State v. Genre, 20050238.

CourtUnited States State Supreme Court of North Dakota
Citation2006 ND 77,712 N.W.2d 624
Docket NumberNo. 20050247.,No. 20050239.,No. 20050248.,No. 20050238.,20050238.,20050239.,20050247.,20050248.
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Ryan GENRE, Defendant and Appellant.
Decision Date19 April 2006

James P. Wang (argued), States's Attorney, Minnewaukan, N.D., and Kathleen Kay Trosen (argued), State's Attorney, Fessenden, N.D., for plaintiff and appellee.

Robin L. Olson, Olson Johnston Law Office, Grand Forks, N.D., for defendant and appellant.

CROTHERS, Justice.

[¶ 1] Ryan Genre appeals from the district court orders denying his motions to suppress evidence and from the criminal judgments entered after he conditionally pled guilty. We affirm the district courts' judgments and orders denying Genre's motions to suppress.

I

[¶ 2] On February 20, 2004, Wells County Deputy Sheriff Allen Kluth stopped Genre for speeding. Upon approaching Genre's vehicle, Deputy Kluth saw a rifle lying on the backseat and an open container of alcohol on the vehicle's console. He also detected the odor of alcohol emanating from the vehicle and observed that Genre had bloodshot eyes and appeared to be nervous. Deputy Kluth asked Genre if he had any guns, weapons, or drugs, and Genre said there was a rifle on the backseat and a can of beer in the cup holder. Deputy Kluth asked Genre to exit the vehicle and Genre complied. At some point, Deputy Kluth asked Genre if he could search Genre and his vehicle, and Genre said, "Sure, go ahead."

[¶ 3] While conducting the search, Deputy Kluth seized a rolled up piece of tin foil containing a white residue from Genre's pants pocket. Deputy Kluth asked Genre what the tin foil was, and Genre responded, "You know what that is." Deputy Kluth asked Genre if he had any more, and Genre told him there were coffee filters under the backseat in a yellow bag. Deputy Kluth did not advise Genre of his Miranda rights, but told Genre he was under arrest and placed him in the squad car. Deputy Kluth searched the vehicle, seizing drugs, paraphernalia, beer, and a rifle.

[¶ 4] When Deputy Kluth told Genre he was going to jail, Genre requested to speak to the state's attorney. Deputy Kluth took Genre to the Harvey Police Department to meet with the Wells County State's Attorney where, on arrival, Genre was immediately given the Miranda warning. Genre said he understood his rights, did not request an attorney, and gave a voluntary statement. Genre admitted the coffee filters contained methamphetamine and he had been smoking methamphetamine earlier in the evening. Genre also described how he acquired the filters.

[¶ 5] During this meeting the parties discussed fines and jail time, and it was agreed that Genre would not go to jail that night because he gave some information and was considering working with law enforcement by participating in controlled purchases of drugs. Genre claims the state's attorney told him he would not be charged if he provided information and participated in some controlled buys.

[¶ 6] On February 23, 2004, Genre met with Deputy Kluth and Bureau of Criminal Investigations Agent Craig Zachmeier. No state's attorney was present at this meeting. Agent Zachmeier advised Genre his cooperation would only be considered to mitigate any fines or jail time and would not result in dismissal of any charges. Agent Zachmeier also advised Genre he did not have authority to make a plea agreement, but could make recommendations for sentencing. After Genre was informed he did not have to speak to the officers and was given the Miranda warning, Genre gave a statement. Genre was given thirty days to decide whether he wanted to work with law enforcement.

[¶ 7] On April 13, 2004, Genre met with Bureau of Criminal Investigations Agent Mark Hendrickson to discuss working as a confidential informant. Agent Hendrickson advised Genre what he would need to do to work with law enforcement, including staying sober and being truthful.

[¶ 8] At about the same time, Genre's attorney contacted the Wells County State's Attorney to try to reach a formal plea agreement. Genre offered to plead guilty to a misdemeanor marijuana charge. The state's attorney testified that a formal agreement was never reached.

[¶ 9] Genre met with Agent Hendrickson again on April 20, 2004 at the Lake Region Law Enforcement Center, located in Devils Lake, North Dakota. Genre admitted to recently using methamphetamine. Agent Hendrickson told Genre he believed Genre had illegal narcotics in his vehicle and his hotel room at the Spirit Lake Casino and Resort, located in Benson County. After Agent Hendrickson asked Genre for consent to search Genre's hotel room and told Genre he would be detained until a search warrant was obtained, Genre gave consent both verbally and in writing. Law enforcement officers searched Genre's hotel room and vehicle, and seized Ecstasy and methamphetamine paraphernalia from the hotel room. Agent Hendrickson told Genre that he was trying to help Genre get clean so he could work for them. Genre was not arrested or charged at that time.

