State v. Gay

• Decision Date: 15 May 2008
• Docket Number: No. 20070348.,20070348.
• Parties: STATE of North Dakota, Plaintiff and Appellant v. David GAY, Defendant and Appellee.
• Court: North Dakota Supreme Court

748 N.W.2d 408

2008 ND 84

STATE of North Dakota, Plaintiff and Appellant v. David GAY, Defendant and Appellee.

No. 20070348.

Supreme Court of North Dakota.

May 15, 2008.

Nicole E. Foster (argued), State's Attorney, Williston, ND, for plaintiff and appellant.

Faron E. Terry (argued), Minot, ND, for defendant and appellee.

KAPSNER, Justice.

[¶ 1] The State of North Dakota ("State") appeals a district court order granting a motion to suppress evidence against defendant, David Gay. We affirm the order of the district court.

I

[¶ 2] On May 3, 2007, the Northwest Narcotics Task Force received a tip claiming that a probationer, Ben Smith, would be selling drugs in Williston, North Dakota. The tip claimed Smith planned to meet with an unknown male driving a black car at Smith's workplace after Smith finished work that day. According to the tip, the unknown male would be coming from New Town, North Dakota. The tip provided the person meeting Smith intended to purchase methamphetamine. This tip was relayed to probation Officers Cote and Haagenson and to several other law enforcement officers. Officer Kvande, from the Williams County Sheriff's Office, was one of the officers who was made aware of the tip, was involved in the investigation, completed a police report, and gave testimony at the suppression hearing. The identity and nature of the tipper was not disclosed in any of the police reports, testimony, or affidavits submitted during the hearing on the motion to suppress.

[¶ 3] Officer Kvande was the only witness called by the State at the suppression hearing to testify regarding the investigation, charging, and arrest of Gay. The district court did not create written findings of fact; instead, the district court explained its legal rationale for its decision, with very limited discussion of specific facts, on the record at the suppression hearing.

[¶ 4] According to Officer Kvande's police report and his testimony at the suppression hearing, several law enforcement officers watched Smith's workplace after receiving the tip and saw another male get into Smith's vehicle with him. Officer Kvande's report states he was called to assist with the investigation at a location several blocks from Smith's workplace after several officers had already stopped Smith's car. Officer Kvande's report and testimony state that when he arrived on the scene, the investigating officers were conducting a probation search of Smith and Smith's vehicle and had handcuffed Smith's passenger, David Gay. Officer Kvande testified one of the officers had already read Gay his Miranda rights and had handcuffed Gay for officer safety prior to Officer Kvande's arrival. Officer Kvande's report states that after he arrived, he re-read Gay his Miranda rights, kept him handcuffed, and, with Gay's consent, conducted a pat-down search for weapons. Officer Kvande's testimony indicates he believed Gay had already been searched for weapons before Officer Kvande arrived. No drugs, weapons, or other illegal material was found on Gay during Officer Kvande's pat-down. While Officer Kvande did not find any drugs or other contraband on Gay, the officers searching Smith found a large sum of cash in Smith's pocket and what they believed to be methamphetamine paraphernalia in Smith's car. It is unclear from Officer Kvande's testimony or report whether the cash and paraphernalia were found before the first officers at the scene handcuffed Gay.

[¶ 5] Officer Kvande testified he spoke with Gay after the pat-down and the Miranda recitation while Gay was still handcuffed. Officer Kvande testified Gay told him he was not involved in any drug deal, but he had smoked marijuana on the previous day. Officer Kvande testified that at this point, Gay had been in handcuffs for about fifteen minutes. Officer Kvande then placed Gay under arrest for ingestion of a controlled substance.

[¶ 6] Gay brought a motion to suppress his statement, and the district court granted the motion at a pretrial suppression hearing:

THE COURT: The Court tends to — well, let me point out what I see.

Law enforcement officials have significant authority to stop Mr. Smith, I believe, because of his probationary status. And they apparently thought they had a lead on some illegal activity going on. Um, that alleged illegal activity in and of itself was insufficient for any kind of arrest.

So what we really have is a stop made on authority of a probation search of someone who is not the defendant, and the search of the defendant and others for officer safety. At that point, I can find nothing untoward about the activity of the officers. And had they found something in Mr. Smith's pocket — or Mr. Gay's pocket at that time, I see nothing which would potentially throw out any discovery.

