City of Bismarck v. Uhden

• Decision Date: 11 March 1994
• Docket Number: Cr. N
• Citation: 513 N.W.2d 373
• Parties: CITY OF BISMARCK, Plaintiff and Appellee, v. Dale UHDEN, Defendant and Appellant. o. 930293.
• Court: North Dakota Supreme Court

Page 373

513 N.W.2d 373

CITY OF BISMARCK, Plaintiff and Appellee, v.Dale UHDEN, Defendant and Appellant.

Cr. No. 930293.

Supreme Court of North Dakota.

March 11, 1994.

Paul H. Fraase, Asst. City Atty., Bismarck, for plaintiff and appellee.

Ralph A. Vinje, Vinje Law Firm, Bismarck, for defendant and appellant.

VANDE WALLE, Chief Justice.

Dale Uhden appealed a county court judgment of conviction for driving while under the influence of alcohol, in violation of Bismarck City Ordinance, following an appeal by the City of Bismarck from a municipal court decision suppressing evidence and dismissing the action.We affirm the judgment of the county court.

On June 20, 1992, Uhden was stopped at a sobriety checkpoint, established on West Main Avenue in the City of Bismarck by the Bismarck Police Department.At the checkpoint, only eastbound traffic was stopped.Uhden, who was riding a motorcycle, was not observed to have violated any traffic laws nor otherwise to have been involved in any erratic driving prior to being stopped at the checkpoint.Uhden was asked to turn his motorcycle off and to produce his driver's license.When Uhden did so, the officer detected bloodshot eyes, an odor of alcohol, and poor balance.After failing field sobriety tests, Uhden was arrested for DUI.

Uhden entered a plea of not guilty in Bismarck Municipal Court and moved for suppression of the evidence of his impairment.At the suppression hearing, the City called only one witness, the arresting officer.The officer's testimony concerned both the general operation of the roadblock and the stop and arrest of Uhden.The municipal court judge issued a memorandum opinion concluding that the stop was illegal.The judge rationalized that asking the motorist to turn off his vehicle and to produce his driver's license was not necessary to, nor consistent with, the stated objective of the checkpoint, i.e., determining whether or not the motorist was driving while under the influence.The municipal court thus suppressed the evidence of impairment and, without objection from the City, dismissed the complaint against Uhden.¹

The City appealed the decision to county court, where Uhden again made a motion to suppress the evidence.Uhden did not allege that the city's appeal constituted double jeopardy, but rather argued that review on appeal must be limited either to the record of the municipal court, or to the testimony of the sole witness who testified in municipal court.The county court rejected Uhden's arguments, however, and, after hearing testimony from a number of witnesses regarding the planning and organization of the roadblock, found that the stop of Uhden was permissible.The county court denied Uhden's motion for a jury trial and remanded the matter to municipal court.

A trial was held in municipal court and Uhden was convicted for DUI.Uhden appealed to the county court and again moved to suppress evidence.The motion was denied without a hearing.Following a trial, Uhden was convicted and judgment was entered accordingly.²This appeal followed.

Uhden defines the issues on appeal as follows:

"1.ARE DUI ROADBLOCKS PERMISSIBLE STOPS IN NORTH DAKOTA IN LIGHT OF THE STATE CONSTITUTIONANDN.D.C.C. 29-29-21?

"2.DOES DOUBLE JEOPARDY ARISE WHEN AN INDIVIDUAL ACQUITTED IN MUNICIPAL COURT IS RETRIED IN COUNTY COURT AND CONVICTED IN A TRIAL DE NOVO GRANTED AFTER THE CITY APPEALS THE ACQUITTAL?"

I

This court has previously considered the legality of particular law enforcement checkpoint stops in North Dakota and twice concluded the stops were "reasonable" under the Fourth Amendment to the United States Constitution.State v. Everson, 474 N.W.2d 695(N.D.1991);State v. Wetzel, 456 N.W.2d 115(N.D.1990);contra, State v. Goehring, 374 N.W.2d 882(N.D.1985)[no evidence in record that standards, guidelines, or procedures used in vehicle stop were in compliance with Fourth Amendment].However, we did not discuss in either Everson or Wetzel whether section 29-29-21, NDCC, or Article 1, section 8, of the North Dakota Constitution affords individuals greater protection against checkpoint stops than does the Fourth Amendment.SeeState v. Matthews, 216 N.W.2d 90, 99(N.D.1974)["It is within the power of this court to apply higher constitutional standards than are required of the States by the Federal Constitution."].

