State v. Boline, s. 970277 and 970278

• Decision Date: 30 March 1998
• Docket Number: Nos. 970277 and 970278,s. 970277 and 970278
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Timothy BOLINE, Defendant and Appellant. Criminal
• Court: North Dakota Supreme Court

Page 906

575 N.W.2d 906

1998 ND 67

STATE of North Dakota, Plaintiff and Appellee, v. Timothy BOLINE, Defendant and Appellant.

Criminal Nos. 970277 and 970278.

Supreme Court of North Dakota.

March 30, 1998.

Lonnie W. Olson, State's Attorney, Devils Lake, for plaintiff and appellee.

Scott R. Thompson, Thompson & Thompson, Devils Lake, for defendant and appellant.

VANDE WALLE, Chief Justice.

¶1 Timothy Boline appealed from Criminal Judgments of Conviction for possession of drug paraphernalia and driving under the influence of alcohol. Boline was convicted by the Ramsey County District Court following a Conditional Plea of guilty. We conclude there was reasonable suspicion to stop Boline and that the district court properly denied his motion to suppress evidence gathered as a result of that stop. We affirm.

I

¶2 On February 5, 1997, the Lake Region 911 Emergency Management office in Devils Lake received a call from an unidentified caller. The caller hung up. The dispatcher called back and asked the female who answered if she had just called 911. The caller responded, "Yes I did. I'm okay."

¶3 After taking down some preliminary information, the dispatcher asked what the problem was. The unidentified caller said, "My old man just started smacking me around. He was going into town. His name is Tim Boline. Pick him up if you want."

¶4 The dispatcher asked if Boline had been drinking and the caller responded, "Yes he has."

¶5 The caller gave a description of the vehicle. The caller continued, "I'm sick of getting smacked around. He just smacked me on the head and ... told me not to call again. So I didn't."

¶6 The dispatcher took down the caller's address. Again the caller declared, "He's on his way into town. He just smacked me around. He's on his way into town, pick him up. He was drunk."

¶7 The dispatcher assured the caller police officers would be alerted. The caller hung up. The caller did not identify herself, nor was she asked her name.

¶8 After this call, the dispatcher advised Ramsey County Deputy Sheriff Craig Dix of the call. The dispatcher indicated Boline may be a drunk driver.

¶9 While the dispatcher was advising Deputy Dix, Lake Region 911 Emergency Management received another call from the same number. The caller identified herself as Connie. "Ma'am, this is Connie again. He just left me and he just come back in here and said if I called the cops I'm going to be in trouble."

¶10 Devils Lake Police Officer Mike Larson heard the radio traffic between Deputy Dix and the dispatcher. From the radio traffic, Officer Larson knew Tim Boline was sought for assaulting a woman named Connie and that Boline was reported to have been drinking. Officer Larson contacted the dispatcher and asked to go to scramble. Scrambling prevented Deputy Dix from hearing Officer Larson's conversation with the dispatcher.

¶11 On scramble, Officer Larson radioed the Law Enforcement Center to get Boline's license plate number and a description of the vehicle. Officer Larson then asked for Boline's brother's address and, assuming that is where Boline was headed, proceeded to that address. On the way, Officer Larson recognized Boline's vehicle pulling into a service station. Officer Larson radioed Deputy Dix to ask if Dix wanted Boline stopped. Deputy Dix said he did want Boline stopped.

¶12 While Officer Larson was following Boline, Deputy Dix called the dispatcher on his cellular phone. Deputy Dix asked, "Who is the reporting party?" The following exchange took place:

DISPATCHER: His wife.

DEPUTY DIX: Well, I don't know who his wife is.

DISPATCHER: Well, is it Connie.

DEPUTY DIX: Connie Zuercher.

DISPATCHER: Oh geez.

DEPUTY DIX: He's not married.

DISPATCHER: I'm pretty sure she said her name was Connie.

¶13 The dispatcher called the reporting number and asked Connie for her last name. The caller identified herself as Connie Zuercher.

¶14 Meanwhile, at the service station, Officer Larson watched Boline get out of his car and enter the station. Officer Larson did not notice any signs of impairment. He followed Boline into the service station. Larson noticed an odor of alcohol. When Boline finished buying a pack of cigarettes, Larson approached and asked Boline to step outside with him. The two moved to the front seat of Larson's patrol car to talk.

