State v. Mercier, 20150275.

• Decision Date: 17 August 2016
• Docket Number: No. 20150275.,20150275.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Claude Joseph MERCIER, Defendant and Appellant.
• Court: North Dakota Supreme Court

883 N.W.2d 478

STATE of North Dakota, Plaintiff and Appellee

v.Claude Joseph MERCIER, Defendant and Appellant.

No. 20150275.

Supreme Court of North Dakota.

Aug. 17, 2016.

Melanie Price Dornonville de la Cour, Assistant State's Attorney, Burleigh County State's Attorney's Office, Bismarck, N.D., for plaintiff and appellee.

Bobbi Brown Weiler, Bismarck, N.D., for defendant and appellant.

SANDSTROM

, Justice.

[¶ 1] Claude Joseph Mercier appeals after he pled guilty to possession of methamphetamine and possession of drug paraphernalia, reserving the right to appeal the denial of his motion to suppress evidence. Because the district court properly denied the motion to suppress, we affirm the criminal judgment.

I

[¶ 2] According to testimony at the suppression hearing, at around 11 p.m. on May 4, 2015, Bismarck Police Officer April McCarthy was dispatched to an area for a report of suspicious activity. The identified caller described the suspect as a white male wearing a black t-shirt, and believed this suspect and a female individual were trying to rob him. When Officer McCarthy arrived near the scene, she observed a male who matched the description given, later identified as Mercier, near the location indicated by the caller. She got out of her vehicle and asked Mercier for identification, which he said was in his backpack at a house across the street. When asked for his name, Mercier identified himself as “Dewayne Liggins” with a birth date of March 29, 1989, then as “Dewayne Liggins” with a birth date of March 2, 1989, and then again as the same individual but from South Dakota. Each time Officer McCarthy attempted to run this information through dispatch, it came back negative, or not on file.

[¶ 3] While Officer McCarthy was attempting to identify Mercier, Bismarck Police Officers Swenson and Bratsch also arrived on the scene. Officer Swenson came to the scene because he recognized the name Dewayne Liggins when he heard it over the radio. Swenson informed McCarthy that he had known a Dewayne Liggins previously and that he was an African–American male. When Mercier informed the officers his backpack containing his identification was across the street, the officers asked him whether they could “go get the backpack.” Mercier gave the officers a description of the backpack, and when Officer Bratsch went to retrieve the described backpack, someone at the house told him “this is C.J.'s.” The name differed from the one Mercier had been giving the officers. The record is silent as to whether the backpack was retrieved from inside or outside the house where Mercier said it was located. Upon Officer Bratsch's return with the backpack, Mercier confirmed it was his. He declined to allow the officers to search the backpack themselves, but was allowed to go through it slowly himself to obtain his identification. When asked whether there were any weapons in the backpack, Mercier replied there was a knife. The officers then placed Mercier in handcuffs for safety purposes and searched him. While searching him, Officer Bratsch pulled Mercier's wallet out of his pocket and found it contained two identification cards, one belonging to Claude Mercier and one to Dwayne Liggins, as well as some marijuana. After running the correct name and date of birth through dispatch, the officers discovered Mercier had active warrants for his arrest. He was arrested, placed in the back of a squad car, and read his Miranda rights. The officers searched Mercier's backpack, finding several items that had been reported stolen as well as methamphetamine and drug paraphernalia. Mercier was initially arrested and held on possession of stolen property, possession of marijuana, false information to law enforcement, two counts of possession of drug paraphernalia, and ingestion of a controlled substance.

[¶ 4] After Mercier was formally charged with possession of drug paraphernalia and possession of methamphetamine, he moved to suppress evidence, claiming the police officers' questioning of him and searches of his backpack and wallet were illegal searches and seizures in violation of the Fourth Amendment. After a hearing, the district court denied the motion. Mercier conditionally pled guilty to the charges.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8

, and N.D.C.C. § 27–05–06. The appeal was timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 29–28–06.

II

[¶ 6] On appeal, Mercier argues the police questioning of him and searches of his backpack and wallet were illegal searches and seizures in violation of the Fourth Amendment.

[¶ 7] This Court applies a deferential standard of review when reviewing a district court decision on a motion to suppress:

The trial court's disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, 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. That standard of review recognizes the importance of the trial court's opportunity to observe the witnesses and assess their credibility, and we “accord great deference to its decision in suppression matters.”

