State v. Washington, 20060369.

Citation2007 ND 138,737 N.W.2d 382
Decision Date22 August 2007
Docket NumberNo. 20060369.,20060369.
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Johnny WASHINGTON, Defendant and Appellant.
CourtUnited States State Supreme Court of North Dakota

James Allen Hope, Assistant State's Attorney, Dickinson, N.D., for plaintiff and appellee.

Danny Lee Herbel, Bismarck, N.D., for defendant and appellant.

VANDE WALLE, Chief Justice.

[¶ 1] Johnny Washington appealed from an amended order deferring imposition of sentence entered on a conditional plea of guilty to class C felony burglary. We conclude Washington's Fourth Amendment rights were not violated by law enforcement officers in effectuating his arrest and searching his vehicle. We affirm.


[¶ 2] At 4:18 a.m. on Sunday morning, January 15, 2006, Officer Brian Koskovich of the Dickinson Police Department was at a gas station preparing to refuel his patrol car when he was notified by a dispatcher of an "alarm call" from Army's West, a Dickinson bar. At the time, Koskovich happened to be located about one block from Army's West and he arrived at the bar two minutes after receiving the dispatch. A liquor store is located approximately 200 feet from the bar and there is a large parking lot between the establishments. As Koskovich entered the parking lot, he was "surprised" to see a "white vehicle come out from behind" the liquor store traveling west with its lights on. According to Koskovich, the white vehicle "stopped abruptly next to a parked vehicle [in the Army's West parking lot], the lights were turned off and the engine was turned off." Koskovich could tell the engine had been turned off because the temperature was "pretty close to zero" and "there was no exhaust coming out of the exhaust pipe." Koskovich considered the "abrupt stop . . . suspicious activity under the circumstances." Koskovich pulled 10 to 15 feet behind the white vehicle and ran a registration check on the vehicle, and the dispatcher informed him the vehicle was registered to Washington and another person. No one had exited the vehicle, and Koskovich was unable to see in the vehicle's windows because they were tinted.

[¶ 3] In the meantime, Dickinson Police Sergeant Parke Little arrived to check out the alarm call and found the front door of Army's West had been "smashed." Little radioed the information to Kostovich and Kostovich told Little to watch the white vehicle while he went to the front of the bar to maintain security until other officers arrived. Little pulled within 50 to 60 feet from the white vehicle and watched it for 15 to 20 minutes. No one exited the vehicle.

[¶ 4] When two other officers arrived at the scene, they did a security sweep of the bar and found the gaming area had been damaged, but discovered no one in the bar. Little, accompanied by the two other officers, approached the white vehicle. Little had a flashlight, shined it through the tinted windows and saw a person lying on the rear seat. Little pounded on the window with the flashlight "to the point where I was afraid it was going to break" and "[y]ell[ed]" that he was a police officer. The person in the back seat did not respond. Little testified he was "puzzled" by the failure to respond because "it's sub zero weather out there and you have [an] individual[ ] in a car [that's] not running." After "a couple minutes" of pounding on the window without any response, one of the other officers called dispatch to summon a locksmith to come to the scene and unlock the car door.

[¶ 5] The officers waited for 15 to 20 minutes for the locksmith to arrive and continued trying to get the attention of the person in the backseat, but "[t]here was no movement at all that we saw." The locksmith eventually opened the passenger side door and Little then observed another person, later identified as Washington, lying on the floorboard of the front seat. The officers, with their weapons drawn, removed both people from the vehicle, handcuffed them, and placed them in the back seats of separate patrol cars. Officer Greg Barros, one of the six officers who eventually appeared at the scene, shined his flashlight through the open door of the white vehicle and spotted gloves, a hammer, and a crowbar under the driver and passenger front seats. Barros asked Washington for permission to search the vehicle, but Washington refused. The officers contacted the State's Attorney to obtain a search warrant and had the vehicle towed to the Dickinson Law Enforcement Center. After obtaining the warrant, the officers found further incriminating evidence in the vehicle, and Washington was later charged with class C felony burglary under N.D.C.C. § 12.1-22-02.

