City Of Mandan v. Gerhardt

• Decision Date: 15 June 2010
• Docket Number: No. 20090274.,20090274.
• Parties: CITY OF MANDAN, Plaintiff and Appelleev.Scott A. GERHARDT, Defendant and Appellant.
• Court: North Dakota Supreme Court

783 N.W.2d 818

2010 ND 112

CITY OF MANDAN, Plaintiff and Appelleev.Scott A. GERHARDT, Defendant and Appellant.

No. 20090274.

Supreme Court of North Dakota.

June 15, 2010.

COPYRIGHT MATERIAL OMITTED

Daniel J. Nagle, City Prosecutor, Mandan, N.D., for plaintiff and appellee.

Chad Rory McCabe (argued) and Stanley John Boehm (appeared), Bismarck, N.D., for defendant and appellant.

MARING, Justice.

[¶ 1] Scott Gerhardt appeals from the criminal judgment entered after a jury convicted him of the charge of actual physical control. Gerhardt asserts on appeal the district court erred in denying his pretrial motion to suppress because the arresting officer obtained evidence in violation of his constitutional right to be free from unreasonable searches and seizures. Because we conclude the arresting police officer's initial approach and contact with Gerhardt was properly considered a community caretaking encounter and, based on this encounter, the officer also developed reasonable and articulable suspicion necessary for a valid investigatory stop, we affirm.

I

[¶ 2] In its order denying Gerhardt's pretrial suppression motion, the district court made factual findings regarding the police officer's approach and stop of Gerhardt. On January 17, 2009, a Mandan police officer was on patrol during the early morning hours. At approximately 2 a.m., the officer saw a pickup parked in an almost empty vacant lot in downtown Mandan. The officer noted what he believed to be a person in the driver's seat leaning toward the center of the vehicle. About a half hour later, the officer again observed the pickup in the same location and decided to check on the individual in the vehicle. The officer approached the vehicle and saw a man in the driver's seat, and the pickup's engine was running. The person observed in the driver's seat was later identified as Gerhardt.

[¶ 3] The person's eyes were closed, and the officer began knocking and yelling. The officer testified that when Gerhardt opened his eyes and responded to the officer, he appeared confused “for many seconds.” Gerhardt opened the window about three inches and said something to the effect that he was “taking off.” The officer told Gerhardt that he was not leaving and then told Gerhardt to shut the pickup off and open the door. Gerhardt complied.

[¶ 4] Additionally, the officer testified that after Gerhardt had opened the door, the officer noticed bloodshot eyes, thick speech, and learned that Gerhardt had been drinking. The officer also noticed an odor of an alcoholic beverage after Gerhardt stepped out of the vehicle. After the officer conducted field sobriety testing, the officer charged Gerhardt by a uniform complaint and summons with actual physical control of a motor vehicle while under the influence.

[¶ 5] In March 2009, Gerhardt requested transfer from Mandan municipal court to the district court, asserting his right to a jury trial. In April 2009, Gerhardt filed his motion to suppress evidence, arguing Gerhardt was illegally stopped, searched, and seized, and the State timely responded. On May 29, 2009, the district court held a hearing on Gerhardt's suppression motion. In a July 6, 2009, order, the court denied Gerhardt's motion. In August 2009, the district court held a jury trial. Gerhardt was convicted by a jury of the offense and was sentenced by the court.

II

[¶ 6] Gerhardt argues the district court erred in denying his motion to suppress evidence because the police officer obtained evidence as a result of an unlawful stop and seizure, in violation of the Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution.

[¶ 7] A person alleging a violation of Fourth Amendment rights has the initial burden of establishing a prima facie case of illegal seizure. City of Jamestown v. Jerome, 2002 ND 34, ¶ 6, 639 N.W.2d 478 (citing City of Fargo v. Sivertson, 1997 ND 204, ¶ 6, 571 N.W.2d 137). “After the person alleging a Fourth Amendment violation has made a prima facie case, the burden of persuasion is shifted to the State to justify its actions.” Id. When reviewing a district court's decision on a motion to suppress, this Court applies a deferential standard of review:

“[This Court] 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. Olson, 2007 ND 40, ¶ 7, 729 N.W.2d 132 (quoting State v. Torkelsen, 2006 ND 152, ¶ 8, 718 N.W.2d 22). “Questions of law, such as the ultimate conclusion of whether the facts support a reasonable and articulable suspicion, are fully reviewable on appeal.” State v. Parizek, 2004 ND 78, ¶ 7, 678 N.W.2d 154.

