City of Grafton v. Swanson, Cr. N

• Decision Date: 11 March 1993
• Docket Number: Cr. N
• Citation: 497 N.W.2d 421
• Parties: CITY OF GRAFTON, Plaintiff and Appellee, v. Robert G. SWANSON, Defendant and Appellant. o. 920331.
• Court: North Dakota Supreme Court

Page 421

497 N.W.2d 421

CITY OF GRAFTON, Plaintiff and Appellee, v. Robert G. SWANSON, Defendant and Appellant.

Cr. No. 920331.

Supreme Court of North Dakota.

March 11, 1993.

Steven C. Ekman, City Atty., Grafton, for plaintiff and appellee; submitted on briefs.

Robert J. Woods of Woods Legal Services, Forest River, for defendant and appellant.

VANDE WALLE, Chief Justice.

Robert G. Swanson appealed from a judgment of conviction entered after a guilty verdict. On appeal, he challenges the county court order which denied his motion to suppress evidence in an action by the City of Grafton against him for driving while under the influence of alcohol. We affirm.

At about 3:20 p.m. on March 19, 1992, Officer Joel D. Scharf of the City of Grafton Police Department was directed by a dispatcher at the Grafton Law Enforcement Center to investigate a complaint regarding a domestic disturbance at a residence in the City of Grafton. The dispatcher informed Officer Scharf that Swanson had just "squealed" out of the residence's driveway, was intoxicated, and had done vandalism to a vehicle belonging to the complainant, Linda Ratliffe.

Officer Scharf immediately drove to the address and spoke to Ratliffe about her complaint. Ratliffe, appearing very upset, told Officer Scharf that she and Swanson had an argument, after which he left the house, vandalized her vehicle, and drove rapidly away from the driveway, leaving skidmarks on the driveway pavement. Swanson was also alleged to be very intoxicated. Ratliffe told Officer Scharf that she, not Swanson, owned the house, and that she did not want Swanson to return to the premises.

In an attempt to resolve the situation and avoid another altercation between the two, Officer Scharf sought out Swanson. At about 3:45 p.m., or about 20 minutes after Officer Scharf left Ratliffe's home, he came upon a local bar in Grafton where a vehicle matching Ratliffe's description of Swanson's car was parked. Officer Scharf entered the bar and located Swanson. Although Officer Scharf did not observe Swanson consume alcohol, he did detect a heavy odor of alcohol on Swanson's breath and noticed Swanson's slurred speech and staggered walk. He did not require Swanson to submit to a sobriety test or submit to a preliminary breath test, but Officer Scharf was nonetheless of the opinion that Swanson was blatantly intoxicated. Officer Scharf left the bar after warning Swanson to refrain from driving that evening.

At about 7:46 p.m., or about four hours after he left Swanson at the bar, Officer Scharf observed Swanson driving in the neighborhood of Ratliffe's residence. He followed Swanson for one-half block, at which point Swanson turned into the driveway of Ratliffe's house. Officer Scharf noticed no unusual driving or traffic violations while he observed Swanson driving.

As Swanson drove into Ratliffe's driveway, Officer Scharf parked his patrol vehicle in the street, behind and perpendicular to Swanson's vehicle parked in the driveway. Officer Scharf and Swanson exited their vehicles at about the same time, and Swanson began walking toward the house. Officer Scharf yelled out Swanson's name after noticing his staggered and swaying walk. Swanson stopped, and Officer Scharf came within 18 to 24 inches of Swanson. Detecting glassy eyes, slurred speech, and a very heavy, strong odor of alcohol on Swanson's breath, Officer Scharf informed Swanson of his belief that Swanson had been driving while intoxicated. Officer Scharf requested Swanson to take some field sobriety tests, but he refused and attempted to push Officer Scharf aside to enter Ratliffe's residence. Officer Scharf physically restrained Swanson and subsequently arrested him for driving while under the influence of alcohol.

Swanson filed a motion to suppress evidence alleging that Officer Scharf's stop was illegal because Officer Scharf lacked a reasonable and articulable suspicion to believe that Swanson was engaged in criminal activity. After a hearing in Walsh County Court, the court issued a memorandum decision and order denying the motion.

