State v. Goehring, Cr. N

• Decision Date: 01 October 1985
• Docket Number: Cr. N
• Citation: 374 N.W.2d 882
• Parties: The STATE of North Dakota, Plaintiff and Appellee, v. Blaine L. GOEHRING, Defendant and Appellant. o. 1083.
• Court: North Dakota Supreme Court

Page 882

374 N.W.2d 882

The STATE of North Dakota, Plaintiff and Appellee, v. Blaine L. GOEHRING, Defendant and Appellant.

Cr. No. 1083.

Supreme Court of North Dakota.

Oct. 1, 1985.

As Corrected Oct. 15, 1985.

Wayne D. Goter, Asst. State's Atty., Mandan, for plaintiff and appellee; argued by Mr. Goter.

Evans & Moench, Bismarck, for defendant and appellant; argued by Deborah J. Carpenter.

ERICKSTAD, Chief Justice.

Blaine Goehring has appealed his conviction in the County Court of Morton County, for driving with a suspended driver's license in violation of Section 39-06-42, N.D.C.C. We reverse.

On the afternoon of October 24, 1984, Blaine Goehring was driving his employer's 1978 Chevy van along the intercity loop of I-94 in Morton County. Goehring was flagged over by Scott Brand, a North Dakota Highway Patrolman, for the sole purpose of conducting a routine safety check of the vehicle. Goehring had committed no traffic offense and his vehicle had no apparent safety defects.

Officer Brand was required to conduct 300 safety checks a year. He was given discretion as to where and when he would conduct these checks. Officer Brand testified that the safety checks were conducted according to the policies and procedures established by the North Dakota State Highway Patrol, but the record does not indicate what these policies and procedures are.

After completing the safety check and discovering no safety violations, Officer Brand asked to see Goehring's driver's license. Requesting to see a driver's license is Officer Brand's normal procedure, even when there is no reason to suspect the driver to be in violation of the law. Goehring handed Officer Brand an expired North Dakota driver's license. As the license had expired, Officer Brand ran a check by radio through the North Dakota State Highway Department, Driver's License Division. The check indicated that Goehring's license had been suspended for a second DUI conviction within 24 months. Goehring was then placed under arrest for driving with a suspended driver's license and taken to the Morton County jail.

On November 2, 1984, Goehring made a motion to dismiss the case on the basis that the vehicle safety check was a constitutionally impermissible search and seizure under the Fourth Amendment of the United States Constitution, that there was no probable cause to believe his driver's license had been suspended, and that a vehicle equipment check was not a proper basis for demanding a driver's license. He relied heavily on Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The State argued that there was no legal basis for granting this motion and that even if there were, the vehicle safety inspection did not violate Goehring's Fourth Amendment rights. The trial court denied the motion without comment.

This motion to dismiss was renewed January 23, 1985, just prior to the commencement of the trial and, in the alternative, it was requested that the evidence relating to the suspension of Goehring's license be suppressed. The renewed motion was made orally without any advance notice to the court or the State. The trial court again denied the motion stating that it had already ruled on the motion to suppress as well as the motion to dismiss. The court reasoned that Prouse was factually distinguishable from the case at hand in that the officer in Prouse was not following any guidelines or practices established by the department with which he was employed.

In essence, Goehring is challenging the trial court's admission of evidence which he alleges was derived from an unconstitutional search. His position is that the safety inspection conducted by Officer Brand was a "random stop" and, therefore, constitutionally impermissible according to Delaware v. Prouse, id. Goehring argues further that, since the stop was impermissible, the evidence derived from the stop should have been excluded as the "ill-gotten fruit of the poisonous tree."

I

The State urges that we affirm the trial court's decision denying both the motion to dismiss and the motion to suppress. This decision, the State believes, should be based upon procedural grounds and not the Fourth Amendment search and seizure issue. It is urged by the State that the motion to dismiss and the renewed motion to dismiss were properly denied because the motions were not based on proper grounds for dismissal. The State lists the statutory grounds for dismissal, ¹ none of which were argued or cited by Goehring.

