State v. Lelm, No. 20200236

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtJensen, Chief Justice.
Citation2021 ND 118
Decision Date08 July 2021
Docket NumberNo. 20200236
PartiesState of North Dakota, Plaintiff and Appellant v. Nicholas Dean Lelm, Defendant and Appellee

2021 ND 118

State of North Dakota, Plaintiff and Appellant
v.
Nicholas Dean Lelm, Defendant and Appellee

No. 20200236

SUPREME COURT STATE OF NORTH DAKOTA

July 8, 2021


Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Pamela A. Nesvig, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice, in which Justices Crothers, McEvers, and Tufte joined. Justice VandeWalle filed an opinion concurring in the result.

Austin Gunderson, Assistant State' Attorney, Mandan, ND, for plaintiff and appellant.

Aaron D. Pulanco (argued) and Joshua L. Weatherspoon (on brief), Bismarck, ND, for defendant and appellee.

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Jensen, Chief Justice.

[¶1] The State appeals from an order suppressing evidence obtained from a warrantless search of Nicholas Lelm's backpack. The State argues the warrantless search was reasonable under either the automobile exception or search incident to arrest exception to the warrant requirement. Alternatively, the State argues that even if the warrantless search was unreasonable, the evidence is admissible under the inevitable discovery doctrine. Because neither the automobile exception nor the search incident to arrest exception applied to the warrantless search, and the State did not meet its burden of establishing the evidence would have been inevitably discovered, we affirm.

I

[¶2] On August 28, 2019, a City of Mandan Police Officer initiated a traffic stop of a vehicle with two occupants, a driver and a passenger. The driver was arrested on outstanding warrants and for driving under suspension. The driver provided his consent to search the vehicle. Lelm, the passenger, was seated in the front passenger seat with a backpack on his lap.

[¶3] The officer who initiated the stop called for the assistance of a drug-detection canine. After the canine arrived on the scene, Lelm was asked to exit the vehicle. Lelm exited the vehicle and took his backpack with him. Lelm placed his backpack on the ground some distance from the vehicle. The officers then detained Lelm, conducted a pat-down search, placed him in handcuffs, and secured him in the back of a patrol vehicle. While Lelm was detained and secured in the patrol vehicle, his backpack remained on the ground.

[¶4] The canine positively alerted on the front passenger door prompting a search of the vehicle. During the search the officers found drugs in the center console, a gun on the passenger floorboard, and glass pipes in a grocery bag near the gun.

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[¶5] While on the scene, the canine paid no attention to the backpack. Upon completing the search of the vehicle, the officers searched the backpack and discovered drug paraphernalia and marijuana.

[¶6] After he had been placed under arrest, Lelm complained of chest pains and requested medical assistance. An ambulance was called to the scene to transport Lelm to the hospital. At Lelm's suppression hearing, an officer testified that ambulance personnel generally require a search of personal property before an individual is transported to the hospital. The officer testified the backpack would have been searched if the backpack was in the ambulance and if Lelm would have claimed the backpack as his property.

[¶7] Lelm moved to suppress the evidence found within the backpack arguing he had a reasonable expectation of privacy and the warrantless search was unreasonable. The State responded that the search was reasonable because it fell within either the automobile exception or search incident to arrest exception to the warrant requirement. Alternatively, the State argued that if the search was unreasonable, the evidence is admissible under the inevitable discovery doctrine. The district court granted Lelm's motion to suppress, and the State initiated this appeal.

II

[¶8] The standard of review for a district court's decision on a motion to suppress is well established:

In reviewing a district court's decision on a motion to suppress evidence, we defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. We will affirm a district court's decision on a motion to suppress if there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence. Our standard of review recognizes the importance of the district court's opportunity to observe the witnesses and assess their credibility. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.

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State v. Stands, 2021 ND 46, ¶ 7, 956 N.W.2d 366 (quoting State v. Hawkins, 2017 ND 172, ¶ 6, 898 N.W.2d 446).

