Wolf v. North Dakota Dept. of Transp., 940075

• Decision Date: 27 October 1994
• Docket Number: No. 940075,940075
• Citation: 523 N.W.2d 545
• Parties: Perry Ernest WOLF, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 545

523 N.W.2d 545

Perry Ernest WOLF, Plaintiff and Appellant, v. NORTH DAKOTA DEPARTMENT OF TRANSPORTATION, Defendant and Appellee.

Civ. No. 940075.

Supreme Court of North Dakota.

Oct. 27, 1994.

Irvin B. Nodland, P.C., Bismarck, for plaintiff and appellant; argued by Chad Nodland.

Carmen G. Miller (argued), Asst. Atty. Gen., Bismarck, for defendant and appellee.

MESCHKE, Justice.

Perry Wolf appeals from a district court judgment affirming an administrative suspension of his driver's license due to intoxicated driving. We hold that excessive engine noise gave an officer reasonable suspicion for an investigative stop, and we affirm.

One September night in 1993, near 1:40 a.m., Highway Patrolman Rick Richard was out of his patrolcar on a rural stretch of highway north of Beulah. Richard "heard a vehicle exhibiting a real loud exhaust noise, and it seemed to be accelerating rapidly." "[A]s the vehicles passed us I noticed there was a loud popping noise ... which indicated to me that the blue vehicle was decelerating, and I interpreted that to be the vehicle that had projected the earlier indicated engine noise." Richard equated what he heard with exhibition driving, went after the vehicle driven by Wolf, and stopped him.

When Richard queried Wolf, he replied that he had "stomped on the gas and racked his pipes a little," meaning Wolf created extra engine noise. During the stop, Richard smelled alcohol on Wolf's breath, noticed unopened beer bottles behind the driver's seat, and saw an open can of beer next to a front-seat passenger. Wolf admitted drinking five or six beers. Richard administered field sobriety tests, gave an Alco-Sensor breath test, and arrested Wolf. Wolf consented to a test that reported his 0.14 percent blood-alcohol content.

Wolf's license was administratively suspended for 365 days, and Wolf appealed to the district court. Wolf principally argued that the stop for noise was simply pretextual, so the officer lacked any reasonable suspicion to stop him. The district court affirmed the hearing officer's decision that the police officer had a reasonable and articulable suspicion for the stop of Wolf's car, "supported by the evidence of the loud acceleration and [deceleration]" and "by a preponderance of the evidence," although Wolf was not charged with exhibition driving.

In this appeal from the district court, Wolf continues to argue that it was unreasonable for the officer to believe that he was disturbing the peace by loud engine noise from rapid acceleration, since it occurred in a rural area with no one around. Wolf thus asserts that the officer used the pretext of noise to improperly stop his car to investigate something else, and that the officer had no real suspicion that Wolf violated any law. We disagree.

The Administrative Agencies Practice Act, NDCC Chapter 28-32, limits our review of a driver's license suspension to the record before the administrative agency rather than the decision of the district court. Samdahl v. North Dakota Dep't of Transp. Director, 518 N.W.2d 714, 716 (N.D.1994). On appeal, the decision of the agency must be affirmed "(1) if the findings of fact are supported by a preponderance of the evidence; (2) if the conclusions of law are sustained by the findings of fact; (3) if the decision is supported by the conclusions of law; and (4) if the decision is in accordance with law." Id.

Wolf claims that Richard stopped his car on a pretext, without a reasonable ground for suspicion. "An arrest is pretextual when the police use the fact of an arrest based on probable cause as a device to investigate or search for evidence of an offense for which probable cause is lacking." State v. Kunkel, 455 N.W.2d 208, 210 (N.D.1990), citing United States v. Trigg, 878 F.2d 1037 (7th Cir.1989). Like pretextual probable cause to arrest, pretextual reasonable suspicion to stop is largely a factual matter. As Samdahl explained, 518 N.W.2d at 716, "[t]his court exercises restraint when it reviews the findings of an administrative agency; we do not substitute our judgment for that of the agency, but instead determine whether a reasonable mind could have determined that the factual conclusions were proven by the weight of the evidence presented."

Wolf reinforces his argument with the fact that he was not charged with exhibition driving, the conduct identified for stopping him. However, when someone is stopped for a minor traffic violation, nothing blocks the officer from charging the driver with a more serious traffic violation identified during the stop. State v. Klevgaard, 306 N.W.2d 185, 192 n. 9a (N.D.1981), explained the reason why this is so: "If this were not permissible all criminal prosecutions would have to be based upon the first impressions received by the arresting officer, which would produce a ridiculous result."

Wolf claims that it was impossible for him to have committed a violation by...