State v. Heitzmann

• Decision Date: 20 July 2001
• Docket Number: No. 20010017.,20010017.
• Citation: 632 N.W.2d 1,2001 ND 136
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Craig HEITZMANN, Defendant and Appellant.
• Court: North Dakota Supreme Court

632 N.W.2d 1

2001 ND 136

STATE of North Dakota, Plaintiff and Appellee, v. Craig HEITZMANN, Defendant and Appellant.

No. 20010017.

Supreme Court of North Dakota.

July 20, 2001.

H. Jean Delaney, Assistant State's Attorney, Valley City, for plaintiff and appellee.

Kerry S. Rosenquist, Rosenquist Law Office, Larimore, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Craig Heitzmann appealed from a criminal conviction entered upon his conditional guilty plea to class C felony possession of a controlled substance. We conclude the trial court did not err in denying Heitzmann's suppression motion because his Fourth Amendment rights were not violated during the search conducted in this case. We, therefore, affirm.

I

[¶ 2] On the evening of April 19, 2000, a Valley City police officer was on patrol when he received a call from a deputy on the Stutsman County Drug Task Force stating a pickup driven by Chris Jacobson, whose license was suspended, was coming toward the officer. At 9:09 p.m., the officer stopped the pickup, and the deputy pulled up behind the officer's vehicle. The officer arrested Jacobson for driving while his license was suspended and, after frisking him, placed Jacobson in the back of the officer's patrol car. The officer told Jacobson he was going to search the pickup incident to the arrest, and Jacobson stated there was an unloaded pistol without a clip "in the back of the vehicle." Before returning to Jacobson's pickup, the deputy told the officer that the passenger in the pickup was Heitzmann, who was on probation. The deputy had received "intel" indicating Heitzmann recently received a shipment of methamphetamine, and earlier the deputy had helped perform a probation search of Heitzmann's residence during which Heitzmann became "agitated." The deputy also informed the officer that the deputy would stay back from the pickup because the deputy "didn't want to get into an argument or fight with [Heitzmann]." The deputy warned the officer to "be cautious."

[¶ 3] The officer returned to the pickup and spoke to Heitzmann, who had appeared nervous when the officer stopped the pickup. The officer told Heitzmann that Jacobson was under arrest; the officer was going to search the pickup; and if Heitzmann had a valid driver's license and Jacobson "okayed it," the officer would release the vehicle to Heitzmann rather than impound it. The officer asked Heitzmann to step out of the pickup. The officer told Heitzmann he was going to do a quick pat-down for the safety of both Heitzmann and the officer.

[¶ 4] The officer testified Heitzmann appeared more nervous while getting out of the pickup and walking to the front of the vehicle. The officer tapped Heitzmann's pants pockets, and Heitzmann told the officer there was "Certs" in one pocket and money in the other pocket. The officer "felt a baggy of crushed substance that didn't feel like Certs to me." The officer then patted Heitzmann's jacket pockets, which contained "a bunch of stuff." When the officer asked Heitzmann to take the contents out of the jacket pockets, Heitzmann complied and then took a couple of steps, starting to go around the front of the pickup, but the officer grabbed Heitzmann's sleeve. Heitzmann stated he wanted to show the officer what was in the back of the pickup, but the officer responded he would first do the pat-down. According to the officer, Heitzmann was "pretty nervous" at this point, and the officer told Heitzmann that "[Heitzmann's] being nervous... ma[de] [the officer] nervous."

[¶ 5] The officer hung onto Heitzmann's right arm and tapped the wallet in Heitzmann's back pocket, removed it, and placed it on the hood of the pickup. Heitzmann then pulled his left arm out of the jacket, so the officer grabbed him by the back of his pants. The officer tapped the left front pocket of Heitzmann's pants, and Heitzmann said it contained money. After asking whether anything else was in that pocket, the officer removed a large "wad" of money, placed it on the hood of the pickup, and motioned for the deputy to come over. At that point, Heitzmann pulled his other arm out of the jacket and began running. The officer pursued and took Heitzmann down in the middle of the street. The deputy and the officer struggled to place Heitzmann in handcuffs, and Heitzmann's arm was broken in the scuffle. The officer called for an ambulance. At this point, Heitzmann yelled to the deputy: "[T]here's crank in my wallet." The officer and deputy found methamphetamine and a razor blade in Heitzmann's wallet on the hood of the pickup.

