State v. Torkelsen

• Decision Date: 18 July 2006
• Docket Number: No. 20050250.,20050250.
• Citation: 2006 ND 152,718 N.W.2d 22
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Steven Arthur TORKELSEN, Defendant and Appellant.
• Court: North Dakota Supreme Court

718 N.W.2d 22

2006 ND 152

STATE of North Dakota, Plaintiff and Appellee v. Steven Arthur TORKELSEN, Defendant and Appellant.

No. 20050250.

Supreme Court of North Dakota.

July 18, 2006.

COPYRIGHT MATERIAL OMITTED

Lisa Beckstrom Gibbens (argued), State's Attorney, Cando, N.D., and Lonnie Olson (on brief), State's Attorney, Devils Lake, N.D., for plaintiff and appellee.

David Duane Dusek (argued), East Grand Forks, MN, and William Robert Hartl (appeared), Rugby, N.D., for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Steven Arthur Torkelsen appealed from a criminal judgment entered on a conditional plea of guilty to class AA felony murder. Because we conclude the initial stop of Torkelsen's vehicle was illegal, we reverse and remand for further proceedings.

I

[¶ 2] On the morning of June 27, 2004, Tom Belzer, a local farmer, discovered a human body burning in a ditch east of Cando in Towner County. Belzer told his hired hand to call emergency personnel. Before law enforcement officers arrived, Torkelsen, a resident of the area, drove up to the scene in a 1980s model red Ford pickup, stopped the vehicle, stepped out onto the road, and asked Belzer if he needed any help. Belzer, who knew who Torkelsen was, told Torkelsen to leave the area, and Torkelsen complied with the request. When Torkelsen left, he did not clearly move to the side of the "narrow gravel road" as emergency vehicles approached his truck on their way to the scene.

[¶ 3] Upon the arrival of Craig Zachmeier, a special agent with the North Dakota Bureau of Criminal Investigation, Belzer informed him of Torkelsen's presence and that Torkelsen did not acknowledge the smoke coming from the body only a few feet away from where Torkelsen had stood. Emergency personnel also informed Zachmeier about Torkelsen's failure to move to the side of the road when they arrived. Captain Kyle Ternes of the Highway Patrol also responded to the scene and directed two troopers to assist with traffic control along Highway 17 east of Cando. Because Torkelsen had been at the scene before law enforcement officers arrived, a "be on the lookout" bulletin was issued for Torkelsen's pickup.

[¶ 4] At approximately 1 p.m., Officer Jason Cartier of the Cando Police Department reported that the Department had received an identified citizen report that Torkelsen was seen driving west of Cando on Highway 17 and was "swerving all over the road." Ternes asked Trooper Frank LaRocque, who was directing traffic on the west side of the crime scene, to head west and find Torkelsen. LaRocque caught up to Torkelsen near Wolford and radioed Ternes. Ternes told LaRocque to follow Torkelsen for a period of time. After LaRocque followed for about three miles, he radioed Ternes and informed him that Torkelsen was not driving erratically or violating any traffic laws and asked for instructions on how to proceed. Ternes told LaRocque to stop Torkelsen and bring him to Cando for questioning, but only after backup officers were in the area. LaRocque was familiar with Torkelsen because Torkelsen had been incarcerated in the Pierce County jail on charges stemming from the violation of a protection order in early 2004, and Torkelsen had told another officer that "he wouldn't go in peacefully."

[¶ 5] At 1:30 p.m., after other officers had arrived, LaRocque pulled Torkelsen over and instructed him to put his hands where he could see them and slowly exit the vehicle. Torkelsen complied with the orders given and LaRocque told him he was wanted for questioning and would be handcuffed for his own safety. Torkelsen was cooperative and was transported about 28 miles to Cando for questioning. The pickup was left at the scene of the stop. Torkelsen's handcuffs were removed upon his arrival at the Towner County Sheriff's office. Testing revealed Torkelsen was not under the influence of alcohol. Torkelsen was given Miranda warnings and questioned. During the interrogation, Torkelsen allegedly consented to a search of his vehicle and trailer, which revealed incriminating evidence. Torkelsen was formally arrested and taken to the Lake Region Correctional Center at 11:30 p.m. that evening.

