State v. Lelm
| Decision Date | 08 July 2021 |
| Docket Number | No. 20200236,20200236 |
| Citation | 962 N.W.2d 419 |
| Parties | STATE of North Dakota, Plaintiff and Appellant v. Nicholas Dean LELM, Defendant and Appellee |
| Court | North Dakota Supreme Court |
Austin Gunderson, Assistant State's Attorney, Mandan, ND, for plaintiff and appellant.
Aaron D. Pulanco (argued) and Joshua L. Weatherspoon (on brief), Bismarck, ND, for defendant and appellee.
[¶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.
[¶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.
[¶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.
[¶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.
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.
[¶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 ().
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 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 information in the record to determine how long the backpack was outside the vehicle before the drug-detection canine was engaged and insufficient information to determine the amount of time the canine may indicate on a vehicle after a substance is removed.
[¶12] Once the drug-detection canine indicated the presence of a controlled substance in the vehicle, officers had probable cause to search the vehicle and any containers within the vehicle that may have concealed a controlled substance. The probable cause established by the canine's indication to the vehicle limited the search for potential illegal contraband within the vehicle and present at the time the sniff was conducted. Because the backpack was not within the vehicle at the time of the canine deployment, officers did not have probable cause to search the backpack and the automobile exception did not apply.
[¶13] The State also argues the search of the backpack was reasonable under the search incident to arrest exception. The United States Supreme Court has noted the following regarding searches incident to arrest:
Arizona v. Gant , 556 U.S. 332, 338–39, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) ; see also State v. Tognotti , 2003 ND 99, ¶ 8, 663 N.W.2d 642 ().
[¶14] The search incident to arrest exception is limited to searches...
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...does not provide probable cause to search a container that was not in the vehicle at the time the dog alerted, see State v. Lelm , 962 N.W.2d 419, 423 (N.D. 2021) (holding that probable cause established by canine's indication on a vehicle limited search for potential illegal contraband to ......
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