State v. Bartelson, 20040266.

• Citation: 2005 ND 172,704 N.W.2d 824
• Decision Date: 18 October 2005
• Docket Number: No. 20040266.,20040266.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Brent BARTELSON, Defendant and Appellant.
• Court: United States State Supreme Court of North Dakota

704 N.W.2d 824

2005 ND 172

STATE of North Dakota, Plaintiff and Appellee v. Brent BARTELSON, Defendant and Appellant.

No. 20040266.

Supreme Court of North Dakota.

October 18, 2005.

Eric P. Baumann, Slorby Law Office, Minot, ND, for defendant and appellant.

Mark A. Flagstad, Assistant State's Attorney, Minot, ND, for plaintiff and appellee.

KAPSNER, Justice.

[¶ 1] Brent Bartelson appeals from a criminal judgment entered on a conditional plea of guilty for possessing marijuana with the intent to deliver, reserving his right to review a denial of his motion to suppress the marijuana found in his car. Bartelson claims the marijuana was unconstitutionally seized as a result of an "extremely pretextual" stop. We conclude the district court properly refused to suppress the marijuana obtained from a search of Bartelson's vehicle, and therefore, affirm the criminal judgment of the district court.

I.

[¶ 2] Around 3:30 p.m., Bartelson was stopped on Highway 83 south of Minot and cited for a tinted window violation by Officer Pat Hudson. An anonymous caller informed the Ward County Sheriff's Office that a vehicle stopped south of Minot on Highway 83 contained a large amount of marijuana. After investigation, Agent Michael Marchus learned that Officer Pat Hudson had recently stopped Bartelson on Highway 83. Marchus knew from previous intelligence that Bartelson transported large amounts of marijuana from Colorado in his vehicle. Marchus learned this information during a federal debriefing when he was informed that an individual known as "Bart" drove a Mazda with the license plate number GRR 105 to transport drugs. Marchus ran the number and discovered the vehicle was registered to Brent Bartelson. Marchus also knew, from two separate sources, that a large amount of marijuana had recently been stolen from Bartelson's home. Marchus asked Officers Pat Hudson and Kevin Huston to help in the search for Bartelson's Mazda.

[¶ 3] Traveling in an unmarked vehicle, Marchus was the first officer to locate Bartelson's car. Marchus followed Bartelson for a few miles until Officer Kevin Huston caught up to him, followed by Officer Pat Hudson. Approximately forty-two minutes after Bartelson was first stopped by Officer Pat Hudson, Officer Kevin Huston passed Marchus and stopped Bartelson's vehicle. Marchus, Hudson, and three other task force officers also arrived at the scene.

[¶ 4] Bartelson explained to the officer that he had just been pulled over for the same tinted window violation. Officer Kevin Huston then went back to his police car to issue a written warning for the violation. As Officer Kevin Huston was writing out the warning, Marchus approached Bartelson and asked if he could search his vehicle. Marchus testified Bartelson gave his consent to search the vehicle during the stop. A video recording of the stop shows Bartelson assisting the officers with the search.

[¶ 5] When the search began, Officer Pat Hudson checked the driver's license of Bartelson's passenger, Lance Cotton. Cotton was arrested for possession of a suspended license. While searching the vehicle, law enforcement found marijuana in the passenger compartment of the car. Bartelson was arrested for possession of marijuana with intent to deliver. Bartelson moved to suppress the evidence, arguing the stop and resulting search were unconstitutional. The trial court denied the motion. Bartelson conditionally pled guilty, reserving his right to appeal.

II.

[¶ 6] On appeal, Bartelson argues the trial court erred in denying his motion to suppress because the stop of his vehicle was unconstitutional. The State argues the stop was constitutional because the officer had reasonable articulable suspicion that Bartelson was committing a tinted window violation. The State argues whether the stop was pretextual is irrelevant because the officer had observed a traffic violation.

[¶ 7] When reviewing the denial of a suppression motion, we defer to the trial court's findings of fact. State v. Kitchen, 1997 ND 241, ¶ 11, 572 N.W.2d 106. Although we defer to the trial court's findings of fact, questions of law are fully reviewable. State v. Overby, 1999 ND 47, ¶ 5, 590 N.W.2d 703. The trial court determined:

Trooper Huston had a valid basis to stop of [sic] Bartelson's vehicle on the date and time in question. Trooper Huston observed that Bartelson's vehicle had tinted windows in violation of N.D.C.C. § 39-21-39. That Trooper Huston had been asked by Agent Marchus to locate and stop the described vehicle based on the anonymous tip Marchus had received does not vitiate the reasonableness or validity of the stop.