[¶ 6] Washington moved to suppress the evidence based on "the unlawful searches of the defendant's vehicle and the illegal seizures of the defendant and his vehicle." Following an evidentiary hearing, the district court denied the motion, concluding "law enforcement personnel had probabl[e] cause to enter and search the vehicle in which the Defendant and his companion were located." The court explained in its findings recited into the record at the close of the hearing:

The Court would agree that in order to approach the vehicle there had to be reasonable suspicion. I think there was reasonable suspicion. In order to open the door or have someone open the door, I think at that point you need probable cause for the search of the vehicle. The Court's view is that there was enough evidence known to law enforcement at the time to give them probable cause to search the vehicle. That evidence would be as pointed out by the State. A burglar alarm had sounded. The officer arrived a few minutes after the alarm call. The only vehicle that was seen at the scene is this white Oldsmobile. The time of day, 4:20 a.m. The vehicle stopped abruptly and parked, turned the lights out; enough for there to be reasonable suspicion to approach the vehicle. When the officers approached the occupants were non-responsive. They could observe — Officer Little testified he observed someone laying in the backseat. Apparently the person laying on the floorboard of the front was not observed but someone was observed in the vehicle and this was not just one or two minutes, this was 10-15 minutes. The officers — Officer Little testified he announced himself, whether he shouted or announced himself I think it was pretty clear that they were tapping, pounding on the vehicle, announcing themselves. When you get no response I think that was additional evidence that something is amiss here. Putting all of the pieces together at that point there was probable cause to search the vehicle. I think that the automobile exception applies. The vehicle had been driven a few minutes earlier. When we have the automobile exception the police can search the vehicle if they have probable cause for a search and that is what they did. Once the doors were open they observed the defendant and another individual, Mr Bigholm. They also observed the burglar tools, gloves, and whether or not they needed a search warrant, the policy was they were going to get a search warrant, and at that point they did it. I think the question is whether they had the probable cause to search the vehicle, have the door open in the first instance. I'm satisfied that putting all the pieces together there was probable cause, the automobile exception applies.

[¶ 7] Washington entered a conditional plea of guilty under N.D.R.Civ.P. 11(a)(2), reserving his right to appeal from the denial of his motion to suppress evidence.


[¶ 8] Washington argues the district court erred in denying the suppression motion because the law enforcement officers, without probable cause or a search warrant, contacted the locksmith to open the car door so they could enter the vehicle.

[¶ 9] In State v. Doohen, 2006 ND 239, ¶ 8, 724 N.W.2d 158 (quoting State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381 (citations omitted)), we explained:

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.

[¶ 10] The Fourth Amendment to the United States Constitution and Article I, Section 8, of the North Dakota Constitution prohibit unreasonable searches and seizures and require that warrants be issued only upon a showing of probable cause. State v. Ebel, 2006 ND 212, ¶ 12, 723 N.W.2d 375; State v. Woinarowicz, 2006 ND 179, ¶ 21, 720 N.W.2d 635. Warrantless searches are unreasonable unless they fall within a recognized exception to the warrant requirement. State v. Tognotti, 2003 ND 99, ¶ 7, 663 N.W.2d 642. A "seizure" occurs for Fourth Amendment purposes when an "`officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'" State v. Olson, 2007 ND 40, ¶ 9, 729 N.W.2d 132 (quoting City of Jamestown v. Jerome, 2002 ND 34, ¶ 5, 639 N.W.2d 478). In State v. Torkelsen, 2006 ND 152, ¶ 10, 718 N.W.2d 22, we identified permissible types of law enforcement-citizen encounters: "(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."

[¶ 11] While community caretaking functions are "encounters which are `totally divorced from the...

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