T.J.K., In re

• Decision Date: 29 July 1999
• Docket Number: No. 990067,990067
• Parties: In the Interest of T.J.K., Minor Child. Gloria J. Maragos, Petitioner and Appellant, v. T.J.K., child, G.K., mother, and J.K., father, Respondents and Appellees.
• Court: North Dakota Supreme Court

Page 781

598 N.W.2d 781

1999 ND 152

In the Interest of T.J.K., Minor Child.

Gloria J. Maragos, Petitioner and Appellant, v. T.J.K., child, G.K., mother, and J.K., father, Respondents

and Appellees.

No. 990067.

Supreme Court of North Dakota.

July 29, 1999.

Timothy C. Wilhelm, Assistant State's Attorney, Minot, ND, for petitioner and appellant.

Thomas K. Schoppert, Schoppert Law Firm, Minot, ND, for respondents and appellees.

KAPSNER, Justice.

¶1 This is an appeal from a juvenile court order dismissing a petition which alleged T.J.K., a minor child, was unruly. After concluding the police officer who stopped T.J.K.'s vehicle lacked a reasonable and articulable suspicion T.J.K. had violated or was violating the law, the judicial referee granted T.J.K.'s motion to suppress evidence he was operating a motor vehicle under the influence of alcohol. We reverse and remand to the juvenile court for further findings.

I.

¶2 On September 6, 1998, at approximately 10:17 p.m., Officer Goodman of the Minot Police Department was traveling eastbound in his patrol car on University Avenue approaching the intersection of University and 8 th Street N.W. As he approached the intersection, Officer Goodman observed T.J.K.'s vehicle stopped in the westbound turning lane of University with its left turn signal on indicating T.J.K.'s intent to turn south onto 8 th Street N.W. Officer Goodman then observed a third vehicle traveling westbound on University approach the intersection in the lane for through traffic. As he drove through the intersection, Officer Goodman testified he looked in his rearview mirror and observed the third vehicle make an illegal left hand turn in front of T.J.K.'s vehicle. After deciding to stop the third vehicle for the illegal turn, Officer Goodman testified he turned right onto 7 th Street and traveled around the block until he reached 8 th Street N.W. He testified he turned onto 8 th Street N.W. and was surprised to observe T.J.K.'s vehicle traveling in front of the third vehicle. While following the vehicles, Officer Goodman testified he saw T.J.K.'s vehicle weave into the oncoming lane of traffic and heard its tires squeal after stopping at a stop sign. For those reasons, Officer Goodman testified, he stopped T.J.K.'s vehicle instead of the third vehicle.

¶3 As a result of the stop, a petition was filed in juvenile court alleging T.J.K. had driven under the influence of alcohol in violation of N.D.C.C. § 39-08-01. T.J.K. filed a motion to suppress all evidence obtained as a result of the stop contending Officer Goodman lacked a reasonable and articulable suspicion T.J.K. had violated or was violating the law when he stopped T.J.K.'s vehicle. T.J.K. asserted his vehicle never weaved into the oncoming lane of traffic, and he did not squeal its tires after stopping at a stop sign. Following a hearing on the motion, the judicial referee granted T.J.K.'s motion to suppress. Upon review, the juvenile court confirmed the referee's findings and recommendations. The judicial referee concluded, absent the suppressed evidence, the State was "left without evidence to proceed" and recommended the petition be dismissed. The juvenile court confirmed the referee's findings and recommendation and ordered the petition be dismissed.

II.

¶4 The petitioner contends the judicial referee's findings of fact were incomplete and erroneous in part. The petitioner asserts the juvenile court erred in dismissing the petition because Officer Goodman had a reasonable and articulable suspicion of illegal activity warranting an investigatory stop of T.J.K.'s vehicle.

¶5 Whether Officer Goodman had a reasonable and articulable suspicion T.J.K. violated the law is the dispositive issue on appeal. Disputes concerning the underlying factual circumstances of a stop are questions of fact. See Salter v. North Dakota Dep't of Transp., 505 N.W.2d 111, 112 (N.D.1993). "The ultimate conclusion of whether the facts support a reasonable and articulable suspicion is a fully reviewable question of law." City of Fargo v. Ovind, 1998 ND 69, p 6, 575 N.W.2d 901; see also State v. Kenner, 1997 ND 1, p 7, 559 N.W.2d 538 (citation omitted).

¶6 Our review of the juvenile court's decision is governed by N.D.C.C. § 27-20-56. We review "the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court." N.D.C.C. § 27-20-56(1); In the Interest of J.C.S., 1997 ND 126, p 5, 565 N.W.2d 759 (citation omitted). "Although we examine the evidence in a manner comparable to the former procedure of trial de novo, we accord appreciable weight to the findings of the juvenile court, because that court had the opportunity to hear the testimony and observe the demeanor of the witnesses." In the Interest of R.D.B., 1998 ND 15, p 9, 575 N.W.2d 420; see also In the Interest of R.K.E., 1999 ND 106, p 4, 594 N.W.2d 702.

