State v. Smith

• Decision Date: 19 January 2005
• Docket Number: No. 20040114, No. 20040115.
• Citation: 691 N.W.2d 203,2005 ND 21
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Jesse Lynn SMITH, Defendant and Appellant.
• Court: North Dakota Supreme Court

691 N.W.2d 203

2005 ND 21

STATE of North Dakota, Plaintiff and Appellee v. Jesse Lynn SMITH, Defendant and Appellant.

Nos. 20040114, 20040115.

Supreme Court of North Dakota.

January 19, 2005.

Kathleen K. Trosen, State's Attorney, Fessenden, N.D., for plaintiff and appellee.

Brian W. Nelson (on brief), Nelson, Blumer & Johnson, P.L.L.P., Fargo, N.D., and Thomas J. Glass (argued), Bismarck, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Jesse Smith appeals two judgments of conviction of unlawful possession of drug paraphernalia and possession of a controlled substance. Concluding Smith was unlawfully stopped, we reverse the judgments of conviction of unlawful possession of drug paraphernalia and possession of a controlled substance and remand for further proceedings.

I

[¶ 2] On May 25, 2002, at about 12:30 a.m., Fessenden Police Chief Allen Kluth was approached by two local citizens regarding a suspicious vehicle parked behind a bulk fuel truck in the Cenex lot. Chief Kluth testified the citizens told him a green station wagon left the Cenex lot quickly, spinning out on the gravel, as they approached the vehicle. They told Chief Kluth they followed the vehicle to obtain its license plate number, but they were unable to get the full number because the station wagon was traveling at a high rate of speed. Chief Kluth and Highway Patrolman Jody Skogen went to view the tire tracks at the Cenex station, which has been broken into several times in recent years. Chief Kluth then contacted a Harvey Police Officer, Marc Balfour, and told him to be on the lookout for a green station wagon traveling west on highway 52. Officer Balfour testified he spotted a green station wagon and radioed Chief Kluth to tell him he saw a vehicle that matched the description. Chief Kluth told him to stop the vehicle. Officer Balfour testified that he did not observe any traffic violations at the time he pulled the vehicle over.

[¶ 3] After he approached the vehicle, Officer Balfour saw an open case of beer in the back seat and detected a strong odor of alcohol coming from the vehicle. He then asked Smith to accompany him back to the police car. Officer Balfour told Smith of the suspicious activity in the Cenex parking lot, and Smith explained that he and his friend had to go to the bathroom but that the store was locked so they went outside near the bulk fuel truck. Officer Balfour testified that he then asked Smith for his consent to search the vehicle. Smith replied, "Yeah, go ahead."

[¶ 4] When Patrolman Skogen arrived, Officer Balfour turned the investigation over to him and told him Smith had given him consent to search the vehicle. Officer Balfour then went back to Smith's vehicle and asked the passenger, Travis Cunningham, to come back to his police car. He examined Cunningham's driver's license, which showed that he was only 20 years old. He then placed Cunningham in the back seat of the patrol car and began to search Smith's vehicle. Officer Balfour testified that when he walked up to the vehicle, he noticed two spilled cans of beer on the passenger-side floor. He then found a backpack in the back seat of the car, and upon opening it, found eight rolled baggies of marijuana.

[¶ 5] The State charged Smith with four counts: possession of drug paraphernalia, Wells County case no. 02-K-087; possession of a controlled substance, Wells County case no. 02-K-088; possession of a controlled substance with intent to deliver, Wells County case no. 02-K-089; and delivery of alcoholic beverages to a person under twenty-one years of age, Wells County case no. 02-K-090. On September 18, 2002, the district court consolidated all four counts. On October 10, 2002, Smith moved to suppress all items seized by law enforcement officers and all of the statements he made during the arrest. Smith's motion included only Wells County case number 02-K-089 in its motion heading. The district court held a hearing on February 5, 2003, on the motion to suppress and issued a memorandum and order denying the motion to suppress on October 30, 2003. The transcript of the February 5 hearing included all four Wells County case numbers, while the memorandum contained only the Wells County case number 02-K-089.

