State v. Beyer, Cr. N

• Decision Date: 27 June 1989
• Docket Number: Cr. N
• Citation: 441 N.W.2d 919
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Robin S. BEYER, Defendant and Appellee. o. 880384.
• Court: North Dakota Supreme Court

Page 919

441 N.W.2d 919

STATE of North Dakota, Plaintiff and Appellant, v. Robin S. BEYER, Defendant and Appellee.

Cr. No. 880384.

Supreme Court of North Dakota.

June 27, 1989.

Glenn Dill, III (argued), Asst. State's Atty., Kenmare, for plaintiff and appellant. Appearance by Tom Slorby, State's Atty.

Schoppert Law Firm, Minot, for defendant and appellee; argued by Thomas K. Schoppert.

LEVINE, Justice.

In this appeal from a county court order suppressing evidence, we uphold the constitutionality of Section 39-21-37, N.D.C.C., ¹ and reverse the order suppressing evidence.

Ward County Deputy Sheriff, John Petersen, stopped a car driven by the defendant, Robin Beyer, in the town of Ryder during the early morning hours of November 15, 1987. Officer Petersen testified that Beyer's vehicle was "louder than most vehicles driving around" and was "backfiring quite loud." Petersen stopped Beyer for a possible violation of Section 39-21-37, N.D.C.C., which requires every motor vehicle to be equipped with a muffler in good working order to prevent "excessive or unusual noise."

Upon identifying Beyer during the stop, Petersen discovered that there was an active warrant for Beyer's arrest on a charge of issuing a check with insufficient funds. Petersen arrested Beyer on that charge and, incident to the arrest, searched Beyer. During the search, Petersen discovered a bag of what he suspected to be marijuana in Beyer's right coat pocket. Peterson also observed a can of beer on the floor board of the car. Petersen arrested Beyer for unlawful possession of a controlled substance and unlawful possession of an alcoholic beverage.

Prior to a trial on those charges, Beyer filed a motion to suppress from evidence the marijuana, paraphernalia, and alcoholic beverages seized by Petersen during the stop. In support of the motion, Beyer asserted that Officer Petersen did not have an articulable basis to stop Beyer's vehicle and, therefore, the foregoing items were illegally seized.

On the motion to suppress, the county court determined that Officer Petersen "did his job just fine," but that the language of Section 39-21-37, N.D.C.C., requiring all vehicles to be equipped with a muffler in good working order to prevent "excessive or unusual noise," is "too broad and subject to too many interpretations to be fairly administrated [sic]." The county court granted the suppression motion from which the State has filed this appeal.

By its ruling, the county court, in effect, determined that Section 39-21-37, N.D.C.C., is unconstitutionally vague or indefinite and, therefore, unenforceable. We disagree.

The due process clauses of the state and federal constitutions require definiteness of criminal statutes so that the language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for judges and juries to fairly administer the law. State v. Johnson, 417 N.W.2d 365 (N.D.1987). In order to survive a vagueness challenge, a statute must meet two requirements: (1) it must provide adequate warning as to the conduct proscribed, and (2) it must establish minimum guidelines to govern law enforcement. State v. Schwalk, 430 N.W.2d 317 (N.D.1988). A criminal statute is not unconstitutionally vague merely because it does not specifically designate the various different means by which a crime is committed. State v. Tranby, 437 N.W.2d 817 (N.D.1989).

Our research reveals a line of cases from other jurisdictions which has rejected vagueness challenges to statutes substantively identical to Section 39-21-37, N.D.C.C., requiring vehicles to be equipped with mufflers to prevent "excessive or unusual noise." People v. Byron, 17 N.Y.2d 64, 215 N.E.2d 345, 268 N.Y.S.2d 24 (1966); Smith v. Peterson, 131 Cal.App.2d 241, 280 P.2d 522 (1955); Ex Parte Trafton, 160 Tex.Crim. 407, 271 S.W.2d 814 (1953); see also St. Louis County v. McClune, 762 S.W.2d 91 (Mo.Ct.App.1988) (upheld statute preventing "excessive and unnecessary noises"); State v. Cobbs, 411 So.2d 212 (Fl.Dist.Ct.App.1982); Annot., Validity, Under Federal Constitution, of Federal, State, or Local Antinoise Laws and Regulations, 36 L.Ed.2d 1042, Sec. 5 (1974). We have found no cases concluding that this statutory language is unconstitutionally vague or indefinite, and neither the parties nor the county court have cited such a case.

In People v. Byron, supra, 215 N.E.2d at 347, 268 N.Y.S.2d at 26, the New York Court of Appeals stated:

"The evil sought to be prevented is 'excessive or unusual noise'. What is unusual noise in the operation of a car has become common knowledge and anything in excess of that is excessive or unusual and any ordinary motorist should have no difficulty in ascertaining whether or not excessive or unusual noise accompanied the operation of his vehicle."

In upholding a similar California statutory provision, the California District Court of Appeals for the Fourth District concluded:

"... the words 'excessive' or 'unusual', when viewed in the context in which they are used are sufficiently certain to inform persons of ordinary intelligence of the nature of the offense which is prohibited, and are therefore sufficient to establish a standard of conduct which is ascertainable by persons familiar with the operation of automobiles." Smith v. Peterson, supra, 280 P.2d at 528.

We agree with the reasoning of the foregoing cases that the phrase "excessive or unusual noise" provides adequate notice of the conduct proscribed. Webster's New World Dictionary (2nd College Edition) defines "unusual," in part, as "not ... common; strange; rare; exceptional." It defines "excessive," in part, as "being too much or too great; ... inordinate ... beyond what is proper, right, or usual." We believe that the usual noise emitted from a vehicle which is equipped with a proper muffler and exhaust system is within the common knowledge of drivers. When a vehicle is emitting noise which is inordinate, or beyond that which is proper or usual, the...