State v. Stands, No. 20200179

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: VandeWalle, Justice.
• Citation: 956 N.W.2d 366
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Michael Lee STANDS, Defendant and Appellant
• Docket Number: No. 20200179
• Decision Date: 24 March 2021

956 N.W.2d 366

STATE of North Dakota, Plaintiff and Appellee
v.
Michael Lee STANDS, Defendant and Appellant

No. 20200179

Supreme Court of North Dakota.

FILED MARCH 24, 2021

Derek K. Steiner, Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

VandeWalle, Justice.

¶1] Michael Lee Stands appealed from a criminal judgment and an order denying his motion to suppress evidence after entering a conditional plea of guilty to possession with intent to manufacture or deliver methamphetamine and unlawful

[956 N.W.2d 369

possession of drug paraphernalia. We affirm.

I

¶2] On November 5, 2019, Officer Heidi Witzel with the Fargo Police Department initiated a traffic stop when Stands failed to stop at a stop sign. Stands exited the vehicle and stood at its rear left fender. Witzel testified that Stands kept putting his hands in his pockets. Stands did not provide Witzel with identification, but gave her his name and date of birth. After acquiring his name and date of birth, Witzel went back to her patrol vehicle. At that point, Witzel requested a drug dog come to the scene and ran a records check on Stands. Witzel then exited her patrol vehicle and went back over to Stands. The records check later revealed Stands did not have current driving privileges.

[¶3] After exiting her patrol vehicle, Witzel directed Stands to move to the rear of it. Witzel then asked Stands, "Do you have anything on you I should know about right now?" and "Can I search you?" Witzel testified that Stands raised his hands at shoulder height, mumbled, and "shook his head yes."

[¶4] When Stands raised his hands, Witzel said she observed what appeared to be a silver scale in Stands’ pocket. Witzel took the scale out of his pocket and noticed what she believed to be meth residue on it. She also located a pipe and cash on Stands during the search. After the search of Stands’ person, Witzel detained him and placed him in the back of her patrol car. Stands told Witzel he was a user and "had used approximately five hours ago."

[¶5] Approximately thirty-five minutes after the initial stop, Detective Bret Witte arrived with a drug detection dog. The dog positively alerted on Stands’ vehicle, and the vehicle was searched. Methamphetamine was discovered in the vehicle.

[¶6] On appeal, Stands argues he did not consent to the search of his person. He also argues the traffic stop was unlawfully extended when Witzel asked if he had anything on him, if she could search him, and subsequently searched him. Additionally, Stands argues the stop was unlawfully extended when officers detained him and waited for a drug dog to arrive on the scene.

II

[¶7] Our standard of review for a district court's decision on a motion to suppress is well established:

In reviewing a district court's decision on a motion to suppress evidence, we defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. We will affirm a district court's decision on a motion to suppress 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. Our standard of review recognizes the importance of the district court's opportunity to observe the witnesses and assess their credibility. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.

State v. Hawkins , 2017 ND 172, ¶ 6, 898 N.W.2d 446 (quoting State v. Odom , 2006 ND 209, ¶ 8, 722 N.W.2d 370 ).

III

[¶8] Stands argues he did not provide consent for Witzel to search him. The United States and North Dakota Constitutions protect against unreasonable searches and seizures. U.S. Const. amend. IV ; N.D. Const. art. I, § 8.

Warrantless searches are unreasonable unless they fall within a recognized exception

[956 N.W.2d 370

to the warrant requirement. Consent is a well-established exception to the warrant requirement. The scope of an individual's consent is determined by considering what an objectively reasonable person would have understood the consent to include. The reasonableness inquiry is applied to the understanding of an officer who is conducting a search. Whether a search exceeds the scope of consent is a factual question, subject to the clearly erroneous standard of review.

Odom , 2006 ND 209, ¶¶ 9-10, 722 N.W.2d 370 (internal citations and quotation marks omitted). "Consent must be proven by clear and positive testimony." State v. Mitzel , 2004 ND 157, ¶ 17, 685 N.W.2d 120. "Consent must be unequivocal." Id. Shrugging is insufficient to constitute consent. See id.

¶9] Here, the district court found Stands gave Witzel consent to search his person. After Witzel asked to search him, the court noted Stands shrugged, mumbled, nodded, and lifted his hands before Witzel began searching him. Witzel understood Stands’ actions as manifesting consent to search his person.

[¶10] Although a shrug is not enough to manifest a person's consent, Stands also mumbled, nodded, and lifted his hands according to Witzel's testimony. Nodding is understood broadly as manifesting agreement or consent. Stands also raised his hands allowing Witzel to easily search him. These two actions taken together would allow an objectively reasonable person to understand Stands was consenting to a search of his person. Therefore, sufficient competent evidence exists showing Stands’ consented to the search of his person, and...