State v. Brown
| Decision Date | 02 December 1993 |
| Docket Number | Cr. N |
| Citation | 509 N.W.2d 69 |
| Parties | STATE of North Dakota, Plaintiff and Appellant, v. Roger L. BROWN, Defendant and Appellee. STATE of North Dakota, Plaintiff and Appellant, v. Chad CLOSE, Defendant and Appellee. os. 930185, 930186. |
| Court | North Dakota Supreme Court |
Cameron D. Sillers, State's Atty., Langdon, for plaintiff and appellant. Submitted on brief.
R. Scott Stewart (argued), Langdon, for defendants and appellees. Submitted on brief.
The State of North Dakota appealed from a county court order suppressing evidence and dismissing charges brought against Roger L. Brown for driving while under the influence of alcohol and against Chad Close for possession of alcohol by a person under 21 years of age. We hold that the arresting officer did not have a reasonable and articulable suspicion of criminal activity to justify an investigative stop of the vehicle driven by Brown, and we affirm the order dismissing the charges.
While on duty at about 1:00 a.m., on March 6, 1993, Highway Patrol Officer Dana King observed a Chevy Blazer traveling on Highway 1 about six miles south of Langdon. He estimated the Blazer was traveling about 40 miles per hour and he noticed what he thought was smoke "coming out from underneath the vehicle" and that the vehicle seemed to "stutter." King observed the vehicle pull about halfway onto the right shoulder as it continued down the roadway. King then activated the red light on his patrol car; almost simultaneously, the driver of the Blazer signaled a right turn and then turned off the highway and into the lot of the Concrete Pre-Mix Plant.
King explained why he decided to stop the vehicle:
From observations made after the stop, King arrested the driver, Roger Brown, for driving while under the influence of alcohol, and passenger, Chad Close, for possession of alcohol by a person under 21 years of age.
Brown and Close filed a motion to suppress evidence on the ground that King's stop of their vehicle was illegal. The county court determined that the primary purpose of King's stop was to investigate possible criminal activity, i.e., driving while under the influence of alcohol. The court expressly found that King did not, as a primary concern or reason, stop the vehicle because of the smoke he observed or to assist with a possible malfunction. The court concluded that King did not have a reasonable articulable suspicion of criminal activity to justify the stop, and granted the motion to suppress.
Under Section 29-28-07(5), N.D.C.C., the State is authorized to bring an appeal from an order granting the suppression of evidence. The trial court's disposition on 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 determination. State v. Sarhegyi, 492 N.W.2d 284 (N.D.1992). We recognize the significance of the trial court's opportunity to assess the credibility of witnesses, and we accord great deference to its decision in suppression matters. State v. Placek, 386 N.W.2d 36 (N.D.1986).
The law governing investigative stops of automobiles is clear. An officer must have an articulable and reasonable suspicion that a motorist is violating the law in order to legally stop a vehicle. State v. VandeHoven, 388 N.W.2d 857 (N.D.1986). This standard requires less than probable cause but more than a mere hunch. State v. Sarhegyi, supra, 492 N.W.2d at 286. King testified...
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