In the Supreme Court
State Of North Dakota
|State of North Dakota,|
|[District Court No.: 18-2012-CR-00708]|
|vs.||No. : 20130041|
|Kyle Jordan Varnson,|
Appeal From the Judgment of Conviction Entered on January 11, 2013, by the District Court, Northeast Central Judicial District, Grand Forks County,
Honorable Debbie G. Kleven
BRIEF OF APPELLANT
KYLE JORDAN VARNSON
|DAVID C. THOMPSON, P.C.|
|David C. Thompson (03921)|
|Attorney at Law|
|321 Kittson Avenue|
|P.O. Box 5235|
|Grand Forks, ND 58201-5235|
|(701) 775-2520 (facsimile)|
|Counsel for Appellant|
|TABLE OF CONTENTS|
|Table of Authorities|
|Statement of the Issues Presented for Review||I|
|Statement of the Case||¶1|
|Statement of Facts||¶7|
|TABLE OF AUTHORITIES|
|Abernathy v. Department of Transp.,|
|2009 ND 122, ¶ 8, 768 N.W.2d 485 (N.D. 2009).||19|
|Carmouche v. the State of Texas,|
|10 S.W.3d 323, 331-332 (Tex. Crim. App. 2000).||32|
|Coolidge v. New Hampshire,|
|403 U.S. 443, 479, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).||27|
|Delaware v. Prouse,|
|440 U.S. 648, 653-663 (1979).||28, 29|
|State v. Addai,|
|2010 ND 29, ¶ 18, 778 N.W.2d 555 (N.D. 2010).||20|
|Salter v. North Dakota Department of Transportation,|
|505 N.W.2d 111, 113-114, (N.D. 1993).||22, 25|
|Johnson v. Sprynczynatyk,|
|2006 ND 137, ¶ 9, 717 N.W.2d 586, 589 (N.D. 2006).||21|
|State v. Kenner,|
|1997 ND 1, ¶¶ 7-11, 559 N.W.2d 538, 540-541 (N.D. 1997).||21|
|State v. Mohl,|
|2010 ND 120, ¶ 7, 784 N.W.2d 128, 130 (N.D. 2010).||19|
|State v. Post,|
|2007 W.I. 60, ¶ 19 n.4, 733 N.W.2d 634, 639 n.4 (Wis. 2007)..||25, 26|
|State v. VandeHoven,|
|388 N.W.2d 857 (N.D. 1986).||23|
|Kappel v. Director, N.D. Dept. of Trans.,|
|1999 ND 213, ¶ 7, 602 N.W.2d 718.||21|
|Warrick v. Commissioner of Public Safety,|
|374 N.W.2d 585, 586 (Minn.Ct.App. 1985).||23, 24|
|N.D.C.C. § 12.1-32-01(6)||2|
|N.D.C.C. § 39-08-01(1)(a)||2|
|N.D.C.C. § 39-08-01(1)(b)||2|
|N.D.C.C. § 39-08-01(2)||2|
|N.D.C.C. § 39-08-01(4)||2|
|Rule 11(a)(2) of the North Dakota Rules of Criminal Procedure||1|
|Article I, Section 8, of the North Dakota Constitution||3, 19|
|Four Amendment of the United States Constitution||3, 19, 29|
|Fourteenth Amendment of the United States Constitution||3, 19, 29|
STATEMENT OF THE ISSUE PRESENTED FOR REVIEW
Because University of North Dakota Police Officer Daniel Weigel did not have a reasonable and articulable suspicion to stop the vehicle driven by defendant Kyle Jordan Varnson -- the defendant's conviction in this case for driving under the influence was violative of the Fourth (and Fourteenth) Amendments of the United States Constitution and Article I, § 8, of the North Dakota Constitution.
STATEMENT OF THE CASE
¶ 1. The instant case derives from a judgment of conviction which was entered by the District Court on January 11, 2013, following an agreement with the prosecution approved by the District Court, pursuant to the conditional guilty provisions of Rule 11(a)(2) of the North Dakota Rules of Criminal Procedure, in which defendant Kyle Jordan Varnson reserved the right to appeal the District Court's December 11, 2012, "Order Denying Defendant's Motion to Suppress" on Fourth Amendment grounds.(1)
¶ 2. Mr. Varnson originally had been issued a citation hand-written by University of North Dakota police officer Daniel Weigel, charging the defendant with "driving under the influence of alcohol in excessive of .08 %" on March 18, 2012. Thereafter, the defendant was charged by superceding information filed March 26, 2012, with driving under the influence "in violation of Section 39-08-01(1)(a), 39-08-01(1)(b), 39-08-01(2), 39-08-01(4), and 12.1-32-01(6) of the North Dakota Century Code, a Class B Misdemeanor . . . " See, information filed March 26, 2012, at Appx. 4, and the hand-writing summons dated March 18, 2012, at Appx. 5.
