State v. Ashby

• Decision Date: 30 March 2017
• Docket Number: No. 20160157,20160157
• Citation: 892 N.W.2d 185
• Parties: STATE of North Dakota, Plaintiff and Appellant v. Caren Charaye ASHBY, Defendant and Appellee
• Court: North Dakota Supreme Court

892 N.W.2d 185

STATE of North Dakota, Plaintiff and Appellant

v.Caren Charaye ASHBY, Defendant and Appellee

No. 20160157

Supreme Court of North Dakota.

Filed March 30, 2017

Kathleen K. Murray, State's Attorney, Wells County State's Attorney Office, 700 Railway Street N., #325, Fessenden, ND 58438, for plaintiff and appellant.

Garrett D. Ludwig, 103 Collins Avenue, P.O. Box 1266, Mandan, ND 58554–7266, for defendant and appellee.

Kapsner, Justice.

[¶ 1] The State appeals from a district court order granting Caren Ashby's motion to suppress evidence seized after a traffic stop. Suppression was based on the district court's conclusion that the officer did not have reasonable suspicion to initiate a traffic stop. The State argues the traffic stop was supported by reasonable suspicion. We reverse and remand.

I

[¶ 2] Caren Ashby was arrested for several drug related offenses after a traffic stop in Wells County on August 26, 2015. Caren Ashby moved to suppress all evidence seized from the traffic stop, and the State opposed the motion. Caren Ashby challenged the validity of the traffic stop and argued all evidence uncovered should be suppressed. The State argued the traffic stop was supported by reasonable suspicion or was valid as a community caretaking function. The district court held a hearing. At the hearing, the arresting officer testified he was on patrol the day of the arrest and received a "BOLO" teletype alert at 11:58 a.m. This alert was entitled "NDSLIC Request for Information/Case Support" and stated:

WELFARE CHECK ON 2 MINOR CHILDREN, [two children's names and dates of birth]. THE PARENTS ARE MATTHEW AND CAREN ASHBY AND ARE REPORTEDLY USING DRUGS HEAVILY. SOCIAL SERVICES HAS BEEN TRYING TO MAKE CONTACT REPEATEDLY BUT THEY CONTINUE TO AVOID THEM. THEY MAY BE DRIVING A 2007 WHITE CROWN VIC WITH WA/LIC ATN6050. THE PAINT IS PEALING ON THE HOOD OR A LATE 1990'S DARK BROWN CHEVY SUBURBAN WITH NO LICENSE PLATES. IF LOCATED, PLEASE CONTACT STUTSMAN COUNTY SOCIAL SERVICES AT (LIBBY (701)269–XXXX) OR (STEPH (701)490–XXXX).

The officer testified because this BOLO originated from Jamestown, he believed it would be pertinent to him because he patrolled in that area.

[¶ 3] The officer continued patrol, traveling on Highway 52. The officer testified he spotted a white Ford Crown Victoria with peeling paint on the hood and Washington plates traveling the opposite direction on Highway 52 at 1:17 p.m. The officer noticed it matched the description from the BOLO and immediately turned around to follow the vehicle. The officer testified as he caught up to the vehicle, it "immediately turned off onto the rest area in Sykeston, on the north side of Highway 52." The officer "thought it was interesting that [the vehicle] immediately turned right off the highway." The officer testified this indicated "[a]lmost the premise of ... eluding, due to the fact that they were aware that I was there, and it's not a very active rest area. So, it kind of sparked my interest and a little bit of suspicion." The officer continued to travel on Highway 52 and turned right to travel north on Highway 30, which is adjacent to the rest area. The officer pulled into a field approach to face the direction of the rest area parking lot to observe the vehicle and its occupants. The officer saw an adult female, adult male, and two small children outside the vehicle. The officer testified the vehicle and individuals were at the rest stop for about five minutes and none entered the rest stop facility during that time.

[¶ 4] While observing the individuals, the officer made phone calls in an effort to confirm the information from the BOLO. The officer determined the vehicle, male and female occupants, and two small children matched the information from the BOLO. The officer then called Stutsman County Social Services and spoke to Libby, who was named as a contact person in the BOLO. The officer testified Libby told him "Matthew and Caren were known drug users; heavy users at that" and that "family had reported them using hard drugs and methamphetamine and heroin and things of that nature." The officer testified Libby indicated she was "concerned for their children, due to the fact that both of them were using and involved in drugs." The officer testified Libby told him Stutsman and Ward County Social Services and Ward County Narcotics Task Force were investigating the Ashbys. The officer testified he believed it was significant the task force was investigating the Ashbys. The officer testified Stutsman County Social Services indicated they had been trying to make contact with the Ashbys since January 2015.