[¶ 6] A jury found Smith guilty of all charges on March 31, 2004, except for possession of a controlled substance with intent to deliver, Wells County case number 02-K-089.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

II

[¶ 8] The State claims Smith does not have the right to appeal, because he attempted to suppress evidence relating to the acquitted charge of possession of a controlled substance with the intent to distribute.

[¶ 9] A defendant may appeal a verdict of guilty, but may not appeal an order on a motion to suppress, absent an appealable order of judgment. N.D.C.C. § 29-28-06. Motions to suppress evidence on the grounds that the evidence was unlawfully obtained must be raised prior to trial. N.D.R.Crim.P. 12(b)(3).

[¶ 10] Smith is appealing two criminal judgments: possession of drug paraphernalia, Wells County number 02-K-087; and possession of a controlled substance, Wells County number 02-K-088. Prior to the trial, he moved to suppress all evidence and statements made the day of his arrest. His motion was titled "Motions to Suppress" and had the Wells County criminal number 02-K-089 in its heading. The transcript of the motion-to-suppress hearing prepared by the court included every count in its title; however, the memorandum and order denying the motion to suppress issued by the district court indicated only case number 02-K-089. The letter accompanying the memorandum from the district court to Smith's counsel indicated the motion was in regard to all four criminal counts. We conclude the omission of the criminal case numbers on the memorandum and order denying the motion to suppress was a clerical error and Smith properly preserved his right to appeal.

III

[¶ 11] When we review a motion to suppress, we defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Gregg, 2000 ND 154, ¶ 19, 615 N.W.2d 515. We will affirm a district court's decision if "there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence." City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994). "We evaluate the evidence presented to see, based on the standard of review, if it supports the findings of fact." Id. Questions of law and the ultimate conclusion about whether the facts support a reasonable and articulable suspicion are fully reviewable on appeal. Gregg, at ¶ 20.

[¶ 12] "All searches and seizures must be reasonable, under the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the North Dakota Constitution." State v. Haibeck, 2004 ND 163, ¶ 9, 685 N.W.2d 512. A traffic stop temporarily restrains a person's freedom, resulting in a seizure within the meaning of the Fourth Amendment. State v. Sarhegyi, 492 N.W.2d 284, 285-86 (N.D.1992). A traffic stop, under the facts of this case, is analogous to a "Terry" stop and must be analyzed under its test. Id. at 286. In reviewing a Terry stop, a court must "(1) determine whether the facts warranted the intrusion of the individual's Fourth Amendment rights, and if so, (2) determine whether the scope of the intrusion was reasonably related to the circumstances which justified the interference in the first place." Id. To minimize governmental confrontation with individuals, as required by the Fourth Amendment, an investigating officer must have a reasonable suspicion that a law has been or is being violated. Id.

[¶ 13] The investigating officer, however, does not need personal knowledge that a law has been or is being violated. A directing officer's knowledge may be imputed to an acting officer when the directing officer relays a directive or request to the acting officer without relaying the underlying facts and circumstances. City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 9, 639 N.W.2d 466. An arresting officer may make an arrest upon a directive even when he is unaware of the factual bases for probable cause, because the arresting officer is entitled to assume that whoever issued the directive had probable cause. State v. Kenner, 1997 ND 1, ¶ 11, 559 N.W.2d 538. The same principle would apply in the reasonable-suspicion context. Id.

[¶ 14] We have upheld investigatory stops of vehicles when the stopping officer received a tip from another police officer or informant and then corroborated the information by personal observations. Id. at ¶ 12. Officer Balfour testified, however, that he did not observe any violations before he stopped the car. We look at the context in which the directing officer obtained the information and analyze it to see whether it constitutes reasonable and articulable suspicion. [¶ 15] "To stop a moving vehicle for investigative purposes, an officer must have an articulable and reasonable suspicion that a law has been or is being violated." Lawrence, 2002 ND 31, ¶ 8,639 N.W.2d 466. "Reasonable suspicion for a stop exists when 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." Id. Reasonable suspicion requires more than a "mere hunch." Id. We use an objective standard and view the totality of the circumstances to determine whether an investigative stop is valid. Id.

We do not require an officer to isolate single factors which signal a potential violation of the law; but instead, "officers are to assess the situation as it unfolds and, based upon inferences and

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