State v. Parizek, No. 20030085-20030088.

• Decision Date: 13 April 2004
• Docket Number: No. 20030085-20030088.
• Citation: 2004 ND 78,678 N.W.2d 154
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Steven PARIZEK, Defendant and Appellant.
• Court: North Dakota Supreme Court

678 N.W.2d 154

2004 ND 78

STATE of North Dakota, Plaintiff and Appellee v. Steven PARIZEK, Defendant and Appellant.

Nos. 20030085-20030088.

Supreme Court of North Dakota.

April 13, 2004.

Lonnie Olson, State's Attorney, Devils Lake, N.D., for plaintiff and appellee.

Kerry Shannon Rosenquist, Grand Forks, N.D., for defendant and appellant.

NEUMANN, Justice.

[¶ 1] Steven Parizek appealed from criminal judgments entered on jury verdicts finding him guilty of manufacturing methamphetamine, possessing methamphetamine, possessing drug paraphernalia, and possessing marijuana. We conclude the district court did not err in denying Parizek's motion to suppress evidence, and we affirm.

I

[¶ 2] Shortly after midnight on the morning of September 4, 2002, Officers Virginia Gjestvang and Theodore Rainesalo were dispatched to a residence at Southview East lot number 10 in Devils Lake to respond to a call that a person was knocking on the inhabitant's door. The officers pulled into the Southview East parking lot with their lights off and approached the residence. The officers observed a blue van parked in the driveway with a man sitting in it, and a man and woman at the door of the residence speaking to one of the inhabitants. Officer Rainesalo approached the two people at the door, Parizek and Shawn Lumley, and Officer Gjestvang remained back near the van where Alonza Wilson, Jr., was seated. When Officer Rainesalo arrived at the door, an inhabitant told him he wanted Parizek and Lumley "out of here." Rainesalo escorted them to the front of the van, told them to stay there, and walked back to talk to the inhabitant. Lumley followed him back to the door. The inhabitant told Rainesalo that "these people had been to his door three times during this night and he was getting tired of being woke up and he wanted them gone. He didn't care what they wanted. Something about they wanted an address, or a phone number to somebody in town...."

[¶ 3] During this time, Officer Gjestvang began talking with Parizek near the van and noticed he was "acting odd." Officer Gjestvang testified:

A.... I was talking to Mr. Parizek. He was very jumpy, kind of bouncing all over the place, just acting odd. He had reached towards his pockets and I—

Q. Did that cause you some concern?

A. Yeah. You know, it's a little after midnight. You know, it's somewhat hard to see. You know, I want to know if somebody has got weapons on them, or you know especially as he was acting suspicious, jumping around and stuff like that.

Q. Okay. What did you do next?

A. I asked him to keep his hands out of his pockets. I asked him if he had any weapons on him. He said no.

I did just an external pat down of his front pockets and rear pockets of his pants. I felt what appeared to be like a cylinder type object in his, I believe it was his right front pocket of his pants. I asked him what that was. I believe he said it was a lighter and he—

Q. Did it feel like a lighter?

A. It didn't, I mean it was kind of hard to tell, because I was just doing an external pat down. But he began reaching for his pockets again and I told him to keep his hands out of his pockets.

And at that point, I decided to find out what that object was. So I then pulled it out of his pocket and it was a cylinder, a little silver cylinder.

Q. Okay. What happened then?

A. I asked Mr. Parizek, I said, "What is this?" And he said, "It's a lighter." I said, "It doesn't look like a lighter." You know, it didn't even closely resemble one.

It appeared that it opened somehow. We had a little bit of difficulty actually getting the object open. But he snatched it out of my hands before I even—

Q. Before you had a chance to really look at it?

A. Right. He swiped it out of my hands and started to step back from me. And then he showed me a blue rock. He was—I don't know if he was trying to distract me with this blue rock, or what he was doing, but he was kind of waving it in my face saying, "Look at my rock."

And I said, "Well, I'm not real interested in your rock. I want that back."

Q. And then?

A. And at that point you know he is still stepping back from me, and he's still got the object. I told him again, "I want that object back."

He is refusing. He is not—you know, he is still showing me this rock. So we ended up having a sort of brief scuffle. Nothing major, but just a little bit of wrestling right by a car there that was, another car that parked in front of the van.

