State v. Gregg, 20000009.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtSANDSTROM, Justice.
Citation2000 ND 154,615 N.W.2d 515
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Robert Dean GREGG, Defendant and Appellant.
Docket NumberNo. 20000009.,20000009.
Decision Date18 August 2000

615 N.W.2d 515
2000 ND 154

STATE of North Dakota, Plaintiff and Appellee,
Robert Dean GREGG, Defendant and Appellant

No. 20000009.

Supreme Court of North Dakota.

August 18, 2000.

615 N.W.2d 518
Brett M. Shasky, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee

Douglas W. Nesheim of Wegner, Fraase, Nordeng, Johnson & Ramstad, Fargo, N.D., for defendant and appellant.


[¶ 1] Robert Dean Gregg appeals from a criminal judgment and commitment of the East Central Judicial District Court upon a conditional plea of guilty to possession of a controlled substance and drug paraphernalia. We affirm, concluding the district court properly denied Gregg's motion to suppress evidence.


[¶ 2] On July 20, 1999, West Fargo police were dispatched to the Hi-10 Motel to investigate a disturbance. At the motel, Sergeant Michael Reitan talked with Robert Gregg, Joey Johnson, and Julie Dodd

615 N.W.2d 519
in the motel lobby. The three had been involved in the disturbance, which they described to Sergeant Reitan. Gregg, Johnson, and Dodd reported they had been in the motel room where Gregg "had been residing at for a period of time," when a man came to the door, demanded entry, and threatened them with a knife. The man kicked his way into the room, and Johnson struck him in the head with a bottle

[¶ 3] While Sergeant Reitan was talking with Gregg, Johnson, and Dodd, Officers Donald Loberg and Jason Dura went to Gregg's room to look for the knife and other evidence related to the disturbance. While looking under the bed in Gregg's room, the officers found a gym bag containing drug paraphernalia, including syringes and smoking devices. They informed Sergeant Reitan about the discovery, and he told them to return the paraphernalia to the bag and put the bag back underneath the bed. The officers followed Sergeant Reitan's instructions.

[¶ 4] Sometime during the course of the interview in the lobby and the search of the room, the officers ran Gregg's, Dodd's, and Johnson's names and dates of birth "through driver's license and wants and warrants checks." Sergeant Reitan testified this was a standard practice. The check revealed Dodd and Gregg had their driving privileges suspended but Johnson had a valid North Dakota license.

[¶ 5] Officer Loberg told Gregg it would be best if he left West Fargo. Gregg, Johnson, and Dodd then transported some items from the room to a car registered to Gregg, and the officers left the scene.

[¶ 6] Sergeant Reitan testified that the officers then remained in the area of the motel, so if one of the three drove, the officers could stop the driver for driving under suspension. After leaving the motel, the officers learned Johnson's driving privileges had been suspended in Minnesota.

[¶ 7] Johnson eventually drove away from the motel in Gregg's car, with Gregg and Dodd as passengers. The officers pulled the car over.

[¶ 8] Officer Loberg had Johnson exit the car and placed him under arrest. Officer Loberg went to the passenger side of the car to ask Gregg whether he had insurance on the car. Gregg responded the car was not insured.

[¶ 9] While questioning Gregg, Officer Loberg noticed a syringe by Gregg's feet. The officer asked Gregg whether he or anyone else in the car was a diabetic. After Gregg responded "no," Officer Loberg asked him to exit the car.

[¶ 10] Officer Loberg retrieved the syringe and noticed a plastic bag containing a white powdery substance underneath the seat. Gregg was then arrested.

[¶ 11] The front passenger area of the car was searched, and drug paraphernalia was found. Officer Loberg decided Gregg's car should be impounded because it was parked "on the on ramp of I-94" and was a traffic hazard. The impound inventory revealed additional drugs and drug paraphernalia. The gym bag found at the motel room was found in the car.

[¶ 12] Gregg was charged with possession of drug paraphernalia and with two counts of possession of a controlled substance. He brought a motion to suppress all evidence seized from his car, arguing the stop and search violated the Fourth Amendment of the U.S. Constitution and N.D. Const. art. I, § 8.

