State v. Vetter

• Decision Date: 16 May 2019
• Docket Number: No. 20180356,20180356
• Citation: 927 N.W.2d 435
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Dylan Benjamin VETTER, Defendant and Appellant
• Court: North Dakota Supreme Court

927 N.W.2d 435

STATE of North Dakota, Plaintiff and Appellee

v.Dylan Benjamin VETTER, Defendant and Appellant

No. 20180356

Supreme Court of North Dakota.

Filed May 16, 2019

Kara S. Olson (appeared), Assistant State’s Attorney, and Nicholas Samuelson (argued), third-year law student, under the Rule on Limited Practice of Law by Law Students, Fargo, N.D., for plaintiff and appellee.

Luke T. Heck, Fargo, N.D., for defendant and appellant.

Tufte, Justice.

[¶1] Dylan Vetter appeals from a criminal judgment entered after his conditional guilty plea to possession of controlled substances and drug paraphernalia. Vetter argues the deputy sheriff who stopped him for speeding lacked reasonable suspicion to believe Vetter’s car contained contraband and unlawfully expanded the scope of the traffic stop by inquiring whether there were any illegal items in Vetter’s vehicle and by conducting a canine sniff around the car. We affirm, concluding the district court did not err in denying Vetter’s motion to suppress evidence because the stop was not expanded in violation of the Fourth Amendment.

I

[¶2] On March 1, 2018, around 11:35 p.m., Deputy Chad Thompson stopped Vetter for a speeding violation. Thompson is trained to handle a drug detection dog. His dog Zena was with him that night in his patrol vehicle. Before he approached Vetter’s vehicle, but after it had come to a stop, Thompson noticed it rocking back and forth and saw two occupants moving around inside. He believed the occupants were trying to move or hide something. Thompson approached the vehicle, where he saw Vetter in the driver’s seat. While talking with Vetter, Thompson saw an open alcoholic beverage can on the floor by Vetter’s feet. In response to Thompson’s questions, Vetter admitted he’d had a few drinks earlier. Thompson asked Vetter to come back to the patrol car, where he further questioned Vetter regarding consumption of alcohol. Vetter consented to field sobriety tests, including a preliminary breath test, none of which indicated impairment. After administering the tests, Thompson asked Vetter if there was anything illegal in his vehicle. Vetter denied having anything illegal in his vehicle.

[¶3] Corporal Hedin arrived during this questioning. Deputy Thompson got out of his patrol car and asked Hedin to write Vetter a warning ticket. While Hedin wrote the warning ticket, Thompson and K-9 Zena conducted a canine sniff of Vetter’s vehicle. Zena alerted on the passenger side door. The vehicle was then searched, and controlled substances and drug paraphernalia were discovered. Vetter filed a motion to suppress the evidence resulting from the search. The district court denied the motion to suppress, after which Vetter entered a conditional guilty plea to possession of controlled substances and drug paraphernalia.

[¶4] Because the issue before us turns on whether the stop was expanded in time or in scope, we include immediately below a detailed time line of relevant events during the stop as it appears in the video recording of the stop presented to the district court. All times are in the eleven o’clock p.m. hour.

35:23 Deputy Thompson activates his flashing lights to initiate a stop of Vetter’s vehicle.

36:45 Thompson introduces himself to Vetter, explains speeding was the reason for the stop, and asks for registration and insurance.

37:33 Vetter hands Thompson papers.

37:33 Thompson looks at the papers and looks into the car.

37:44 Thompson inquires if Vetter has any open alcohol in the car and says he sees Vetter is trying to hide a Twisted Tea can with his foot. Vetter says he was fishing earlier and hands the can to Thompson. Thompson asks for the registration card again. Vetter hands it to him.

38:35 Thompson asks Vetter to come back to the squad car. While Vetter is walking back to the squad car, Thompson asks if he has any weapons on him. Vetter says he does not. Thompson tells Vetter to put out his cigarette and sit in the front seat.

39:03 Vetter and Thompson enter the squad car. Once in the car, Thompson shows Vetter the "locked speed." He asks how much Vetter drank that night, when was the last drink, and if Vetter feels fine to drive. Vetter responds he is fine and mentions he was in Napoleon visiting his dad.

40:41 Thompson inquires into the condition of Vetter’s eyes, asks to see them, and conducts a Horizontal Gaze Nystagmus test.

42:17 Vetter initiates conversation about the weather. They lapse into silence at 42:38.

43:45 Vetter initiates conversation about fishing.

44:16 Thompson asks Vetter if he is familiar with the alphabet and counting backwards from 100 to 1. Vetter indicates that he is. Thompson has Vetter recite the alphabet from the letter C to the letter T. Vetter recites the alphabet as instructed. Thompson then asks Vetter to count backwards from 75 to 58. Vetter does so.