[¶ 5] The officer also spoke with Officer Ackland of the Jamestown Police Department about the BOLO. The officer testified:

Officer Ackland stated that he was in contact with Libby from social services; had received a phone call from her in regards to Matthew and Caren Ashby and both of their children. From further ... on in the conversation, Officer Ackland stated that he had made personal contact with Caren's grandmother, at which point he stated that Caren's grandmother was supposed to be watching the kids that day and that Matthew and Caren had showed up and had taken the kids. And that ... Caren's grandmother stated that Caren was high on heroin.

According to the officer, Officer Ackland stated Caren's grandmother was concerned about the children's well being. The officer testified he was considering making a welfare check "to make sure that both kids were okay" and to investigate "child endangerment," based on the report of the Ashbys being "known drug users and abusers" and the potential presence of drugs and drug paraphernalia in an area accessible to the children.

[¶ 6] The officer followed the vehicle after it left the Sykeston rest stop. The officer checked the vehicle's license plate information records, which revealed Caren Ashby was the registered owner. While following the vehicle, the officer contacted a highway patrol sergeant to verify whether he was still within North Dakota Highway Patrol policy and procedure to conduct a child welfare stop. The officer testified he relayed all the information he had to the sergeant, who indicated he would be following procedure if he initiated a stop. Near Fessenden, the officer called the Wells County Sheriff's Office to see if they would be available to assist with the traffic stop. The officer testified he had seen no erratic driving while following the vehicle. The officer indicated he was able to determine the female was driving the vehicle as he followed. The vehicle turned into a frontage road leading to a gas station in Fessenden. The officer indicated, regardless of what the in-car video may have shown, he did not recall whether there was a lack of turn signal when the car made the turn off the highway. Shortly thereafter, the officer initiated the traffic stop, approached the vehicle to speak with Caren Ashby, and asked her to exit the vehicle. Ultimately, the officer spoke with Matthew Ashby, who apparently volunteered there was a marijuana pipe in the car. The officer searched the vehicle, found more contraband, and arrested the occupants.

[¶ 7] After the suppression hearing, the district court issued an order granting Caren Ashby's motion to suppress. The district court concluded the arresting officer's purpose in initiating the traffic stop was to investigate a violation of law, rather than engage in a community caretaking function. The district court determined the arresting officer did not have a reasonable and articulable suspicion to support the traffic stop. The State timely filed a notice of appeal and an affidavit as required under N.D.C.C. § 29–28–07(5).

II

[¶ 8] On appeal, the State argues the district court erred by granting Caren Ashby's motion to suppress evidence. The State contends the officer had a reasonable and articulable suspicion of criminal activity to support the traffic stop of the Ashbys' vehicle. The State argues the district court misapplied the law when it determined the officer was required to make an independent corroboration of heroin use, a traffic offense, or erratic driving in order to be a lawful traffic stop. The Fourth Amendment to the United States Constitution, applicable to the states under the Fourteenth Amendment, and Article I, section 8, of the North Dakota Constitution, protect individuals from unreasonable searches and seizures. State v. Matthews , 2003 ND 108, ¶ 9, 665 N.W.2d 28. "Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons' within the meaning of this provision." Whren v. United States , 517 U.S. 806, 809–10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

[¶ 9] This Court reviews a district court's decision on a motion to suppress as follows:

[T]his Court defers to the district court's findings of fact and resolves conflicts in testimony in favor of affirmance. This Court will affirm a district court decision regarding a motion to suppress if there is sufficient competent evidence fairly capable of supporting the district court's findings, and the decision is not contrary to the manifest weight of the evidence. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.

State v. Knox , 2016 ND 15, ¶ 6, 873 N.W.2d 664 (quoting

State v. Bauer , 2015 ND 132, ¶ 4, 863 N.W.2d 534 ). "An officer conducting an investigatory traffic stop must have a reasonable and articulable suspicion the motorist has violated or is violating the law." Knox , 2016 ND 15, ¶ 7, 873 N.W.2d 664. In determining whether an officer has a reasonable and articulable suspicion, this Court examines the information known to the officer at the time of the stop. State v. Musselman , 2016 ND 111, ¶ 12, 881 N.W.2d 201. We have recognized, "[t]he reasonable-and-articulable-suspicion standard requires that the...