State v. K.V. (In re Interest of K.V.)
| Decision Date | 06 May 2021 |
| Docket Number | No. 20200257,20200257 |
| Citation | 959 N.W.2d 577 |
| Parties | In the INTEREST OF K.V., a Child State of North Dakota, Petitioner and Appellee v. K.V., said child, Respondent and Appellant and A.V., mother of said child; and E.D., father of said child, Respondents |
| Court | North Dakota Supreme Court |
Maren H. Halbach, Assistant State's Attorney, Devils Lake, ND, for petitioner and appellee; submitted on brief.
Ulysses S. Jones, Devils Lake, ND, for respondent and appellant; submitted on brief.
[¶1] K.V. appeals from a juvenile court memorandum opinion, issued after remand, denying his motion to suppress evidence. K.V. argues the court erred in denying his motion to suppress by concluding there was probable cause to search him for illegal drugs and that the warrantless search of his person was reasonable under the circumstances. We reverse.
[¶2] K.V. was charged and adjudicated a delinquent child for possession of a controlled substance and possession of drug paraphernalia in January 2019. K.V. moved to suppress the evidence gathered after the stop. Following a hearing on the motion to suppress, the juvenile court issued an order denying K.V.’s motion. K.V. appealed, arguing the warrantless search violated the Fourth Amendment. This Court reversed and remanded for reconsideration because the juvenile court did not make specific findings on the reasonableness of the pat down and did not identify what exception to the warrant requirement justified the search. Interest of K.V. , 2020 ND 169, ¶¶ 13-14, 946 N.W.2d 518.
[¶3] The facts of this case were explained in Interest of K.V. , 2020 ND 169, 946 N.W.2d 518, and will only be repeated as necessary to explain the resolution of issues in this appeal. On January 6, 2019, K.V. was a passenger in a vehicle stopped by law enforcement for erratic driving and attempting to flee the police. After the stop, K.V. was searched and both drugs and drug paraphernalia were recovered.
[¶4] At the hearing on K.V.’s motion to suppress, Devils Lake Police Officer Gilbertson testified he feared for his safety as he approached the truck. He testified that he approached the driver's side of the truck and could smell a strong odor of marijuana coming from the vehicle, and stated he assumed there was illegal activity going on in the vehicle based on the smell of marijuana. Gilbertson testified he handcuffed the driver after he got out of the truck. Gilbertson stated he did not interact with K.V.
[¶5] Officer Engen testified he approached the passenger side of the truck and made contact with K.V. Engen asked K.V. to get out of the vehicle, and he did so. Engen testified they did not know whether K.V. had weapons on him and there was a strong odor of marijuana coming from the vehicle. When K.V. exited the vehicle, Engen stated he conducted a pat down search and found a bong and a small bag of methamphetamine in K.V.’s jacket pocket. Engen testified he did not ask for permission to search K.V. and acknowledged they did not obtain a warrant prior to the search. Engen then placed K.V. under arrest. Engen also testified that at no point did he see K.V. commit a criminal offense, qualifying his statement, "[o]ther than the smell of marijuana coming from the vehicle." He further testified K.V. did not act as if he were creating a dangerous situation. Engen testified he patted down K.V. for his own safety, to check for weapons, and to search for illegal drugs.
[¶6] On September 1, 2020, following remand, the juvenile court issued a memorandum opinion on the search of K.V. The court noted that the vehicle was stopped after fleeing law enforcement. The court found the officers observed the driver appeared to be under the influence, and there was a strong odor of marijuana coming from the vehicle. The court concluded the pat down was justified based on officer safety, but determined the further search was not supported by the record for officer safety, because the officer did not identify what he felt during the pat down. However, relying on precedent from another jurisdiction that does not require individualized suspicion to search a passenger when the odor of marijuana is emanating from a vehicle, the court found, that based on what he saw, heard and smelled, Engen believed he had probable cause to search K.V. for marijuana and related paraphernalia. The court concluded, "based on the totality of the circumstances that Officer Engen had probable cause to search the person of K.V. for illegal drugs and the search was legal."
