State v. Rodriguez

• Decision Date: 12 April 1990
• Docket Number: No. 890319,890319
• Citation: 454 N.W.2d 726
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Carmen RODRIGUEZ, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 726

454 N.W.2d 726

STATE of North Dakota, Plaintiff and Appellee, v. Carmen RODRIGUEZ, Defendant and Appellant.

Crim. No. 890319.

Supreme Court of North Dakota.

April 12, 1990.

John T. Goff, Asst. State's Atty., Fargo, for plaintiff and appellee.

C. Charles Chinquist, Fargo, for defendant and appellant.

VANDE WALLE, Justice.

Carmen Rodriguez appealed from judgment finding him guilty of one count of possession of a controlled substance with intent to deliver. We affirm.

On March 29, 1989, Carmen Rodriguez was stopped by Fargo, North Dakota, law enforcement officials while driving a 1970 blue Chevrolet El Camino with Minnesota license plates "222 AZT," and was placed under arrest on the basis of an outstanding felony arrest warrant in South Dakota. A search of Rodriguez disclosed that he was in possession of approximately $2,388. Moreover, a subsequent impound inventory search of the vehicle revealed an envelope lying on the floorboard behind the passenger-side seat containing a white powdery substance later determined to be one ounce of cocaine. The envelope, which was partially torn, bore the name "Carmen" and the zip code "58047." Although Rodriguez was identified by a Texas driver's license during the stop, he informed the officers of his local address in Horace, North Dakota. Horace has a zip code of 58047.

Rodriguez was charged with one count of possession of a controlled substance with intent to deliver, a class A felony, in violation of NDCC Secs. 19-03.1-07 and 19-03.1-23. At the preliminary hearing, Officer Donn Weaver of the Fargo Police Department testified as to the events leading to the stop and subsequent arrest of Rodriguez. Officer Weaver testified that on March 29, 1989, he was involved in the surveillance of a Moorhead, Minnesota, residence in joint cooperation with the Moorhead Police Department. The residence was under observation by the authorities for alleged controlled substance violations. Officer Weaver testified that a man was observed arriving at the residence in the El Camino. A registration check on the El Camino was requested by the Fargo officers from the Clay County, Minnesota, sheriff's department. Officer Weaver stated that he believed the department's dispatcher relayed information that Carmen Rodriguez was the registered owner of the vehicle, and that an unconfirmed warrant for his arrest was outstanding in South Dakota. After the vehicle left the Moorhead residence, it was followed and eventually stopped in the city of Fargo. The officers stopped the vehicle to determine whether or not the driver was the subject of the South Dakota warrant. The driver, identified as Rodriguez, was eventually arrested and the envelope containing the cocaine was discovered during the ensuing inventory search of the vehicle. Finally, Officer Weaver testified that, relying on his law-enforcement experience, in his opinion, one ounce of cocaine is a quantity which is larger than that intended for personal use. The county court for Cass County found probable cause to believe that the offense charged in the information was committed by Rodriguez and he was bound over to the district court for trial.

Rodriguez's counsel subsequently made a motion in the district court to suppress all of the evidence derived by the law enforcement officers on the basis of an "illegal stop." At the hearing on his motion to suppress, Carmen Rodriguez testified that he never owned a 1970 blue El Camino with Minnesota license plates "222 AZT." Moreover, Rodriguez's counsel entered into evidence a certified copy of a Minnesota vehicle registration document indicating that the El Camino in issue was registered to Margarita Alonzo Rodriguez on the date of March 29, 1989. Margarita Alonzo Rodriguez is not related to Carmen Rodriguez. The district court granted Rodriguez's motion to suppress at close of the evidence because the officers did not have an articulable and reasonable suspicion to stop the El Camino.

