IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Supreme Court Nos. 20120295 and 20120296
District Court No. 30-2012-CR-00177/30-2012-CR-00178
|State of North Dakota,||)|
|Lowell Lee Baesler,||)|
APPEAL FROM SUPPRESSION HEARING HELD
JUNE 29, 2012, AND THE JUDGMENT ENTERED JULY 5, 2012,
HONORABLE GAIL HAGERTY, PRESIDING
|Kent M. Morrow|
|Severin Ringsak & Morrow|
|411 N. 4th Street #6|
|Bismarck, ND 58501|
TABLE OF CONTENTS
|Table of Contents||.||page 2|
|Table of Authorities||..page 3|
|Statement of Issues||..1-2|
|Did the Trial Court err when it denied Baesler's Motion to Suppress?|
|Statement of the Case||3-7|
|Statement of Facts||....8-15|
|Law and Argument||..16-35|
|Certificate of Service||....page 11|
TABLE OF AUTHORITIES
|Doyle v. Doyle, 52 N.D. 380, 389, 202 N.W. 860, 863(1925).||.23|
|Florida v. Jimeno, 500 U.S. 248, 250 (1991).||.19|
|State v. Bergstrom, 2004 ND 48, ¶10, 676 N.W.2d 83||22|
|State v. Fields, 2003 ND 81, 662 N.W.2d. 242.||33|
|State v. Frank, 350 N.W.2d 596, 599 (N.D. 1984).||19|
|State v. Gagnon, 1997 ND 153, ¶8, 567 N.W.2d 807.||.23|
|State v. Matthews, 2003 ND 108, ¶8, 665 N.W.2d 28||.22|
|Terry v. Ohio, 392 U.S. 1, 20 (1968)||..33|
|United States v. Jones, 269 F.3d [919,] 925 [(8th Cir. 2001)].||....33|
|Wellens v. Beck, 103 N.W.2d 281, 285 (N.D. 1960).||23|
|North Dakota Century Code:|
|Fourth Amendment (to the United States Constitution)||..19,33|
2. Did the trial court err when it denied Baesler's Motion to Suppress?
3. STATEMENT OF THE CASE.
4. On February 15, 2012, Lowell Baesler ("Baesler") was charged in Morton County, North Dakota, with Possession of Controlled Substance and Possession of Drug Paraphernalia.
5. On May 25, 2012, Baesler filed a Motion to Suppress. The State filed a response to the Motion to Suppress. Following an evidentiary hearing on June 29, 2012, the District Court of Morton County, North Dakota, the Honorable Gail Hagerty, presiding, issued its Order Denying Suppression Motion on July 6, 2012.
6. On July 17, 2012, Baesler entered a conditional plea of guilty to Possession of Drug Paraphernalia. On May 24, 2012, the charge of Possession of Controlled Substance was dismissed by the State.
7. On July 20, 2012, Baesler filed a Notice of Appeal to the North Dakota Supreme Court.
8. STATEMENT OF FACTS.
9. On February 15, 2012, Deputy Peter Carlson, of the Morton County Sheriff's Office, was patrolling on Highway 1802 south of Fort Rice, North Dakota, at around 1:00 a.m. He was driving north bound and came upon a stopped vehicle. (Tr.p. 4, ll. 1-6).
10. The vehicle was parked on the approach with lights on. Carlson stopped to check on the vehicle. (Tr.p. 4, ll. 22-25). There was a small "torch" on Baesler's lap. There were "some baggies tucked in the dash." (Tr.p. 9, ll. 2-7).
11. Eventually, Baesler woke up. Carlson announced his presence and told Baesler that he was there about the open container. Carlson then questioned Baesler and had him undergo field sobriety tests in conjunction with an investigation into a possible DUI. Following Baesler's successful completion of the field sobriety tests, Carlson declined to arrest Baesler for Driving Under the Influence. (Tr.p.__, ll. 14-25).
