State v. Morsette, 20180076

• Court: United States State Supreme Court of North Dakota
• Citation: 924 N.W.2d 434
• Docket Number: No. 20180076,20180076
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Travis James MORSETTE, Defendant and Appellant
• Decision Date: 15 March 2019

924 N.W.2d 434

STATE of North Dakota, Plaintiff and Appellee
v.
Travis James MORSETTE, Defendant and Appellant

No. 20180076

Supreme Court of North Dakota.

Filed March 15, 2019

Derek K. Steiner, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.

Christopher M. Redmann, Bismarck, ND, for defendant and appellant.

McEvers, Justice.

¶1] Travis Morsette appeals from a judgment entered upon a guilty plea to possession of a controlled substance and unlawful possession of drug paraphernalia, reserving his right to appeal the district court’s order denying his motion to suppress evidence. Because we conclude there was not reasonable suspicion to initiate the

[924 N.W.2d 436

traffic stop, we reverse the judgment and remand for further proceedings to allow Morsette to withdraw his guilty plea.

I

¶2] On September 8, 2017, a law enforcement officer, while on patrol stopped at a red light, observed a driver in the adjacent lane manipulating his touchscreen cell phone for approximately two seconds. The officer testified to observing the driver, later identified as Morsette, tap approximately ten times on the illuminated cell phone screen. The officer initiated a traffic stop based on his observations of the cell phone screen manipulations. Morsette told the officer he was changing the music on his cell phone. The officer conducted an investigation and Morsette was arrested and charged with possession of a controlled substance and unlawful possession of drug paraphernalia.

[¶3] Prior to trial, Morsette moved to suppress all evidence, claiming the officer lacked reasonable suspicion to conduct the traffic stop. The district court denied Morsette’s motion, holding the traffic stop was an investigatory stop and the officer had reasonable and articulable suspicion to initiate it.

[¶4] On appeal, Morsette argues the district court erred in determining the officer had reasonable and articulable suspicion to conduct the traffic stop and that the officer’s actions cannot be excused as a mistake of fact or law.

II

[¶5] When reviewing a district court’s decision on a motion to suppress, we:

defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. We affirm the district court’s decision unless we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence.

State v. Wolfer , 2010 ND 63, ¶ 5, 780 N.W.2d 650 (internal quotations and citations omitted). "Questions of law and the ultimate conclusion about whether the facts support a reasonable and articulable suspicion are fully reviewable on appeal." State v. Smith , 2005 ND 21, ¶ 11, 691 N.W.2d 203 (citation omitted).

III

[¶6] "Investigatory traffic stops are valid when the officer conducting the stop had a reasonable and articulable suspicion the motorist has violated or is violating the law." Wolfer , 2010 ND 63, ¶ 6, 780 N.W.2d 650 (internal quotation and citation omitted). "The ultimate issue is whether a reasonable person in the officer’s position would have been justified in stopping the vehicle because of some objective manifestation to suspect potential criminal activity." State v. James , 2016 ND 68, ¶ 7, 876 N.W.2d 720 (internal quotations and citations omitted). "The reasonable and articulable suspicion standard requires more than a ‘mere hunch,’ but less than probable cause." Gabel v. N.D. Dep’t of Transp ., 2006 ND 178, ¶ 20, 720 N.W.2d 433 (quoting Lapp v. N.D. Dep’t of Transp ., 2001 ND 140, ¶ 11, 632 N.W.2d 419 ). "Whether an officer had a reasonable and articulable suspicion is a fact-specific inquiry that is evaluated under an objective standard considering the totality of the circumstances." State v. Rahier , 2014 ND 153, ¶ 13, 849 N.W.2d 212 (citation omitted); see also U.S. v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ("When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether

[924 N.W.2d 437

the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.") (citation omitted). Additionally, "an officer’s objectively reasonable mistake, whether of fact or law, may provide the reasonable suspicion necessary to justify a traffic stop." State v. Hirschkorn , 2016 ND 117, ¶ 14, 881 N.W.2d 244. "The reasonable suspicion standard does not require an officer to see a motorist violating a traffic law or to rule out every potential innocent excuse for the behavior in question before stopping a vehicle for investigation." Gabel , at ¶ 20 (citation omitted). As such, the actual commission of criminal activity is not required to support a finding of reasonable suspicion.

¶7] Here, the State concedes a seizure occurred but argues it was a reasonable investigatory traffic stop not in violation of the Fourth Amendment.

[¶8] North Dakota’s law proscribing certain cell phone activity while driving reads:

1. The operator of a motor vehicle that is part of traffic may not use a wireless communications device to compose, read, or send an electronic message .

2. Under this section:

a. "Electronic message" means a self-contained piece of digital communication that is designed or intended to be transmitted between physical devices. The term includes electronic mail, a text message, an instant message, a command or request to access a worldwide web page, or other data that uses a commonly recognized electronic communications protocol. The term does not include:

(1) Reading, selecting, or entering a telephone number, an extension number, or voice mail retrieval codes and commands into an electronic device for the purpose of initiating or receiving a telephone or cellular phone call or using voice commands to initiate or receive a telephone or cellular phone call;

(2) Inputting, selecting, or reading information on a global positioning system device or other navigation system device;

(3) Using a device capable of performing multiple functions, such as fleet management systems, dispatching devices, phones, citizen band radios, music players, or similar devices, for a purpose that is not otherwise prohibited;

(4) Voice or other data transmitted as a result of making a telephone or cellular phone call;

(5) Data transmitted automatically by a wireless communication device without direct initiation by an individual; or

(6) A wireless communications device used in a voice-activated, voice-operated, or any other hands-free manner.

b. "Traffic" means operation of a motor vehicle while in motion or for the purposes of travel on any street or highway and includes a temporary stop or halt of motion, such as at an official traffic-control signal or sign. The term does not include a motor vehicle that is lawfully parked.

3. This section does not apply if a wireless

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