State v. Everson, Cr. N

Decision Date16 August 1991
Docket NumberCr. N
Citation474 N.W.2d 695
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Keith EVERSON, Defendant and Appellant. os. 900342, 900343.
CourtNorth Dakota Supreme Court

James A. Hope, Asst. State's Atty., Dickinson, for plaintiff and appellee.

Ralph A. Vinje, of Vinje Law Firm, Bismarck, for defendant and appellant.

VANDE WALLE, Justice.

Keith Everson appealed from two judgments of conviction for class C felony possession of a controlled substance. He asserts on appeal that the trial court erred in refusing to suppress the controlled substances which were discovered by law enforcement officers when he was stopped at a multi-purpose highway checkpoint. We disagree, and accordingly, affirm the judgments of conviction.

During the summer of 1989, Larry Buck, a detective with the Stark County Sheriff's Office, Sgt. Don Glarum of the State Highway Patrol, and Stark County Deputy Sheriff Mike Adolph, were assigned by their supervisors to establish a highway checkpoint in Stark County to coincide with the upcoming annual motorcycle rally in Sturgis, South Dakota. On June 26, 1989, District Eight Highway Patrol Captain David Messer issued Operation Order 2-89 which stated in part:

"Due to the rally in Sturgis, South Dakota and the large volume of drugs on our highways, the North Dakota Highway Patrol along with the Stark County Sheriff's Office and other agencies will conduct a drivers license and registration check. If probable cause presents its self [sic], for drugs and other contraband, a search will be conducted. The check will be conducted on Highway 85 on 5-6 and 13-14 August 1989.

* * * * * *

"It will be the mission of the North Dakota Highway Patrol to attempt to alleviate the problem of drugs being transported by vehicle, on state highway's [sic] in North Dakota."

On July 17, 1989, Stark County Sheriff James Rice issued a memorandum in preparation for the operation which stated:

"[C]heck points [sic] will be set up and operated as listed below:

"1. All vehicles heading in an assigned direction will be stopped.

"2. Vehicle registration will be checked for current status.

"3. Driver of vehicle will be checked for current operator's drivers license.

"4. A vehicle inspection will be conducted.

"Checkpoints will be located on # 85, # 22, # 8 and # 10 during assigned times."

On August 5-6 and 13-14, 1989, law enforcement officers conducted a checkpoint 12 miles south of Belfield on U.S. Highway 85. Personnel from the Stark, Billings, and Slope County Sheriff's Offices, the State Highway Patrol, the State Drug Enforcement Unit, the United States Border Patrol, and the Minot Police Department participated in the operation. On August 5 and 6, which coincided with the beginning of the motorcycle rally, all southbound traffic was stopped. On August 13 and 14, which coincided with the conclusion of the rally, all northbound traffic was stopped. The checkpoint was located in a small valley so oncoming traffic could not see it from a long distance. A driver would first see a large sign that said "Please stop." The actual checkpoint was located approximately two-tenths of one mile from the sign. The checkpoint was conducted only during daylight hours.

Every vehicle was stopped at the checkpoint. The driver would first encounter three fluorescent orange traffic cones and an officer referred to as the "point man" who was located at an intersection of the highway and a gravel road. Parked on the gravel road to the driver's right were sheriff's cars, a camper used as a command post, and Drug Enforcement Unit vehicles. Drug Enforcement Unit officers and sheriff's deputies conducted searches of vehicles referred to this area if the driver consented to a search. Two Highway Patrol officers were stationed further down the highway to conduct vehicle-safety inspections.

The point man made the initial determination whether a vehicle would be sent to the search area or the inspection area, but any officer had the authority to send a vehicle to the search area. The point man would tell drivers that a vehicle safety check was being conducted and that they should have their drivers' licenses and vehicle registrations ready for inspection. The point man could send a vehicle to the search area based on the observation of any illegal activity. Before the law enforcement officers went on duty, they were also given a drug courier profile containing a list of "indicators" of narcotics traffickers. These "indicators" included the following:

"Vehicle Appearance:

"a. low riding, or low rear end

"b. obvious alterations to body

"c. alterations to suspension-new adjustable air shocks

"Interior of vehicle

"a. little or no luggage and long way from alleged home

"b. luggage or spare tire on back seat

"c. coolers/water jugs, fast food wrappers, coffee, bedding

"d. 'Bounce', or similar laundry fresheners

"e. multiple air freshening devices, sprays

"f. 'Glad' type storage bags or aluminum foil or masking tape

"Occupants:

"a. overly courteous, especially if receiving a citation

"b. in a hurry to leave

"c. overly cautious drivers

"d. signs of overt nervousness

"e. won't make eye contact

"f. don't 'know' each other

"g. after questioning the driver outside of the car and away from other occupants, check the story of the other occupants as to destinations, purposes of trip, length of stay, where stayed, etc., and check for discrepencies [sic].