12. Upon arrival at the scene, Carlson requested assistance from Deputy Jon Engelstad. (Tr.p. 8, ll. 2-3). Carlson advised Engelstad that "I thought it would be worth it for him to come down and use his K-9." (Tr.p. 8, ll. 4-7).
13. Engelstad arrived on scene "at the time (Carlson) was printing off a citation for open container. Engelstad's K-9 began a sniff of the exterior of Baesler's vehicle while Carlson completed his citation.
14. Engelstad asked Baesler several questions. Engelstad asked Baesler if he ever used marijuana. Baesler stated yeah. Engelstad asked when was the last time. Baesler said earlier today. Engelstad told Baesler that his K-9 indicated on the passenger side of Baesler's vehicle to the presence of narcotics. Engelstad asked Baesler if he ever smoked marijuana in his vehicle. Baesler said yeah. Engelstad asked when was the last time, Baesler said today.
15. With the plain view items, positive K-9 identification, admission of recent drug use, and his green tongue, Officer Carlson decided to search Baesler's vehicle for drugs. He seized a small torch from the driver seat, 2 baggies with residue, 1 graduated for possible measurement from the dashboard cubbie, a sunglass case containing a plastic container of white powder, which had a smell of rotten eggs. When he searched Baesler's jacket, he seized a baggie containing several baggies of white powder residue, 2 glass smoking devices with residue and pipe cleaning tools. Baesler was then arrested.
16. LAW AND ARGUMENT.
17. The trial court committed reversible error when it denied Baesler's motion to suppress.
18. Baesler entered a conditional plea of guilty. On appeal, Baesler contends the trial court erred.
19. The touchstone of the Fourth Amendment is reasonableness. Florida v. Jimeno, 500 U.S. 248, 250 (1991). "A search without a valid search warrant is unreasonable unless the state shows that the search comes within an exception to the general rule of exclusion." State v. Frank, 350 N.W.2d 596, 599 (N.D. 1984).
20. In an appeal from an order issued on a suppression motion, this Court accords great deference to the trial court:
21. "[W]e defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. We affirm the district court's decision, unless after resolving conflicting evidence in favor of affirmance, we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence."
22. State v. Bergstrom, 2004 ND 48, ¶10, 676 N.W.2d 83 (quoting State v. Matthews, 2003 ND 108, ¶8, 665 N.W.2d 28 (internal citations and quotations omitted)).
23. The trial court hears the witnesses, sees their demeanor on the stand, and is in a position to determine the credibility of witnesses. Wellens v. Beck, 103 N.W.2d 281, 285 (N.D. 1960). On the other hand, the Court on appeal has before it "but a cold and lifeless record" and has "not the advantage . . . of the innumerable intangible indicia that are so valuable to a trial judge." Doyle v. Doyle, 52 N.D. 380, 389, 202 N.W. 860, 863(1925). Thus, the trial court is in a much better position to ascertain the true facts than an appellate court relying on a cold record. State v. Gagnon, 1997 ND 153, ¶8, 567 N.W.2d 807.
24. The basis of Baesler's suppression motion was that the law enforcement officer had "no probable cause to commence and/or continue the search of Baesler's vehicle once the initial reason for the "seizure" ended.
25. The court denied the motion and explained,
26. "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 delay in conducting that dog sniff. So the motion to suppress is denied and we will be ready to proceed to trial next week."
27. The basis for Deputy Carlson's search of Baesler's vehicle was the "hit" by the K-9, the torch on Baesler's lap, baggies tucked in the dash, and the green tint to Baesler's tongue. (Tr.p. 9, ll. 1-21).