First, Uhden contends that section 29-29-21, NDCC, prohibits the use of sobriety checkpoints.That section provides, in relevant part,

"29-29-21.Temporary questioning of persons in public places--Search for weapons.A peace officer may stop any person abroad in a public place whom he reasonably suspects is committing, has committed, or is about to commit:

1.Any felony.

2.A misdemeanor relating to the possession of a concealed or dangerous weapon or weapons.

3.Burglary or unlawful entry.

4.A violation of any provision relating to possession of marijuana or of narcotic, hallucinogenic, depressant, or stimulant drugs."

Uhden asserts that section 29-29-21, NDCC, authorizes the stopping of motor vehicles on less than probable cause, only in the limited circumstances listed in that section.He deduces that a stop of an automobile for reasons other than those enumerated in section 29-29-21 is thus illegal.Because police checkpoints necessarily involve stops based on less than probable cause, indeed on no particular cause at all, Uhden argues that they are effectively forbidden under section 29-29-21, NDCC.

Courts have long recognized that police may briefly stop and question an individual in public, even in the absence of probable cause to believe the individual guilty of a crime.Charles H. Whitebread & Christopher Slobogin, Criminal ProcedureSec. 9.01 (2d ed.)[1986] (citing, e.g., Lawrence v. Hedger, 3 Taunt. 14, 128 Eng.Rep. 6[Common Pleas.1810].Although such stops are "seizures" within the meaning of the Fourth Amendment, Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889(1968), the Fourth Amendment does not forbid " 'all searches and seizures, but unreasonable searches and seizures.' "392 U.S. at 9, 88 S.Ct. at 1873[quotingElkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669(1960) ].The Terry Court recognized that it is not unreasonable for an officer to, "in appropriate circumstances and in an appropriate manner[,] approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest."392 U.S. at 22, 88 S.Ct. at 1880.

Following, and apparently in light of, Terry, the North Dakota State Legislature enacted section 29-29-21, NDCC, specifying when police officers may stop and question individuals abroad.However, we have not previously applied this statute to motor vehicle stops.Reasonable suspicion that an individual is driving while under the influence of alcohol is not listed in section 29-29-21, NDCC, as a justification for stopping the motorist.Yet this court has recognized that the standard upon which a police officer may stop a vehicle for investigatory purposes is not probable cause, but is a "articulable and reasonable suspicion that the driver has or may be violating the law"; and the suspected offenses which have justified stops have not been limited to those enumerated in section 29-29-21, NDCC.See, e.g., State v. Nelson, 488 N.W.2d 600, 602(N.D.1992)[reasonable and articulable suspicion; DUI];State v. Neis, 469 N.W.2d 568(N.D.1991)[reasonable and articulable suspicion; DUI];State v. Dorendorf, 359 N.W.2d 115(N.D.1984)[less than probable cause; DUI];State v. Kolb, 239 N.W.2d 815(N.D.1976)[less than probable cause; DUI].

It is not clear from the legislative history whether the legislature intended to prohibit stops of motor vehicles on less than probable cause except in the limited circumstances listed in section 29-29-21.SeeDavis v. Kansas Dept. of Revenue, 252 Kan. 224, 843 P.2d 260, 263(1992)["The history of the (Kansas)statute(analogous to section 29-29-21, NDCC,) neither supports a claim that it governs all types of police contact with citizens nor a claim that it functions as a general exclusionary rule....(L)egislation in one area concerning warrantless searches does not act to forbid all other types of search activity."]We believe, however, that the legislature has acquiesced in our decisions.³SeeBlair v. City of Fargo, 171 N.W.2d 236(N.D.1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 397.[Where courts of this State have construed statute and such construction is supported by the long acquiescence on the part of the legislative assembly and by the failure of the assembly to amend the law, it will be presumed that such interpretation of the statute is in accordance with legislative intent.]Section 29-29-21, NDCC, has not been amended since 1971.We conclude, as we have impliedly concluded for years, that section 29-29-21, NDCC, is not applicable to investigatory stops of motor vehicles and, therefore, does not itself prohibit law enforcement from using checkpoints.⁴

Next, Uhden argues that sobriety checkpoints violate our State Constitution.We assume Uhden refers to Article 1, section 8, N.D. Constitution, which proscribes unreasonable searches and seizures, although Uhden does not specify a constitutional provision.⁵In Everson, supra, we relied on our earlier decision in Wetzel, supra, and the United States Supreme Court's decision in Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412(1990), to conclude that a stop of a motorist at a multi-purpose highway checkpoint did not violate the Fourth Amendment to the United States Constitution.⁶Uhden asserts, however, that the expectation of privacy of motorists in North Dakota should be afforded greater protection under the comparable provision of the North Dakota Constitution than it receives under the Fourth Amendment.Uhden cites only the ...