[¶7] On appeal, K.V. argues the juvenile court erred in determining the warrantless search was reasonable under the totality of the circumstances. "The Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, protects individuals from unreasonable searches and seizure." State v. Guscette , 2004 ND 71, ¶ 7, 678 N.W.2d 126. A warrant is required for a search to be reasonable under the Fourth Amendment, unless a valid exception applies. State v. Daniels , 2014 ND 124, ¶ 6, 848 N.W.2d 670. We examine the totality of the circumstances to determine whether a search was reasonable under the Fourth Amendment. State v. Ballard , 2016 ND 8, ¶ 8, 874 N.W.2d 61.
[¶8] This Court will reverse a juvenile court's decision on a motion to suppress only if there is insufficient competent evidence fairly capable of supporting the court's determination and the decision is contrary to the manifest weight of the evidence after resolving any testimony in favor of affirmance. State v. Webster , 2013 ND 119, ¶ 7, 834 N.W.2d 283. This Court shows deference to the juvenile court's assessment of the credibility of witnesses. State v. Zearley , 444 N.W.2d 353, 359 (N.D. 1989). Questions of law are fully reviewable. State v. Overby , 1999 ND 47, ¶ 5, 590 N.W.2d 703.
[¶9] Under N.D.R.Juv.P. 14(d), when factual issues are involved in deciding a motion, the juvenile court must state its essential findings on the record. This Court has applied the rules of civil procedure to reviewing the court's factual findings, stating:
Under N.D.R.Civ.P. 52(a), this Court reviews a juvenile court's factual findings under a clearly erroneous standard of review, with due regard given to the opportunity of the juvenile court to judge the credibility of the witnesses. A finding of fact is clearly erroneous if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction that a mistake has been made, or if the finding was induced by an erroneous view of the law. This Court reviews questions of law de novo.
Interest of D.O. , 2013 ND 247, ¶ 6, 840 N.W.2d 641 (quoting Interest of R.A. , 2011 ND 119, ¶ 4, 799 N.W.2d 332 ); see also Interest of K.V. , 2020 ND 169, ¶ 7, 946 N.W.2d 518 ().
[¶10] "A law enforcement officer may conduct a frisk or a pat down search of a person only when the officer possesses an articulable suspicion the individual is armed and dangerous." State v. Tognotti , 2003 ND 99, ¶ 16, 663 N.W.2d 642. While a pat down may often be reasonable for safety, the following pocket search must also be based on the same safety reasons, because they are distinct efforts and each must be reasonable. Zearley , 444 N.W.2d at 359. A pat down may justify a pocket search if the officer's tactile perceptions lead to the conclusion that the subject possesses a weapon or it is clear from the plain feel of objects during the pat down that the subject is carrying contraband. Id. at 358. See also Minnesota v. Dickerson , 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ().
[¶11] The juvenile court found the officer safety exception justified the pat down, but the record did not support the further warrantless search of K.V. based on the officer safety exception to the warrant requirement because the officer did not identify what he felt in K.V.’s pockets. We agree with the court the record does not support the search based on the officer safety exception.
[¶12] Nonetheless, the juvenile court concluded, based on the totality of the circumstances, the search was legal. The court did not mention the plain-smell doctrine by name, but appears to have substantively relied upon the strong odor of marijuana emanating from the vehicle in weighing the totality of the circumstances.
[¶13] In its memorandum opinion, the juvenile court cited to cases from two other jurisdictions as a basis for its decision. In the first case, State v. Grande , the Washington Supreme Court held:
[T]he smell of marijuana in the general area where an individual is located is insufficient, without more, to support probable cause for arrest. Where no other evidence exists linking the passenger to any criminal activity, an arrest of the passenger on the suspicion of possession of illegal substances, and any subsequent searches, is invalid and an unconstitutional invasion of that individual's privacy.
164 Wash.2d 135, 187 P.3d 248, 254 (2008). In Grande , the defendant was a passenger in a car when an officer detected a "moderate smell of marijuana coming from the car" Id. at 250. The court in Grande focused on the requirement that there be individualized probable cause of the person being arrested. Id. at 253 (). Here, the officers testified to a strong odor of marijuana, rather than a moderate odor, and K.V. has not argued the North Dakota constitution provides greater protection than the United States Constitution.
[¶14] While the juvenile court provided no in-depth analysis of either case, it appears that the court relied...
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