28. Upon cross examination, Carlson conceded that the primary concern was the open container. A secondary reason was the presence of the "unusual lighting device" based upon it being "suspicious." (Tr.p. 13, ll. 19-23). When Carlson shown a light into the car, he could not establish whether there was any alcohol in the bottle. (Tr.p. 14, ll. 1-4). There was nothing in the baggies and they were not in proximity to any controlled substances. (Tr.p. 15, ll. 2-10). In the time it took for Deputy Engelstad to get to the scene, Deputy Carlson had concluded that Baesler was not under the influence of alcohol. (Tr.p.16, ll. 16-19).
29. Carlson conceded that the search of Baesler's vehicle was "involuntary" and not subject to a search warrant. (Tr.p. 17, ll. 6-7). Carlson did not seek Baesler's consent or a search warrant from the Court. (Tr.p. 17, ll. 9-23). He lastly concluded that the "evidence. . . obtained from the basis for arresting [Baesler] was obtained after [Carlson] went into his vehicle and searched it without a warrant. (Tr.p. 18, ll. 5-8).
30. Jon Engelstad testified at the evidentiary hearing as well. When he arrived at the scene, Baesler was already in the rear seat of Deputy Carlson's vehicle. (Tr.p. 24, ll. 14-18). There was no reason for him to release the drug sniffing dog. There was no reason to search the vehicle.
31. Baesler was arrested for open container pursuant to N.D.Cent.Code Section 39-08-18. This section states, in part,
39-08-18. Open container law Penalty.
1. "A person may not drink or consumer alcoholic beverages, as defined in section 5-01-01, in or on any motor vehicle when the vehicle is upon a public highway or in an area used principally for public parking. A person may not have in that person's possession on that highway or in an area used principally for public parking, any bottle or receptacle containing alcohol beverages which has been opened, or the seal broken, or the contents of which have been partially removed. It is unlawful for the owner of any private motor vehicle or the driver, if the owner be not then present in or on the motor vehicle, to keep or allow to be kept in a motor vehicle when such vehicle is upon the public highway or in an area used principally for public parking any bottle or receptacle containing such alcoholic beverages which has been opened, or the seal broken, or the contents of which have been partially removed. . .."
32. The fine is $50.00. There is no possible jail sentence. It is not even an offense which a person can be arrested. Section 29-06-08, N.D.Cent.Code. Therefore, the "arrest" of Baesler was not effective. He should have been released upon issuance of a citation. Therefore, the use of the drug dog came after Baesler should have been released.
33. Baesler relies upon this Court's decision in State v. Fields, 2003 ND 81, 662 N.W.2d. 242. In Fields, we considered the constitutionality of a sniff conducted during a traffic stop. After recognizing that the investigative detention framework established in Terry v. Ohio, 392 U.S. 1, 20 (1968), applies to traffic stops, we outlined the test for determining whether extending the detention of an individual to wait for a drug detection dog amounts to an unconstitutional seizure:
"Once the purposes of the initial traffic stop are completed, a continued seizure of a traffic violator violates the Fourth Amendment unless the officer has a reasonable suspicion for believing that criminal activity is afoot. See [United States v.] Jones, 269 F.3d [919,] 925 [(8th Cir. 2001)]. Therefore, the constitutional inquiry in this case is reduced to two determinations: whether Fields was 'seized' within the meaning of the Fourth Amendment when he was held awaiting the arrival of the drug detection dog, and if so, whether there was a reasonable suspicion to support the seizure. See, Id."
Fields, at ¶10.
34. The purpose of the initial traffic stop had been completed by the time the drug dog arrived. Because of the questionable arrest, Baesler should have already been released by the time the dog showed up. Deputy Carlson conceded that he had no reasonable suspicion that any criminal activity was afoot.
35. The drug dog usage was the basis for the further search of the vehicle. This "hit" by the dog should only have been served as the basis for obtaining a search warrant.
37. The trial court erred when it denied Baesler's suppression motion.
Dated this 21st day of September, 2012.
|/s/ Kent M. Morrow|
|Kent M. Morrow ID#03503|
|411 N. 4th Street #6|
|Bismarck, ND 58501|