State v. Ritter

Decision Date25 June 1991
Docket NumberCr. N
Citation472 N.W.2d 444
PartiesSTATE of North Dakota, Plaintiff and Appellant, v. Leonard J. RITTER, Defendant and Appellee. o. 900385.
CourtNorth Dakota Supreme Court

Constance L. Cleveland (argued), Asst. States Atty., Fargo, for plaintiff and appellant.

Benjamin E. Thomas (argued), Fargo, for defendant and appellee.

MESCHKE, Justice.

The State appeals from dismissal of a misdemeanor charge of preventing arrest against Leonard J. Ritter. The trial court ruled that Ritter had been wrongfully detained thus excusing his forceful resistance to the arrest. We reverse and remand for trial, including the statutory defense that the arresting officer was not acting lawfully.

Three Fargo police officers were dispatched to a local tavern to look into a report of a fight. Before entering the tavern, officer Lies overheard a man say to a woman, "But the son of a bitch hit you." Lies asked the woman if she had been involved in the fight. When she replied that she had been and that she was leaving, Lies asked her to wait.

Inside the tavern, the bartender told the officers that the fight participants had left. The officers returned outside where they heard the same woman say to Ritter, "You're a fucking asshole." Officer Olson stopped to interview the woman. Separately, officer Lies began questioning Ritter, who denied knowledge of the fight and refused to identify himself unless arrested.

While talking to the woman, Olson signalled to officers Lies and Sanderson to detain and identify Ritter as a possible suspect. After Olson's signal, Lies tried to question Ritter again, but Ritter again refused to identify himself. Then, officers Lies and Sanderson each took one of Ritter's arms and physically moved him, over his loud protests, some distance to Lies's squad car. There, the two officers cornered Ritter in an area between the squad car and a building, and persisted in questioning him. Ritter continued to refuse to respond and repeatedly asked to leave.

Ritter became profane and belligerent, verbally threatening the officers and clenching his fists. Fearing escalation, the officers sought assistance from Olson who left off interviewing the woman. While the three officers surrounded Ritter closely, Olson too requested Ritter's identification and Ritter still refused. At this point, Ritter pushed Olson. The officers then told Ritter that he was under arrest for disorderly conduct. When the officers sought to handcuff him, Ritter fought with the officers, was subdued by force, and was taken to a hospital. Later, Ritter was charged with violating NDCC 12.1-17-01 for assault of the woman 1 and with violating NDCC 12.1-08-02 for preventing his arrest. 2

Ritter moved to dismiss the preventing arrest charge. Based upon the deposition testimony of officer Lies as the agreed record for the motion, the trial court ruled that Ritter was "detained wrongfully for the purposes of ... identification," and that the investigative stop of Ritter exceeded a reasonable scope. The trial court expressed concern that the combined trial of the charge of preventing arrest with the distinct charge of assault "is only going to prejudice" Ritter. Just before the jury trial on the assault charge began, 3 the trial court orally dismissed the preventing arrest charge and, later that day, entered a written order of dismissal that was not served on the prosecution. The State appealed from the oral dismissal.

On appeal, the State submits that it can appeal the trial court's ruling, and that the trial court erred in dismissing the charge of preventing arrest.

I. APPEALABILITY

Ritter does not oppose the State's claim of appealability. Nevertheless, we address appealability because our jurisdiction is implicated.

The State's right to appeal in criminal cases is governed by NDCC 29-28-07, which authorizes an appeal from an order quashing an information. 4 A majority of this court holds that the State may appeal from the "dismissal of an ... order ... that has the same effect as an order quashing an information." State v. Hogie, 424 N.W.2d 630, 631 (N.D.1988). Compare State v. Flohr, 259 N.W.2d 293 (N.D.1977). Review of this dismissal is within our jurisdiction.

