State v. Boyd

• Decision Date: 20 December 2002
• Docket Number: No. 20020136.,20020136.
• Citation: 2002 ND 203,654 N.W.2d 392
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Jocelyn BOYD, Defendant and Appellant.
• Court: North Dakota Supreme Court

654 N.W.2d 392

2002 ND 203

STATE of North Dakota, Plaintiff and Appellee, v. Jocelyn BOYD, Defendant and Appellant.

No. 20020136.

Supreme Court of North Dakota.

December 20, 2002.

Cynthia M. Feland, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Kent M. Morrow, Bismarck, ND, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Jocelyn Boyd appealed a trial court order denying her motion to suppress evidence and the criminal judgment convicting her of possession of marijuana with intent to deliver, possession of a controlled substance with intent to deliver, and possession of drug paraphernalia. We affirm.

I

[¶ 2] On June 21, 2001, Burleigh County Deputy Sheriff Sharlene Schuh was driving east when she observed a vehicle with Texas license plates. She asked dispatch to run a vehicle license plate check, which was her routine practice when encountering out-of-state license plates. She observed three people in the vehicle, and the individual in the back seat appeared to be a woman. When the vehicle turned south, Deputy Schuh did not follow. When she received the report from dispatch, it contained a National Crime Information Center ("NCIC") request to perform a welfare check on the owner of the vehicle, as a "possibly missing and/or endangered" female. Deputy Schuh then requested assistance and located the vehicle turning into a shopping mall parking lot.

[¶ 3] Deputy Schuh "pulled in behind" the vehicle as its three occupants, Benjamin Alvarez, Jocelyn Boyd, and Christopher Defender, exited. Deputy Schuh identified herself, showed her badge, and told Alvarez, Boyd, and Defender to move to the front of the vehicle and place their hands on the hood. They did not comply with Deputy Schuh's requests until another officer arrived. Further investigation revealed Boyd owned the vehicle. During a pat-down search, police found drugs on Alvarez and also learned there were outstanding arrest warrants against him. Police impounded Boyd's vehicle after a drug dog showed a positive "hit" for drugs. Boyd later consented to a vehicle search, and police discovered drugs in the vehicle. Boyd moved to suppress the evidence found in the search of the vehicle. The trial court denied her motion, and Boyd entered a conditional guilty plea. [¶ 4] On appeal, Boyd argues the trial court erred in denying her motion to suppress evidence. She asserts the fact the vehicle had out-of-state license plates did not provide the deputy with a reasonable suspicion of unlawful activity. Therefore, Deputy Schuh illegally stopped the vehicle, and all evidence obtained from the illegal stop should be suppressed. Furthermore, Boyd argues the trial court erred in finding Deputy Schuh's stop of the vehicle was justified by the community caretaking exception of the Fourth Amendment.

II

[¶ 5] In State v. Sabinash, 1998 ND 32, ¶ 8, 574 N.W.2d 827 (citations omitted), we outlined our standard of review for suppression motions:

The trial court's disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence. That standard of review recognizes the importance of the trial court's opportunity to observe the witnesses and assess their credibility, and we "accord great deference to its decision in suppression matters."

III

[¶ 6] Courts have identified several permissible types of law enforcement-citizen encounters, including: "(1) arrests, which must be supported by probable cause; (2) `Terry' 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." State v. Halfmann, 518 N.W.2d 729, 730 (N.D.1994); see also Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)

. The trial court considered the encounter in this case the third type, finding Deputy Schuh performed a community caretaking function of law enforcement.

A

[¶ 7] Law enforcement officers often serve as community caretakers. Lapp v. N.D. Dep't of Transp., 2001 ND 140, ¶ 14, 632 N.W.2d 419 (citing State v. DeCoteau, 1999 ND 77, ¶ 19, 592 N.W.2d 579). The United States Supreme Court described community caretaking functions as those "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). Community caretaking allows law enforcement-citizen contact, including stops, without an officer's reasonable suspicion of criminal conduct. State v. Glaesman, 545 N.W.2d 178, 181 (N.D.1996). For Fourth Amendment purposes, a seizure does not occur when an officer approaches a parked vehicle if the officer questions the occupant in a conversational manner and does not issue orders to the person or demand a response. State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992) (citing Wibben v. N.D. State Highway Comm'r, 413 N.W.2d 329, 334-35 (N.D. 1987) (VandeWalle, J., concurring)). However, even a casual encounter can become a seizure if a reasonable person would view the officer's actions—if done by another private citizen—as threatening or offensive. Id. (citing Wibben, at 335). This may occur through an order, a threat, or a weapon display. Id. An officer's initial community caretaking encounter also may cause the officer to develop a reasonable and articulable suspicion of unlawful conduct. Lapp, at ¶ 14. [¶ 8] Our previous cases provide examples of law enforcement officers performing community caretaking functions. See Lapp v. Dep't of Transp., 2001 ND 140, ¶¶ 14-15, 632 N.W.2d 419

