State v. Ova, Cr. N

• Decision Date: 31 October 1995
• Docket Number: Cr. N
• Citation: 539 N.W.2d 857
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Stacy A. OVA, Defendant and Appellee. o. 950099.
• Court: North Dakota Supreme Court

Page 857

539 N.W.2d 857

STATE of North Dakota, Plaintiff and Appellant, v. Stacy A. OVA, Defendant and Appellee.

Cr. No. 950099.

Supreme Court of North Dakota.

Oct. 31, 1995.

Robert A. Freed, Assistant State's Attorney, Jamestown, for plaintiff and appellant.

Gene W. Doeling, Fargo, for defendant and appellee.

VANDE WALLE, Chief Justice.

The State of North Dakota appealed from an order of the district court, Stutsman County, which granted Stacy A. Ova's motion to suppress evidence in support of the State's complaint charging Ova with driving while under the influence of alcohol in violation of section 39-08-01, NDCC. We reverse.

At approximately 1:25 a.m., on September 11, 1994, while traveling east on paved County Road 42, in Stutsman County, Officer Craig Beedy of the North Dakota Highway Patrol noticed a pickup facing north in a stationary position on a gravel road on the north side of County Road 42. The pickup was 25 to 30 feet north of County Road 42. Beedy spotted the pickup when he was about 75 yards away from the pickup. Beedy watched the pickup as it "began backing rapidly in what [he] would term as exhibition or careless type driving towards the paved road." He determined that the pickup was "accelerating rapidly" in reverse at approximately 20 miles per hour.

Based upon his own driving experience on gravel roads and seeing others travel on gravel roads, Beedy testified that he observed "an unusual amount of dust" illuminated by Ova's headlights and taillights which "engulfed" the pickup. Because it was dark, Beedy was unable to actually see the pickup's tires spinning, but he assumed the pickup was skidding because of the amount of dust which he observed.

Beedy met and passed the pickup as it was just backing from the gravel road onto the pavement of County Road 42 to travel west. Beedy then turned around and stopped the pickup within a short distance. After issuing warnings to Ova for care required under section 39-09-01.1, NDCC, ¹ "[d]ue to the careless nature of her driving," and for failure to change her address on her driver's license, Beedy commented to Ova about the dust and how it looked like she was "spitting up the dust there pretty good." Ova responded that her brakes kept sticking, but she did not deny or confirm Beedy's observation. During their conversation, Beedy detected the odor of alcohol and Ova was ultimately charged with driving while under the influence of alcohol.

Because of the time of night, the location where he spotted the pickup, and the manner of driving, Beedy testified that he thought that there was a possibility of drinking activity in the pickup. Although the possibility was a factor in his decision to stop the pickup, Beedy testified that he stopped the vehicle based upon his observations of rapid acceleration and excessive dust which he testified made him suspect "exhibition/careless driving," emphasizing that "it was just the manner that she was driving; the careless manner that brought my attention to her vehicle." Beedy testified that he checked "erratic driving" as his basis for reasonable suspicion to stop the vehicle based upon his observations.

In her motion to suppress evidence, Ova alleged that Beedy lacked reasonable and articulable suspicion to stop Ova's vehicle. After a hearing and in its oral decision in open court, the court suppressed "all evidence based upon [the] illegal stop." The State appealed the order granting suppression of the evidence pursuant to section 29-28-07(5), NDCC. The sole issue on appeal is whether Officer Beedy had a reasonable and articulable suspicion to stop Ova.

On review of a trial court's disposition of a motion to suppress, we defer to a trial court's findings of fact and resolve conflicts in testimony in favor of affirmance, recognizing the trial court's superior opportunity to assess credibility and to weigh the evidence. State v. Konewko, 529 N.W.2d 861, 863 (N.D.1995); State v. Halfmann, 518 N.W.2d 729, 730 (N.D.1994). Although the underlying factual disputes are findings of fact, whether the findings meet a legal standard, in this instance a reasonable and articulable suspicion, is a question of law. See, e.g., Salter v. North Dakota Dept. of Transp., 505 N.W.2d 111, 112 (N.D.1993). Whereas we do not conduct a de novo review of a trial court's findings of fact, questions of law are fully reviewable. Konewko, 529 N.W.2d at 863; State v. Zimmerman, 529 N.W.2d 171, 173 (N.D.1995).