Our standard of review in considering a trial court's disposition of a motion to suppress is that its disposition will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's determination. State v. Sarhegyi, 492 N.W.2d 284 (N.D.1992); State v. Bryl, 477 N.W.2d 814 (N.D.1991). This standard recognizes the trial court's opportunity to weigh the credibility of the witness and the testimony presented. Sarhegyi, supra.

The trial court held that the stop occurred when Officer Scharf physically restrained Swanson and requested him to submit to field sobriety tests. There is no doubt that if the stop occurred at this point, the stop was valid. The record is replete with testimony which would give a law enforcement officer a reasonable and articulable suspicion to stop Swanson for driving while intoxicated after he exited his vehicle and exhibited signs of intoxication. ¹

Swanson contends that the crux of this appeal involves the question as to when a "stop" occurred--when Officer Scharf parked behind Swanson thus preventing Swanson from moving his vehicle, or when Officer Scharf physically restrained Swanson and requested his submission to field sobriety tests. Swanson argues that the stop occurred when Officer Scharf parked behind him. If the stop occurred at that point, he alleges that Officer Scharf's stop was illegal because he observed no erratic driving or traffic infractions that would warrant a stop. In other words, he lacked an articulable and reasonable suspicion that a crime was afoot.

However, we believe it is immaterial whether the stop occurred when Officer Scharf blocked the driveway, as Swanson contends, or whether it occurred when Officer Scharf stopped Swanson after he was out of the car. In either event, Officer Scharf justified the stop.

The record shows that one of Officer Scharf's justifications for stopping Swanson was his concern that domestic violence was about to happen. ² The imminent likelihood of domestic violence in this instance is sufficient to justify the stop for the purpose of warning Swanson not to enter the house.

Incidents of domestic violence occur against women in the United States at epidemic rates--up to 60% of all married women suffer physical abuse at the hands of their spouses at some time during their marriage, and the same can be said of unmarried cohabitants. ³ As "on the scene" enforcers of domestic-violence laws, police and law enforcement officials play a principal role in protecting battered women. Ineffective police response is a chief reason for continuing high rates of domestic violence. Police are under increasing pressure to take a more active role in preventing domestic violence, ⁴ and a failure to do so has prompted calls for increased police liability for failure to respond to such incidents. ⁵ Clearly, incidents or the likelihood of incidents of domestic violence are a valid concern of police and they should take steps to try to prevent their occurrence.

Approximately four hours earlier, Officer Scharf was called to Ratliffe's residence for the purpose of investigating a potential domestic violence situation. He was told that Ratliffe and Swanson had an argument, that Swanson had done some property damage, that Swanson was drunk, and that Ratliffe did not want Swanson to return to her property. When Officer Scharf observed Swanson returning to Ratliffe's residence, he was justified in stopping Swanson since he had a reasonable and articulable suspicion that a crime--domestic violence or trespassing--was about to occur. The likelihood of domestic violence, after a police officer has knowledge of its recent occurrence and the alleged offender's contemporaneous return to the scene after having been observed earlier in the day in an intoxicated state, prompts a valid and reasonable suspicion of the possibility that a crime is about to happen, allowing a stop of the alleged offender.

Officer Scharf also testified that one of his justifications for stopping Swanson was his belief that Swanson was driving under the influence of alcohol. ⁶ When Officer Scharf was parked near Ratliffe's home, he noticed Swanson driving his car for about one block. He did not observe any traffic violations or otherwise unusual driving on the part of Swanson. Officer Scharf then followed Swanson for one-half block before Swanson pulled into Ratliffe's driveway. Again, Officer Scharf noticed no traffic violations or unusual driving. Nonetheless, we recognize that Officer Scharf had a reasonable and articulable suspicion that a crime--driving while under the influence of alcohol--was being committed.

A common rule of evidence is that the prior existence of a fact, such as a state of health or being, is evidence of the continuation or later existence of that fact. As John Wigmore states:

"When the existence of an object, condition, quality, or tendency at a given time is in issue, the prior existence of it is in human experience some indication of its probable persistence or continuance at a later period."

2 John Henry Wigmore, Evidence in Trials at Common Law, Sec. 437 (1979). See also Rule 301 NDREv; NDCC Sec....