"h. unkempt physical appearance, such as 3-day beard growth, matted hair, fatigued, or 'wired' from stimulants to stay awake."

If a driver or other occupant caused the point man to become suspicious, the driver was sent to the search area where the driver was asked to consent to a search of the vehicle. Otherwise, the driver was sent to the vehicle safety inspection area. If a driver refused to consent to a search, the officers were instructed to allow the driver to proceed without a search.

On August 13, 1989, Everson, traveling from Sturgis to Williston, was stopped at the checkpoint. Everson was driving a 1981 Mazda GLC and pulling a trailer which contained a Harley Davidson motorcycle. The license plate on Everson's trailer was partially broken off. The point man informed Everson that the officers were conducting vehicle safety inspections and that he should get out his driver's license and vehicle registration. The point man then directed Everson toward the vehicle safety inspection area. Sgt. Glarum of the Highway Patrol, who was conducting safety inspections at the time, checked Everson's driver's license and vehicle registration and conducted a safety check. Sgt. Glarum then had Everson pull his vehicle over to the side of the road. Apparently, other drivers who were given vehicle safety inspections were not required to pull over to the side of the road. Sgt. Glarum explained:

"Q [By Mr. Hope] ... Why was it you had him pull over to the side of the road?

"A Because I was running a license check for the plate on the trailer and only had half a plate there, but I had the tab, and we were running that, and it was taking some time to get our results back from--from our check on that plate.

"Q So you had him pull over to the side of road to let other traffic through?

"A Right. Because other traffic was starting to back up, and they were down because there were others--was another highway trooper that there--that was inspecting.

* * * * * *

"A When we were waiting for the check to come back on the plate, we were visiting. I was standing outside the car, right beside his driver's door. He was sitting behind the wheel, and we were talking. There was damage on the motorcycle--the plate--and Mr. Everson seemed to be quite confused and nervous, and at that point I asked him if he was carrying any contraband such as drugs and weapons, and he said, no. I asked him, can I search--could we search your vehicle, and he says all I have is some open liquor in the trunk. I says, Well, if it's in the trunk, there's no violation there, you know. We aren't going to do anything. What we would like to do is search your vehicle for narcotics or weapons, and at that point he said, 'Yes.' At which--then I called the drug team, which was Chuck and Judy. They came up with the paper for the consent to search. He signed it, and we searched the vehicle.

"Q At any time did he tell you, in response to your request for a search, did he tell you I'd rather not have you search my car?

"A No, sir."

The search of Everson's vehicle resulted in the discovery of methamphetamine and hashish. Everson was arrested and ultimately charged with possession of controlled substances. Everson pled not guilty to the charges and moved to suppress the evidence on the ground that it was obtained in violation of the Fourth Amendment to the United States Constitution. Following an evidentiary hearing, the trial court agreed with Everson that the checkpoint was unconstitutional, in part because it was pretextual:

"Although the State characterizes this roadblock as multi-purpose, the main purpose was to search for controlled substances. This is reflected by the lead person being a criminal investigator not a traffic officer, by the operation order for the Highway Patrol stating that the purpose was 'to alleviate the problem of drugs being transported by the [sic] vehicle,' by the point man having unconstrained discretion to send vehicles to the search area or the inspection area, and by the first and main area at the roadblock being the search area."

However, the trial court refused to suppress the evidence, concluding that Everson gave a valid, uncoerced consent to the search which purged any taint of illegality stemming from the initial stop:

"Although Everson was stopped at the roadblock, he was not in custody at the time of Sgt. Glarum's request. Everson was in the area of the vehicle inspections with only Sgt. Glarum. Without any threats or show of force, Sgt. Glarum asked Everson if h...

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17 cases
  • State v. Akuba
    • United States
    • South Dakota Supreme Court
    • August 18, 2004
    ...for drugs because an officer may ask for consent to search in the absence of reasonable suspicion or probable cause); State v. Everson, 474 N.W.2d 695 (N.D.1991) (holding that an officer was not required to have reasonable suspicion of drug activity before requesting consent to search durin......
  • City of Bismarck v. Uhden
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    • North Dakota Supreme Court
    • March 11, 1994
    ...North Dakota and twice concluded the stops were "reasonable" under the Fourth Amendment to the United States Constitution. State v. Everson, 474 N.W.2d 695 (N.D.1991); State v. Wetzel, 456 N.W.2d 115 (N.D.1990); contra, State v. Goehring, 374 N.W.2d 882 (N.D.1985) [no evidence in record tha......
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    • February 23, 1994
    ...conduct which may pass without notice by an untrained observer." State v. Gilberts, 497 N.W.2d 93, 98 (N.D.1993); State v. Everson, 474 N.W.2d 695, 702 n. 2 (N.D.1991). Similarly, in the "reasonable suspicion" context, we have emphasized that trained officers may make inferences and deducti......
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