State v. Garrett, s. 970326-970328

Decision Date18 September 1998
Docket NumberNos. 970326-970328,s. 970326-970328
Citation584 N.W.2d 502
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Dean T. GARRETT, Defendant and Appellant. Criminal
CourtNorth Dakota Supreme Court

Loren C. McCray (argued), Beulah, for defendant and appellant.

Larry W. Quast (argued), State's Attorney, Stanton, for plaintiff and appellee.

MARING, Justice.

¶1 Dean Garrett appeals from orders denying his motions to suppress evidence pertaining to three alcohol-related charges from two separate incidents. All three cases were consolidated for this appeal. We affirm.

I.

¶2 Late on March 28, 1997, Mercer County Sheriff's Deputy Steve Kilde was on routine patrol of the Hazen Bay Recreational Area. Noticing a bonfire and a group of people near the picnic area, Kilde drove closer to the area. As he approached, he saw five of the group throwing "alcohol receptacles" into the trees. Kilde recognized many of the group, including Garrett, whom he recalled was a minor. Kilde asked for identification, and as he began to separate the adults from the minors, Garrett ran from the area. Kilde did not run after Garrett, but returned to his squad car to radio for assistance.

¶3 On his way to his squad car, Kilde walked past a Chevy Cavalier parked in the public parking area. Kilde identified the vehicle as one he had seen Garrett drive. As he approached the vehicle, somewhat illuminated by the bonfire and a nearby street light, Kilde saw an open beer box on the front passenger seat.

¶4 Lieutenant Burling arrived to assist Kilde, and the two officers decided to impound Garrett's vehicle "for evaluation as evidence." The box of beer remained inside the vehicle, which was impounded and towed to the Sheriff's Department. Later that night, Kilde searched the vehicle and found seven full cans of beer inside the box on the passenger seat, and two empty beer cans and an empty .5 ml bottle of schnapps under the front seats.

¶5 On April 4, 1997, Garrett was subsequently charged with violating N.D.C.C. § 5- 01-08, possession of an alcoholic beverage by a minor.

¶6 On March 30, 1997, Deputy Kilde was called to assist Officer Locke, of the Hazen Police Department, investigate a report of a fight at the Roughrider Motel in Hazen. Kilde was informed Garrett had been involved in the fight and could be found at the motel.

¶7 At the motel, Kilde approached a Dodge Charger sitting in front of Locke's patrol car. Kilde recognized Garrett as the driver of the vehicle. Kilde talked to Garrett, who told him he had just been in a fight, but did not want to press charges. During the conversation, Kilde observed "a strong odor of an alcoholic beverage emitting from his vehicle." Officer Locke administered field sobriety tests, which Garrett failed. Locke placed Garrett under arrest for violating N.D.C.C. § 39-08-01, driving under the influence, and gave the North Dakota implied consent advisory. At the Mercer County jail, Garrett was searched, and an "alcohol receptacle [was found on] Mr. Garrett's person."

¶8 On April 2, 1997, Garrett was charged with violating N.D.C.C. § 5-01-08, for the possession of the "alcohol receptacle" found on his person when he was arrested for driving under the influence.

¶9 On June 12, 1997, Garrett brought three separate motions to suppress evidence relating to the three alcohol-related charges. First, Garrett moved for the suppression of all evidence gathered after the impoundment and search of his vehicle on March 28, 1997, on the grounds "the impoundment and search was illegal under Article I, Section 8 of the North Dakota Constitution and the Fourth Amendment of the United States Constitution." 1 Second, Garrett moved for the suppression of the DUI evidence, including lab reports and witness' statements, on the grounds "there was no articulable and reasonable suspicion for the investigative stop" of his vehicle on March 30, 1997. Third, Garrett moved for the suppression of evidence relating to the minor in possession charge of March 30, 1997, also on the grounds "there was no articulable and reasonable suspicion for the investigative stop."

¶10 After a September 8, 1997, evidentiary hearing on the motions, the trial court issued orders denying all three suppression motions on October 6, 1997. 2 On October 8, 1997, the trial court gave its memorandum opinion orally. On that same date, Garrett entered conditional pleas of guilty to all three charges under N.D.R.Crim.P. 11(a)(2). On October 16, 1997, Garrett filed a notice of appeal of the trial court's orders denying his suppression motions.