[¶ 8] The Fourth Amendment of the United States Constitution and Article I, § 8 of the North Dakota Constitution guarantee "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." The United States Supreme Court has stated:

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 [the Fourth Amendment]. An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.

Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (citations omitted). Traffic violations, even if pretextual, provide the requisite probable cause to conduct an investigatory vehicle stop. State v. Loh, 2000 ND 188, ¶ 10, 618 N.W.2d 477. Under Whren, a police officer's subjective intentions in making a stop are not important as long as a traffic violation has occurred. Whren, 517 U.S. at 813, 116 S.Ct. 1769. As we have noted, "a party `is going to have difficulty in using subjective motive to attack an arrest which is otherwise objectively justified by probable cause.'" State v. Gregg, 2000 ND 154, ¶ 46, 615 N.W.2d 515 (citing Holland v. City of Portland, 102 F.3d 6, 11 (1st Cir.1996)).

[¶ 9] After learning Officer Pat Hudson had recently stopped Bartelson on Highway 83, Marchus requested Officer Kevin Huston's help to locate and stop Bartelson's vehicle because Marchus had information that Bartelson might be transporting illegal drugs. Officer Kevin Huston testified he observed a black vehicle with tinted windows in violation of N.D.C.C. § 39-21-39. Officer Kevin Huston testified he probably would not have stopped a vehicle for the same violation, at that time, if the vehicle did not match the vehicle description given to him by Marchus. But under Whren, an officer's subjective intent is not relevant in determining probable cause. Whren, 517 U.S. at 813, 116 S.Ct. 1769.

[¶ 10] In Whren, the United States Supreme Court held that an officer's actual motivation for initiating a traffic stop did not affect the constitutional reasonableness of a stop based on probable cause. Id. While patrolling a high drug area, plain clothed officers became suspicious of a truck at a stop sign with temporary license plates and young occupants. Id. at 808, 116 S.Ct. 1769. The truck remained at the stop sign for an unusually long time, turned suddenly without signaling, and sped off at an "unreasonable" speed. Id. The officers stopped the vehicle, and large quantities of illegal drugs were found. Id. at 808-09, 116 S.Ct. 1769. The defendants did not dispute the officers had probable cause to believe they had committed a traffic violation. Id. at 810, 116 S.Ct. 1769. They argued, because the use of automobiles is so heavily regulated and total compliance is nearly impossible, an officer will be able to catch any person with a violation. Id. This allows officers to use a traffic stop as a means for investigating other possible violations for which there is no probable cause. Id. The defendants argued probable cause should not be the standard for traffic stops, but rather, whether a reasonable police officer would have made the stop for the given reason. Id. The Whren court rejected this argument finding an officer's subjective intent did not affect the constitutionality of a traffic stop based on probable cause. Id. at 813, 116 S.Ct. 1769. We have similarly held a valid stop is not vitiated because the officer's actual reason for stopping the vehicle was not adequate. State v. Loh, 2000 ND 188, ¶ 14, 618 N.W.2d 477; Wheeling v. Director, N.D. Dep't of Transp., 1997 ND 193, ¶ 11, 569 N.W.2d 273; Kahl v. Director, N.D. Dep't of Transp., 1997 ND 147, ¶ 14, 567 N.W.2d 197; Zimmerman v. N.D. Dep't of Transp., 543 N.W.2d 479, 483 (N.D.1996).

[¶ 11] Based on Whren, other jurisdictions have also held stops based on probable cause are not invalidated because they are pretextual. In Sanchez v. State, 847 So.2d 1043, 1044 (Fla.Dist.Ct.App.2003), officers received an anonymous tip that Sanchez was transporting cocaine. Law enforcement began surveillance of his home and followed him when he did not take his normal route to work. Id. Local law enforcement requested assistance from other jurisdictions in locating his vehicle. Id. The officers were told to look for a green Suburban possibly carrying drugs and were given the license plate number. Id. Approximately a half hour later, an officer located and followed Sanchez's vehicle. Id. The officer paced the vehicle at eight miles per hour over the posted speed limit and initiated a stop. Id. Sanchez argued the stop was a pretext, and the "egregious" facts of the officers' "lying in wait" until he committed a traffic offense took his case outside of the Whren rationale. Id. at 1045. The court disagreed finding the stop did not violate the Fourth Amendment under the objective standard in Whren. Id. at 1045-46 (citing Whren, 517 U.S. at 817-19, 116 S.Ct. 1769).

[¶ 12] In Damato v. State, 64 P.3d 700, 702 (Wyo.2003), an...