State v. Franklin, Cr. N
| Decision Date | 02 December 1994 |
| Docket Number | Cr. N |
| Citation | 524 N.W.2d 603 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Todd Allen FRANKLIN, Defendant and Appellant. o. 940199. |
| Court | North Dakota Supreme Court |
Robin L. Huseby, State's Atty., Valley City, for plaintiff and appellee. Submitted on brief.
Stephen M. McLean, Oakes, for defendant and appellant. Submitted on brief.
Todd Allen Franklin appeals from a felony conviction of a felon possessing a firearm, challenging the trial court's refusal to suppress evidence. We affirm the order of suppression and the judgment of conviction.
One night in January 1994, near 1:35 A.M., Sheriff's Deputies Terry Gray and Mark Peterson were patrolling just west of Valley City in a marked police car. When they pulled into the parking lot of the Flickertail Motel, they spotted two occupied vehicles among the lineup parked in front of the motel. As the officers drove toward the first vehicle, its occupants got out and went into a motel room. Officer Gray then "spotted a pickup that had two subjects that appeared to be slumped down in the seat, their heads just barely visible." The officers also saw "a shotgun in the back window of the pickup that was hung in a rack."
Officer Gray drove past the rear of the pickup, and parked the patrol car in the alleyway, "a little bit to the west of the [subject] pickup," without blocking the pickup and without using flashing lights. The officers got out of their car and approached the pickup on opposite sides. Gray immediately recognized Franklin as a convicted felon "from past dealings," and saw, through the window, Gray recognized an SKS Chinese assault rifle.
The officers asked the occupants to step out, confiscated the two weapons and ammunition, and arrested Franklin on an outstanding warrant for another offense from a nearby county. The assault rifle was not loaded, but the 12-gauge semi-automatic shotgun in the back window rack had a shell in the chamber. Franklin was charged with the class C felony of violating NDCC 62.1-02-01(2), as a felon possessing a firearm.
Before trial, Franklin moved to suppress all evidence on the basis that the stop, custodial interrogation, and arrest were illegal because "the deputies on patrol" were "without any articulable facts ... giving rise to a reasonable suspicion that a crime had been or was being committed, in violation of his Fourth Amendment constitutional right against an unlawful seizure and Art. I, Section 8 of the North Dakota Constitution." The trial court denied suppression, reasoning:
I am not satisfied ... that is a clear stop. The officer pulled his car forward, pulled it to a place about a car length away[,] was maybe partially behind the vehicle.... It wasn't blocked in, didn't pull right up behind him, block him in. Pulled up, got out of the car, recognized the gun, saw [Franklin]. That's plain view...."
....
... I don't see it as a stop. If they blocked him in or pulled up close to him so he couldn't go or turned on his signal lights like they did in the most recent case....
....
No stop lights, no siren, no lights.
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If you don't have an actual stop where he can't leave[,] then as far as I am concerned when he goes up to the vehicle when he sees the gun and recognizes [Franklin,] that's plain view.
After a trial without a jury, the court found Franklin guilty and sentenced him to three years imprisonment.
On appeal, Franklin argues that his arrest was an unconstitutional seizure because there was a "stop" with "no valid or legitimate reasons to do a custodial investigation of the pickup." The State responds that "Franklin was already stopped," so this case "involves the role of law enforcement officers as 'community caretakers,' " and that this "caretaking encounter by Officer Gray then [led] him to make observations that a felony was in progress...." We agree with the State that there was neither a stop nor an unconstitutional seizure.
The law distinguishes between the approach of an already stopped vehicle and the stop of a moving one. State v. Halfmann, 518 N.W.2d 729 (N.D.1994). As we explained there, at 731, it is not a seizure for an officer to walk up to and talk to a person in a public place, including a person in a parked car. "[A] policeman's approach to a parked vehicle is not a seizure if the officer inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response." State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992), citing Wibben v. North Dakota State Highway Comm'r, 413 N.W.2d 329, 334-35 (N.D....
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...a community caretaker when he initially approached an individual slumped over the steering wheel of an idling vehicle); State v. Franklin, 524 N.W.2d 603, 605 (N.D. 1994) (determining officers' approach of individuals parked at night in motel parking lot and slumped down in their seats was ......
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