State v. Higgins
| Decision Date | 03 June 2004 |
| Docket Number | No. 20030320.,20030320. |
| Citation | 2004 ND 115,680 N.W.2d 645 |
| Parties | STATE of North Dakota, Plaintiff and Appellant v. Randy Brian HIGGINS, Defendant and Appellee. |
| Court | North Dakota Supreme Court |
Brandi Sasse Russell, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellant.
Justin D. Roness (argued), Thomas A. Dickson, and Timothy Q. Purdon, Dickson & Purdon, Bismarck, ND, for defendant and appellee.
[¶ 1] The State appealed a district court order denying its motion to amend a criminal complaint, granting Randy Brian Higgins's motion to suppress evidence, and granting Higgins's motion to dismiss. We reverse and remand.
[¶ 2] At 10:30 p.m. on July 12, 2003, Higgins received a citation alleging he committed "the following offense: Operate a motorboat while under the influence in violation of Sec. 20.1-13-07 NDCC ... in violation of Governor's boating proclamation."
[¶ 3] Higgins filed a motion to dismiss or suppress evidence. Higgins asserted in his supporting brief, among other things: (1) "Game & Fish had recently adopted a policy of stopping every boat which had it[s] `docking lights' on after sundown ... as a pretense to board any and all boats after sundown;" (2) "North Dakota Game & Fish has adopted the Coast Guard regulation" which, "[f]or purposes of this appeal... requires that all boats operating after sunset have red and green bow lights visible for one mile;" (3) "[s]ometime after sundown, Game & Fish Supervisor Knapp radioed Game & Fish Officer Lundstrom and told her to stop the pontoon ... because it had its docking lights on;" (4) "Warden Lundstrom followed her supervisor's orders and stopped the pontoon;" (5) "[u]pon spotting an open container (which is legal on a boat), Warden Lundstrom then requested that Mr. Higgins perform several field sobriety tests;" and (6) Higgins argued, among other things: (1) he "cannot be convicted of operating a motorboat under the influence of alcoholic beverages," because N.D.C.C. § 20.1-13-07(2) "does not mention `alcohol beverages;'" and (2) there was no reasonable and articulable suspicion to stop Higgins's pontoon.
[¶ 4] The State moved to amend the complaint to read, in part:
After a hearing, the trial court issued an order on the motions:
1. The State's Motion to Amend the Criminal Complaint is denied;
2. The Defendant's Motion to Suppress is granted on the ground that there was not a reasonable and articulable suspicion to stop the boat; and
3. The Defendant's Motion to Dismiss is granted on the ground that there was insufficient evidence to believe that N.D.C.C. § 20.1-13-07(2) was violated because the statute makes no reference to "alcoholic beverages" as being an element of an alleged crime.
[¶ 5] On appeal, the State contends the trial court erred in denying its motion to amend the complaint. Uniform complaints, like the one issued in this case, are generally not drawn by attorneys and are often hastily drawn. See State v. Schwab, 2003 ND 119, ¶ 9, 665 N.W.2d 52
. Higgins concedes that "[a]mendments to criminal complaints are routinely granted," but asserts "it is difficult to understand why the State is seeking an amendment to charge a crime which never happened," and "[t]he critical element of [] alcoholic beverages is still missing from the statute." Under N.D.R.Crim.P. 3(b), allowing amendment of a complaint is within the trial court's discretion. Schwab, at ¶ 9. We discern no possibility of prejudice to Higgins from amending the complaint, and we conclude the trial court abused its discretion in denying the State's motion to amend the complaint.
[¶ 6] The State contends the trial court erred in granting Higgins's motion to suppress on the ground that there was not a reasonable and articulable suspicion to stop the boat.