[¶ 10] Genre met with Agent Hendrickson again on April 23, 2004. Genre tested positive for narcotics and was arrested on the Wells County charges of possession with intent to deliver and possession of drug paraphernalia arising from the February 20, 2004, traffic stop. Genre was later arrested and charged in Benson County with possession of drug paraphernalia and possession of methamphetamine based on the evidence seized during the search of the hotel room on April 20.

[¶ 11] Genre brought motions to suppress evidence in both Wells County and Benson County. Both district courts denied his motions. Genre subsequently entered conditional pleas of guilty to the charges in both counties, reserving the right to appeal. Genre appealed from the orders denying his motions to suppress and from his convictions.

II

[¶ 12] The standard of review is well established for reviewing a district court's decision on a motion to suppress:

We will defer to a trial court's findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court's decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court's findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Tollefson, 2003 ND 73, ¶ 9, 660 N.W.2d 575 (quoting State v. Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1). Questions of law are reviewed under the de novo standard of review. Tollefson, at ¶ 9.

III

[¶ 13] Genre argues the district court in the Wells County action erred in denying his motion to suppress evidence found during the search of his vehicle and his person because Deputy Kluth violated Genre's Fourth Amendment rights when he seized Genre by ordering him out of the vehicle and searching him, and because Genre did not consent to the search.

A

[¶ 14] Genre argues Deputy Kluth exceeded the scope of the traffic stop when he asked Genre to exit the vehicle and this continued seizure, beyond what was necessary to issue a traffic citation, violated his Fourth Amendment rights.

[¶ 15] Unreasonable searches and seizures are prohibited by U.S. Const. amend. IV and N.D. Const. art. I, § 8. "To justify a greater intrusion unrelated to the traffic stop, the totality of the circumstances known to the officer must meet the requisite level of reasonable suspicion under Terry." State v. Guscette, 2004 ND 71, ¶ 24, 678 N.W.2d 126 (quoting United States v. Ramos, 20 F.3d 348, 352 (8th Cir.1994), rev'd on other grounds, 42 F.3d 1160 (8th Cir.1994)).

[¶ 16] Deputy Kluth testified that upon approaching the vehicle he saw a rifle on the backseat and an open beer can. The open can of beer was a violation of the open container law, N.D.C.C. § 39-08-18. Deputy Kluth also observed the odor of alcohol emanating from the vehicle and that Genre had bloodshot eyes and appeared to be nervous. Deputy Kluth's observations were sufficient to create a reasonable suspicion that criminal activity was afoot and to justify expanding the scope of the stop. Therefore, Genre's continued seizure was not unreasonable.

B

[¶ 17] Warrantless searches are unreasonable unless they fall within a recognized exception to the warrant requirement. State v. Wanzek, 1999 ND 163, ¶ 7, 598 N.W.2d 811. Consent is one exception to the warrant requirement. State v. Mitzel, 2004 ND 157, ¶ 13, 685 N.W.2d 120. Under the standard of review for motions to suppress, "we defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance." State v. Haibeck, 2004 ND 163, ¶ 8, 685 N.W.2d 512.

[¶ 18] At the Wells County suppression hearing, Genre testified in response to questions about the searches:

[H]e asked me to step out of the vehicle and told me he was going to pat me down for his safety and then he asked me, while he was patting me down, if he could search the vehicle and I believe I said—I believe I just said yeah.

Deputy Kluth was asked if he performed a pat down of Genre after Genre exited the vehicle, and Deputy Kluth testified, "Yeah. At that time, I asked him if it was okay if I searched him and he stated it was okay." Deputy Kluth also testified to asking Genre if he could search the vehicle and Genre responded, "okay, go ahead."

[¶ 19] The district court found Deputy Kluth asked for and Genre consented to the search of both his person and the vehicle. Applying the standard of review set out above, evidence supports the district court's conclusion Genre consented to both searches.

[¶ 20] Genre argues this case is comparable to Mitzel, 2004 ND 157, 685 N.W.2d 120. In Mitzel, the defendant invited the police into the house. Id. at ¶ 3. The...

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