Q. Okay.

A. And during that scuffle, the cylinder was thrown into the yard next to where the car was parked.

[¶ 4] Officer Rainesalo heard Officer Gjestvang yelling for assistance, and helped her place handcuffs on Parizek. Officer Gjestvang found the cylinder in a patch of grass in the yard. After Officer Rainesalo placed Parizek in his vehicle, he talked to Lumley, who began "acting nervous, jumpy, not following commands." Officer Rainesalo asked Lumley to take her hands out of her pockets and Lumley walked away from him to the back of the van. Officer Gjestvang patted down Lumley against the back of the van and handcuffed her. Officer Gjestvang testified:

A. While I had her towards the rear of the van, there was a little bit of light and I just caught a glimpse of what appeared to be a funnel.

I sat Ms. Lumley down on the ground and I went back with my flashlight and just looked in the rear of the van. It had a—it's one of those older vans with a really large window in the back. I just looked in, from outside you could see a funnel, a container of some kind of chemical, a burner, and there was another item there that was easily visible. I believe it was a coffee pot.

All these items are, were suspicious in nature for the manufacture of methamphetamine.

[¶ 5] Wilson was removed from the van and he and Lumley were placed in the officers' vehicles. The officers called a special agent and a detective to assist. After the special agent and detective arrived, Officer Gjestvang, with assistance from the detective, opened the cylinder and found a green leafy substance that appeared to be marijuana and a small tin foil containing what turned out to be methamphetamine. Parizek, who owned the van, consented to a search of the van, and the search revealed the articles in the van were used for manufacturing methamphetamine. Parizek, Lumley and Wilson were placed under arrest and charges were filed against them.

[¶ 6] A preliminary hearing for Lumley and Wilson was held on November 26, 2002. Parizek was not present, but his attorney was there to question the officers who testified. Lumley, Parizek and Wilson moved to suppress the evidence. Parizek's preliminary hearing was held on February 3, 2003. Parizek and law enforcement officers testified. The district court based its decision on the motion to suppress on the record of both hearings, as well as a transcript of an audio recording of the conversation between Parizek and the officers on the morning of September 4, 2002. The transcript of the audio recording stated Officer Gjestvang on two occasions during the encounter asked Parizek to keep his hands "in" his pockets. The court denied the suppression motion, concluding the investigative stop of Parizek was justified, the frisk was reasonable, the pocket search was justified, and that Parizek's consent to the search of the van was voluntarily given. A jury returned verdicts finding Parizek guilty of all charges. Parizek appealed, challenging on Fourth Amendment grounds the district court's denial of his suppression motion. Parizek does not challenge the propriety of the district court's use of the records from both preliminary hearings to decide the suppression motion.

II

[¶ 7] When reviewing a district court's ruling on a motion to suppress, we defer to the district court's findings of fact and resolve conflicts in the evidence in favor of affirmance. City of Fargo v. Wonder, 2002 ND 142, ¶ 8, 651 N.W.2d 665. We will affirm the district court's factual findings unless we conclude there is insufficient competent evidence to support the decision or the decision is contrary to the manifest weight of the evidence. City of Jamestown v. Jerome, 2002 ND 34, ¶ 6, 639 N.W.2d 478. This standard of review accords great deference to the district court's findings of fact, recognizing the district court is in a superior position to assess credibility of the witnesses and to weigh the evidence. City of Jamestown v. Dardis, 2000 ND 186, ¶ 7, 618 N.W.2d 495. Questions of law, such as the ultimate conclusion of whether the facts support a reasonable and articulable suspicion, are fully reviewable on appeal. State v. Fields, 2003 ND 81, ¶ 6, 662 N.W.2d 242.

A

[¶ 8] Parizek argues the officers in this case had no right to stop or "seize" him.

[¶ 9] To stop a person for investigative purposes, an officer must have an articulable and reasonable suspicion that a law has been or is being violated. City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466. In determining whether an investigative stop is valid, we use an objective standard and look to the totality of the circumstances. State v. Loh, 2000 ND 188, ¶ 5, 618 N.W.2d 477. The question is whether a reasonable person in the officer's position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity. Fields, 2003 ND 81, ¶ 13, 662 N.W.2d 242. The itemized reasons for a stop listed in N.D.C.C. § 29-29-21 are not exclusive of the instances where a stop on reasonable suspicion grounds is appropriate. State v. Boline, 1998 ND 67, ¶ 29, 575 N.W.2d 906.

[¶ 10] This Court has recognized that police officers may "freeze" a situation and conduct a limited investigative stop of persons present at the scene of a recently committed crime without violating the Fourth Amendment. See Lawrence, 2002 ND 31, ¶¶ 10-17, 639 N.W.2d 466; City of Fargo v. Ovind, 1998 ND 69, ¶¶ 12-13, 575 N.W.2d 901. Even in circumstances where no one person can be...