State v. Konewko, Cr. N
| Decision Date | 16 March 1995 |
| Docket Number | Cr. N |
| Citation | 529 N.W.2d 861 |
| Parties | STATE of North Dakota, Plaintiff and Appellant, v. Brian James KONEWKO, Defendant and Appellee. os. 940280, 940281. |
| Court | North Dakota Supreme Court |
Mark R. Boening, Asst. State's Atty., Courthouse, Fargo, for plaintiff and appellant.
Steven D. Mottinger, Fargo, for defendant and appellee.
The state appealed from an order of the county court, Cass County, granting a motion to suppress evidence in support of the state's complaints against Brian James Konewko for driving under suspension, N.D.C.C. Sec. 39-06-42, and driving under the influence of alcohol [DUI], N.D.C.C. Sec. 39-08-01. We hold that the judge erred in suppressing the evidence because the investigating officer had grounds for a reasonable, articulable suspicion of unlawful activity prior to any Fourth Amendment seizure. We reverse and remand for trial.
While traveling east on 13th Avenue South in Fargo at approximately 2:00 a.m., May 14, 1994, Patrol Officer Bruce Ray Jorgensen of the Cass County Sheriff's Office noticed a dark-colored vehicle sitting in an open wash bay area at the east end of the Whale Of A Wash carwash. As he watched, the vehicle's headlights were turned off. Two hours earlier, a dark-colored vehicle had been involved in a chase with other officers of the sheriff's department near Page, Tower City, and Finley. Officer Jorgensen testified to the trial court that the chase took place some forty to fifty miles from Fargo. He testified that the vehicle involved in the chase had traveled through a field and he "therefore believed that they may be washing off the vehicle and that's why it was at that Whale Of A Wash."
Officer Jorgensen turned into the west end of the carwash, turned off his lights, and proceeded toward the vehicle. When he pulled in front of the vehicle, he saw someone, later identified as Konewko, sitting behind the steering wheel. The officer then turned on the left alley light on the light bar of his squad car and "shined it into the windshield, into the front side of the vehicle." As he watched for two to three minutes, he noticed that Konewko's "face was dropping down to the floor" and that Konewko kept sliding toward the driver's door.
At this point, Officer Jorgensen turned off the alley light and pulled in behind the vehicle. As he walked to the vehicle, he noted that the car was not running. When he got to the driver's door he noticed that the "oil light or generator light was glowing on the dash." The keys were in the ignition and turned to the on position. The driver's window was down and the door was half-latched. Konewko's left hand was under the seat and out of sight. Officer Jorgensen opened the driver's door. Konewko was breathing heavily and "was sleeping or passed out." Officer Jorgensen shook Konewko's left shoulder in an attempt to awaken him and "identified [him]self and continued shaking him until he did wake up."
According to Officer Jorgensen's testimony, once Konewko awoke, he was asked what he was doing there. Officer Jorgensen stated:
Konewko's performance on field sobriety tests led to his arrest for driving under the influence of alcohol and driving under suspension.
Officer Jorgensen testified that he "assumed" that the carwash was open, that it was a self-service operation open twenty-four hours a day. He also stated that he would have stopped the vehicle if it had driven away.
In his motion to suppress, Konewko argued that Officer Jorgensen's actions amounted to a Fourth Amendment "stop" and that he had no reasonable, articulable suspicion to make the stop. The trial court agreed that there was a Fourth Amendment "stop" and that the chase of the dark-colored car was "too remote an occurrence to provide Deputy Jorgensen with a reasonable and articulable suspicion which would justify his stop of Konewko's vehicle." The trial court also noted that the vehicle was lawfully parked and that Konewko "committed no violations in the officer's presence." Citing State v. Sarhegyi, 492 N.W.2d 284 (N.D.1992), the trial court granted Konewko's motion to suppress.
When reviewing a motion to suppress, we resolve conflicts in testimony in favor of affirmance and defer to the trial court's "superior opportunity to weigh the...
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