vehicles carrying hunters and discovered fourteen game violations. The effectiveness of this checkpoint compares favorably with checkpoint results upheld in Sitz, where 1.6 percent of the drivers stopped at a sobriety checkpoint were arrested, and Martinez-Fuerte, where only .12 percent of...