It is also urged by the State that the motion to suppress was properly dismissed because the motion was not made in a timely manner. A motion to suppress evidence on the grounds that it was illegally obtained must be made prior to trial. Rule 12(b)(3), N.D.R.Crim.P. Such a motion, unless otherwise permitted by the court, must also be filed with the clerk at least three days before the date of hearing. Rule 3.2(a), N.D.R.O.C. A failure to move to suppress evidence in a timely manner constitutes a waiver of that defense. State v. Demery, 331 N.W.2d 7, 13-14 (N.D.1983), State v. Hager, 271 N.W.2d 476, 479 (N.D.1978). The State argues that since the motion to suppress was first made in the judge's chamber just prior to the commencement of the trial, it was not timely made pursuant to Rule 3.2(a) N.D.R.O.C. and was therefore properly dismissed.

The purpose of Rule 3.2(a) N.D.R.O.C., in requiring a motion to suppress be filed three days before a hearing, is to afford the opposing party notice and a fair opportunity to respond to the motion. State v. Teigen, 289 N.W.2d 242, 244 (N.D.1980). The State argues this policy in these words:

"There is no justification for allowing a party less than one day to prepare to meet questions raised by an adversary on a motion. The State is entitled to a reasonable time to investigate the circumstances, prepare a response, and support the response with a brief and oral argument."

There is no lack of notice in the instant case. The legal issue raised by the initial motion to dismiss was the same as the legal issue raised by the renewed motion to dismiss and the motion to suppress; that is, the constitutionality of Goehring's stop and the use of the evidence resulting from this stop. The State had to be cognizant of this issue when Goehring made his initial motion to dismiss more than two months prior to trial. The State was given time to respond and fully discussed this issue in its brief resisting the motion to dismiss. ² While the initial motion should have been titled a motion to suppress, to deny the motion for this reason would elevate form over substance, would result in an unreasonably stringent interpretation of the procedural rules and would ignore the underlying policy behind the rules.

II

Having disposed of the procedural issues, we must now address the substantive question; the constitutionality of the search leading to Goehring's arrest.

Much of Goehring's argument for classifying his arrest as unconstitutional is based on Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. at 1391. Goehring emphasizes that in Prouse the Supreme Court held that,

"except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment." 440 U.S. at 663, 99 S.Ct. at 1401.

Goehring points out that Officer Brand had no reason to suspect he was driving with a suspended driver's license. The Court, however, limited this ruling when it said:

"This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers." Id. (Footnote omitted.)

Goehring acknowledges this qualification to the prohibition against spot checks, but argues in his brief that a roadblock-type stop referred to by the Supreme Court must question all oncoming traffic; that the stop must be a "100% roadblock" to avoid the unconstrained exercise of discretion and fall within the realm of constitutionality. We disagree. The Court was, in our view, merely suggesting "one possible alternative" when it suggested stopping all oncoming traffic. Id. Justice Blackmun, in his concurring opinion in Prouse, explains that, "The roadblock stop for all traffic is given as an example. I necessarily assume that the Court's reservation also includes other not purely random stops (such as every 10th car to pass a given point) that equate with, but are less intrusive than, a 100% roadblock stop." 440 U.S. at 664, 99 S.Ct. at 1401. ³

The Tenth Circuit has held that a 100% roadblock is not necessary for constitutionality. In a case in which the New Mexico state police, in order to prevent a hazardous situation, did not stop all vehicles, the Tenth Circuit held that the stop was constitutional. United States v. Prichard, 645 F.2d 854, 857 (1981), cert. denied, 454 U.S. 832, 102 S.Ct. 130, 70 L.Ed.2d 110 (1981), reh'g denied, 454 U.S. 1069, 102 S.Ct. 620, 70 L.Ed.2d 605 (1981). "While this may not have been a '100% roadblock' of the type referred to in Prouse, it is nonetheless a long way from the selective, single car stop denounced in Prouse." 645 F.2d at 856. See also State v. Shankle, 58 Or.App. 134, 647 P.2d 959 (1982).

When determining whether or not a particular governmental activity is constitutionally permissible, it must be analyzed according to the appropriate...