City of Bismarck v. Glass, 980031CA

• Decision Date: 07 July 1998
• Docket Number: No. 980031CA,980031CA
• Citation: 581 N.W.2d 474
• Parties: 1998 ND APP 1 CITY OF BISMARCK, Plaintiff and Appellee, v. Brian Anthony GLASS, Defendant and Appellant. Criminal
• Court: North Dakota Court of Appeals

Page 474

581 N.W.2d 474

1998 ND APP 1

CITY OF BISMARCK, Plaintiff and Appellee, v. Brian Anthony GLASS, Defendant and Appellant.

Criminal No. 980031CA.

Court of Appeals of North Dakota.

July 7, 1998.

Paul H. Fraase (argued), Assistant City Attorney, Bismarck, for plaintiff and appellee.

Benjamin C. Pulkrabek (argued), Mandan, for defendant and appellant.

PER CURIAM.

¶1 Brian Anthony Glass appealed from a conviction entered upon a conditional plea of guilty under N.D.R.Crim.P. 11 for driving while under the influence. We reverse the trial court's denial of Glass's motion to suppress and remand with instructions to allow him to withdraw his conditional guilty plea.

¶2 At 7:30 p.m. on June 20, 1997, Bismarck police officer Craig Calkins observed a driver, later identified as Glass, who "appeared to be slumped forward against the steering wheel as he was operating" a westbound vehicle on Denver Avenue. Based on Calkins's training and experience with impaired drivers, he thought Glass might be intoxicated. Calkins followed the vehicle and observed it weave twice within its own lane of traffic. While following the vehicle, Calkins also noticed the vehicle's license tabs had expired.

¶3 The vehicle turned right off Denver Avenue onto Bozeman Drive and pulled into a driveway. Calkins parked his patrol car on Bozeman Drive in front of the driveway, activated his amber flashing lights, exited his vehicle, and approached on foot as Glass exited his vehicle. Calkins yelled "sir" to Glass, and Glass stopped momentarily and looked at Calkins before "quickly" walking into the house through a side door. Calkins ran to the door, and without knocking or otherwise announcing himself, turned the knob, pushed open the door, entered the house, and came upon Glass in the kitchen. Glass subsequently failed to adequately perform field sobriety tests, and Calkins thereafter arrested him for driving while under the influence.

¶4 Glass moved to suppress evidence obtained as a result of the warrantless entry into the house and his subsequent arrest. The trial court denied Glass's motion, concluding the expired license tabs gave Calkins reasonable suspicion to stop Glass, and based upon Calkins's observations before entering the house, the court concluded Calkins had probable cause to arrest Glass. The court also concluded the warrantless entry into the house and arrest was justified because Calkins was in pursuit of Glass under State v. Paul, 548 N.W.2d 260 (Minn.1996) and United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). Glass entered a conditional plea of guilty under N.D.R.Crim.P. 11 and appealed from the trial court's denial of his motion to suppress.

¶5 Glass argues the trial court erred in denying his motion to suppress the evidence obtained as a result of the warrantless entry into the house and his subsequent arrest. Glass argues neither suspicion of driving under the influence, nor expired license tabs allows a police officer to make an unannounced warrantless entry into a house to effectuate an arrest.

¶6 The Fourth Amendment to the United States Constitution and Art. I, § 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures in their homes. State v. Kitchen, 1997 ND 241, 572 N.W.2d 106; State v. Herrick, 1997 ND 155, 567 N.W.2d 336; State v. Winkler, 552 N.W.2d 347 (N.D.1996). Subject to a few well-delineated exceptions, searches and seizures without a warrant are unreasonable under the Fourth Amendment. Kitchen.

¶7 In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the United States Supreme Court recognized that a physical entry into a home is the chief evil against which the Fourth Amendment is directed and held that the Fourth Amendment prohibits police from making a nonconsensual entry into a suspect's home to make a warrantless felony arrest. Under Payton, it is well established that nonconsensual, warrantless searches and seizures in a home are presumptively unreasonable absent a government showing of probable cause and exigent circumstances. See Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); New York v. Harris, 495 U.S. 14 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990); Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Kitchen.

¶8 In State v. Nagel, 308 N.W.2d 539 (N.D.1981), the North Dakota Supreme Court said Payton rendered N.D.C.C. § 29-06-14 unconstitutional to the extent it permitted a nonconsensual, warrantless entry into a dwelling for a felony arrest, absent probable cause and exigent circumstances. Section 29-06-14, N.D.C.C., recognizes a knock-and-announce principle authorizing law enforcement officers to break a door or window of a dwelling to execute an arrest warrant, or to make a warrantless arrest for a felony, if the officer is refused admittance after giving notice of his authority and purpose. See also State v. Sakellson, 379 N.W.2d 779 (N.D.1985) (unannounced entry through open door constituted "breaking" under N.D.C.C. § 28-29-08, which authorizes officer executing search warrant to break open door of house if refused admittance after notice of authority and purpose). Payton, however, did not invalidate the knock-and-announce requirements of N.D.C.C. § 29-06-14, which emanate from the Fourth Amendment.

¶9 In Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), the United States Supreme Court held the common law knock-and-announce principle was an element of the reasonableness inquiry for a search and seizure under the Fourth Amendment. See Herrick; State v. LaFromboise, 542 N.W.2d 110 (N.D.1996). In Wilson, the Court explained that the knock-and-announce requirement could yield to countervailing law enforcement interests, including threats of physical violence to police, an officer pursuing a recently escaped arrestee, and the existence of reason to believe that evidence would be destroyed if advance notice were given.

¶10 In Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), the United States Supreme Court held that the Fourth Amendment does not permit a blanket exception to the knock-and-announce requirement for search warrants issued for felony drug investigations. The Court held a no-knock entry to effectuate a search...