[¶ 7] "The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). To legally stop a vehicle, a law enforcement officer must have a reasonable and articulable suspicion that a motorist has violated or is violating the law. State v. Kenner, 1997 ND 1, ¶ 8, 559 N.W.2d 538. In determining the validity of a stop, we use an objective test and look at the totality of the circumstances. State v. Parizek, 2004 ND 78, ¶ 9, 678 N.W.2d 154. "The question is whether 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 unlawful activity." Id. Investigatory stops have been upheld in cases in which the stopping officer has acted on a tip from another officer or an informant, which was corroborated by the stopping officer's own observations. Kenner, at ¶ 12. On appeal from a trial court's decision on a suppression motion, we defer to the trial court's findings of fact and resolve evidentiary conflicts in favor of affirmance, but "[q]uestions of law, such as the ultimate conclusion of whether the facts support a reasonable and articulable suspicion, are fully reviewable." Parizek, at ¶ 7.
[¶ 8] Section 30-05-01-02(6), N.D. Admin. Code, provides, in part:
When operating between sunset and sunrise, all motorboats under twenty-six feet [6.8 meters] in length shall exhibit a twenty-point [225 degree] combination red and green bowlight visible for one mile [1.6 kilometers], ten points [112.5 degrees] to the left of the centerline of the boat being red, the ten points [112.5 degrees] to the right of the centerline being green.
The North Dakota Game and Fish Department's 2002-2004 North Dakota Boat and Water Safety Guide states, in part, the following lighting requirement for boats under 26 feet in length being operated between sunset and sunrise:
Motorboats operating between sunset and sunrise shall exhibit a twenty point (225 degree) combination red and green bow light, visible for one mile, the left side being red, the right side being green.
See also the inland navigation rules in 33 U.S.C.A. § 2021 (); 33 U.S.C.A. § 2022 (); and 33 U.S.C.A. § 2020 ().
[¶ 9] Jackie Lundstrom, the game warden who stopped and arrested Higgins while he was operating a boat on the Missouri River after sundown, testified on direct examination: (1) "[w]e stopped the boat because the red and green navigational lights with those docking lights on are not visible for the one mile required;" (2) the boat was being operated with docking lights on; (3) "in this particular case, [she] couldn't see [the red and green navigational lights] within the one mile marker;" and (4) when they stopped the boat, "[w]e explained that the [docking] lights were blocking the red and green navigation lights." On cross-examination, Lundstrom testified: (1) "it is the policy at Game and Fish to stop every boat that has its docking lights on after sunset ... if they're in the main channel;" (2) she was about one-half mile directly in front of the boat when she observed it with its docking lights on; (3) she has never "issued a citation to anybody for driving their boat after dark with the docking lights on;" (4) Officer Knapp, who was on shore, ordered her to stop the boat because its docking lights were on. Lundstrom also testified (1) she had no probable cause to arrest Higgins for being under the influence of drugs; (2) she did not arrest Higgins for boating under the influence of drugs; and (3) in her opinion, Higgins was intoxicated by alcoholic beverages.
[¶ 10] Lundstrom's observation, from a distance of one-half mile directly in front of Higgins's boat, that the red and green navigational lights were not visible provided her with a reasonable and articulable suspicion that Higgins was in violation of a regulation requiring that a person operating a boat between sunset and sunrise exhibit a "red and green bowlight visible for one mile," justifying her in stopping the boat.
[¶ 11] Because Lundstrom had a reasonable and articulable suspicion to stop Higgins's boat, we need not address his assertion that "Game & Fish had recently adopted a policy of stopping every boat which had it[s] `docking lights' on after sundown ... as a pretense to board any and all boats after sundown." We note that we have held that "[t]raffic violations provide a proper basis for stops, even if pretextual, and evidence discovered during such stops is admissible." State v. Loh, 2000 ND 188, ¶ 10, 618 N.W.2d 477. For the same reason, we need not decide the propriety of stopping all boats with lights other than navigational lights on after sunset, as distinguished from boats whose navigational lights are not visible for the required distance.
[¶ 12] Section 20.1-13-07(2), N.D.C.C., which Higgins was charged with violating, provides, in part: "No person may operate any motorboat or vessel ... while intoxicated or under the...
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