State v. Thordarson

• Decision Date: 17 May 1989
• Docket Number: Cr. N
• Citation: 440 N.W.2d 510
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Gary D. THORDARSON, Defendant and Appellant. o. 880303.
• Court: North Dakota Supreme Court

Page 510

440 N.W.2d 510

STATE of North Dakota, Plaintiff and Appellee, v. Gary D. THORDARSON, Defendant and Appellant.

Cr. No. 880303.

Supreme Court of North Dakota.

May 17, 1989.

Laurie A. Cook, State's Atty., Cavalier, for plaintiff and appellee. No appearance. Submitted on brief.

Fleming, DuBois & Trenbeath, Cavalier, for defendant and appellant. No appearance. Submitted on brief by Thomas L. Trenbeath.

MESCHKE, Justice.

Gary D. Thordarson appealed from a conviction of driving while his license was suspended. He argued that the stop was unreasonable and that evidence of his suspension resulted from an unlawful arrest. We uphold his conviction.

During night patrol on June 2, 1988, at 1:00 A.M., a Cavalier policeman received a message from the radio dispatcher of the Pembina County Law Enforcement Center. The message reported a telephone call from an unidentified person that "down by Cenex there had been some motorcycles going back and forth and tearing around there." The officer drove to the Cenex station quickly, within fifteen to thirty seconds. He saw two motorcycles several blocks away traveling towards him. The officer testified the motorcycles were speeding, going thirty-five miles per hour in a twenty-five mile per hour zone.

As the motorcycles passed him, the officer turned around in the Cenex driveway. He followed and stopped Thordarson about a block and a half away. The officer smelled alcohol, heard Thordarson's slurred speech, and saw Thordarson's "glassy" eyes. After "fair" performance by Thordarson in field tests of sobriety, walking "heel-to-toe" and reciting the alphabet, the officer arrested Thordarson for driving under the influence of alcohol.

During the stop (whether before or after the arrest was disputed), the officer asked Thordarson for his driver's license. Thordarson replied that he didn't have one. At the police station, the officer teletyped the State License Division for information on Thordarson's license. The following day, after learning that Thordarson's license was suspended, the officer also charged him with driving under suspension.

Thordarson moved to suppress all evidence, arguing that there was no reasonable basis for the stop and no probable cause for his arrest. The trial court determined that the officer had "a reasonable basis for suspicion of unlawful conduct," but had "insufficient probable cause to arrest" Thordarson. The trial court suppressed "evidence acquired after the arrest and as a result of the arrest," but refused to suppress "evidence of identification and [of] the driver's failure to have a license in possession." The trial court also ruled that "evidence as to [Thordarson's] driving priviledges [sic]," acquired after the arrest, was "in the realm of inevitable discovery." The charge of driving under the influence was dismissed. Thordarson pled guilty to the charge of driving under suspension, reserving the right to appeal under NDRCrimP 11(a)(2).

The State did not appeal the suppression order. Thordarson appealed his conviction, arguing that all evidence should have been suppressed because the stop was unreasonable. Alternatively, Thordarson argued that the trial court erred in concluding that the officer's "discovery of evidence pertaining to Mr. Thordarson's driving privileges was inevitable." Thordarson argued that the discovery of the fact of his suspension was "a direct result" of his unlawful arrest, since it followed the arrest, and, therefore, that fact should have been also suppressed as the "fruit-of-the-poisonous tree."

The State responded that, since the officer "personally observed" a speeding violation, in addition to acting on the anonymous telephone call, the stop was reasonable. The State also argued that evidence of the suspension "was [not] the result of an exploitation of an illegal seizure," but "was obtained from a source wholly independent from the illegality" of the arrest. The State urged that evidence of the suspension "should not be suppressed based on the independent source doctrine and the inevitable discovery."

Stops of motor vehicles and arrests for traffic offenses are safeguarded by the constitutional "right of the people to be secure in their persons ... against unreasonable searches and seizures...." United States Constitution, Fourth Amendment; North Dakota Constitution, Article I, Section 8. For an investigative stop of a vehicle, an officer must have an articulable and reasonable suspicion that a motorist is violating the law. State v. Lykken, 406 N.W.2d 664 (N.D.1987). In assessing the reasonableness of a stop, courts should take into account the reasoning of a trained and experienced officer which may elude a layperson. State v. VandeHoven, 388 N.W.2d 857 (N.D.1986). See also United States v. Sokolow, --- U.S. ----, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). On appeal, we recognize the importance of the trial court's opportunity to assess the credibility of witnesses by according great deference to a decision to suppress. State v. Placek, 386 N.W.2d 36 (N.D.1986).

Although this officer started with a tip from an anonymous caller, the officer used his own senses to observe Thordarson violating the law by speeding. We conclude that the trial court correctly determined that the officer's suspicion of unlawful conduct was both articulable and reasonable. Therefore, the stop was lawful and suppression of evidence was not necessary for that reason.

Thordarson made another argument. He associated the discovery of his license suspension with his arrest, which the trial court held was unlawful for lack of probable cause. Because the State has not disputed the illegality of the arrest, our analysis assumes unlawful conduct. We must decide whether the discovery of Thordarson's suspension stemmed from his arrest as he contends, from an independent source as the State contends, or from an inevitable discovery as ...