[¶ 6] The body found burning in the ditch was ultimately identified as that of Rebecca Flaa, and Torkelsen was charged with her murder. Shortly before trial, Torkelsen moved to dismiss or suppress the evidence on Fourth Amendment grounds. The district court denied Torkelsen's motion, and he entered an Alford conditional guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and N.D.R.Crim.P. 11(a)(2), reserving the right to appeal the district court's denial of his suppression motion. Torkelsen was sentenced to 50 years in prison, with thirty years suspended.

II

[¶ 7] Torkelsen argues the district court erred in denying his motion to suppress the evidence.

[¶ 8] We apply a deferential standard of review when reviewing a district court decision on 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. Seglen, 2005 ND 124, ¶ 5, 700 N.W.2d 702 (quoting State v. Heitzmann, 2001 ND 136, ¶ 8, 632 N.W.2d 1). Questions of law are fully reviewable. Id.

[¶ 9] The district court ruled the initial stop of Torkelsen's vehicle was valid, not based on the suspicion that he had committed a traffic violation, but because the law enforcement officers had a reasonable and articulable suspicion that Torkelsen had committed a homicide. The court rejected Torkelsen's argument that he was arrested at the time of the initial stop because the officers placed him in handcuffs when they transported him to the sheriff's office in Cando. The court ruled that although this constituted a seizure for Fourth Amendment purposes, the seizure was reasonable given the "safety and security interests involved with [the] serious nature of the crime charged and the fact that [Torkelsen] was seen leaving the place where the body was found." The court pointed out that it "was not asked to decide nor did it decide the issues of consensual search, authorization for a probationary search, and inevitable discovery of the evidence."

[¶ 10] Permissible types of law enforcement-citizen encounters include: (1) arrests, which must be supported by probable cause; (2) Terry stops, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), seizures which must be supported by a reasonable and articulable suspicion of criminal activity; and (3) community caretaking encounters, which do not constitute Fourth Amendment seizures. See State v. Boyd, 2002 ND 203, ¶ 6, 654 N.W.2d 392; State v. Halfmann, 518 N.W.2d 729, 730 (N.D.1994). The State does not argue and the court did not find the first and third types of encounters are applicable in this case. The dispositive issue is whether law enforcement officers had a reasonable and articulable suspicion that Torkelsen had engaged in criminal activity to justify a Terry stop.

[¶ 11] Under Terry, police may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that criminal activity is afoot. Anderson v. Director, N.D. Dept. of Transp., 2005 ND 97, ¶ 8, 696 N.W.2d 918. We have said an officer has reasonable and articulable suspicion to stop a vehicle: (1) when the officer relied on an appropriate directive or request for action from another officer; (2) when the officer received tips from police officers or informants, which were then corroborated by the officer's own observations; or (3) when the officer directly observed illegal activity. Id.

[¶ 12] LaRocque testified he did not observe Torkelsen engage in any illegal activity, and did not corroborate the tip that Torkelsen had been swerving all over the road. However, when one officer relays a directive or request for action to another officer without relaying the underlying facts and circumstances, the directing officer's knowledge is imputed to the acting officer. See State v. Smith, 2005 ND 21, ¶ 13, 691 N.W.2d 203; State v. Boline, 1998 ND 67, ¶ 37, 575 N.W.2d 906; State v. Miller, 510 N.W.2d 638, 643 (N.D. 1994). The issue is whether Ternes' direction to pull Torkelsen over was supported by a reasonable and articulable suspicion that Torkelsen had engaged in criminal activity.

[¶ 13] We use an objective standard and view the totality of circumstances to determine whether an investigative stop is valid, and we consider whether 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. Smith, 2005 ND 21, ¶ 15, 691 N.W.2d 203. In City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 8, 639 N.W.2d 466 (quoting City of Fargo v. Ovind, 1998 ND 69, ¶ 9, 575 N.W.2d 901(citations omitted)), we explained:

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 deductions drawn from their experience and training, make the determination whether all of the circumstances viewed together create a reasonable suspicion of potential criminal activity." When assessing reasonableness, we consider inferences and deductions an investigating officer would make which may elude a layperson.

[¶ 14] In this case, an unidentified woman...