State v. Corum, 20020230.
| Decision Date | 05 June 2003 |
| Docket Number | No. 20020230.,20020230. |
| Citation | 663 N.W.2d 151,2003 ND 89 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Richard CORUM, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Brandi Sasse Russell, Courthouse, Bismarck, N.D., for plaintiff and appellee.
Paul H. Myerchin, Bormann & Myerchin, LLP, Bismarck, N.D., for defendant and appellant. MARING, Justice.
[¶ 1] Richard Corum appeals from an order denying his motion to suppress evidence and from a criminal judgment finding him guilty of possession of drug paraphernalia. We affirm, concluding the trial court did not err in refusing to suppress evidence obtained in a search of Corum's home.
[¶ 2] At approximately 4:00 a.m. on October 30, 2001, McLean County Deputy Sheriff Richard Benn was on patrol near Wilton, North Dakota. As he crested a hill, Deputy Benn saw a vehicle with its lights turned off parked on the side of the road. The vehicle was near an anhydrous ammonia storage yard which had been the subject of several prior thefts. There were no other businesses or homes in the area. Deputy Benn noticed a flash of light, which he believed to be from a flashlight, in the ditch by the passenger side of the vehicle. According to Deputy Benn, the flashlight appeared to be outside the vehicle. Deputy Benn then noticed a yellow flash of light from the vehicle's right front turn signal, as if someone had bumped the turn signal lever while climbing into the vehicle. The headlights of the vehicle came on and it pulled onto the roadway. As Deputy Benn passed the vehicle, he saw two males in the front seat.
[¶ 3] Deputy Benn turned around and stopped the vehicle by activating his overhead lights. Upon approaching, he observed two tanks in the back of the vehicle. Both tanks were frosted over and the valves were a bluish color, indicating they had been filled with anhydrous ammonia. Deputy Benn obtained consent to search the vehicle and confirmed that the tanks contained anhydrous ammonia.
[¶ 4] Deputy Benn placed the driver, Joel Kraft, and the passenger, Corum, under arrest for theft of the anhydrous ammonia. While Corum was being booked into jail, an inventory search of his wallet produced receipts showing recent multiple purchases of pseudoephedrine and batteries. Anhydrous ammonia, pseudoephedrine, and batteries are all used to manufacture methamphetamine.
[¶ 5] That afternoon, Agent Todd DeBoer of the North Dakota Bureau of Criminal Investigation applied for a warrant to search Corum's home in Bismarck. Agent DeBoer testified about Corum's participation in the anhydrous ammonia theft and about the receipts found in Corum's wallet for recent purchases of pseudoephedrine and batteries. Agent DeBoer also testified he had previously received information from an informant, Amanda Frey, that Corum was manufacturing methamphetamine and that he kept ingredients and finished product at his home in Bismarck. The magistrate found probable cause and issued the search warrant. The resulting search of Corum's home produced drug paraphernalia and other contraband.
[¶ 6] Corum was charged with possession of drug paraphernalia and manufacturing methamphetamine. Corum's motion to suppress all evidence from the search of his home was denied by the district court. He subsequently entered a conditional plea of guilty to possession of drug paraphernalia, reserving his right to appeal, and the second count for manufacturing methamphetamine was dismissed. Corum has appealed from the order denying his motion to suppress and from the criminal judgment.
[¶ 7] Corum challenges issuance of the search warrant and contends all evidence from the search of his home should have been suppressed.
[¶ 8] Corum challenges the validity of the traffic stop which produced evidence of his involvement in the theft of anhydrous ammonia and his purchases of pseudoephedrine and batteries. Corum contends that, because the vehicle stop was illegal, the warrant cannot be based upon evidence derived from the vehicle stop.
[¶ 9] Illegally obtained evidence cannot be the basis for a magistrate's finding of probable cause to support a search warrant. See Alderman v. United States, 394 U.S. 165, 177, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)
; State v. Winkler, 1997 ND 144, ¶ 12, 567 N.W.2d 330; State v. Runck, 534 N.W.2d 829, 833-34 (N.D.1995); State v. Kunkel, 455 N.W.2d 208, 211-12 (N.D.1990). Thus, because the evidence obtained from the vehicle stop is crucial to the validity of the warrant, the warrant would not be supported by probable cause if the vehicle stop was unlawful.