¶11 In State v. Sabinash, 1998 ND 32, p 8, 574 N.W.2d 827, we recalled our standard of review of a trial court's denial of a suppression motion, as enunciated in State v. Bjornson, 531 N.W.2d 315, 317 (N.D.1995)(internal citations omitted):

The trial court's disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence. That standard of review recognizes the importance of the trial court's opportunity to observe the witnesses and assess their credibility, and we "accord great deference to its decision in suppression matters."

We have reviewed the records here, and conclude the trial court's denial of the suppression motions is supported by competent evidence and is not contrary to the manifest weight of the evidence. We therefore affirm the trial court's denial of Garrett's suppression motions.

II.

¶12 Garrett contends the beer found by Deputy Kilde during his warrantless search of Garrett's vehicle on March 28, 1997, should have been suppressed. The State argues a warrant was not necessary for the search of Garrett's vehicle, as "Kilde did not invade any constitutionally protected area of [Garrett's] when he seized the beer and the automobile."

¶13 It is axiomatic that the Fourth Amendment's protection from unlawful search and seizures is not triggered unless there has in fact been a "search" or "seizure" by the State. Our initial inquiry, therefore, is whether Deputy Kilde "searched" Garrett's vehicle when he viewed the open beer box on the front seat of the vehicle. The question of whether a search rises to the level of Fourth Amendment activity is guided by what has become known as the "reasonable expectation of privacy" test. Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); State v. Planz, 304 N.W.2d 74, 79 (N.D.1981).

¶14 We stated in Planz, however, "searches of vehicles may be made under circumstances where searches of buildings would not be allowed because of the ambulatory character of automobiles, the lesser expectation of privacy as to automobiles, and the fact that automobiles are often within the plain view of officers." 304 N.W.2d at 79 (relying on State v. Stockert, 245 N.W.2d 266, 269 (N.D.1976)). We accordingly held in Planz that a person has no reasonable expectation of privacy to contraband left on the front seat of an unattended vehicle while parked in a public parking lot viewable to any passerby. Id. at 80. Here, the record indicates Garrett's vehicle was parked, unattended, and unlocked in a public parking lot when Deputy Kilde walked by and viewed the beer on the front seat. On this record, we conclude the open box of beer in Garrett's vehicle was not discovered pursuant to a "search" within the meaning of the Fourth Amendment.

¶15 Our inquiry, however, is not at an end here. "The search of an automobile, with or without a warrant, must be made upon probable cause, based upon a reasonable belief arising out of the circumstances known to the officer, that the automobile contains articles which are subject to seizure." State v. Meadows, 260 N.W.2d 328, 330 (N.D.1977). In Meadows, we upheld the denial of a motion to suppress a gun found in the console of a vehicle during a warrantless search. Id. at 333. There, an officer observed a driver drinking a beer while driving through town. Id. at 329. Shortly thereafter, the driver parked and left his vehicle. Id. The officer drove alongside the vehicle and observed an open six-pack of beer on the front passenger seat. Id. The officer then seized the beer, continued to search the vehicle, and found a gun in the console. Id. We concluded the beer in "plain view" gave the officer probable cause to search the interior of the defendant's vehicle. Id. at 331.

¶16 Plain view alone, however, is never enough to justify the warrantless search or seizure of evidence. It has been stated "that no amount of probable cause can justify a warrantless search or seizure absent 'exigent circumstances.' " Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); see also Planz, 304 N.W.2d at 81. In other words, an officer with a plain view of contraband which gives rise to probable cause is not immunized from our rule that a "warrantless search and seizure is unreasonable unless it falls within one of the exceptions to the constitutional requirement that a search be conducted pursuant to a valid search warrant." State v. Koskela, 329 N.W.2d 587, 591 (N.D.1983).

¶17 Yet, in Planz we found an exception to the exigent circumstances requirement where the evidence to be seized is "displayed in a manner that does not afford it a reasonable expectation of privacy and it is the instrumentality of the crime for which the defendant is arrested." State v. Gronlund, 356 N.W.2d 144, 147 (N.D.1984) (citing Planz, 304 N.W.2d at 81). In Planz, we found the exception to apply where an officer suspecting drug use, walked by and viewed a marijuana pipe on the front seat of a vehicle parked in a public parking lot. 304 N.W.2d at 76. Similarly here, after Deputy Kilde witnessed a group of people throwing alcohol receptacles into the trees, Garrett among them, ...

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