State v. Waltz

• Decision Date: 19 December 2003
• Docket Number: No. 20030119, No. 20030121., No. 20030120
• Citation: State v. Waltz, 2003 ND 197, 672 N.W.2d 457 (N.D. 2003)
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Mark John WALTZ, Defendant and Appellant.
• Court: North Dakota Supreme Court

672 N.W.2d 457

2003 ND 197

STATE of North Dakota, Plaintiff and Appellee, v.Mark John WALTZ, Defendant and Appellant.

Nos. 20030119, 20030120, 20030121.

Supreme Court of North Dakota.

December 19, 2003.

Thomas H. Falck, Jr., Assistant State's Attorney (appeared), and third-year law student Carmell Berry(argued), under the Rule on Limited Practice of Law by Law Students, Grand Forks, for plaintiff and appellee.

Steven M. Light, Larivee & Light, Grand Forks, for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1]Mark John Waltz appealed from criminal judgments entered against him for possession of drug paraphernalia, possession of methamphetamine with intent to deliver, and possession of marijuana in a motor vehicle.We affirm.

I

[¶ 2] On March 11, 2002, Officers Lampi and Riedinger of the Grand Forks Police Department responded to a report that a person was passed out in a vehicle at the Taco John's on Gateway Drive in Grand Forks.They found Waltz sitting in the driver's side of his running van at the drive-up window with his window open, his check book in one hand and a pen in the other, his head slumped down to his chest, the car in drive, and his foot on the brake.Officer Lampi parked his patrol car in front of Waltz's van, approached the van, reached inside and put it in "park," and shut off the engine.Waltz awoke as Officer Lampi reached over him to remove the keys.

[¶ 3] Officer Lampi asked Waltz if he knew where he was and, after looking around, Waltz answered he was in Grand Forks.Officer Lampi asked him where in Grand Forks and, after looking around again, Waltz stated he was at Taco John's.In response to further questioning by Officer Lampi, Waltz stated he was sleeping because he was really tired after bringing his brother to a long-term care facility and was on his way to Fargo.Waltz stated he had not been drinking.Officer Lampi asked Waltz to step out of the vehicle to perform field sobriety tests.

[¶ 4] When Waltz was getting out of the vehicle, Officer Lampi noticed a knife in a case on Waltz's hip.Officer Lampi asked Waltz if he could pat him down and if he had any drugs, alcohol, or anything that could be used as a weapon.Waltz stated he had a flask in his pocket and gave it to Officer Lampi.Waltz agreed to Officer Lampi's request for the pat-down.During the pat-down, Officer Lampi found two lighters and a two-inch long silver container that looked like a pill case.Officer Lampi then escorted Waltz to the patrol car to complete the field sobriety tests.Officer Lampi testified Waltz was "a little sideway, stumbly" as he escorted him down the driveway, which had patches of ice, to the patrol car.

[¶ 5] Officer Lampi placed Waltz in the back seat of the patrol car, read him his Miranda rights, and conducted three field sobriety tests.Officer Lampi asked Waltz to recite the alphabet from F to Y (Waltz recited it from F to Z); he asked Waltz to count backwards from 86 to 68 (Waltz counted 86, 87, 85 and continued down to 68); and he administered a finger dexterity test which Waltz could not complete.Officer Lampi concluded Waltz failed the sobriety tests and arrested him for actual physical control of a vehicle while under the influence of drugs or another substance.

[¶ 6] Before the field sobriety tests were completed, the officers had discovered a white powdery substance inside the silver container.Waltz claimed it was a concoction his mother or grandmother made for him.Following the arrest, the officers searched Waltz's van and found drug paraphernalia and baggies containing a white powdery substance inside a backpack in the back seat, four metal flasks containing liquid inside an open cooler, and a lemonade container with a green, leafy substance inside.Waltz was taken to the Grand Forks Police Department where he refused to take a chemical test.Subsequent tests showed the white powdery substance in the baggies and the silver container was methamphetamine.

[¶ 7] Waltz was charged with possession of drug paraphernalia, possession of methamphetamine with intent to deliver, and possession of marijuana in a motor vehicle.He moved to suppress the evidence discovered during the searches, claiming his constitutional rights were violated.The district court found the evidence discovered in the van was admissible because it was discovered during a search incident to a lawful arrest.The court concluded Officer Lampi improperly opened the silver container without a warrant.However, it found the contents were admissible because they would have been discovered in the subsequent lawful search of Waltz's van.On appeal, Waltz contends all the evidence should have been suppressed because there was no probable cause for the arrest.

