State v. Guthmiller, Cr. N

• Decision Date: 27 April 1993
• Docket Number: Cr. N
• Citation: 499 N.W.2d 590
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Dallas GUTHMILLER, Defendant and Appellant. o. 920314.
• Court: North Dakota Supreme Court

Page 590

499 N.W.2d 590

STATE of North Dakota, Plaintiff and Appellee, v. Dallas GUTHMILLER, Defendant and Appellant.

Cr. No. 920314.

Supreme Court of North Dakota.

April 27, 1993.

Robert A. Freed (argued), Asst. State's Atty., Jamestown, for plaintiff and appellee.

James A. Sanchez-Wentz (argued), Jamestown, for defendant and appellant.

MESCHKE, Justice.

We consider whether an officer had an articulable and reasonable suspicion to investigate Dallas Guthmiller. We hold that the officer did, and we affirm Guthmiller's conviction for driving under the influence of alcohol.

At 7:15 p.m. on April 25, 1992, Deputy Sheriff Sergeant Bradley Kapp received a dispatch from the state radio operator, saying that an anonymous caller had reported "a DUI driver." The tip described a light blue pickup, the license number, and its eastbound direction on Interstate 94. Kapp drove Highway 10 from Cleveland to Interstate 94, and headed east on the interstate highway. As he entered Interstate 94, he saw a light blue pickup in his rearview mirror. The pickup was leaving Interstate 94 on the eastbound exit ramp.

Kapp turned through the median, heading back in the westbound lane. As he went under the bridge over Interstate 94, he saw the blue pickup stopped at the stop sign at the exit intersection. At no time did Kapp see any erratic driving. Kapp again turned through the median, crossed the eastbound lane, and drove up the eastbound exit ramp. As he came toward the pickup, he confirmed that it had the reported license number.

Kapp paused behind the pickup for a few seconds to see whether it would move. When it did not, Kapp turned on his amber flashers and got out of his patrol car. Guthmiller stepped out of his pickup at nearly the same time. Kapp noticed that Guthmiller staggered. "He ... had to use his ... pickup for support--at this point," Kapp testified. When Kapp spoke to Guthmiller about his driver's license, Kapp detected a strong odor of alcohol and slurred speech. Guthmiller insisted that he was not driving, asserted that "he was stopped," and declined to perform field-sobriety tests.

Kapp arrested Guthmiller for driving under the influence. Guthmiller also refused a blood-alcohol test.

At a trial without a jury, Guthmiller's main defense was that the officer had no articulable and reasonable suspicion to justify the investigation. The trial court recognized that a challenge to an unlawful seizure would ordinarily have been waived unless heard and decided on a timely motion to suppress evidence under N.D.R.Crim.P. 12(b). Still, the court ruled that the prosecution was not prejudiced by the delayed motion in this case, and decided the question. Reasoning from State v. Neis, 469 N.W.2d 568 (N.D.1991), the court ruled that Kapp had an articulable and reasonable suspicion "because [Guthmiller] stopped at a stop sign and didn't move. He remained there." The trial court decided that Guthmiller's prolonged stop was the "something more" independent of the anonymous tip that made it reasonable for the officer to investigate whether the driver was "out of gas," having a "[m]echanical failure," or ill, if not driving under the influence.

Despite the lack of a blood-alcohol test, the trial court concluded that there was "ample evidence" that Guthmiller was driving under the influence of alcohol, and convicted him. Guthmiller appeals, arguing that since Kapp saw no erratic driving or violation of law, there was no articulable and reasonable suspicion for Kapp to investigate him.

Because the notice of appeal was filed one day late, we had no jurisdiction. On Guthmiller's motion at oral argument, we remanded to the trial court to determine whether there was excusable neglect under N.D.R.App.P. 4(b)(3) and N.D.R.Crim.P. 37(b)(3) to extend the time for appeal. State v. Guthmiller, 497 N.W.2d 407 (N.D.1993). The trial court has ruled that excusable neglect extended the time for appeal and we now have jurisdiction to decide the merits.

Our constitutions guarantee people the right to be secure from unreasonable searches and seizures. U.S. Const. amend. IV; N.D. Const. art. I, Sec. 8. For that reason, an officer must have an articulable and reasonable suspicion that a law has been or is being violated to stop a moving vehicle for investigation. State v. Neis, 469 N.W.2d 568, 569 (N.D.1991). Thus, an officer cannot stop a moving vehicle to investigate who the driver is or why he had been reported parked in a residential neighborhood shortly before, without any suspicion of unlawful conduct. City of Minot v. Nelson, 462 N.W.2d 460 (N.D.1990). As explained in United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981), an investigative stop of a moving vehicle "must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity."

The tip described the pickup by its color, direction, and license number. The fact that the officer acting on the information does not know the identity of the tipster does not make the information valueless. Neis, 469 N.W.2d at 570. The factual basis for a stop need not arise from the officer's personal observations alone, but can arise from information furnished by others. State v. Hornaday, 477 N.W.2d 245, 246 (N.D.1991); Wibben v. North Dakota State Highway Comm'r, 413 N.W.2d 329, 332 (N.D.1987) ("Upon corroborating other details of the anonymous tip, we believe that this officer had sufficient information for a reasonable suspicion, particularly when we take into account inferences and deductions that an investigating officer would normally make."); State v. Lykken, 406 N.W.2d 664, 666 (N.D.1987); State v. Boushee, 284 N.W.2d 423, 430 (N.D.1979); State v. Lange, 255 N.W.2d 59, 63 (N.D.1977). Kapp confirmed the color, direction, and license number of the pickup before investigating why it was stopped so long.

Guthmiller argues that his pause did...