State v. Sabinash, 1998 ND 32, ¶ 8, 574 N.W.2d 827

(citations omitted).

[¶ 8] “In the context of law enforcement-citizen contacts, a ‘Terry’ stop, or investigative stop, temporarily restrains an individual's freedom, which results in a Fourth Amendment seizure.” State v. Boyd, 2002 ND 203, ¶ 13, 654 N.W.2d 392

(citing State v. Glaesman, 545 N.W.2d 178, 182 (N.D.1996) ). “Within the meaning of the Fourth Amendment, a seizure occurs whenever an officer stops an individual and restrains his freedom.” Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “Terry created a limited exception to this general rule: certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime.” Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). See also

Glaesman, 545 N.W.2d at 182 (citations omitted) (“An investigative stop must be ‘justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.’ ”).

[¶ 9] In applying the Supreme Court's decision in Terry, we have said that in reviewing a Terry stop, a court must “(1) determine whether the facts warranted the intrusion of the individual's Fourth Amendment rights, and if so, (2) determine whether the scope of the intrusion was reasonably related to the circumstances which justified the interference in the first place.” State v. Sarhegyi, 492 N.W.2d 284, 286 (N.D.1992)

. “We use an objective standard: would a reasonable person in the officer's position be justified by some objective evidence in believing the defendant was, or was about to be, engaged in unlawful activity?” State v. Boyd, 2002 ND 203, ¶ 14, 654 N.W.2d 392 (citing State v. Indvik, 382 N.W.2d 623, 627 (N.D.1986) ).

[¶ 10] To determine whether an officer has a reasonable and articulable suspicion, we examine the information known to the officer at the time of the stop. State v. Robertsdahl, 512 N.W.2d 427, 428 (N.D.1994)

(citing State v. Miller, 510 N.W.2d 638 (N.D.1994) ). The reasonable-and-articulable-suspicion standard requires that the officer justify the stop “with more than just a vague ‘hunch’ or other non-objective facts; and ... the articulable facts must produce, by reasonable inference, a reasonable suspicion of unlawful conduct.” Bryl v. Backes, 477 N.W.2d 809, 811 n. 2 (N.D.1991)

(quoting State v. VandeHoven, 388 N.W.2d 857, 858 n. 1 (N.D.1986) ). In Geiger v. Backes, 444 N.W.2d 692, 693 (N.D.1989), this Court noted law enforcement officers do not have to analyze the individual factors of a case in a vacuum. They also are not required “to point to a single factor which, standing alone, signals a potential violation of the law. Rather, officers are to assess the situation as it unfolds and, based upon inferences and deductions drawn from their experience and training, make the determination whether all of the circumstances viewed together create a reasonable suspicion of potential criminal activity.” Id.

[¶ 11] Here Mercier argues he was seized, for purposes of the Fourth Amendment, prior to the officers' development of reasonable suspicion. He claims he was seized during his initial encounter with Officer McCarthy when she stopped him and asked him for identification. The State argues Mercier was not seized during his initial encounter with Officer McCarthy.

[¶ 12] Not all encounters between law enforcement officers and citizens constitute “seizures” implicating the Fourth Amendment. City of Jamestown v. Jerome, 2002 ND 34, ¶ 5, 639 N.W.2d 478

. “It is not a Fourth Amendment seizure for a police officer to approach and talk with a person in a public place....” State v. Leher, 2002 ND 171, ¶ 7, 653 N.W.2d 56. A police officer's “approach ... is not a seizure if the officer inquires ... in a conversational manner, does not order the person to do something, and does not demand a response.” State v. Langseth, 492 N.W.2d 298, 300 (N.D.1992). A casual encounter between an officer and a citizen can become a seizure if “a reasonable person would view the officer's actions—if done by another private citizen—as threatening or offensive.” State v. Boyd, 2002 ND 203, ¶ 7, 654 N.W.2d 392. A seizure occurs only when “the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Sayler v. North Dakota Dep't of Transp., 2007 ND 165, ¶ 18, 740 N.W.2d 94.

[¶ 13] In this case, Officer McCarthy did not need reasonable suspicion simply to approach Mercier and speak with him in a conversational manner. The issue is whether McCarthy escalated the casual encounter into a seizure by ordering Mercier “to...