IN THE SUPREME COURT
STATE OF NORTH DAKOTA
|State of North Dakota,||)|
|-vs-||)||Supreme Court Case No. 20100391|
|Kevin James Gefroh,|
|)||District Court Case No. 51-10-K-1179|
BRIEF OF APPELLEE KEVIN JAMES GEFROH
Appeal from the District Court Order Granting Motion to Suppress
Dated November 16, 2010
In and for the County of Ward, State of North Dakota, Northwest Judicial District
Honorable Douglas L. Mattson, Judge of the District Court, Presiding
|Robert W. Martin, Esq., ND Bar ID #04636|
|Attorney for Appellee Kevin James Gefroh|
|North Dakota Public Defenders' Office--Minot|
|11 First Avenue SW|
|Minot, ND 58701|
TABLE OF CONTENTS
|Table of Authorities||Page ii|
|Statement of the Issue||Paragraph 1|
|Statement of the Case||Paragraph 2|
|Statement of Facts||Paragraph 3|
|Argument and Authorities||Paragraph 7|
TABLE OF AUTHORITIES
|State v. Beane, 2009 ND 146, ¶9, 770 N.W.2d 283||9, 18|
|State v. Harlan, 2008 ND 220, ¶6, 758 N.W.2d 706||9, 18|
|State v. Heitzmann, 2001 ND 136 632 NW2d 1||9, 18|
|State v. Huether, 453 N.W.2d 778 (ND 1990)||15|
|State v. Lorenzen,||16|
|State v. Pickar, 453 N.W.2d 783 (N.D. 1990)||16|
|Terry v. Ohio, 362 Us 1 (1968)||9, 18|
STATEMENT OF THE ISSUE
[¶1] Whether this Court should overturn suppression of the evidence in the case below, not only given the rationale and authorities relied upon by the trial court, but upon that court's determination of credibility, or the lack thereof, of Officer Craig Sandusky of the Minot Police Department?
STATEMENT OF THE CASE
[¶2] Appellee accepts the Statement of the Case as set forth by Appellant, but would add that time constraints of counsel for Appellee required the submission of a Motion for Enlargement of Time dated February 25th, 2011, which allowed for the submission of this Brief on March 25th, 2011. This Motion was granted by the Court on that same date. (Supreme Court Docket Entries #9 and #11).
STATEMENT OF FACTS
[¶3] Appellee accepts the broad outline of events set forth as far as dates, times and general sequence of events as set forth by Appellant, but notes a lack of discussion vis- -vis the testimony of Officer Craig Sandusky of the Minot Police Department as it relates to the warrantless search of the pockets of Kevin James Gefroh based, according to the testimony of that officer, upon safety concerns.
[¶4] On page 17 of the transcript of the suppression hearing held on November 1, 2010, commencing at line 17, counsel for Appellee cross-examines Officer Craig Sandusky regarding the initial warrantless search, the "pat-down" conducted for alleged officer safety concerns. The density of the object or objects contained in Kevin James Gefroh's pockets is raised and it is determined that the object or objects were soft, not hard. (Trans. 9. 18, l. 18 - 25). When counsel asserts by examination that a soft object could not be a weapon, Officer Sandusky replies "[i]t could be." When pressed about a baggie filled with powder, Officer Sandusky stated "I would say that's not a weapon." When further pressed about the validity of officer safety as a reason for the warrantless search beyond a simple "pat-down"--the actual entry into Kevin James Gefroh's pockets and the removal of the contraband--Officer Sandusky retreats from reality and into the mantra of "[i]t could have been" in reference to the soft object or objects as a potential weapon. (Trans. p. 19, l. 1-9).
[¶5] The trial court noted, when assessing the testimony of Officer Sandusky on this point, that:
[¶6] Officer Sandusky presented no testimony that indicated he, Officer Huber, or the other Task Force officers believed the 'soft object' in Gefroh's pocket could be a weapon. Instead, Officer Sandusky equivocated when pressed by Gefroh's defense counsel, Mr. Martin, testifying in vague generalities that a soft object could be a weapon. When Mr. Martin sought clarification, asking what sort of weapon it could be, Sandusky demurred, repeating only that it could be a weapon. Even though he was given an opportunity to explain his answer, Officer Sandusky failed to state the basis of his conclusionary testimony." (Emphasis added). (Order Granting Motion to Suppress, p. 13; App. p. 36).
ARGUMENT AND AUTHORITIES
[¶7] This Court should not overturn suppression of the evidence in the case below, given not only the rationale and authorities relied upon by the trial court, but upon that court's determination of credibility, or the lack thereof, of Officer Craig Sandusky of the Minot Police Department .
[¶8] While counsel is sure that it comes as no great surprise to this Court or counsel for the Appellant, it is the position of the Appellee that the result reached by the trial court is not only correct, it is based upon an extensive amount of authority and the application thereof is set forth in substantial detail in the Order Granting Motion to Suppress. The trial court stated:
[¶9] Notwithstanding, the scope of a pat-down search is limited. "The scope of a constitutionally valid pat-down search is limited to the patting of a suspect's outer clothing for such concealed objects that might be used as weapons." State v. Harlan, 2008 ND 220, ¶6, 758 N.W.2d 706 (citing Terry, supra, at 30). Under Terry and its progeny, to take the pat-down search a step further and conduct a pocket search, law enforcement must feel something during the pat-down search to suggest the object might be a weapon. 'A pocket search is justified when the patting 'reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon.'" Harlan at ¶6 (citing Heitzmann at ¶13). See also State v. Beane, 2009 ND 146, ¶9, 770 N.W.2d 283. (Emphasis added). (App. p. 35).