[¶9] "The Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures." State v. Casson, 2019 ND 216, ¶ 7, 932 N.W.2d 380 (quoting State v. Gagnon, 2012 ND 198, ¶ 8, 821 N.W.2d 373). Where an individual has a reasonable expectation of privacy in an area, the government must obtain a search warrant unless the search falls within a recognized exception to the warrant requirement. State v. Pogue, 2015 ND 211, ¶ 9, 868 N.W.2d 522. If an exception does not apply to the search, evidence discovered in violation of the Fourth Amendment must be suppressed under the exclusionary rule. Id. The burden is on the State to prove a warrantless search falls within an exception to the warrant requirement. State v. Zacher, 2015 ND 208, ¶ 7, 868 N.W.2d 847.

III

[¶10] The State argues the search of the backpack was a proper warrantless search under the automobile exception. Under the automobile exception, officers may, when probable cause exists, search a vehicle for illegal contraband without a warrant. State v. Lark, 2017 ND 251, ¶ 16, 902 N.W.2d 739; see State v. Reis, 2014 ND 30, ¶ 18, 842 N.W.2d 845 (stating a search is limited to the vehicle and any containers within the vehicle that may contain the object of the search).

Probable cause exists to search a vehicle if it is established that certain identifiable objects are probably connected with criminal activity and are probably to be found at the present time at an identifiable place. If a warrantless search of an automobile is made with probable cause, based on a reasonable belief arising out of the circumstances known to the officer that the automobile contains articles which are subject to seizure, the search is valid.

Reis, at ¶ 15 (quoting State v. Dudley, 2010 ND 39, ¶ 7, 779 N.W.2d 369) (internal quotations omitted). A drug-sniffing dog indicating the presence of a

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controlled substance in a vehicle establishes probable cause for officers to search that vehicle. State v. Gefroh, 2011 ND 153, ¶ 9, 801 N.W.2d 429.

[¶11] The district court found the automobile exception did not apply in this case because the backpack was not inside the vehicle when probable cause to search was established. The backpack was removed from the vehicle before officers performed an open air test with their drug-detection canine. The canine alerted to the passenger side of the vehicle but did not pay attention to the backpack that was outside the car. The court found there was insufficient...

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2 practice notes
  • State v. Cochran, 20200355
    • United States
    • United States State Supreme Court of North Dakota
    • August 5, 2021
    ...of the Fourth Amendment must be suppressed under the exclusionary rule if an exception does not apply to the search. State v. Lelm , 2021 ND 118, ¶ 9, 962 N.W.2d 419. The State bears the burden to prove a warrantless search falls within an exception to the warrant requirement. Id.III [¶10] ......
  • State v. Cochran, 20200355
    • United States
    • United States State Supreme Court of North Dakota
    • August 5, 2021
    ...of the Fourth Amendment must be suppressed under the exclusionary rule if an exception does not apply to the search. State v. Lelm, 2021 ND 118, ¶ 9. The State bears the burden to prove a warrantless search falls within an exception to the warrant requirement. Id. III [¶10] The State argues......
2 cases
  • State v. Cochran, 20200355
    • United States
    • United States State Supreme Court of North Dakota
    • August 5, 2021
    ...of the Fourth Amendment must be suppressed under the exclusionary rule if an exception does not apply to the search. State v. Lelm , 2021 ND 118, ¶ 9, 962 N.W.2d 419. The State bears the burden to prove a warrantless search falls within an exception to the warrant requirement. Id.III [¶10] ......
  • State v. Cochran, 20200355
    • United States
    • United States State Supreme Court of North Dakota
    • August 5, 2021
    ...of the Fourth Amendment must be suppressed under the exclusionary rule if an exception does not apply to the search. State v. Lelm, 2021 ND 118, ¶ 9. The State bears the burden to prove a warrantless search falls within an exception to the warrant requirement. Id. III [¶10] The State argues......

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