45:42 Thompson tells Vetter that he wants to administer a preliminary breath test. Thompson reads the implied consent advisory. Vetter consents to the test. Thompson administers the test. During this exchange, at 46:43, the video shows the picture becoming illuminated from behind the patrol car.

46:57 Thompson: "Sir when you guys came to a stop I could see the whole car like rocking. Were you guys hiding anything or anything like that in there?"

Vetter: "No. I need new shocks on it."

Thompson: "You were already stopped for a bit at this point though. Nothing illegal in the car or anything like that?"

Vetter: "No."

47:13 Thompson: "Okay."

47:15 Audible throat clearing, but no further conversation.

47:25 Sound of car door shutting.

47:26 Dialog between Thompson and Hedin takes place outside car.

Thompson: "You just want to hop in my driver seat there and start writing him a warning for 75 in a 65?"

Hedin: "Okay."

Thompson: "When he stopped, his whole car was shaking, I think they were probably hiding something so ... "

Hedin: "How many people are in there?"

Thompson: "Just him and one passenger. The driver’s in my front seat. He’s not, he blew zeros but drank earlier."

Hedin: "Warning for what?"

Thompson: "75 in a 65 at about 40th street."

Hedin: "40th street?"

Thompson: "Yeah."

47:57 Hedin enters Thompson’s car. Dialog between Hedin and Vetter is indistinguishable.

48:06 Thompson opens rear car door to get K-9 Zena out of the vehicle. Thompson and K-9 Zena circle Vetter’s car twice.

49:05 Thompson begins a third pass around the car.

49:13 K-9 Zena alerts on passenger side door.

Vetter argues the scope of the stop was expanded at 11:46:57 when Officer Thompson inquired whether Vetter and his passenger were hiding anything or whether there were illegal items in the car, because it was not within the purpose of the traffic stop. He also argues the length of the stop extended past the time required to issue him a speeding ticket. He does not argue that the expansion of the initial stop for speeding to complete the DUI investigation lacked a constitutionally sufficient basis. Vetter claims there was no reasonable suspicion to expand a traffic stop for speeding into an investigation of controlled substances, including questions about illegal items and conducting a dog sniff during the stop.

II

[¶5] Under our standard of review,

[t]he trial court’s disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, 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. [This standard] recognizes the importance of the trial court’s opportunity to observe the witnesses and assess their credibility, and we "accord great deference to its decision in suppression matters."

State v. Montgomery , 2018 ND 20, ¶ 4, 905 N.W.2d 754 (quoting State v. Bjornson , 531 N.W.2d 315, 317 (N.D. 1995) ). "Whether findings of fact meet a legal standard is a question of law. While we do not conduct a de novo review of the findings of fact, questions of law are fully reviewable." Id ."Whether the facts support a finding of reasonable articulable suspicion is a question of law, and thus, is fully reviewable by this Court."

State v. Adan , 2016 ND 215, ¶ 9, 886 N.W.2d 841 (citing State v. Fields , 2003 ND 81, ¶ 6, 662 N.W.2d 242 ).

[¶6] "Traffic violations justify a stop by police officers." State v. Deviley , 2011 ND 182, ¶ 9, 803 N.W.2d 561. When an officer seizes an individual for a traffic violation, it "justifies a police investigation of that violation." Rodriguez v. United States , ––– U.S. ––––, 135 S. Ct. 1609, 1614, 191 L.Ed.2d 492 (2015) ; United States v. Fuehrer , 844 F.3d 767, 772 (8th Cir. 2016) ("If a defendant is detained incident to a traffic stop, the officer does not need reasonable suspicion to continue the detention until the purpose of the traffic stop has been completed."). Because a routine traffic stop is relatively brief, it is more like a "Terry stop" than an arrest. Rodriguez , at 1614. The time it takes to complete the "mission" of the stop, to "address the traffic violation that warranted the stop and attend to related safety concerns," is a permissible length of time to detain someone. Id . (internal citations omitted). However, a stop may not extend longer than the amount of time necessary to effectuate the purpose of the traffic stop. Id . ; see also State v. Phelps , 2017 ND 141, ¶ 10, 896 N.W.2d 245 (stating officer must conduct duties of stop within a "reasonable period of detention"). An officer’s seizure of a person is permitted only until the "tasks tied to the traffic infraction are—or reasonably should have been—completed." Rodriguez , at 1614. A traffic stop prolonged beyond the "time reasonably required to complete the stop’s mission" is unlawful. Id . at 1616. Unrelated inquiries are permitted during a stop as long as they do not prolong the stop and extend the time the individual is detained. Id . at 1615 ; see also Arizona v. Johnson , 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). A stop may be...