State v. Seglen, 20040094.

• Decision Date: 13 July 2005
• Docket Number: No. 20040094.,20040094.
• Citation: 700 N.W.2d 702,2005 ND 124
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Scott N. SEGLEN, Defendant and Appellant.
• Court: North Dakota Supreme Court

700 N.W.2d 702

2005 ND 124

STATE of North Dakota, Plaintiff and Appellee v. Scott N. SEGLEN, Defendant and Appellant.

No. 20040094.

Supreme Court of North Dakota.

July 13, 2005.

David T. Jones (argued), Assistant State's Attorney, Thomas H. Falck, Jr. (on brief), Assistant State's Attorney, and Kelly D. Crammer (appeared), appearing under the Rule on the Limited Practice of Law by Law Students, Grand Forks, ND, for plaintiff and appellee.

Larry J. Richards, Grand Forks, ND, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Scott Seglen appealed a criminal judgment based on his conditional guilty plea entered after the district court's denial of his motion to suppress evidence in his minor-in-possession case. He argues the evidence was obtained during an unconstitutional search and seizure. We find the pat-down search by a University of North Dakota police officer was unconstitutional. We reverse and remand to allow Seglen an opportunity to withdraw his guilty plea.

I.

[¶ 2] Seglen, a 20-year-old University of North Dakota student, attended a college hockey game at Ralph Engelstad Arena ("REA") in Grand Forks on November 8, 2003. The game was between the University of North Dakota and the University of Minnesota, and the governors of both states were in attendance. The privately owned and operated arena had extra security measures in place because the games between these rivals are historically sold-out and highly competitive. University of North Dakota police officers were placed inside the student entrance and students were subjected to pat-down searches. Signs inside the arena warned patrons they were subject to search. Arena officials asked the officers to pay special attention to entrants wearing bulky jackets because REA officials had determined bulky jackets were a primary means for bringing unauthorized items into the arena. There have been incidents of animal carcasses being thrown onto the ice at these games, but there is no record of injury to players, officials, or spectators. Likewise, there is no record of any other violence by, or injury to, spectators.

[¶ 3] Officer Inocencio, a member of the University of North Dakota Police Department, observed and physically searched Seglen as he entered the arena. Inocencio saw and felt a "bulge" in Seglen's jacket and asked him to remove the item creating the bulge. Seglen removed a can of Coors Light from his jacket. Inocencio determined Seglen's age and identity, at which point Seglen produced a second can of Coors Light. Seglen was cited with Minor in Possession of an Alcoholic Beverage and asked to leave the premises.

[¶ 4] Seglen filed a motion to suppress the evidence at his minor-in-possession trial, arguing the search and seizure were unreasonable under Fourth Amendment standards. The district court denied the motion, finding the security measures taken by the arena that evening were reasonable because the game was between the University of North Dakota and the University of Minnesota, the governors of both states were present, signs inside the arena warned entrants they were subject to search, and similar pat-down searches were conducted on all persons wearing bulky jackets who entered through that particular gate. Seglen entered a conditional guilty plea, reserving his right to appeal the denial of his suppression motion.

II.

[¶ 5] The following standard of review is applied when a district court decides a motion to suppress:

We will defer to a trial court's findings of fact in the disposition of a motion to suppress. Conflicts in testimony will be resolved in favor of affirmance, as we recognize the trial court is in a superior position to assess credibility of witnesses and weigh the evidence. Generally, a trial court's decision to deny a motion to suppress will not be reversed if there is sufficient competent evidence capable of supporting the trial court's findings, and if its decision is not contrary to the manifest weight of the evidence.

State v. Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1 (quoting State v. Wanzek, 1999 ND 163, ¶ 5, 598 N.W.2d 811). Questions of law are fully reviewable. Heitzmann, at ¶ 8.

[¶ 6] Unreasonable searches and seizures are prohibited by the Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, and by Article I, § 8 of the North Dakota Constitution. Wanzek, 1999 ND 163, ¶ 7, 598 N.W.2d 811. The Fourth Amendment only applies to government action; "a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment." Walter v. U.S., 447 U.S. 649, 656, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980); see also State v. Ronngren, 361 N.W.2d 224, 228 (N.D. 1985); State v. Rode, 456 N.W.2d 769, 770 (N.D.1990). Inocencio was acting in his capacity as a University of North Dakota police officer, so the Fourth Amendment applies even though REA is privately owned and operated.

