IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Supreme Court No. 20120295/20120296
District Court No. 30-2012-CR-177/178
|State of North Dakota,||)|
|Lowell Lee Baesler,||)|
BRIEF OF APPELLEE
APPEAL FROM CONDITIONAL PLEA OF GUILTY BASED ON
SUPPRESSION HEARING HELD JUNE 29, 2012 AND THE
JUDGMENT ENTERED JULY 5, 2012
HONORABLE GAIL HAGERTY PRESIDING
|Brian D. Grosinger, Id. No. 4500|
|Assistant State's Attorney|
|210 Second Avenue NW|
|Mandan ND 58554|
Table of Contents
|Table of Authorities . . . . . . . ii|
|Issue . . . . . . . . . . 1|
|Statement of Case . . . . . . . . 1|
|Statement of Facts . . . . . . 1-3|
|Argument . . . . . 4-6|
|Conclusion . . . . . . 6|
Table of Authorities
|Carroll v. United States, 267 U.S. 132(1925) . . . . . 6|
|State v. Aguilar, 2011 ND 236, 809 N.W.2d 285 . . . . . . . . . 4-5|
|State v. Bergstrom, 2004 ND 48, 676 N.W.2d 83 . . . . . . . . 4-5|
|State v. Fields, 2003 ND 81, 662 N.W.2d 242 . . . . 4|
|State v. Franzen, 2010 ND 244, 792 N.W.2d 533 . . . . . . . . 4-5|
|Terry v. Ohio, 392 U.S. 1(1968) . . . . . . 4|
Whether the Trial Court erred in Denying the Defendant's Motion to
STATEMENT OF THE CASE
The State does not dispute the Defendant's Statement of the Case. The Defense filed a Motion to Suppress evidence that led to an evidentiary hearing on June 29, 2012. The Trial Court denied the Motion to Suppress. A conditional plea of guilty was entered so the issue of suppression could be appealed to this Court.
STATEMENT OF FACTS
Following the evidence presented at the Motion to Suppress Evidence hearing held June 29, 2012 the Court ruled from the bench, stating as follows:
THE COURT: Okay. The motion to suppress in this case is denied. There were reasonable grounds for investigation of possible driving under the influence. The Defendant was sleeping on the edge of the road during the early morning hours. The officer observed many things that would make it reasonable for him to suggest or request a dog sniff. If, in fact, that were a search, which it isn't, there isn't any evidence that there was any delay in conducting that test. But looking at the totality of the circumstances: The defendant was sleeping; there was a suspicious lighter; there were baggies which are often used to store controlled substance; the defendant's tongue was green; he was exhibiting paranoid behavior. So all of those things working together made it reasonable for them to do the dog sniff. They didn't need to have grounds for that. Even if there was some slight delay, there was not a reasonable (sic) delay in conducting that dog sniff.
Tr. p. 38
Evidence presented that the Court relied on includes the following:
On February 15, 2012 Deputy Pete Carlson of the Morton County Sheriff's Office was on patrol, and came across a vehicle on the side of the road on Highway 1806. Tr. p. 4, l. 5. The location was south of Fort Rice but within Morton County. Tr. p. 4, l. 6.
In the truck on the side of the road was the Defendant, asleep with a bottle of Bud Light open on the console. Tr.p. 4, l. 14. In addition, Deputy Carlson noted a small torch on the Defendant's lap, and baggies tucked into the dash. Tr. p. 5, l. 5. Deputy Carlson testified that the torch was not one that he would expect to be used for tobacco. Tr. p. 9. l. 11. Additional reasonable suspicion testified to by Deputy Carlson was that the Defendant had a green tongue and admitted that he had consumed four (4) drinks earlier. Tr. p. 7, l. 7 and l. 14. Deputy Carlson testified that he requested Deputy Engelstad to back him up on arrival at the pickup on the side of the road. Tr. p. 8, l. 4.
Deputy Carlson testified that Deputy Engelstad and the K-9 arrived at the time that the citation for the open container was printing. Tr. p. 8, l. 20. Deputy Carlson's testimony was that at that point in time he still had not employed the Portable Breath Test (PBT). Tr. p. 8, l. 20.
The K-9 was employed by Deputy Engelstad and gave a positive hit on the passenger side of the vehicle. Tr. p. 8, l. 25. and Tr. p. 26, l. 1. The Defendant was arrested for the contraband located from the ensuing search following the positive indication by the K-9. Tr. p. 9. L. 19.
The time frame involved the following approximations:
1:09 a.m. the truck was located. Tr. p. 11, l. 11.
1:15 a.m. the K-9 was requested. Tr. p. 11, l. 14.