To justify an investigative stop of a moving vehicle, an officer must have a reasonable and articulable suspicion that a motorist has violated or is violating the law. State v. Hornaday, 477 N.W.2d 245, 246 (N.D.1991); Geiger v. Backes, 444 N.W.2d 692, 693 (N.D.1989). Precedent reminds us that the reasonable suspicion legal standard is less stringent than probable cause:

"Probable cause is a much more exacting standard. Unlike the probable cause standard where it is necessary that a prudent person believe that the suspect had committed or was committing an offense, a stop of a person or vehicle requires only suspicion that a law has been violated or is being violated. However, this suspicion must be 'articulable and reasonable.' The articulable aspect requires that the stop be justified with more than just a vague 'hunch' or other non-objective facts; and the reasonable aspect means that the articulable facts must produce, by reasonable inference, a reasonable suspicion of unlawful conduct."

State v. VandeHoven, 388 N.W.2d 857, 858 n. 1 (N.D.1986) [citations omitted]; see McNamara v. North Dakota Dept. of Transp., 500 N.W.2d 585, 587 (N.D.1993) [recognizing that reasonable and articulable suspicion is not as stringent as probable cause].

We use an objective standard to determine whether an investigative stop is valid and look to the totality of the circumstances. Geiger, 444 N.W.2d at 693. "The question is whether a reasonable person in the officer's position would be justified by some objective manifestation to suspect potential criminal activity." Hornaday, 477 N.W.2d at 246. The officer is not required to isolate single factors which signal a potential violation of the law; "[r]ather, 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." Geiger, 444 N.W.2d at 693.

To investigate a reasonable and articulable suspicion, a police officer need not wait for an actual violation of the law for an investigative stop to be valid. State v. Nelson, 488 N.W.2d 600, 602 (N.D.1992). Validity does not depend upon whether an officer's grounds for the stop ultimately results in a conviction. State v. Smith, 452 N.W.2d 86, 88 (N.D.1990).

Utilizing these principles in this instance, we conclude the trial court did not apply the appropriate legal standard, despite its recitation of the standard. Although an actual violation is not required for an officer to have reasonable and articulable suspicion to make an investigative stop, the trial court in its analysis required proof of a violation of the exhibition driving statute:

"[A rapid backing and an unusual amount of dust] ... are the articulable facts that [Beedy] is asserting and the statute that ... is being violated is the exhibition driving statute. However, there is no evidence that he heard the tires spinning. There is no evidence that he saw the tires spinning. There is no evidence that he saw evidence of tires spinning, such as gravel flying, gravel hitting his car, gravel hitting her car, loose gravel flying in through the air as a result of spinning tires, and there is no evidence that while he drove past the spot, that he saw tracks in the gravel as a result of spinning tires. What he does base his suspicion upon is the unusual amount of dust. His testimony was that from a slow rate of speed to a higher rate of acceleration as he saw it, there had to be spinning of the tires that occurred. That's his conclusion based upon his observation. We will get back to that in a minute. But his first fact of rapid backing, I mean that--so what I guess. There was rapid backing. He doesn't assert that it was unsafe. He doesn't really assert that it was inappropriate other than it was inappropriate to the exhibition driving statute. So we come back to the exhibition driving statute ... which doesn't help a lot except that it does define exhibition driving as unnecessary engine noise, tire squeal, skid, or slide upon acceleration or braking; or driving or executing or attempting one of a series of unnecessarily abrupt turns. He doesn't allege abrupt turns, although it would seem that if there was some tire spinning on this turn or backing in order to get onto the blacktop, it would've been necessary, but he doesn't say that. So we're just--we're just back to this unusual amount of dust at night. He submitted no testimony as to the type of gravel that was there, the amount [of dust] that that type of gravel generates ... or to the moisture content or when the last time it rained or when the last time it hadn't rained...."

Consistent with its quest for proof of an actual violation, the trial court reasoned that the officer "probably stopped the car a little too quickly" and that the officer should have followed Ova because Ova's actions "in conjunction with some other driving actions might have been appropriate enough to find articulable facts...." Perhaps Beedy's further observation would have established more evidence for the DUI offense, but such further observation would have been irrelevant as to the suspected traffic violation. See, e.g., VandeHoven, 388 N.W.2d at 859 [stating that "subsequent actions which do not enhance the suspicion are irrelevant to a reasonably prompt stop of a vehicle"].

Notwithstanding the flawed analysis, the judge's comments indicate that he...