[¶ 6] Heitzmann was charged with class C felony possession of a controlled substance in violation of N.D.C.C. § 19-03.1-23. Heitzmann moved to suppress the contraband. The trial court denied the suppression motion, concluding Heitzmann's rights were not violated because the officer "acted reasonably in conducting a pat-down search of the defendant in an effort to complete his search of the automobile without fear that the defendant was armed and dangerous." Heitzmann conditionally pled guilty under N.D.R.Crim.P. 11(a)(2), reserving the right to appeal the denial of his suppression motion.

II

[¶ 7] Heitzmann claims the trial court erred in denying his suppression motion because the search violated his Fourth Amendment rights.

[¶ 8] Our standard of review of a trial court's denial of a suppression motion is well-established:

We will defer to a trial court's findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court's decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court's findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Wanzek, 1999 ND 163, ¶ 5, 598 N.W.2d 811 (quoting State v. Overby, 1999 ND 47, ¶ 5, 590 N.W.2d 703). While we defer to the trial court's findings of fact, questions of law are fully reviewable. Wanzek at ¶ 5, 598 N.W.2d 811.

A

[¶ 9] The Fourth Amendment of the United States Constitution prohibits unreasonable searches and seizures. City of Jamestown v. Dardis, 2000 ND 186, ¶ 8, 618 N.W.2d 495. A person may be seized without being arrested. State v. Boline, 1998 ND 67, ¶ 26, 575 N.W.2d 906. Within the meaning of the Fourth Amendment, a seizure occurs whenever an officer stops an individual and restrains his freedom, and that seizure must be reasonable. State v. Gilberts, 497 N.W.2d 93, 95 (N.D. 1993). A seizure has occurred "`[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'" Boline at ¶ 25, 575 N.W.2d 906 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). A determination of reasonableness requires balancing the public interest with the individual's right to personal security free from arbitrary interference by police officers. Gilberts at 95.

[¶ 10] Heitzmann does not challenge the investigative stop of Jacobson's pickup, Jacobson's arrest, or the officer's right to search the passenger compartment of the pickup incident to Jacobson's arrest. In Gilberts, 497 N.W.2d at 96, this Court held that a vehicle passenger's Fourth Amendment rights were not violated when a law enforcement officer, who had arrested the driver for driving under suspension, asked the passenger to step out of the vehicle before the search of the vehicle incident to the arrest, even though the passenger had not violated any traffic laws and was not suspected of committing any crime. This Court reasoned:

We believe there are two grounds that justify Smith's request that Gilberts exit the car, and that make this brief intrusion upon Gilberts's privacy both reasonable and permissible under the Fourth Amendment. First, an officer is justified by safety reasons in ordering both the driver and the passengers out of a lawfully detained vehicle. Bethea v. Commonwealth, 14 Va.App. 474, 419 S.E.2d 249 (1992); People v. Martinez, 187 Mich.App. 160, 466 N.W.2d 380 (1991); State v. Ferrise, 269 N.W.2d 888 (Minn.1978). When the state's interest in the protection and safety of its police, who patrol the roadways, is weighed against the minor intrusion on a passenger's liberty in momentarily leaving a vehicle, safety predominates. Secondly, Smith was entitled to search the passenger compartment of the vehicle incident to the driver's arrest. [New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)]. To conduct the search safely and thoroughly, it was both necessary and reasonable for Smith to ask Gilberts and the other passenger to briefly leave the car. United States v. Bell, 762 F.2d 495 (6th Cir.1985). We hold that Gilberts's constitutional right to be free of unreasonable seizure was not encroached when Smith ordered him out of the car for the search after the driver's arrest.

Gilberts at 96. See also Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)

. Consequently, we conclude Heitzmann's Fourth Amendment rights were not violated when the officer had Heitzmann step out of the pickup for the purpose of conducting a search of the vehicle incident to Jacobson's arrest.

B

[¶ 11] Gilberts did not involve a separate search of a passenger who has stepped out of a vehicle upon the request of a law enforcement officer. There is no automatic search rule for companions of an arrestee. See, e.g., Wyoming v. Houghton, 526 U.S. 295, 303, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)

; Ybarra v. Illinois, 444 U.S. 85, 92-96, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); United States v. Menard, 95 F.3d 9, 11 (8th Cir.1996); United States v. Flett, 806 F.2d 823, 827 (8th Cir.1986); United States v. Bell, 762 F.2d 495, 498 (6th Cir.1985). Rather, a law enforcement officer may...