State v. Nelson, Cr. N

• Decision Date: 25 June 1992
• Docket Number: Cr. N
• Citation: 488 N.W.2d 600
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Hugh P. NELSON, Defendant and Appellee. o. 910327.
• Court: North Dakota Supreme Court

Page 600

488 N.W.2d 600

STATE of North Dakota, Plaintiff and Appellant, v. Hugh P. NELSON, Defendant and Appellee.

Cr. No. 910327.

Supreme Court of North Dakota.

June 25, 1992.

James A. Hope (argued), Asst. States Atty., Dickinson, for plaintiff and appellant.

Freed, Dynes, Reichert, Buresh & Herauf, PC, Dickinson, for defendant and appellee; argued by Eugene F. Buresh.

MESCHKE, Justice.

The State appeals the dismissal of a criminal charge against Hugh Nelson for driving while under the influence of alcohol. Because the trial court mistakenly ruled that the stop was unreasonable, we reverse.

In December 1990, Nelson attended a dance at the Hall in South Heart, North Dakota. Deputy Sheriff Terry Oestreich and Detective Larry Buck were policing there that night. Buck, who knew Nelson, saw him in the Hall bar early that evening. Later, Buck said, he saw Nelson walking in the parking lot next to the Hall. The two men had no verbal exchange. Buck said that he walked past Nelson, saw Nelson swaying as he walked, and believed that Nelson was intoxicated.

Near this same time, Deputy Oestreich drove past the parking lot and saw a man walking. Oestreich testified that he noticed the man staring off into space and swaying as he walked. Oestreich believed that the man appeared intoxicated.

When Buck came to his vehicle, he radioed Oestreich. Oestreich reported that he had seen a tall man walking who was wearing a black-leather jacket and jeans. Buck told Oestreich that the man was Nelson. Buck also told Oestreich that Nelson had entered a red and white, extended-cab, Ford pickup, and agreed that Nelson appeared intoxicated.

Detective Buck watched the pickup for awhile before Nelson backed up and drove out of the parking lot. Buck radioed Deputy Oestreich that Nelson's pickup was leaving. Oestreich stopped Nelson immediately as he left the parking lot. Oestreich testified that Nelson did not violate any traffic law and that Nelson's driving did not suggest intoxication. Rather, Oestreich based the stop on the dispatch from Buck and on his own brief observation of Nelson walking in the parking lot.

At the stop, Oestreich asked Nelson to perform several field sobriety tests. Nelson performed most of the tests adequately, but did poorly on the nystagmus gaze test and failed an A.L.E.R.T. test. Oestreich arrested Nelson for driving while under the influence of alcohol. See NDCC 39-08-01. ¹ An intoxilyzer test and a blood test both showed that Nelson's blood alcohol content exceeded 0.10 percent alcohol.

Nelson pleaded not guilty and, claiming an illegal stop, he moved to suppress the test results and to dismiss the charge. After a hearing, the trial court held that the officers' information was not enough for an articulable and reasonable suspicion that Nelson may have been violating any traffic law. The court ruled that, if Nelson were as badly inebriated as Buck reported, he should have detained Nelson pursuant to NDCC 5-01-05.1 before letting him drive. ² The court declared that it was "unbelievable" that an officer would allow an "apparently intoxicated person" to drive and to create a danger to himself and others. Therefore, the court concluded that the stop was unreasonable under the Fourth Amendment, suppressed the evidence, and dismissed the charge.

The State appeals from the order of dismissal. In State v. Ritter, 472 N.W.2d 444, 447 (N.D.1991), we held that, under NDCC 29-28-07(1), we have authority to review an appeal from the dismissal of a criminal charge. "This court has previously held that an order dismissing a criminal complaint is equivalent to the quashing of a complaint, and thus orders dismissing complaints are appealable under Section 29-28-07(1)." State v. Melin, 428 N.W.2d 227, 231 (N.D.1988) (citations omitted). We are authorized to review this dismissal.

The State argues that, from the information relayed by Buck, Deputy Oestreich did have an articulable and reasonable suspicion to stop Nelson. The State submits that the trial court misconstrued Buck's testimony, and that the court was mistaken in holding that Buck should have detained Nelson for public drunkenness rather than let him drive. In any event, the State asserts, Oestreich's own glimpse of Nelson walking unsteadily was enough reason for the stop.

