Kappel v. DIRECTOR, ND DEPT. OF TRANSP.

• Decision Date: 01 December 1999
• Docket Number: No. 990142.,990142.
• Citation: 602 N.W.2d 718,1999 ND 213
• Parties: Kenneth Robert KAPPEL, Petitioner and Appellant, v. DIRECTOR, ND DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.
• Court: North Dakota Supreme Court

602 N.W.2d 718

1999 ND 213

Kenneth Robert KAPPEL, Petitioner and Appellant, v. DIRECTOR, ND DEPARTMENT OF TRANSPORTATION, Respondent and Appellee.

No. 990142.

Supreme Court of North Dakota.

December 1, 1999.

Henry H. Howe, Howe & Seaworth, Grand Forks, ND, for petitioner and appellant.

Andrew Moraghan, Assistant Attorney General, Bismarck, ND, for respondent and appellee.

VANDE WALLE, Chief Justice.

[¶ 1] Kenneth Kappel appealed from a district court judgment affirming the North Dakota Department of Transportation's ("Department") 91-day suspension of Kappel's driving privileges. We affirm.

[¶ 2] On July 25, 1998 at 12:57 A.M., Officer Troy Vanyo, who was traveling east on Seventh Avenue South in Grand Forks, observed a motorcycle stopped at a stop sign at the intersection of Seventh Avenue South and South 14th Street. Although Officer Vanyo saw no traffic coming from either direction, the motorcycle remained at the stop sign for an extended period of time. In his report, Vanyo estimated Kappel paused for about ten seconds. When Officer Vanyo first saw the stopped motorcycle he was two or three blocks from the intersection, but the motorcycle remained at the intersection until Officer Vanyo was 20 feet behind the motorcycle. The motorcycle turned right onto South 14th Street and Officer Vanyo followed, observing the motorcycle weaving several times within its own lane between the 800 and 1000 block of South 14 th Street. Vanyo stopped the motorcycle.

[¶ 3] Vanyo observed Kappel staggered a bit and had poor balance when he got off the motorcycle. Vanyo detected the odor of alcohol on Kappel's breath and noticed his slurred speech. Kappel admitted to Vanyo he had consumed nine beers. After Vanyo administered several sobriety tests all of which Kappel failed, Kappel was arrested for driving under the influence.

[¶ 4] Kappel requested and received an administrative hearing. The hearing officer found Officer Vanyo observed the motorcycle pausing longer than normal at the intersection and later observed the motorcycle weaving within its own lane. The hearing officer concluded Officer Vanyo had "a reasonable and articulable suspicion" that Kappel was driving under the influence.

[¶ 5] Kappel appealed the decision to the district court. The district court affirmed, concluding the longer than normal pause at the intersection and the later weaving together were enough to constitute a reasonable and articulable suspicion justifying the stop of Kappel.

[¶ 6] Our review of an appeal from a district court decision on a license suspension is governed by the Administrative Agencies Practice Act. Chapter 28-32, N.D.C.C. We review the record compiled and decision rendered by the agency, not the decision of the district court. Dworshak v. Moore, 1998 ND 172, ¶ 6, 583 N.W.2d 799. We must affirm the agency's decision unless:

1) a preponderance of the evidence does not support the agency's findings; 2) the agency's findings of fact do not support its conclusions of law and its decision; 3) the agency's decision violates the constitutional rights of the appellant; 4) the agency did not comply with the Administrative Agencies Practice Act in its proceedings; 5) the agency's rules or procedures have not afforded the appellant a fair hearing; or 6) the agency's decision is not in accordance with the law.

Id. (quoting Greenwood v. Moore, 545 N.W.2d 790, 793 (N.D.1996)).

[¶ 7] Kappel contends Officer Vanyo did not have a reasonable and articulable suspicion Kappel was violating the law and thus everything discovered after the stop is inadmissible. "In order to legally stop a moving vehicle for an investigation, an officer must have a reasonable and articulable suspicion the motorist has violated or is violating the law." City of Fargo v. Ovind, 1998 ND 69, ¶ 8, 575 N.W.2d 901. The reasonable suspicion standard must be objective and is based on the totality of the circumstances. Id. "Reasonable suspicion to justify a stop exists when `a reasonable person in the officer's position would be justified by some objective manifestation to suspect potential criminal activity.'" Id. (quoting State v. Ova, 539 N.W.2d 857, 859 (N.D.1995)). The reasonable suspicion standard is not as exacting as the probable cause standard. Id. Nevertheless, a mere hunch illegal activity is taking place is not enough to justify the detention of a motorist. Salter v. North Dakota Dept. of Transp., 505 N.W.2d 111, 114 (N.D.1993).