¶15 Officer Larson asked Boline what had happened at home. Boline said Connie had come home drunk and started fighting with him and that he decided to leave instead of fighting. Boline told Officer Larson he was better off leaving or the argument might have degenerated into a physical altercation.

¶16 Larson asked Boline if he had been drinking. Boline admitted he had been drinking but not within the past hour. After Officer Larson conducted field sobriety tests he placed Boline under arrest. When Boline was taken out of the patrol car at the Devils Lake Law Enforcement Center, Officer Larson found a "one-hitter" made from a gun shell. A "one-hitter" is a small pipe used to smoke a small amount of marijuana.

¶17 Boline was charged with Driving while Under the Influence of Alcohol, a class B misdemeanor, in violation of section 39-08-01, N.D.C.C., and Possession of Drug Paraphernalia, a class A misdemeanor, in violation of section 12.1-31.1-03, N.D.C.C. Boline filed a motion to suppress all of the evidence obtained from the stop, claiming his detention by Officer Larson was in violation of his constitutional and statutory rights. According to Boline, Officer Larson did not have information regarding any traffic violations, observe Boline's intoxication, or know the extent of any physical injuries to Connie Zuercher. The district court denied Boline's motion, concluding that under the totality of circumstances Officer Larson had a reasonable and articulable suspicion to stop Tim Boline.

¶18 Boline entered a Conditional Plea of guilty under Rule 11(a)(2), N.D. R.Crim. P., preserving his right to contest the district court's denial of the motion to suppress on appeal from the Judgments.

II

¶19 The Fourth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), State v. Manning, 134 N.W.2d 91 (N.D.1965), and Article I, Section 8, of the North Dakota Constitution, which language is nearly identical to the Fourth Amendment, protect the people against unreasonable searches and seizures.

¶20 On appeal, Boline claims Officer Larson's stop violated his rights because Larson did not have probable cause to execute a domestic violence arrest. See N.D.C.C. §§ 14-07.1-10(1); 14-07.1-11(2). Boline also argues state law does not allow for the temporary stop of a person for a domestic disturbance. See N.D.C.C. § 29-29-21. We conclude the district court properly denied Boline's motion for suppression and affirm the Criminal Judgments.

¶21 On review, we resolve conflicts in the testimony in favor of affirmance. State v. Halfmann, 518 N.W.2d 729, 730 (N.D.1994). We will reverse a district court's denial of a motion to suppress if the disposition lacks "sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is ... contrary to the manifest weight of the evidence." State v. Glaesman, 545 N.W.2d 178, 181 (N.D.1996); City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). We defer, however, to the district court to weigh the evidence and judge the credibility of witnesses. Halfmann, 518 N.W.2d at 730.

¶22 The North Dakota Legislature enacted section 14-07.1-10(1), N.D.C.C., permitting the arrest of a person suspected of committing a crime involving domestic violence. The law presumes an arrest is the appropriate response in a domestic violence case. N.D.C.C. § 14-07.1-10(1). However, before an arrest for domestic violence is made, probable cause is required. Id. Thus, Boline alleges his stop at the service station was invalid because Officer Larson did not have probable cause to establish a domestic violence crime had been committed.

¶23 Section 14-07.1-11(2), N.D.C.C., permits the arrest of a domestic violence perpetrator without a warrant. The arrest must be made within four hours from the time the officer determines there is probable cause to arrest. N.D.C.C. § 14-07.1-11(2). In addition, observation of the physical injury or impaired physical condition of the victim is required. Id. Thus, Boline claims Officer Larson's arrest lacked probable cause and was invalid because he did not actually observe any physical injury or impairment of Connie Zuercher.

¶24 Despite Boline's assertions, neither of these domestic violence statutes apply to the present case. Boline was not, in fact, arrested for domestic violence by Officer Larson, he was arrested for possession of drug paraphernalia and driving under the influence of alcohol. As we noted in Halfmann, 518 N.W.2d at 730, there are three tiers of law enforcement-citizen encounters: "(1) arrests, which must be supported by probable cause; (2) [reasonable suspicion] stops, 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." Id. (Citations omitted).

¶25 Here, Boline was seized within the context of the Fourth Amendment when he was asked to step outside the service station and into Officer Larson's patrol car. "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Id. at 731 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968)).

¶26 Although Boline was seized, he was not under arrest. Stepping foot inside a patrol car does not place a criminal suspect under arrest. Cf. State v. Martin, 543 N.W.2d 224, 227 (N.D.1996) (holding absent arrest or similar restraint, a person is not ...