State v. Burris, 950327

• Decision Date: 19 March 1996
• Docket Number: No. 950327,950327
• Citation: 545 N.W.2d 192
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Patrick Michael BURRIS, Defendant and Appellant Criminal
• Court: North Dakota Supreme Court

Page 192

545 N.W.2d 192

STATE of North Dakota, Plaintiff and Appellee v. Patrick Michael BURRIS, Defendant and Appellant

Criminal No. 950327.

Supreme Court of North Dakota.

March 19, 1996.

David T. Jones (argued), Assistant State's Attorney, Grand Forks, for plaintiff and appellee.

Thomas B. Jelliff (argued), Grand Forks, for defendant and appellant.

MESCHKE, Justice.

Patrick Michael Burris appeals from the denial of his motion to suppress evidence and from his conviction, through a conditional guilty plea, for driving under the influence of alcohol. We affirm.

Near 2:00 a.m. on January 15, 1995, North Dakota Highway Patrol Trooper Dennis Pengilly observed Burris's pickup entering I-29 at Exit 145. By the time Pengilly also entered I-29 and accelerated to sixty-five miles per hour, Burris was about three-quarters of a mile ahead of him. Pengilly later testified that Burris appeared to be traveling about fifty-five miles per hour, or about ten miles per hour below the posted speed limit. Pengilly said he closed to within about 200 yards of Burris's pickup, from where he saw it

being driven over the fog line by several feet, two to three feet. The vehicle continued to drive over the fog line for several hundred yards. The vehicle pulled back over into his own lane of traffic and then pulled back over the fog line again on the right side of the road, and then I activated my red lights.

Pengilly testified that he saw Burris cross the fog line around mile-marker 143, and that he stopped Burris at mile-marker 142. Pengilly eventually charged Burris with violating NDCC 39-08-01 by driving under the influence of alcohol or with a blood-alcohol concentration of 0.10% or greater.

Burris moved to suppress the evidence from the stop, arguing that Pengilly did not have a reasonable and articulable suspicion to stop him. The trial court denied suppression, finding that Pengilly had a

reasonable and articulable suspicion that [Burris] had violated or was violating the law. This suspicion was based upon a totality of circumstances to include the time of driving, that [Burris] was driving at a speed limit 10 mph under the posted limit, and that [Pengilly] did not stop [Burris] when [he] first crossed the fog line but rather, observed [Burris] again cross the line and then effected the stop.

Burris conditionally pled guilty under NDRCrimP 11(a)(2), reserving his right to appeal the denial of suppression.

"For an investigative stop, an officer must have a reasonable and articulable suspicion that a law has been, or is being, violated." State v. Hawley, 540 N.W.2d 390, 392 (N.D.1995). Burris does not dispute that Pengilly could have formed a reasonable and articulable suspicion, thereby justifying the stop under the Fourth Amendment, if he had seen Burris's pickup cross the fog line twice. See Johnson v. North Dakota Dep't of Transp., 530 N.W.2d 359 (N.D.1995); State v. Zimmerman, 516 N.W.2d 638 (N.D.1994); see also NDCC 39-10-17(1) ("A vehicle must be driven as nearly as practicable entirely within a single lane...."). Instead, Burris argues that Pengilly's testimony, that he was within 200 yards of Burris's pickup when he first saw it cross the fog line near mile-marker 143, "defies all laws of mathematics and physics." Contending that Pengilly could not have witnessed the alleged conduct, Burris argues that Pengilly thus lacked a reasonable and articulable suspicion for the stop.

Burris stresses that, if Pengilly, traveling...