[¶ 7] "Warrantless searches are unreasonable unless they fall within a recognized exception to the requirement for a search warrant." Wanzek, 1999 ND 163, ¶ 7, 598 N.W.2d 811. When the State alleges a warrantless search falls within an exception, the State bears the burden of proving the purported exception applies. State v. Mitzel, 2004 ND 157, ¶ 12, 685 N.W.2d 120. Recognized exceptions include: consensual searches, stop and frisk searches, hot pursuit, border searches, and airport and courthouse searches. Jacobsen v. City of Seattle, 98 Wash.2d 668, 658 P.2d 653, 655 (1983) (citations omitted). The State argued the search of Seglen at REA could be classified as a stop and frisk search, an airport/courthouse-type search, or a consensual search.

A.

[¶ 8] The United States Supreme Court established the "stop and frisk" exception in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Terry case involved a police officer who conducted a pat-down search of two men he suspected were planning an armed robbery of a store. Id. at 5-8, 88 S.Ct. 1868. He testified the search was conducted because he had a reasonable suspicion the men were armed and an imminent fear for his own safety and the safety of those around him. Id. at 8, 88 S.Ct. 1868. The Court found the search was not a violation of Terry's Fourth Amendment rights, but urged that its holding be narrowly applied:

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id. at 30, 88 S.Ct. 1868. The Court further stated "in determining whether the seizure and search were `unreasonable' our inquiry is a dual one — whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. at 19-20, 88 S.Ct. 1868.

[¶ 9] Inocencio testified he did not believe Seglen was hiding a weapon, and the object spotted in Seglen's coat "appeared to be some sort of beverage container." Under the Terry exception, "a law enforcement officer may conduct a frisk, or a pat-down search, of a person only when the officer `possesses an articulable suspicion that an individual is armed and dangerous.'" Heitzmann, 2001 ND 136, ¶ 11, 632 N.W.2d 1 (quoting State v. Haverluk, 2000 ND 178, ¶ 22, 617 N.W.2d 652). Because Inocencio admitted he did not believe Seglen was armed, the search does not fall within the Terry exception.

B.

[¶ 10] Limited searches of persons entering airports and courthouses have been found constitutional in light of "unprecedented airport bombings, aircraft piracy and courtroom violence." Collier v. Miller, 414 F.Supp. 1357, 1362 (S.D.Tex. 1976). The State argues the security needs at large arenas and sporting events are similar to airports and courthouses, especially in recent years. Other courts have rejected this argument when asked to extend the warrant exception to rock concerts. See generally Jacobsen, 98 Wash.2d 668, 658 P.2d 653; Collier, 414 F.Supp. 1357.

[¶ 11] The Jacobsen case involved pat-down searches as patrons entered a rock concert. The Seattle Police Department conducted the searches and confiscated unmarked heart medicine, removed an unopened pack of cigarettes from a purse, opened the pack and inspected the individual cigarettes. Jacobsen, 658 P.2d at 654. Patrons were unaware they were subject to search prior to entering the concert. Id. The court found "highly intensive pat-down searches by police officers" to be "unconstitutional." Id. at 656. The court refused to analogize the rock concert searches to airport and courthouse searches and found they are not exempt from constitutional protection. Id.

[¶ 12] In Collier, the plaintiff's purse was seized and searched by an on-duty officer of the University of Houston's Traffic and Security Department upon entering a rock concert in Houston, Texas. Collier, 414 F.Supp. at 1359. Her three companions were not searched. Id. at 1360. The purported purpose of the search was to prevent "alcoholic beverages, bottles, grass and weapons" from entering the facility. Id. There were no signs informing patrons of the search policy. Id. at 1366. The court expressed concern because the decision of whom to search, and the degree of the search, was left entirely to the officer's discretion. Id. at 1364. The court found the searches were conducted "without any definitive basis for...