State v. DeCoteau, 20030271

• Court: United States State Supreme Court of North Dakota
• Citation: 681 NW 2d 803,2004 ND 139
• Docket Number: No. 20030271,20030271
• Parties: State of North Dakota, Plaintiff and Appellee v. George Frances Decoteau, Defendant and Appellant.
• Decision Date: 30 June 2004

2004 ND 139
681 NW 2d 803

State of North Dakota, Plaintiff and Appellee
v.
George Frances Decoteau, Defendant and Appellant

No. 20030271

Supreme Court of North Dakota.

Filed June 30, 2004

Cynthia Mae Feland, Assistant State's Attorney, Courthouse, 514 East Thayer, Bismarck, N.D. 58501-4413, for plaintiff and appellee.

Steven Balaban, 418 East Rosser Avenue, Suite 102, Bismarck, N.D. 58501-4046, for defendant and appellant.

Opinion of the Court by Kapsner, Justice.

Kapsner, Justice.

[¶1] George Decoteau appealed from an amended judgment of conviction for possession of marijuana with intent to deliver and possession of drug paraphernalia. We affirm, concluding the arresting officer had reasonable suspicion to stop Decoteau's vehicle.

I

[¶2] On October 20, 2002, Officer Marks of the Bismarck Police Department recognized Decoteau driving a vehicle. Officer Marks had stopped Decoteau one week previously and during that stop learned Decoteau's license had been suspended. Officer Marks initiated a traffic stop of Decoteau's vehicle. He did not run a computer check on Decoteau's license status or observe any driving violations before stopping the vehicle.

[¶3] During the stop, Officer Marks asked Decoteau whether his license was still suspended, and Decoteau admitted it was. Officer Marks then ran a computer check to confirm Decoteau's suspended status, and arrested Decoteau for driving under suspension. A search incident to arrest produced marijuana, empty baggies, and a scale. Decoteau admitted he used the scale to weigh marijuana and that he occasionally sold marijuana. He also admitted the vehicle was uninsured. Decoteau was eventually charged with possession of marijuana with intent to deliver, possession of drug paraphernalia, driving under suspension, and driving without insurance.

[¶4] Decoteau moved to suppress all evidence resulting from the stop, arguing Officer Marks did not have a reasonable and articulable suspicion of criminal activity sufficient to support the stop. When the State failed to file a response to the motion, Decoteau filed a "Request for Default" seeking suppression of the evidence and dismissal of the charges. The State then immediately filed a response to the motion to suppress and requested a hearing.

[¶5] At the hearing on the motion to suppress, the State conceded its response to the suppression motion was two days late because the assistant states attorney had erroneously believed there was an additional three days to respond after service by mail. Decoteau's suppression motion had been served personally, not by mail. The trial court advised counsel that, as a sanction for the State's tardy response, the State would be bound by the facts as outlined in Decoteau's brief, but the State could submit a brief arguing the legal effect of those facts. The court also allowed the State to submit a brief challenging its holding limiting the facts to those in Decoteau's brief. Officer Marks was allowed to testify as an offer of proof in the event the court changed its mind about limiting the facts.

[¶6] The State filed a brief, arguing that the court had discretion to permit a late response to a suppression motion and that the officer had reasonable suspicion to stop Decoteau's vehicle. On May 7, 2003, the trial court entered an order denying the motion to suppress, not on the merits, but because Decoteau had failed to file a factual affidavit in support of the motion. On May 28, 2003, Decoteau entered a conditional plea of guilty, reserving the right to appeal the denial of the motion to suppress. A sentencing hearing was held on September 5, 2003. Decoteau filed a notice of appeal on September 5, 2003. A criminal judgment was filed on September 12, 2003, and an amended criminal judgment was filed on October 2, 2003.

II

[¶7] Decoteau's notice of appeal states the appeal is taken from the order denying his motion to suppress. An order denying a motion to suppress is not an appealable order under N.D.C.C. § 29-28-06. State v. Guscette, 2004 ND 71, ¶ 4, 678 N.W.2d 126; State v. Klodt, 298 N.W.2d 783 n.1 (N.D. 1980). After denial of the motion to suppress, Decoteau entered a conditional plea of guilty, with the trial court and the State acknowledging at the change of plea hearing that Decoteau was reserving the right to appeal the denial of the motion to suppress. A subsequent judgment and amended judgment consistent with the order denying the motion to suppress were entered. Under these circumstances, we will treat Decoteau's attempted appeal from the order denying the motion to suppress as an appeal from the subsequently entered consistent amended judgment. See Guscette, at ¶ 4; State v. Keilen, 2002 ND 133, ¶ 9, 649 N.W.2d 224; Klodt, at 783 n.1.

III

[¶8] Decoteau initially raises challenges to the procedure employed by the trial court in resolving the motion. He alleges the trial court erred in allowing the arresting officer to testify at the hearing after already determining the...