Police may briefly stop an auto to investigate a reasonable suspicion that a driver may be violating a law, without waiting for an actual violation or an actual injury to someone. State v. Bryl, 477 N.W.2d 814, 817 (N.D.1991). An officer need only have enough information for an articulable and reasonable suspicion that the driver has or may be violating the law. Id. at 816; State v. Neis, 469 N.W.2d 568, 569 (N.D.1991). The information of the stopping officer need not arise from personal observation alone. Bryl at 816. Reasons for the suspicion may also come from another person or officer. Id. The collective information of law enforcement personnel, known by or transmitted to the stopping officer, must be considered to assess whether a stop is reasonable under the Fourth Amendment. State v. Rodriguez, 454 N.W.2d 726, 729 (N.D.1990). These Fourth Amendment signposts guide us here.

On review, we recognize the trial court's superior position to assess the demeanor and credibility of the witnesses, and we defer to that court's factual determinations about searches and seizures, unless those factual determinations are contrary to the manifest weight of the evidence. Bryl. See also State v. Pickar, 453 N.W.2d 783, 785 (N.D.1990); State v. Morrison, 447 N.W.2d 272, 275 (N.D.1989); State v. Frank, 350 N.W.2d 596, 599 (N.D.1984). As an appellate court, we do not usually resolve conflicts in the evidence, determine the credibility of explanations, or weigh the evidence.

The trial court said that the testimony of Detective Buck was suspect.

Deputy Oestreich stopped [Nelson's] vehicle on main street in South Heart and freely concedes that [Nelson] had committed no moving or equipment violations which would warrant a violation or investigatory stop.

* * * * * *

Officer Buck testified that he knew [Nelson], saw him in the bar drinking, that it was very obvious that he was intoxicated, and he was amazed that [Nelson] got into that pickup. After he got into the pickup, according to Deputy Buck's testimony, [Nelson] sat there for a long time.

This testimony is suspect. If indeed [Nelson] was as intoxicated as Deputy Buck testified to, certainly the deputy would have invoked NDCC 5-01-05.1 which permits a peace officer to take any apparently intoxicated person to his home, to a local hospital, or, in some cases, to jail. It is not believable that a Stark County peace officer would permit an "apparently intoxicated person" to drive off in an automobile thus creating great risk to the motoring public as well as the county insurers. If [Nelson] had displayed the manifestations of intoxication to which the deputy testified, the deputy had ample opportunity as well as the duty to prevent [Nelson] from leaving the parking lot behind the wheel of an automobile.

The court thus applied the statute, at n. 2 above, that authorizes an officer to assist a public drunk, as a command that an officer detain the drunk before he gets into an auto. For that legal reason, the court refused to consider Buck's testimony.

Accordingly, the trial court stated: "Officer Oestreich testified that he observed nothing connected to [Nelson's] driving which would justify an investigative stop. That testimony leaves the State bereft of [reasonable] cause to stop [Nelson's] vehicle." Having rejected Buck's testimony, the court reasoned that Oestreich's remaining information was inadequate. We conclude that the trial court was mistaken in both respects.

From Buck's identification of Nelson as the person Oestreich saw walking unsteadily, besides Buck's added description of Nelson's inebriated state, Oestreich had a reason to stop Nelson. In Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), the United States Supreme Court summarized this view that requires consideration of the collective information communicated among fellow officers.

Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the investigating officer to rely on fellow officers to make the arrest.

Whiteley at 568, 91 S.Ct. at 1037. In United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), the Supreme Court extended this concept to an investigatory stop, explaining that

if a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop to check identification, ... to pose questions to the person, or to detain the person briefly while attempting to obtain further information. See Adams v. Williams, 407 U.S. 143, 146 [92 S.Ct. 1921, 1923, 32 L.Ed.2d 612] (1972) ("A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be the most reasonable in light of the facts known to the officer at the time"). If the flyer has been issued in the absence of a reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment. In such a situation, of course, the officers making the stop may have a good-faith defense to any civil suit. It is the objective reading of the flyer or bulletin that determines whether other police officers can defensibly act in reliance on it. Assuming the police make a Terry [Terry v. Ohio, 392 U.S. 1, 88...