¶ 3. The defendant had moved the District Court for dismissal and/or for the suppression of all prosecutorial evidence against him upon the grounds that the vehicle stop and (alternatively and consecutively) the arrest in this case were accomplished in violation of Mr. Varnson's rights under the Fourth Amendment of the United States Constitution, and (alternatively and consecutively) the defendant's rights under of Article I, § 8 of the North Dakota Constitution. District Court Doc Nos. 9-12.
¶ 4. At the suppression hearing, the defendant limited the contours his suppression/dismissal motion to the unconstitutionality illegality of the law enforcement stop of his vehicle on March 18, 2012, with the defendant abandoning that portion of his suppression/dismissal motion which related to his actual arrest. See, the transcript of proceedings of the Motion Hearing conducted by the District Court October 18, 2012, at pages 10-11, Appx. 25-26.
¶ 5. On December 11, 2012, by a written "Order Denying Defendant's Motion to Suppress", the District Court stated that the police officer who effectuated the "stop" of defendant Kyle Jordan Varnson's vehicle "had reasonable and articulable suspicion that a criminal violation was occurring before he pulled the Defendant over", with the Court holding that, "the Defendant's Motion to Suppress and Dismiss is denied." See, the District Court "Order Denying Defendant's Motion to Suppress" at page 5, Appx. 6.
¶ 6. Thereafter, the above-described conditional guilty plea sentencing hearing occurred on January 11, 2013, and following the entry of the criminal judgment on that same date, the defendant field his timely notice of appeal on February 6, 2013. Appx. 13.
STATEMENT OF FACTS
¶ 7. At the hearing conducted by the District Court on October 18, 2012, upon defendant Kyle Jordan Varnson motion to suppress and/or dismiss, two elements of evidence were entered into the record -- the sworn testimony of University of North Dakota police officer Daniel Wiegel, and a DVD police car "dashboard camera" video that had been taken from the squad car "dash cam" operated by Officer Wiegel. See, generally, the Transcript of Motion Hearing of the proceedings of October 18, 2012, at pages 4-28, [Appx. 19-43] and Defendant's Exhibit No. , consisting of the "dash cam" DVD video.
A. The suppression hearing testimony of the University of North Dakota Police Officer Daniel Weigel.
¶ 8. Upon direct examination by the prosecution, Officer Wiegel testified that approximately 3:10a.m. on March 18, 2012, he "was traveling on University Avenue" in the city of Grand Forks when he "observed a Chevy Silverado pickup in front of me traveling westbound" as well". Transcript of Motion Hearing of the proceedings of October 18, 2012, at page 7, lines 12-20, [Appx. 27-35].
¶ 9. During his direct examination Officer Weigel testified that he, "observed the vehicle was traveling westbound, weaving within its own lane, driving very close to the curb as well as swiping the curb." Transcript of Motion Hearing of the proceedings of October 18, 2012, at page 7, lines 23-25, [Appx. 38-40].
¶ 10. When asked by the prosecutor if the vehicle had ever crossed into another lane, Officer Weigel testified that, "(i)t did . . . (i)t crossed the white line of a turning lane. Transcript of Motion Hearing of the proceedings of October 18, 2012, at page 8, lines 1-2, [Appx. 23].
¶ 11. The prosecutor then asked Officer Weigel if her had observed "the use of electronic equipment", and the officer responded, "I did . . . I observed the driver holding a, what appeared to be a cell phone above the steering wheel while he was driving." Transcript of Motion Hearing of the proceedings of October 18, 2012, at page 8, lines 3-6, [Appx. 23].
¶ 12. Then the following important exchange occurred while Officer Wiegel was being questioned by the prosecutor upon direct examination:
Q: How far form the vehicle were you when you made these observations?
A: Approximately three or four car lengths behind him.
Q: And what did you do after you observed those things?
A: I initiated a traffic stop of that vehicle. (emphasis added)
Transcript of Motion Hearing of the proceedings of October 18, 2012, at page 8, lines 7-11, [Appx. 23].
¶ 13. During cross examination of Officer Wiegel by defense counsel, the prosecution vehemently objected to the defendant's proposed introduction of the squad car "dash cam" DVD video, but the court overruled the prosecution's objections and admitted that video into evidence. Transcript of Motion Hearing of the proceedings of October 18, 2012, at page 19, lines 19-25, page 20, lines 1-25, page 21, lines 1-25, and page 22, lines 1-17, [Appx. 34-37]. See, also, the prosecution's renewed "adamant" objection to the defendant's introduction of Officer Wiegel's "dash cam" DVD video, which was received as defense Exhibit No. 1 to the suppression hearing proceedings, at Transcript of Motion Hearing page 27, lines 23-25, and page 28, lines 1-17.