[¶10] It is not as if the trial court was relying upon the Magna Carta to reach its conclusion in the case below. The Year of Our Lord 1215 aside, the authorities cited by the trial court are not only dead on point, but consist of some very recent decisions by this Court, as well as long-standing Federal cases, drawing the line that law enforcement may not cross--but did--in the appeal before this Court. Counsel for the Appellant ignores this body of authority--and the simple facts of the warrantless pat-down and subsequent pocket searches--by trying to cast this matter as an opportunity for this Court to extend the "automobile exception" to allow a subsequent warrantless search of all persons in an automobile, now standing outside of the same, based upon "common sense and logic" and the existence of probable cause to stop a motor vehicle. (Appellant's Brief, p. 12 and p. 13).
[¶11] In one fell swoop, we remove any restraints from law enforcement to shake down the drivers and passengers of a motor vehicle, ignoring any justification or rationale for warrantless searches in the complete obliteration of the Fourth Amendment for the sake of "effective" law enforcement. "I am from the government and I am here to help you" does not begin to highlight the sheer fear of the potential--and actual--destruction of individual liberty that such a position engenders. If it walks like a duck, quacks like a duck--it is a duck--likewise a warrantless search sans exception.
[¶12] These lines are drawn for the express purpose of protecting an individual's privacy and liberty interests--the cost of a free society. While the Appellant gleefully hacks away at these interests in the name of "common sense and logic" all for the greater "good" of more effective law enforcement, it does so without considering the simple facts of the case and this Court's prior rulings--to say nothing of an utter lack of authority supporting its position.
[¶13] Moreover, Appellee contends that such a construction not only ignores this Court's prior decisions directly on point, it also ignores the fact that a determination was made by the trial court vis- -vis the credibility of Officer Sandusky in reaching suppression in the case before the Court. As was noted by the trial court:
[¶14] Officer Sandusky presented no testimony that indicated he, Officer Huber, or the other Task Force officers believed the 'soft object' in Gefroh's pocket could be a weapon. Instead, Officer Sandusky equivocated when pressed by Gefroh's defense counsel, Mr. Martin, testifying in vague generalities that a soft object could be a weapon. When Mr. Martin sought clarification, asking what sort of weapon it could be, Sandusky demurred, repeating only that it could be a weapon. Even though he was given an opportunity to explain his answer, Officer Sandusky failed to state the basis of his conclusionary testimony." (Emphasis added). (Order Granting Motion to Suppress, p. 13; App. p. 36).
[¶15] "Equivocated", "vague generalities", "demurred" and "conclusionary"--these are the words of a credibility determination, made by a trial court in course of its assessment of Officer Craig Sandusky's sworn testimony. The significance of this should not be lost upon either the Court or counsel for Appellant. In the case of State v. Huether, 453 N.W.2d 778 (ND 1990), this Court stated that:
[¶16] The trial court is in a superior position to judge the credibility of witnesses and the weight to be accorded their testimony. See State v. Pickar, 453 N.W.2d 783 (N.D. 1990). Conflicts in testimony must be resolved in favor of affirming the trial court. Lorenzen, supra. In this instance, affirming the trial court means affirming the suppression order. We conclude that there is sufficient competent evidence supporting the trial court's order and, accordingly, we affirm. (Emphasis added).
[¶17] Since the Appellant is not balking at the destruction of the Fourth Amendment in pursuit of its unlimited " automobile exception", doubtless it will likewise find no difficulty with this Court acting to re-determine or re-assess the credibility of a witness from a transcript on a routine basis--albeit only in those cases where the defense has prevailed. This Court has, however, clearly expressed Its reservations in engaging in this particular form of "Monday morning quarterbacking" and should decline the Appellant's invitation to not only overturn one, but two, lines of cases in pursuit of admission of the evidence seized illegally in the pocket search of Kevin James Gefroh.
[¶18] "What has it got in its pocketses?" is more than just a Tolkien--or token--question. It is the line drawn by this Court in Harlan, Beane, and Heitzmann, as well as the more venerable Terry decision by the United States Supreme Court, to protect the privacy and liberty interests of citizens against naked government aggression. It is a line that was crossed by Officer Sandusky and the other members of the Task Force in the instant case, and it is a line that this Court should protect, rather than erase, at the invitation of the State.
[¶19] Moreover, for this Court to overturn the suppression of the evidence in the instant case there would also have be the complete disregard of the "superior position" of the trial court in assessing the credibility of a witness during the course of the case below--again contrary to the weight of authority established by this Court. Counsel often points out to jurors during voir dire that it would be incorrect to assign greater weight to the testimony of a law enforcement officer simply because the witness is a law enforcement officer--the old prohibition against "throwing the badge into the scales of Justice". How much more offensive is the double standard when it is applied to that same testimony on appeal of a trial court's reasoned, researched and correct decision?
[¶20] Respectfully submitted this 25th day of March, 2011.
|Robert W. Martin, ND Bar ID #04636|
|Attorney for Appellant|
|ND Public Defenders' Office--Minot|
|11 First Avenue SW|
|Minot, ND 58701|