State v. Kolb

• Decision Date: 12 March 1976
• Docket Number: No. 541,541
• Citation: 239 N.W.2d 815
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Edward KOLB, Defendant-Appellant. Crim.
• Court: North Dakota Supreme Court

Page 815

239 N.W.2d 815

STATE of North Dakota, Plaintiff-Appellee, v. Edward KOLB, Defendant-Appellant.

Crim. No. 541.

Supreme Court of North Dakota.

March 12, 1976.

Syllabus by the Court

1. Term 'reasonable cause' is synonymous with the term 'probable cause'.

2. Probable cause exists when the facts and circumstances within a police officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed.

3. Probable cause is a determination dependent on the particular facts and circumstances of each case.

4. A peace officer may stop a motorist under circumstances short of probable cause for arrest.

5. In the instant case, reasonable or probable cause existed for the police officer to stop defendant's vehicle for further investigation where such officer observed the vehicle weaving in its own lane of traffic, significantly fluctuating its speed, traveling off the pavement onto the right shoulder, and crossing the centerline of the highway.

6. Where the written reports of the police officer were introduced by the defendant as evidence at the hearing on the defendant's motion to suppress evidence, the court was not limited to consider only such written reports, but also properly considered oral testimony of the police officer which presented a more detailed account of such officer's observations, in determining whether or not such officer had reasonable cause to stop defendant's vehicle for investigation.

L. J. Schirado, Mandan, for defendant and appellant.

Richard L. Schnell, State's Atty., Mandan, for plaintiff and appellee.

PAULSON, Judge.

This is an appeal by the defendant, Edward Kolb (hereinafter Kolb), from a judgment of conviction of the Mortion County Court of Increased Jurisdiction after trial to the court, finding Kolb guilty of the offense of driving a motor vehicle while under the influence of intoxicating liquor (§ 39--08--01, N.D.C.C.).

A pickup truck being driven east on Morton County Highway No. 139 (old U.S. Highway No. 10) by Kolb was stopped at about 1:12 a.m., MDT, on the morning of October 11, 1975, by Officer Ronald A. Ruther of the North Dakota Highway Patrol, after Ruther had observed such pickup being driven in an erratic manner. After further investigation, including the administration of the 'Alert' test to Kolb, Ruther placed Kolb under arrest for driving while under the influence of intoxicating liquor and transported him to the Mandan Police Station, where Kolb submitted to a Breathalyzer test.

Subsequent thereto, Kolb pleaded not guilty to the charge, and through his attorney filed a motion to suppress all evidence obtained by Ruther after Kolb's pickup was stopped by Ruther on October 11, 1975; and also to dismiss the charge. On October 28, 1975, the trial court held a hearing on such motion. At the suppression hearing, the only witness testifying in support of Kolb's motion was the accused himself. The State, in opposing Kolb's motion, called as witness Officer Ruther and Morton County Deputy Sheriff Charles E. Brockman, Sr., who had accompanied Ruther on patrol, and who was present with Ruther when Kolb was stopped.

The trial court, on November 3, 1975, denied Kolb's motion to suppress evidence and to dismiss the charge. The parties thereafter stipulated that the evidence adduced at the suppression hearing, along with the results of the Breathalyzer test, would constitute the record for trial by the court. Based thereon, the trial court found Kolb guilty of driving of intoxicating liquor, under the influence of intoxicating liquor, and entered judgment and sentence accordingly. From such judgment of conviction, Kolb appeals.

In this appeal, the only issue presented for our consideration is whether or not the trial court erred in denying Kolb's motion to suppress evidence and dismiss the charge by concluding that the officer had reasonable cause to stop the Kolb vehicle.

It is Kolb's contention that Ruther, when he stopped the pickup being driven by Kolb on the morning of October 11, 1975, did not have reasonable cause to stop such vehicle, as required by § 29--06--15(6), N.D.C.C., and that, therefore, any evidence obtained as a result of such illegal detention was inadmissible, being the result of an unlawful search and seizure contrary to the Fourth Amendment to the United States Constitution.

Section 29--06--15(6), N.D.C.C., provides:

'Arrest without warrant.--A peace officer, without a warrant, may arrest a person:

'6. On a charge, made upon reasonable cause, of driving or being in actual physical control of a vehicle while under the influence of alcoholic beverages.'

In State v. Salhus, 220 N.W.2d 852 (N.D.1974), this Court, in paragraph 1 of the syllabus, held:

'1. Term 'reasonable cause' used in N.D.C.C. 29--06--15, subd. 6, which provides for warrantless arrest on a charge of driving while under the influence of alcoholic beverages, is synonymous with the term 'probable cause'.'

We held in Witte v. Hjelle, 234 N.W.2d 16 (N.D.1975), in paragraphs 3 and 4 of the syllabus:

'3. Probable cause exists when the facts and circumstances within a police officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed.

'4. Probable cause is a determination dependent on the particular facts and circumstances of each case.'

Accord, Bringegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949); State v. Chaussee, 138 N.W.2d 788, 792 (N.D.1965).

In the instant case, unlike the probable cause issue raised in Witte and Salhus, supra, Kolb contends that Officer Ruther did not have probable cause to initially stop his vehicle. In this appeal, Kolb does not contend that Officer Ruther, after stopping the Kolb vehicle and conducting a further investigation, did not have probable cause to arrest Kolb for driving while under the influence of intoxicating liquor. Kolb's sole basis of support for his motion to suppress the evidence is his claim that the initial stop was effected without probable cause.

In Borman v. Tschida, 171 N.W.2d 757 (N.D.1969), this Court was presented with an identical issue, and held, in paragraph 2 of the syllabus, that:

'2. A peace officer may stop a motorist under circumstances short of probable cause for arrest.'

In Borman, this Court distinguished between reasonable cause sufficient to justify an officer's stopping of a motorist for investigation, and reasonable grounds for the arrest of such person on a charge of driving while under the influence of intoxicating liquor. ¹ The Court, in Borman, concluded that an officer had sufficient cause to stop a driver for the purpose of investigation where the officer had observed the car in question veer sharply to the left, heard the squealing of tires, and, while following the vehicle, observed that the vehicle swayed back and forth on the road in such driver's own lane of traffic, and thereupon the officer decided to stop the vehicle.

We conclude that this Court's holding in Borman controls our decision in the instant case, and, consequently, determine that if Officer Ruther had probable cause to stop Kolb's vehicle for the purpose of investigation, then the evidence obtained as a result of such stop was not obtained in violation of Kolb's Fourth Amendment protection against unreasonable searches and seizures.

In determining whether or not probable cause existed for the stop, we must examine the particular facts and circumstances of this case. Witte v. Hjelle, supra. A review of the pertinent...