The district court subsequently granted a motion by the State to reopen the hearing concerning Rodriguez's motion to suppress. The State presented evidence through the testimony of Faith Opp, the Clay County Sheriff's Department dispatcher who received the registration request in question. Opp testified that her radio dispatch to the surveillance officers indicated that the El Camino was registered to Margarita Alonzo Rodriguez, and that the National Crime Information Center [NCIC] listed the vehicle as "affiliated" with Carmen Rodriguez. Opp informed the officers that the NCIC information also indicated that there was an outstanding, "unconfirmed" felony arrest warrant from South Dakota for Carmen Rodriguez. Opp further testified that it is typical to enter vehicles and individuals together in law enforcement computer reporting systems when the vehicle is used in a felony and, accordingly, that dispatches do not necessarily contain only registration information. Finally, Opp testified as to the warrant confirmation procedure, and to the fact that she provided information to the Fargo Police Department which would enable it to confirm the outstanding South Dakota arrest warrant. After Opp's testimony, the district court revoked its earlier order to suppress, concluding that the officers had an articulable and reasonable suspicion to make an investigative stop of the vehicle.

During the jury trial, the State submitted police testimony concerning the surveillance of the Moorhead residence, the investigative stop of Rodriguez, the amount of money seized from Rodriguez upon his arrest, and the subsequent impound inventory search which revealed the envelope containing a powder believed to be cocaine. A forensic chemist from the office of the State Toxicologist testified that the seized substance was, in fact, approximately one ounce of cocaine. The State entered further police opinion testimony that one ounce of cocaine is an amount larger than that intended for personal use, and that the quantity reflected an intent to deliver. The State also called Margarita Alonzo Rodriguez who testified that the El Camino registered to her had been sold to Carmen Rodriguez prior to March 29, 1989. Finally, the State entered into evidence the cocaine in the partially torn envelope and the money taken from Rodriguez. Rodriguez rested immediately after the State had presented its case. The case was subsequently submitted to the jury and a guilty verdict was returned.

Rodriguez raises a number of issues on appeal. First, Rodriguez argues that the district court erred in failing to grant his motion to suppress. Second, Rodriguez contends that the trial court erred in failing to grant his motion for a mistrial as a result of an improper question asked by the prosecutor during trial. Rodriguez's third argument is that the trial court improperly instructed the jury as to the essential elements of the offense charged and a lesser-included offense. Finally, Rodriguez contends that the evidence was insufficient to support the guilty verdict. We consider Rodriguez's arguments separately.

I. MOTION TO SUPPRESS

Initially, Rodriguez contends that the district court erred in denying his motion to suppress when it found that the Fargo officers had an articulable and reasonable suspicion to make an investigative stop of the El Camino. Alternatively, Rodriguez argues that even if there was a sufficient basis for the stop, the officers could only briefly detain him while they took steps to confirm the South Dakota arrest warrant. Rodriguez claims he was arrested without a confirmation of the warrant and, as a result, all of the evidence subsequently seized by the officers should have been suppressed.

While Rodriguez's alternative argument is interesting, we note that it was not raised before the district court in the hearings on his motion to suppress. The only suppression issue raised by Rodriguez and determined by the district court was whether the police made an "illegal stop." The record does not reflect any argument by Rodriguez regarding whether there was sufficient probable cause for the officers to make an arrest on the basis of the unconfirmed warrant. As a result, the State presented no evidence on whether the warrant had been confirmed by the officers. It is well settled that issues not raised before the trial court, including constitutional issues, will not be considered on appeal. State v. Potter, 452 N.W.2d 71 (N.D.1990); State v. Prigge, 437 N.W.2d 520 (N.D.1989); State v. Miller, 388 N.W.2d 522 (N.D.1986). Consequently, we will focus our analysis on the question of whether or not the officers had a proper basis for making an investigative stop. ¹

An officer must have an articulable and reasonable suspicion that a motorist has violated or is violating the law in order to make a legal investigative stop of the vehicle. State v. Beyer, 441 N.W.2d 919 (N.D.1989); State v. Geiger, 430 N.W.2d 346 (N.D.1988). The factual basis for stopping a vehicle need not arise from the officer's personal observations or knowledge, but may arise by information acquired by the officer from another person. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Thus, it has been held that a radio "flyer" from another jurisdiction, which indicated the desire of law enforcement officials to question an individual with regard to a crime, justified an investigatory stop of the person's vehicle and a brief detention of the individual to check identification and pose questions. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). See also, C. Whitebread, Criminal Procedure Sec. 9.03(2) [sources of information other than direct knowledge by officer can form basis for articulable and reasonable suspicion; police are entitled to rely on notices and flyers from other jurisdictions in making investigatory stops]. Accord Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) [vehicle...