[¶ 8] In assessing reasonableness, we take into account "inferences and deductions an investigating officer would make which may elude a layperson." Ovind, 1998 ND 69, ¶ 9, 575 N.W.2d 901. Officers are to assess a "`situation as it unfolds and, based upon inferences and deductions drawn from their experience and training, make the determination whether all of the circumstances viewed together create a reasonable suspicion of potential criminal activity.'" Id. (quoting Ova, 539 N.W.2d at 859).

[¶ 9] Kappel makes two related arguments. First, Kappel argues that since Officer Vanyo did not see him commit a traffic offense, the stop was not justified. Second, Kappel argues the stop was unreasonable because there may be innocent reasons for stopping longer than usual at an intersection and for weaving within one's own lane. The Supreme Court explained in Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983):

[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens' demands.... In making a determination of probable cause the relevant inquiry is not whether particular conduct is "innocent" or "guilty," but the degree of suspicion that attaches to particular types of noncriminal acts.

This principle applies equally as well to the reasonable suspicion standard. United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

[¶ 10] The reasonable suspicion standard was enunciated in Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where according to the Supreme Court's opinion an officer had observed "a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation." The Supreme Court said in United States v. Sokolow, "`there could ... be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot.'" 490 U.S. at 9, 109 S.Ct. 1581 (quoting Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980)). The Court has also said the process to determine reasonable suspicion "does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers." United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Thus, the reasonable suspicion standard does not require an officer to see a motorist violating a traffic law or to rule out every potential innocent excuse for the behavior in question before stopping a vehicle for investigation.

[¶ 11] Here, Vanyo articulated two reasons at the administrative hearing for his stop of Kappel:

MR. HOWE: Okay. Why ... what was the basis for you (sic) decision to stop?

OFFICER VANYO: I factored in the long, extended period he stopped at the stop sign, plus the weaving in the short period of time he was traveling, combination of those two factors.

Vanyo also testified he has made approximately 160 DUI arrests and said Kappel exhibited some of the same behavior as others who were under the influence.

[¶ 12] A review of our case law demonstrates both the pause and the weaving prove significant in a reasonable suspicion analysis. In State v. Guthmiller, 499 N.W.2d 590, 593 (N.D.1993) (Levine, J., concurring in the result), a driver's "prolonged stop" at the stop sign was sufficiently corroborative of an anonymous tip that the driver was under the influence of alcohol to justify the reasonable suspicion stop of the driver. In Guthmiller, an officer received an anonymous tip reporting a DUI driver. Id. at 591. The anonymous caller described a light blue pickup, the license number, and its eastbound direction on Interstate 94. Id. The officer observed a light blue pickup exit Interstate 94 and stop at the exit intersection for a prolonged period. Id. Guthmiller argued that since the officer saw no erratic driving or violation of the law, there was no reasonable suspicion to justify the stop. Id. We held that, combined with the tip information, Guthmiller's "hesitation" at the stop sign was enough to reasonably justify investigation. Id. at 592.

[¶ 13] In a prior decision, we held that a vehicle weaving within its own lane may be enough to justify the stop of that vehicle. State v. Dorendorf, 359 N.W.2d 115, 117 (N.D.1984). We have also held that weaving in one's own lane combined with a minor infraction or other suspicious activity may justify the stop of a vehicle. See State v. Goeman, 431 N.W.2d 290, 291-92 (N.D.1988)

(holding a stop was justified where the car came to an abrupt halt at an intersection and the car later weaved within its own lane); Neset v. North Dakota Highway Comm'r, 388 N.W.2d 860, 862-63 (N.D.1986) (concluding a stop was justified where the driver weaved "from side to side in its own lane of travel and ... failed to signal for a right-hand turn"). But see Salter, 505 N.W.2d at 114 (holding that a stop was not justified where a vehicle was traveling 30-35 miles per hour in a 50 mile per hour zone and weaved slightly within its own lane).

[¶ 14] In Dorendorf...