State v. Hawley, Cr. N

• Decision Date: 30 November 1995
• Docket Number: Cr. N
• Citation: 540 N.W.2d 390
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Jacqueline Cerise HAWLEY, Defendant and Appellant. o. 950111.
• Court: North Dakota Supreme Court

Page 390

540 N.W.2d 390

STATE of North Dakota, Plaintiff and Appellee v. Jacqueline Cerise HAWLEY, Defendant and Appellant.

Cr. No. 950111.

Supreme Court of North Dakota.

Nov. 30, 1995.

Brian D. Grosinger (argued), Assistant State's Attorney, Mandan, for plaintiff and appellee.

Robert W. Martin (argued), Bismarck, for defendant and appellant.

MESCHKE, Justice.

Jacqueline C. Hawley appeals from the denial of her motion to suppress evidence and from her conviction, through her conditional plea of guilty, for actual physical control of a vehicle while under the influence of alcohol. We affirm.

While patrolling about 9:00 p.m. on December 29, 1994, North Dakota Highway Patrol Trooper Lonny Hulm came upon Hawley's pickup parked, with its engine running and lights off, on the eastbound off-ramp of Exit 134 on Interstate 94. The off-ramp was nearly two car-lengths wide but did not have a shoulder. Although traffic could go around the pickup, Hulm testified that it was "blocking part of the off[-]ramp." Hawley testified that half of the pickup was still on the pavement of the off-ramp.

Trooper Hulm pulled up behind the pickup, took a few minutes to check its license number by radio, and then activated his patrol car's overhead lights. The pickup's exterior lights then came on. Hulm left his car, approached the pickup, and asked Hawley "if everything was okay." When Hawley responded that she and a passenger had "stopped to take a bathroom break," Hulm detected the odor of alcohol. After further investigation, Hulm arrested Hawley for actual physical control.

Hawley moved to suppress the evidence and dismiss the charge, alleging that Hulm lacked a reasonable and articulable suspicion for making the stop. The trial court denied the motion, finding that a Fourth Amendment seizure had not occurred before Hulm smelled the alcohol, and that Hulm was engaged in a "community caretaking function" when he approached the pickup on foot. Hawley conditionally pleaded guilty under NDRCrimP 11(a)(2), reserving her right to appeal the denial of suppression.

We have "recognized three tiers of law enforcement-citizen encounters: (1) arrests, which must be supported by probable cause; (2) 'Terry ' stops, seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which do not constitute Fourth Amendment seizures." State v. Halfmann, 518 N.W.2d 729, 730 (N.D.1994). Hawley postulates that Hulm lacked a reasonable and articulable suspicion for this "investigatory" stop. Assuming it was not a valid stop, Hawley also strains to argue that there were no "indicia of distress" to "justify a community caretaking" encounter, either. We do not reach the latter argument because we conclude that Hulm had a reasonable and articulable suspicion of a parking violation.

We affirm a trial court's decision on a motion to suppress unless, after resolving conflicting evidence in favor of affirmance, we conclude there is insufficient competent evidence to support the decision, or unless we conclude the decision goes against the manifest weight of the evidence. State v. Graven, 530 N.W.2d 328, 329 (N.D.1995). While we defer to the trial court's findings of fact, questions of law are fully reviewable. State v. Zimmerman, 529 N.W.2d 171, 173 (N.D.1995); see also State v. Ova, 539 N.W.2d 857 (N.D.1995). As we explained in Salter v. North Dakota Dep't of Transp., 505 N.W.2d 111, 112 (N.D.1993), the "ultimate conclusion" of whether the facts support a reasonable and articulable suspicion is fully reviewable on appeal.

In deciding that a Fourth Amendment seizure did not occur, the trial court relied on Halfmann. Hawley argues that Halfmann does not apply because the officer in Halfmann used his patrol car's amber lights as a traffic-control measure, and because Halfmann did not argue that her liberty was restrained in any way. By contrast, there is some evidence here that Hulm used his car's red and blue flashing lights, and Hawley testified that she did not feel free to go after Hulm turned on his flashers. As in Borowicz v. North Dakota Dep't of Transp., 529 N.W.2d 186, 188 (N.D.1995), however, "it is not necessary to decide whether a Fourth Amendment 'stop' occurred" because, even if Hulm made an investigative stop, he had reasonable grounds to investigate the parked vehicle.

For an investigative stop, an officer must have a reasonable and articulable suspicion that a law has been, or is being, violated. Graven, 530 N.W.2d at 330. The reasonable and articulable suspicion standard "requires less than probable cause but more than a mere hunch." State v. Brown, 509 N.W.2d 69, 71 (N.D.1993). As we explained in State v. Sarhegyi, 492 N.W.2d 284, 286 (N.D.1992) (quoting State v. Indvik, 382 N.W.2d 623, 627 (N.D.1986)), "the standard is an objective one in that the trier of fact asks 'whether or not a reasonable person in the officer's position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in' " a violation of law.

Hawley urges that "[t]his case is somewhat unique ... in that the arresting officer is extremely forthright that he had no suspicion of illegal activity whatsoever when he activated his overhead...