[¶ 13] The district court denied the motion, finding the search and seizure was proper "under various exceptions to the warrant requirement, including plain view and impound inventory." The district court stated:

my view is that if we keep the black bag under the bed and assume that nobody looked in the black bag, because there really were no consequences that followed from that discovery, Officer Reiten [sic] said this is wrong, put the bag
615 N.W.2d 520
back under the bed, in my view that negates anything to do with that bag, and we just start fresh.

[¶ 14] The district court found Gregg and Johnson "gave the officers the second crack at the black bag by virtue of getting in a vehicle and driving when all three drivers had their licenses suspended." The court further concluded the syringe was found in plain view, which opened up a further search of Gregg's car.

[¶ 15] In addition, the court found:

They just happened to not have liability insurance on the car. Again, that was the defendants again assisting the officers with building their case. I don't know that there would have been a legitimate basis for the inventory search if the car had been insured and they could have gotten somebody to come out and get it and drive it away. But by virtue of their own—circumstance of their own making, I think they've put themselves in a box that requires that I dismiss your motion to suppress.

[¶ 16] On December 27, 1999, Gregg entered a conditional plea of guilty under N.D.R.Crim.P. 11(a)(2) in order to appeal the district court's order denying his motion to suppress evidence.

[¶ 17] The district court's criminal judgment and commitment was filed December 27, 1999, and Gregg's appeal was timely. N.D.R.Crim.P. 37(b); N.D.R.App.P. 4(b). The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 29-28-06.


[¶ 18] The issue on appeal is whether the district court erred in denying Gregg's motion to suppress drugs and drug paraphernalia obtained from the search of his car, because the evidence was a result of an illegal search and is "fruit of the poisonous tree."

[¶ 19] When reviewing a district court's ruling on a motion to suppress, we defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774 (N.D.1996) (citing City of Grand Forks v. Egley, 542 N.W.2d 104 (N.D.1996)). We affirm the district court's decision unless we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994).

[¶ 20] "Although the underlying factual disputes are findings of fact, whether the findings meet a legal standard, in this instance a reasonable and articulable suspicion, is a question of law." Zejdlik, 551 N.W.2d at 774 (citations omitted). Questions of law are fully reviewable. Id. (citing State v. Glaesman, 545 N.W.2d 178 (N.D.1996)). The ultimate conclusion of whether the facts support a reasonable and articulable suspicion is fully reviewable on appeal. State v. Hawley, 540 N.W.2d 390, 392 (N.D.1995).


[¶ 21] Gregg argues the evidence found in his car should have been suppressed under the "fruit of the poisonous tree" doctrine because the police officers exploited an illegal search and there was no intervening circumstance to purge the evidence of its original taint.

[¶ 22] We begin our analysis by evaluating each of the three warrantless searches that occurred in this case. The United States Supreme Court has defined a search, within the meaning of the Fourth Amendment, as an intrusion into a person's reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, § 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures by the government."

615 N.W.2d 521
State v. Blumler, 458 N.W.2d 300, 301 (N.D.1990)

[¶ 23] When an individual reasonably expects privacy in an area, the government, under the Fourth Amendment, must obtain a search warrant unless the intrusion falls within a recognized exception to the warrant requirement. Blumler, 458 N.W.2d at 302. "In the absence of such an exception, evidence obtained in violation of the Fourth Amendment's protections against unreasonable searches must be suppressed as inadmissible under the exclusionary rule." Id. (citations omitted) (footnote omitted).


[¶ 24] The first search that occurred in this case was the search by Officers Loberg and Dura of the gym bag found underneath the bed in Gregg's hotel room, where Gregg was living at the time. A person's home is an area that is constitutionally protected. State v. Kitchen, 1997 ND 241, ¶ 13, 572 N.W.2d 106. "[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Id. (quoting Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Even if "a police officer is on legitimate duty," that does not give the officer automatic access to a person's property. Kitchen, at ¶ 16.

[¶ 25] In this case, the State concedes the search of the gym bag at Gregg's motel room was illegal.


[¶ 26] The second search in this case was the search of the front passenger area of Gregg's car. The officers conducted this search after Gregg's car was stopped and Johnson was arrested. We conclude the evidence from this search is admissible under two exceptions to the warrant requirement.

[¶ 27] To stop a moving vehicle for investigative...

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