II

[¶ 8] The Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, andArticle I, Section 8 of the North Dakota Constitution require searches and seizures to be reasonable.Absent an exception, "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court."Mapp v. Ohio,367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081(1961).A warrantless search is unreasonable unless it falls within an exception to the warrant requirement.State v. Tognotti,2003 ND 99, ¶ 7, 663 N.W.2d 642."The State has the burden of showing that a warrantless search falls within an exception to the warrant requirement."State v. Avila,1997 ND 142, ¶ 16, 566 N.W.2d 410.This Court, following the United States Supreme Court, has held "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile," including any containers found therein.State v. Hensel,417 N.W.2d 849, 852(N.D.1988)(quotingNew York v. Belton,453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768(1981)).On the other hand, "evidence seized [incident] to an invalid arrest is inadmissible" if it does not fall within another exception to the exclusionary rule.State v. Haverluk,2000 ND 178, ¶ 9, 617 N.W.2d 652.Therefore, whether the evidence discovered in the van should have been suppressed in this case depends upon whether there was probable cause to arrest Waltz.Waltz contends there was no probable cause for Officer Lampi to arrest him for actual physical control of a motor vehicle while under the influence of drugs or another substance.

[¶ 9] Whether probable cause exists is a question of law fully reviewable on appeal.Sonsthagen v. Sprynczynatyk,2003 ND 90, ¶ 7, 663 N.W.2d 161.However, in assessing a trial court's decision regarding suppression:

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. Tollefson,2003 ND 73, ¶ 9, 660 N.W.2d 575(quotingState v. Heitzmann,2001 ND 136, ¶ 8, 632 N.W.2d 1).

[¶ 10] Probable cause to arrest exists when an officer has knowledge that would give a prudent person reasonable grounds to believe an offense has been or is being committed.State v. Overby,1999 ND 47, ¶ 13, 590 N.W.2d 703.The officer does not have to "possess knowledge of facts sufficient to establish guilt."Hensel,417 N.W.2d at 852.In determining whether probable cause to arrest existed, we evaluate the totality of the circumstances.Sonsthagen,2003 ND 90, ¶ 17, 663 N.W.2d 161.

[¶ 11]Section 29-06-15(1)(a), N.D.C.C., authorizes an officer to make a warrantless arrest when there is probable cause to believe a suspect has committed a public offense in the officer's presence.Waltz was arrested for being in actual physical control of a vehicle while under the influence of drugs or another substance, which is a violation of N.D.C.C. § 39-08-01(1)(c)."[T]he essential elements of actual physical control are `(1)the defendant is in actual physical control of a motor vehicle on a highway or upon public or private areas to which the public has a right of access; and (2)the defendant was under the influence of intoxicating liquor, drugs, or other substances.'"Rist v. N.D. Dep't of Transp.,2003 ND 113, ¶ 14, 665 N.W.2d 45(quotingHaverluk,2000 ND 178, ¶ 15, 617 N.W.2d 652);seeN.D.C.C. § 39-08-01.Cases evaluating probable cause to arrest for actual physical control of a vehicle while under the influence of alcohol are relevant in assessing probable cause for actual physical control while under the influence of drugs.Cf.Sonsthagen,2003 ND 90, ¶ 19, 663 N.W.2d 161("In determining what is necessary to establish probable cause to arrest a driver for driving while under the influence of drugs, we are guided by what we have stated is necessary to arrest a driver for driving while under the influence of alcohol").

A.

[¶ 12] Waltz was passed out in his vehicle while it was still running in front of the drive-up window of a fast food restaurant; he was slow answering questions regarding where he was; he had difficulty walking to the patrol car; and he failed the field sobriety tests.This is not a case of a person intentionally resting in his vehicle.Instead, the facts indicate Waltz inadvertently passed out or fell asleep while waiting in his running car at the drive-up window of a restaurant.Waltz claimed he fell asleep because he was really tired.However, assuming Waltz's explanation was true, it is nevertheless reasonable to believe that a driver falling asleep in a running vehicle at the drive-up window of a restaurant indicates impairment....