State v. Mertz, Cr. N

• Decision Date: 13 February 1985
• Docket Number: Cr. N
• Citation: 362 N.W.2d 410
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Lonny Lynn MERTZ, Defendant and Appellant. o. 1006.
• Court: North Dakota Supreme Court

Page 410

362 N.W.2d 410

STATE of North Dakota, Plaintiff and Appellee, v. Lonny Lynn MERTZ, Defendant and Appellant.

Cr. No. 1006.

Supreme Court of North Dakota.

Feb. 13, 1985.

Jay V. Brovold, State's Atty., Medora, for plaintiff and appellee state.

John E. Adams, Bismarck, for defendant and appellant.

VANDE WALLE, Justice.

Lonny Mertz appealed from the criminal judgment entered by the county court, Billings County, on February 27, 1984, convicting Mertz of driving a motor vehicle while under the influence of alcohol. We affirm.

At approximately 1:16 a.m. on September 3, 1983, Billings County Deputy Sheriff David Wallace stopped Lonny Mertz for a speeding violation on Interstate Highway 94 east of Fryburg. Officer Wallace's radar unit indicated that Mertz had been traveling 73 m.p.h. in a 55-m.p.h. zone. After Mertz had stopped his vehicle, Officer Wallace walked forward to Mertz's vehicle and asked Mertz to produce his driver's license. Mertz informed Officer Wallace that his driver's license was packed away in his suitcase. Mertz got out of his car, opened the trunk, and showed Officer Wallace his driver's license. Officer Wallace then ordered Mertz to sit in the patrol car. Mertz complied with that order.

Officer Wallace testified that when he confronted Mertz through the window of Mertz's vehicle he recognized Mertz as the individual whom he had seen stumbling off a high sidewalk near a bar in Medora earlier that evening. Officer Wallace testified further that he ordered Mertz to sit in the patrol car so that he could determine if Mertz had been drinking. While they were sitting in the patrol car Officer Wallace issued Mertz the speeding citation. At that time he observed that Mertz's complexion was flushed, that his eyes were bloodshot, and that he had an odor of alcohol. Because of these observations Officer Wallace administered field-sobriety tests to Mertz. When Mertz failed these tests Officer Wallace placed Mertz under arrest for driving while under the influence of alcohol [hereinafter D.U.I.].

Officer Wallace subsequently transported Mertz to the Dickinson Law Enforcement Center for administration of a blood-alcohol test to Mertz. Officer Wallace testified that after he arrived at the Center he read to Mertz the implied-consent advisory on the request and notice form. Mertz refused to sign that form and stated that he did not understand Section 39-08-01, N.D.C.C. Patrolman John Grasl testified that he then explained Section 39-08-01 to Mertz. Thereafter, Lieutenant Robert Nass administered a Breathalyzer test which established a reading of .17 percent of alcohol in Mertz's blood. Mertz was incarcerated for approximately eight hours and then released.

At trial the State introduced the Breathalyzer test results into evidence. Additionally, Officer Wallace and Patrolman Grasl testified that it was their opinion that Mertz was under the influence of alcohol. The jury found Mertz guilty of D.U.I.

Mertz's first contention on appeal is that Officer Wallace had no authority to order him into the patrol car after stopping him for a mere traffic violation. The essence of Mertz's argument is that Officer Wallace effected a custodial arrest without probable cause by ordering him into the patrol car and that Officer Wallace then conducted an illegal search of Mertz's person in order to establish probable cause for D.U.I. Mertz further argues that all of the State's evidence which was discovered after he was unlawfully seized should have been suppressed by the trial court.

The United States Supreme Court in United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607, 614 (1975), stated: "The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that a "seizure" within the meaning of the Fourth Amendment occurs any time a peace officer stops an individual and restrains his freedom to walk away, and the Fourth Amendment requires that such seizure be reasonable. The focus of our analysis in this case centers on whether or not Officer Wallace's order for Mertz to sit in the patrol car was a reasonable seizure and therefore a reasonable invasion of Mertz's personal security. See Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Terry v. Ohio, supra. In determining reasonableness we balance the public interest with the individual's right to personal security free from arbitrary interference by police officers. United States v. Brignoni-Ponce, supra.

A police officer may temporarily detain a traffic offender at the scene of a violation. See Sections 39-07-07 and 39-07-09, N.D.C.C. A reasonable period of detention includes the amount of time necessary for the officer to complete his duties resulting from the traffic stop. See People v. McGaughran, 25 Cal.3d 577, 159 Cal.Rptr. 191, 601 P.2d 207 (1979). After a lawful stop and during such temporary detention a traffic violator is subject to the arresting officer's authority and restraint until the officer completes issuance of the traffic citation and expressly releases the violator. See Cantrell v. State, 561 P.2d 973 (Okla.Crim.App.1977).

The State contends that for the personal safety of a police officer he must have authority to order a driver into his patrol car after a legitimate stop for a traffic violation. We agree that the safety of an officer is a legitimate and weighty concern during the issuance of traffic citations.

In Pennsylvania v. Mimms, supra, the United States Supreme Court held that a police officer's order that a driver exit his vehicle after a legitimate stop was reasonable under the Fourth Amendment. In Mimms the State argued that the police practice of ordering all drivers from their vehicles was justified because of the State's interest in promoting the safety of police officers. The Supreme Court noted that the policy of ordering all drivers from their vehicles during routine traffic stops addressed two safety concerns of police officers. With the driver positioned outside his vehicle (1) the officer could better observe the driver's movements and thus better prevent assaults, and (2) the officer could then proceed with the driver to the side of the road away from the danger of traffic.

The Supreme Court in Mimms, supra, balanced these safety concerns against the additional intrusion into a driver's personal liberty occasioned by the order to exit his vehicle. In describing this additional intrusion the Supreme Court stated:

"We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a 'serious intrusion upon the sanctity of the person,' but it hardly rises to the level of a ' "petty indignity." ' Terry v. Ohio, supra [392 U.S. at 17, 88 S.Ct. at 1877, 20 L.Ed.2d at 903]. What is at most a mere inconvenience cannot prevail when balanced against legitimate...