State v. Geiger, s. 880094

• Decision Date: 18 October 1988
• Docket Number: 880120 and 880121,Nos. 880094,s. 880094
• Citation: 430 N.W.2d 346
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Robert Joseph GEIGER, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 346

430 N.W.2d 346

STATE of North Dakota, Plaintiff and Appellee, v. Robert Joseph GEIGER, Defendant and Appellant.

Crim. Nos. 880094, 880120 and 880121.

Supreme Court of North Dakota.

Oct. 18, 1988.

James W. Wold, State's Atty., Griggs County, Cooperstown, for plaintiff and appellee.

David C. Thompson, of Craft, Thompson & Boechler, P.C., Fargo, for defendant and appellant.

VANDE WALLE, Justice.

Robert Geiger appeals from three judgments of conviction of driving under suspension. Finding no error, we affirm.

On May 15, 1987, Mark Bethke of the North Dakota Highway Patrol observed a motorcycle traveling on Highway 200 near Cooperstown, North Dakota. After the operator of the motorcycle stopped his vehicle at an approach, Bethke drove his patrol car closer to where the operator stopped. Bethke then observed the operator through his binoculars and recognized that it was Robert Geiger. Having earlier noted that Geiger's name was on the list of people whose licenses were suspended, ¹ Bethke requested that Geiger approach the patrol car. While Geiger was seated in the patrol car, Bethke confirmed through State radio that Geiger's license still was suspended. Bethke then issued Geiger a citation for driving under suspension.

On July 1, 1987, Barry Weigel, Chief of Police for the City of Cooperstown, observed Geiger operating a farm tractor in the city of Cooperstown. Knowing that the operator was Geiger and knowing Geiger was listed on the suspension list, Weigel stopped Geiger. Upon confirming through State radio that Geiger's license still was suspended, Officer Weigel issued Geiger a citation for driving under suspension.

On appeal, Geiger argues that the stops on May 15, 1987, and July 1, 1987, violated his Fourth Amendment right to be free from unreasonable seizures. ² The stops were unreasonable, he argues, because the officers had at their disposal readily available and far less intrusive means of verifying their suspicions. More specifically, he argues, the officers should have confirmed his license status before they stopped him.

Relying primarily upon Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), and State v. Guzy, 139 Wis.2d 663, 407 N.W.2d 548 (1987), Geiger argues that the brief investigation conducted by the officers would have been less intrusive if the officers had contacted State radio prior to stopping Geiger. This argument wholly misinterprets the holding of Royer.

In Royer, two detectives stationed at an airport stopped the defendant on the way to his plane because they believed that the defendant's appearance, mannerisms, luggage, and actions fit the profile of a drug courier. 460 U.S. at 493, 103 S.Ct. at 1321. In analyzing whether this was an illegal seizure the Court stated:

"The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." 460 U.S. at 500, 103 S.Ct. at 1325-1326. [Citations omitted.]

Thus it is apparent that the Court, in discussing "least intrusive means," was assuming that the stop was justified, and therefore whether or not the police could have further verified their suspicions was irrelevant since they already had a reasonable and articulable suspicion that Royer was committing a crime. That is, the "least intrusive means" analysis pertains only to actions by police officers after the stop. ³

Geiger relies on State v. Guzy, 139 Wis.2d 663, 407 N.W.2d 548 (1987), for the proposition that police officers act reasonably only if they have exhausted all alternative means of further investigation before stopping the suspect. ⁴ To require a police officer to exhaust all other avenues of investigation before he is permitted to stop a suspect would place too great a burden on law-enforcement officers. We find that the stops in this case were reasonable notwithstanding the fact the officers could have further verified Geiger's license status prior to the stop. Having concluded that the officers did not act unreasonably in failing to contact State radio prior to stopping Geiger, we nevertheless must determine whether the stops were based upon an articulable and reasonable belief that a crime was being committed, i.e., whether or not the stops were justified.

As we stated in State v. Lykken, 406 N.W.2d 664, 666 (N.D.1987), "An officer must have an articulable and reasonable suspicion that a motorist is violating the law in order to make a legal investigative stop of a vehicle.... We employ an objective standard in the determination of the validity of a stop, taking into account inferences and deductions that an investigating officer would make that may elude laypersons." [Citations omitted.]

The United States Supreme Court has held that a flyer indicating the desire of a police department to question an individual may justify a brief detention. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). In Hensley, the defendant was stopped by officers who had seen a flyer requesting that the defendant be held for questioning. In upholding the stop, the Court stated, "[W]e think the flyer would further justify a brief detention at the scene of the stop while officers checked whether a warrant had in fact been issued." 469 U.S. at 234, 105 S.Ct. at 683.

In the present case,...