1:19-1:20 a.m. Deputy Carlson started speaking with the Defendant after he woke up.
1:35 a.m. Deputy Carlson discussed the PBT with the Defendant, which was administered at 1:46 a.m. at which time Deputy Carlson was on scene and deploying the K-9 Jimmie. Tr. p. 12, l. 5 and l. 8.
Deputy Carlson specifically testified that he was continuing with his traffic stop while Jimmie the K-9 was checking out the Defendant's truck. Tr. p. 12, l. 20.
There is a major difference in the interpretation of the evidence by the State and the Defense. The difference is that the Defense argues that at the arrival of Deputy Engelstad and the K-9 occurred when the traffic stop was complete. That claim would be based on Deputy Engelstad's testimony of his own perception. Tr. p. 31, l. 25. However, Deputy Carlson's testimony was that he still had the PBT to perform at that point in time. Tr. p. 8, l. 20. And, Deputy Carlson was the one doing the field sobriety tests and was the one conducting the stop.
The State also disputes the Defense claim/complaint that the Defendant was arrested for the open container violation. The Defendant was not arrested for that violation. Tr. p. 17, l. 2.
Standard of Review
The State agrees with the Defense statement that the Standard of Review is that the Trial Court will be affirmed on appeal unless the interpretation of the law is wrong, or that the finding is adverse to the manifest weight of the evidence. State v. Bergstrom, 2004 ND 48, 676 N.W.2d 83.
The Trial Court's interpretation of applicable law is correct.
An investigative stop or temporary infringement on the rights of a citizen is permitted when it is based on a reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 1968; State v. Franzen, 2010 ND 244, 792 N.W.2d 533. In the instant case Deputy Carlson had reasonable suspicion based on the combination of the time of day, the vehicle parked on the side of the road, the open container, the baggies, the Defendant's green tongue and the torch. There was ample basis for the investigative stop.
During the course of the investigative stop the K-9 was summoned. By precedent a K-9 "sniff" is not a search by constitutional definition. State v. Aguilar, 2011 ND 236, 809 N.W.2d 285. The only issue available to the Defense would be if there was unreasonable delay in the course of the deployment of the K-9. State v. Fields, 2003 ND 81, 662 N.W.2d 242. The testimony of Deputy Carlson was that there was not a delay in this regard. His testimony was that he was printing the citation for the open container, and that he had not yet administered the PBT. The Court had evidence to conclude there was not a delay that amounted to a constitutional violation.
The positive indication resulting from the K-9 sniff was probable cause. The Trial Court's determination that under the totality of the circumstances there was no violation was based on a solid foundation. Aguilar, supra; Franzen, supra.
The Findings of the Trial Court are consistent with the manifest weight of the evidence.
The Trial Court found that there was no delay. The Defense claims there was a delay. The only possible basis for that claim is the testimony of Deputy Engelstad. That testimony was that he believed the traffic stop was concluded on his arrival. The testimony of Deputy Carlson, however, is that he still had to perform the PBT. In light of the fact that Deputy Engelstad was not in charge of the PBT on this occasion, and that Deputy Carlson was in charge of the traffic stop, (excepting the K-9), the Trial Court did not err in a finding that there was no delay. It was appropriate for the Trial Court to find that Deputy Carlson's testimony was correct. Based on the duties performed by each deputy this conclusion was the manifest weight of the evidence.
Under this standard of review, the Defense needs to show that the findings of the Trial Court were contrary to the manifest weight of the evidence. Bergstrom, supra. The defense has not achieved that in this case. The compelling evidence is that provided by the lead deputy on the scene. At best the defense has identified a contradiction. It has not established that the finding of the Trial Court was against the manifest weight of the evidence.
The Defense argument that the search was unreasonable is in error.
The Defense rightly states that under the 4th Amendment all searches are unreasonable unless there is a warrant or an exception. In the instant case there was a valid exception to the warrant requirement.
The Carroll doctrine based on Carroll v. United States, 267 U.S. 132(1925) establishes the automobile exception. The exception is based on the inherent mobility of vehicles. The exception allows for the search when probable cause is established. In the instant case there was probable cause based on the totality of the circumstances, including the K-9 positive indication. Therefore, the are no grounds for suppression and the Trial Court's ruling is correct.
Based on the argument above the State of North Dakota requests that the Suppression Order and the Judgment of the Trial Court be in all respects affirmed.
Dated this 19th day of October, 2012.
|Brian D. Grosinger, Id. 4500|
|Assistant State's Attorney|
|210 2nd Avenue NW|
|Mandan ND 58554|