Their basis of dealing with Mr. Gay, however, was protection of the officers. After that had been established that that was not a risk, Mr. Gay continued to be in handcuffs. Which triggers some use of authority that subjects Mr. Gay to certain rights. The mere fact that — well, he was in custody. He was under arrest in effect at that time. He was in handcuffs. And nothing he could do about that. After the basis for him being in handcuffs was eliminated, that is after the search showed he was not at risk, the police no longer had a unfettered basis for questioning.

And when you have someone in handcuffs, that is intimidating enough so that merely saying the Miranda warnings did not clear the taint. There was no probable cause for his continued arrest at the time that the questioning occurred.

I am going to grant the motion on that ground.

[¶ 7] The State appeals, arguing the district court erred in suppressing Gay's statements because the search and seizure of Gay was not unreasonable under the United States or North Dakota Constitutions.

II

A. Proper Appeal Under N.D.C.C. § 29-28-07(5)

[¶ 8] Gay argues the State has not properly taken its appeal in this case. "The prosecution's right to appeal in a criminal case is strictly limited by statute." City of Harvey v. Fettig, 2001 ND 12, ¶ 5, 621 N.W.2d 324 (citing State v. Norton, 2000 ND 153, ¶ 5, 615 N.W.2d 531; State v. Schindele, 540 N.W.2d 139, 141 (N.D. 1995)). Section 29-28-07(5), N.D.C.C., allows the prosecution to appeal from:

An order granting the return of property or suppressing evidence, or suppressing a confession or admission, when accompanied by a statement of the prosecuting attorney asserting that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding. The statement must be filed with the clerk of district court and a copy must accompany the notice of appeal.

"The prosecutor's statement cannot be a mere paraphrase of the statutory language but must have substance." Fettig, at ¶ 6 (citing Norton, 2000 ND 153, ¶ 5, 615 N.W.2d 531; Schindele, 540 N.W.2d at 141). "Prosecutors must support their appeals with an explanation of the relevance of the suppressed evidence." Id. "The purpose of the statutory requirement is to ensure that the prosecutor has carefully evaluated the State's case, and the actual effect of the suppression order, before filing the notice of appeal." Id. (emphasis in original and citations omitted). "The State's right to appeal hinges on a favorable review of the prosecutor's statement by this Court." Id. (citing Schindele, at 141).

[¶ 9] In Fettig, this Court dismissed a prosecutor's appeal, noting the State failed to address both prongs of N.D.C.C. § 29-28-07(5) because "[t]he `statement' in the prosecutor's affidavit at best merely paraphrases one of the two prongs required by the statute, and fails to outline the specific relevance of and need for the evidence which was suppressed." Id. at ¶ 8. The Court also noted the State failed to reference the applicable statute in its notice of appeal. Id. at ¶ 7.

[¶ 10] Here, the State does reference N.D.C.C. § 29-28-07(5) and both prongs of the statute in its notice of appeal. The State does not, however, in its notice of appeal or prosecutor's statement, "outline the specific relevance of and need for the evidence which was suppressed." Fettig, at ¶ 8. A review of the facts clearly demonstrates the relevance of the evidence suppressed; namely, the statement made by Gay which the lower court suppressed is the only evidence that the State has suggesting Gay ingested a controlled substance. In this case, the relevance of the evidence is plain and would not require explanation. Because the State referenced the appropriate statute, addressed both prongs of the statute, and the relevance of the suppressed evidence is plain, we allow the State's appeal to proceed.

B. Suppression of Gay's Statements

[¶ 11] When this Court reviews a trial court's ruling on a motion to suppress, we defer to the trial court's factual findings and resolve conflicts in evidence in favor of affirmance. State v. Guscette, 2004 ND 71, ¶ 5, 678 N.W.2d 126. Questions of law, however, are fully reviewable on appeal. State v. Mitzel, 2004 ND 157, ¶ 10, 685 N.W.2d 120.

[¶ 12] Here, law enforcement stopped a vehicle driven by a probationer, Ben Smith, who was known to and identified by the probation officers who assisted in the investigative stop. As this Court has explained in prior decisions, a probationer's Fourth Amendment rights are limited by the terms of his or her probation. See, e.g., State v. Hurt, 2007 ND 192, ¶¶ 18-20, 743 N.W.2d 102; State v. Krous, 2004 ND 136, ¶ 19, 681 N.W.2d 822. The stop and search of the vehicle in which Gay chose to ride is not problematic because Gay was riding with probationer Smith, and law enforcement premised the stop on a probation search, which does not require reasonable and articulable suspicion or probable cause, like other stops, searches, or seizures. Krous, at ¶ 19. The stop and search of the car itself was not unreasonable under Fourth Amendment standards, even though the record does not...