The State appealed from an oral ruling. "An oral ruling on a motion is not an appealable order." State v. Klocke, 419 N.W.2d 918, 919 (N.D.1988). Soon after the oral ruling, the trial court entered a consistent, written order of dismissal. State v. Hogie, 424 N.W.2d at 631 ("[B]ecause a signed written order and a judgment consistent with the oral ruling were subsequently entered, we will treat the State's appeal as an appeal from the judgment. See State v. Klocke, "). Since this dismissal is final, we are authorized to review it.

II. UNLAWFUL DETENTION

The State argues that the officers had enough suspicion of criminal activity to stop Ritter to investigate the report of a fight, so that his temporary detention was constitutional, and that the duration of that temporary detention was reasonably related to the investigation. Ritter disputes both propositions.

The Fourth Amendment's protection against unreasonable seizures "applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). See also California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). These principles guide our analysis.

Because any criminal activity that the officers suspected did not occur in their presence, they could not arrest Ritter for misdemeanor assault without a warrant. See footnote 1. An officer is authorized to arrest for a misdemeanor not committed in his presence only with a warrant. See NDCC 29-06-15. 5 Although the fight report and the remarks overheard certainly supplied a reasonable suspicion for the officers to question Ritter, they did not supply probable cause to arrest or detain him. See State v. Moe, 151 N.W.2d 310 (N.D.1967) (Officers had probable cause to believe that offense of public intoxication was committed in their presence, making accused's arrest legal, and furnishing sufficient evidence for his jury conviction of resisting arrest). The trial court's ruling accepts that Ritter was an appropriate suspect, but the trial court held that the scope of the investigation was unreasonable. We agree that the officers had reason to stop Ritter for investigation, and that an officer's questioning, by itself, is not a Fourth Amendment violation.

The trial court found, however, that "the time was ... longer than necessary to effectuate the policeman's lawful purposes in this case." The trial court determined that Ritter "was detained by these officers for apparently some substantial period of time. The only purpose for which was to seek his identification which he refused to give and he refused to talk to them any further, which under the circumstances he had the right to do."

The State contests the latter ruling, arguing "that identifying oneself is essentially a neutral act that does not, by itself, implicate a person in criminal activity and that the protection of the Fifth Amendment cannot be invoked as a reason to refuse to answer." We do not agree that officers can detain someone for persistent investigative questioning until identification is compelled.

The State argues, in effect, that Ritter's obstinacy in refusing to identify himself, not the officers' arbitrariness, prolonged his detention. The State relies on California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971). The Byers plurality held that a California statute requiring automobile drivers to stop and identify themselves after an accident did not infringe the Fifth Amendment's guarantee against compelled self-incrimination, saying "[d]isclosure of name and address is an essentially neutral act." 91 S.Ct. at 1540. However, Byers is based on a regulatory scheme, not suspected criminal activity.

There is considerable difference between requiring a person to disclose information as the subject of a noncriminal regulation, and requiring a person to disclose information as a suspect in a criminal investigation. See Baltimore City Dept. of Social Services v. Bouknight, 493 U.S. 549, 110 S.Ct. 900, 107 L.Ed.2d 992 (1990), distinguishing between the civil regulatory powers and the criminal investigatory powers of the state. Byers does not help the State because there is no regulatory statute here. Moreover, in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), policemen physically detained the defendant to determine his identity after he refused to identify himself. The United States Supreme Court held that absent probable cause or reasonable suspicion of misconduct, the detention of the defendant to determine his identity was an unreasonable seizure, notwithstanding a state statute that made it a criminal act for a person to refuse to give his name and address to an officer "who has lawfully stopped him and requested the information." Id. at 2639. Under the Bill of Rights, officers cannot extend an investigative stop solely to coerce identification.

Officers may ask a person to cooperate and inquire about identity during an investigation, but officers have no right to convert an investigative stop into custodial interrogation to badger a suspect into answering. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

The State relies on various statements in our cases which approve general questioning of citizens in the course of investigating a...

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