[¶ 8] Under the Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, Section 8 of the North Dakota Constitution, all searches and seizures must be reasonable. Abernathey v. Department of Transp., 2009 ND 122, ¶ 8, 768 N.W.2d 485; Lapp v. North Dakota Dep't of Transp., 2001 ND 140, ¶ 7, 632 N.W.2d 419. This Court has identified permissible types of law enforcement-citizen encounters: (1) arrests, which must be supported by probable cause; (2) Terry stops see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which do not constitute Fourth Amendment seizures. Olson, 2007 ND 40, ¶ 9, 729 N.W.2d 132; Torkelsen, 2006 ND 152, ¶ 10, 718 N.W.2d 22. This Court has also recognized that “it is not a seizure for an officer to walk up to and talk to a person in a public place.” Jerome, 2002 ND 34, ¶ 5, 639 N.W.2d 478 (citing State v. Steinmetz, 552 N.W.2d 358, 359 (N.D.1996)). “Within the context of the Fourth Amendment, a seizure occurs ‘when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’ ” Olson, at ¶ 9 (quoting Jerome, at ¶ 5). Here, the district court considered the initial encounter in the context of a community caretaking encounter and concluded the police officer's contact with Gerhardt was reasonable.

[¶ 9] Law enforcement officers frequently serve in the role of community caretakers. State v. Boyd, 2002 ND 203, ¶ 7, 654 N.W.2d 392; Lapp, 2001 ND 140, ¶ 14, 632 N.W.2d 419; State v. DeCoteau, 1999 ND 77, ¶ 19, 592 N.W.2d 579. In Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), the United States Supreme Court described this community caretaking function as “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” See also State v. Washington, 2007 ND 138, ¶ 11, 737 N.W.2d 382; Rist v. North Dakota Dep't of Transp., 2003 ND 113, ¶ 9, 665 N.W.2d 45; Boyd, at ¶ 7.

[¶ 10] “Community caretaking allows law enforcement-citizen contact, including stops, without an officer's reasonable suspicion of criminal conduct.” Boyd, 2002 ND 203, ¶ 7, 654 N.W.2d 392 (citing State v. Glaesman, 545 N.W.2d 178, 181 (N.D.1996)). The law also distinguishes between law enforcement stopping a moving vehicle and approaching a vehicle that is already stopped. See Rist, 2003 ND 113, ¶ 8, 665 N.W.2d 45; State v. Franklin, 524 N.W.2d 603, 604 (N.D.1994); State v. Halfmann, 518 N.W.2d 729, 731 (N.D.1994).

No seizure within the context of the Fourth Amendment occurs when an officer approaches a parked vehicle if the officer inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response. Not all citizen-law enforcement encounters implicate a citizen's Fourth Amendment rights; a seizure occurs only when a law enforcement officer, by means of physical force or show of authority, in some manner restrains the liberty of a citizen.

Rist, at ¶ 8 (quotation and citations omitted). Even a casual encounter, however, can evolve into a seizure when a reasonable person would view a law enforcement “officer's actions-if done by another private citizen-as threatening or offensive.” Boyd, at ¶ 7 (citing State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992)). “This may occur through an order, a threat, or a weapon display.” Id. The officer may also develop a reasonable and articulable suspicion of unlawful conduct from the officer's initial community caretaking encounter. Boyd, at ¶ 7; Lapp, 2001 ND 140, ¶ 14, 632 N.W.2d 419.

[¶ 11] Where it is “obvious” that a citizen neither needs nor desires assistance, a law enforcement officer has no community caretaking role to fill. Rist, 2003 ND 113, ¶ 9, 665 N.W.2d 45; Jerome, 2002 ND 34, ¶ 8, 639 N.W.2d 478; DeCoteau, 1999 ND 77, ¶ 21, 592 N.W.2d 579. This Court, however, has also said that no such “obvious” situation is presented where an individual is slumped over a steering wheel. See Rist, at ¶¶ 9-11 (individual slumped behind the steering wheel with his chin in his chest); Lapp, 2001 ND 140, ¶¶ 14-15, 632 N.W.2d 419 (individual was slumped over vehicle's steering wheel with engine running); City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 773-75 (N.D.1996) (individual slumped over the steering wheel of an idling vehicle); Franklin, 524 N.W.2d at 605 (individuals parked at night in motel parking lot and slumped down in their seats). See also Wayne R. LaFave Search and Seizure § 7.4(f) (4th ed. 2004) (“If the police find a person unconscious or disoriented and incoherent in a vehicle ..., it is reasonable for them to enter the vehicle for the purpose of giving aid to the person in...