(holding an officer's encounter with an individual justified by the officer's community caretaking role when the individual was slumped over the steering wheel of a vehicle with its engine running); City of Fargo v. Sivertson, 1997 ND 204, ¶ 10, 571 N.W.2d 137 (determining an officer's initial approach of a driver who failed to proceed around the scene of an accident with the rest of traffic was a caretaking encounter); City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 773-75 (N.D.1996) (holding an officer was acting as a community caretaker when he initially approached an individual slumped over the steering wheel of an idling vehicle); State v. Franklin, 524 N.W.2d 603, 605 (N.D. 1994) (determining officers' approach of individuals parked at night in motel parking lot and slumped down in their seats was more of a caretaking encounter than a search or seizure); State v. Halfmann, 518 N.W.2d 729, 730-31 (N.D.1994) (holding an officer acted in a caretaking capacity when he approached a driver after she drove to the shoulder of a gravel road and stopped her vehicle).

[¶ 9] A review of our case law also reveals situations where law enforcement officers did not act as community caretakers. See State v. Keilen, 2002 ND 133, ¶ 19, 649 N.W.2d 224

(holding the community caretaking exception did not apply to an apartment search when officers arrived and did not see a disturbance or anyone in need of assistance); City of Jamestown v. Jerome, 2002 ND 34, ¶ 8, 639 N.W.2d 478 (determining an officer did not act as a community caretaker because his purpose in talking with the defendant was to investigate a possible legal violation); State v. DeCoteau, 1999 ND 77, ¶ 21, 592 N.W.2d 579 (holding officers had no community caretaking role to fill when they arrived at a home, saw no disturbance, and were told by the homeowner she did not need or request their assistance); State v. Hawley, 540 N.W.2d 390, 392 (N.D.1995) (declining to address community caretaking because the officer had a reasonable and articulable suspicion of a parking violation); State v. Brown, 509 N.W.2d 69, 71-72 (N.D.1993) (holding an officer's vehicular stop was made to determine if driver was intoxicated, not for the community caretaking purpose of rendering assistance); State v. Sarhegyi, 492 N.W.2d 284, 285-86 (N.D. 1992) (determining an officer's stop of a lone vehicle parked in a farm implement dealer's lot, which attempted to leave when he approached, was not community caretaking); State v. Langseth, 492 N.W.2d 298, 301 (N.D.1992) (concluding the community caretaking exception did not apply when an officer pursued the defendant while flashing the patrol car's warning lights).

[¶ 10] The present case further illustrates the inapplicability of the community caretaker exception. In this case, Deputy Schuh "pulled in behind" Boyd and her companions, blocking their vehicle's rear exit. Deputy Schuh did not converse with them in a casual manner; she ordered them to go to the front of their vehicle and put their hands on the hood. By issuing orders and demanding compliance, Deputy Schuh removed herself from the scope of acceptable actions for officers acting as community caretakers. See State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992)

; Wibben v. N.D. State Highway Comm'r, 413 N.W.2d 329, 334-35 (N.D.1987) (VandeWalle, J., concurring). Therefore, we conclude the trial court erred in finding Deputy Schuh acted in a community caretaker role.

B

[¶ 11] Although Deputy Schuh's actions do not amount to community caretaking, because we apply an objective standard to the actions of the officer we next examine whether her actions were supported by reasonable and articulable suspicion of criminal activity. See State v. Hawley, 540 N.W.2d 390, 392-93 (N.D.1995)

("[T]he reasonable-and-articulable-suspicion standard is objective, and it does not hinge upon the subjective beliefs of the arresting officer."). If so, her actions fall within another law enforcement-citizen encounter. See State v. Halfmann, 518 N.W.2d 729, 730 (N.D.1994) (identifying three tiers of law enforcement-citizen contact). We conclude, viewing the...