[¶ 10] To stop a moving vehicle for investigative purposes, an officer must have a reasonable and articulable suspicion that a law has been or is being violated. City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466; City of West Fargo v. Ross, 2001 ND 163, ¶ 7, 634 N.W.2d 527. The reasonable suspicion standard is less stringent than probable cause. City of Minot v. Johnson, 1999 ND 241, ¶ 5, 603 N.W.2d 485; City of Fargo v. Ovind, 1998 ND 69, ¶ 8, 575 N.W.2d 901. Although the concept of reasonable suspicion is not readily reduced to a neat set of legal rules, it does require more than a "mere hunch." Lawrence, at ¶ 8; Ross, at ¶ 7. In determining whether an investigative stop is valid, we employ an objective standard and look to the totality of the circumstances. Lawrence, at ¶ 8; Ovind, at ¶ 8. Reasonable suspicion for a stop exists when a reasonable person in the officer's position would be justified by some objective manifestation to believe the defendant was, or was about to be, engaged in unlawful activity. State v. Boyd, 2002 ND 203, ¶ 14, 654 N.W.2d 392; Lawrence, at ¶ 8.
[¶ 11] We do not require an officer to isolate a single factor which, standing alone, signals a potential violation of the law. Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466; Ross, 2001 ND 163, ¶ 8, 634 N.W.2d 527. Rather, "officers are to assess the situation as it unfolds and, based upon inferences and deductions drawn from their experience and training, make the determination whether all of the circumstances viewed together create a reasonable suspicion of potential criminal activity." Lawrence, at ¶ 8 (quoting Ovind, 1998 ND 69, ¶ 9, 575 N.W.2d 901). When assessing reasonableness, we examine all of the information known to the officer at the time of the stop, and we consider inferences and deductions an investigating officer would make which may elude a layperson. Boyd, 2002 ND 203, ¶ 15, 654 N.W.2d 392.
[¶ 12] Corum argues Deputy Benn's stop of the vehicle was based solely upon the fact there had been prior thefts of anhydrous ammonia from the storage yard. Relying upon Johnson, 1999 ND 241, 603 N.W.2d 485, Corum contends an area's reputation for criminal activity cannot solely support a finding of reasonable suspicion, and Deputy Benn was acting upon a mere hunch when he stopped the vehicle.
[¶ 13] In Johnson, an officer was patrolling an area where there had been prior burglaries. At 4:13 a.m., the officer saw a vehicle drive into the parking lot of a bar which had been burglarized several months earlier. The vehicle passed through a sparsely lit area behind the bar and then exited the parking lot without stopping. The officer then stopped the vehicle. We affirmed an order suppressing evidence resulting from the stop, concluding the information available to the officer at the time of the stop was insufficient to raise a reasonable suspicion of criminal activity. We held that, although an "area's reputation for criminal activity is an articulable fact on which a police officer may legitimately rely," it "cannot solely support a finding of reasonable suspicion." Johnson, 1999 ND 241, ¶ 8,603 N.W.2d 485 (emphasis added).
[¶ 14] This case is clearly distinguishable from Johnson. In Johnson, the prior burglaries in the area and the early morning hour were the only facts giving rise to a suspicion of unlawful activity. If the stop in Johnson were upheld, officers could essentially stop any vehicle traveling at a suspicious hour in the vicinity of prior criminal activities.
[¶ 15] In contrast, there are additional crucial factors in this case which, when viewed in their totality through the eyes of a trained law enforcement officer, are sufficient to give rise to a reasonable suspicion of unlawful activity. The vehicle in this case was not merely passing through an area where there had been prior crimes. Rather, the vehicle was stopped on a rural highway next to an anhydrous ammonia storage yard where there had been several earlier thefts. The deputies of the McLean County Sheriff's Department had been specifically instructed to check the tanks because of the prior thefts. Unlike the bar involved in Johnson, which was located in the city with other businesses nearby, the anhydrous ammonia storage yard was located in a rural area with no other businesses or residences nearby.
[¶ 16] Most significantly, Deputy Benn observed a flashlight shining outside the vehicle. It is one thing for a vehicle to drive through a bar's parking lot at 4:00 a.m. It is quite another for a vehicle to be stopped on a highway at 4:00 a.m., with the occupants outside the vehicle, in a rural area where a previously burglarized anhydrous ammonia storage yard is the only nearby facility of any kind. Under these circumstances, we conclude there was a reasonable and articulable suspicion of unlawful activity justifying an investigative stop of the vehicle.
[¶ 17] Although not cited by Corum, we note our decision does not conflict with the results in either State v. Robertsdahl, 512 N.W.2d 427 (N.D.1994), or State v. Sarhegyi, 492 N.W.2d 284 (N.D.1992). Robertsdahl is similar to Johnson. The officer saw a vehicle "leave the area" of a bar in a small town at approximately 1:50 a.m., followed the vehicle as it drove a few blocks and "headed back towards the bar," and stopped the vehicle when it headed out of town. Robertsdahl, at 427. This Court concluded the...
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