¶7 To justify the stop of a moving vehicle for investigation, an officer must have a reasonable and articulable suspicion the motorist has violated or is violating the law. Ovind, 1998 ND 69, p 8, 575 N.W.2d 901; Kenner, 1997 ND 1, p 8, 559 N.W.2d 538; State v. Storbakken, 552 N.W.2d 78, 80 (N.D.1996); see also 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4 (3d ed.1996) (discussing grounds for a permissible stop). The reasonable and articulable suspicion standard requires more than a "mere hunch," but less than probable cause. Ovind, at p 8; see also City of Grand Forks v. Egley, 542 N.W.2d 104, 106 (N.D.1996). The validity of a stop is evaluated by using an objective standard and assessing the totality of the circumstances. Ovind, at p 8.

¶8 The ultimate issue is whether a reasonable person in the officer's position would have been justified in stopping the vehicle because of some objective manifestation to suspect potential criminal activity. Storbakken, 552 N.W.2d at 80 (citation omitted); Egley, 542 N.W.2d at 106 (citation omitted); Salter, 505 N.W.2d at 114. However, the officer's grounds for stopping a vehicle need not result in the ultimate conviction. Storbakken, at 81. This court has discussed three situations in which an officer has reasonable and articulable suspicion to stop a vehicle: "(1) where the officer relied upon a directive or request for action from another officer; (2) where the officer received tips from other police officers or informants, which were then corroborated by the officer's own observations; and (3) where the officer directly observed illegal activity." Ovind, 1998 ND 69, p 10, 575 N.W.2d 901 (citations omitted).

¶9 "It is well settled, traffic violations, even if considered common or minor, constitute prohibited conduct which provide officers with requisite suspicion for conducting investigatory stops." Zimmerman v. North Dakota Dep't of Transp., 543 N.W.2d 479, 482 (N.D.1996); see also City of Bismarck v. Glass, 1998 ND APP 1, p 12, 581 N.W.2d 474; Storbakken, 552 N.W.2d at 80 (citation omitted). Driving or weaving upon the wrong half of the roadway is a traffic violation under N.D.C.C. § 39-10-08(1). See Zimmerman, at 481-82 (deciding a reasoning mind could have concluded Zimmerman committed a traffic violation by crossing the center line out of her lane of traffic); State v. VandeHoven, 388 N.W.2d 857, 859 (N.D.1986) (concluding weaving provided sufficient basis to create an articulable and reasonable suspicion VandeHoven was violating the law); State v. Dorendorf, 359 N.W.2d 115, 116-17 (N.D.1984) (concluding the officers had the requisite reasonable suspicion to stop Dorendorf after observing his vehicle weaving within its own lane of traffic). But see Salter, 505 N.W.2d at 113-14 (deciding an officer's observation of "slight" or "minimum" weaving was insufficient to serve as a valid basis for stopping Salter's vehicle).

¶10 This court has concluded a police officer had a reasonable and articulable suspicion warranting an investigatory stop of a vehicle when it was "making excessive or unusual noise in violation of the law." See, e.g., State v. Beyer, 441 N.W.2d 919, 922-23 (N.D.1989); Wolf v. North Dakota Dep't of Transp., 523 N.W.2d 545, 547 (N.D.1994) (citation omitted). In Wolf, at 547, the officer "heard a vehicle exhibiting a real loud exhaust noise" and "noticed there was a loud popping noise" when the vehicle slowed. We concluded the evidence supported an administrative finding that the officer had a reasonable and articulable suspicion of a traffic violation warranting the stop of Wolf's car. Id.; see also N.D.C.C. § 39-08-03.1(2)(b) (defining the traffic violation of exhibition driving as "driving a vehicle in a manner which disturbs the peace by creating or causing unnecessary engine noise, tire squeal, skid, or slide upon acceleration or braking; or driving and executing or attempting one or a series of unnecessarily abrupt turns").

¶11 Here, Officer Goodman testified he stopped T.J.K.'s vehicle "due to his weaving on the roadway and due to the spinning and squealing of his tires at the intersection of 8 th Street and 3 rd Avenue Northwest." He testified T.J.K.'s vehicle "fully left the southbound lane or transgressed into the northbound lane." Such driving is a clear violation of N.D.C.C. § 39-10-08(1) and would have constituted a reasonable basis to stop T.J.K.'s vehicle. However, T.J.K. testified his vehicle never made any weaving movements and never crossed over the centerline in the roadway. He further testified his foot "slipped off the clutch," and he squealed the vehicle's tires "a little bit" after stopping at a stop sign. The driver of the third vehicle testified he observed T.J.K.'s vehicle "swerving a little," but it never crossed over the center line into the oncoming lane of traffic. He also testified he heard T.J.K. squeal the tires on his vehicle, but the squeal was not "out of the ordinary." A passenger in the third vehicle testified he saw T.J.K.'s vehicle ...