¶ 14. After the court had initially admitted Officer Weigel's "dash cam" DVD video over the prosecution's strong objection, the prosecutor stated to the court as follows:
Just briefly, Your Honor. I'd like to remind the Court that we're not here today to determine the propriety of Officer Weigel's decision to operate the in-car video, we're only here to determine whether reasonable suspicion to initiate a traffic stop existed. We have also presented testimony that the driver was using a cell phone while he was operating the vehicle which as the Court is aware is also a violation of the law. So regardless of what the video will show you, the Officer did also testify that the driver was using a cell phone while he was driving. (emphasis added).
Transcript of Motion Hearing of the proceedings of October 18, 2012, at page 26, lines 5-15, [Appx. 41].
¶ 15. During cross examination by defense counsel, Officer Wiegel testified that his squad car "dash cam" had been turned on manually by his own affirmative action while Weigel was traveling "two or so car lengths behind the (Varnson) vehicle". Transcript of Motion Hearing of the proceedings of October 18, 2012, at page 15, lines 16-25, page 16, lines 1-25, page 17, lines 1-25, page 18, lines 1-25, and page 19, lines 1-7, [Appx. 30-34].
¶ 16. Specifically, the following exchange occurred between defense counsel and Officer Wiegel as cross examination proceeded at the suppression hearing:
Q: Okay. In this case had you, did the tape turn on when you activated your emergency lights?
A: I believe so, yes.
Q: All right. And so you began taping, well, it automatically began taping when you turned on the emergency light?
A: That's correct.
Q: Because it was powered on?
Q: And the vehicle heeded your emergency lights, correct?
A: That is correct, yes.
Q: And promptly moved to the right shoulder, is that right?
A: Correct. (emphasis added)
Transcript of Motion Hearing of the proceedings of October 18, 2012, at page 18, lines 20-25, page 19, lines 1-7, [Appx. 33-34].
B. Arresting Officer Daniel Weigel's "dash cam" DVD video -- evidence that was introduced by the defense while being objected-to by the prosecution -- evidence which materially contradicts this officer's sworn testimony at the suppression hearing proceedings in this case.
¶ 17. In his sworn testimony given at the suppression hearing, Officer Weigel asserted that he had observed the defendant's vehicle weaving in its own lane and swiping the curb of University Avenue and "the driver holding . . . what appeared to be a cell phone above the steering wheel while he was driving" while Weigel was only "(a)pproximately three or four car lengths" behind defendant Kyle Jordan Varnson's vehicle, and that after observing these things, Weigel "initiated a traffic stop of that vehicle." Transcript of Motion Hearing of the proceedings of October 18, 2012, at page 7, lines 23-25, and page 8, lines 1-11 [Appx. 22-23]. See, also, Transcript of Motion Hearing at page 16, line 5-25 [Appx. 31].
¶ 18. However, the "dash cam" video entered into the record at the suppression hearing clearly shows this sworn testimony given by Officer Weigel to be seriously erroneous. Firstly, there is no evidence whatsoever on the "dash cam" video showing that defendant Kyle Jordan Varnson was using a cell phone at any point in the video recording. Secondly, the "dash cam" video clearly shows that -- contrary to his sworn testimony -- Officer Weigel had activated the video while the officer was blocks away from the Varnson vehicle, and that there was no errant or impaired-driving-indicative vehicular operation by Varnson -- specifically at the point when Weigal sped up to close in and was follow the Varnson vehicle "(a)pproximately three or four car lengths" back. Thirdly, it is not until after Officer Weigel activated his "emergency lights" to stop the defendant's vehicle that Weigel stated on the audio portion of the "dash cam" video, "He's on his phone."
A. Because University of North Dakota Police Officer Daniel Weigel did not have a reasonable and articulable suspicion to stop the vehicle driven by defendant Kyle Jordan Varnson -- the defendant's conviction in this case for driving under the influence was violative of the Fourth (and Fourteenth) Amendments of the United States Constitution and Article I, § 8, of the North Dakota Constitution.
¶ 19. Under the Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, Section 8 of the North Dakota Constitution, all searches and seizures must be reasonable. State v. Mohl, 2010 ND 120, ¶ 7, 784 N.W.2d 128, 130 (N.D. 2010); and Abernathy v. Department of Transp., 2009 ND 122, ¶ 8, 768 N.W.2d 485 (N.D. 2009).
¶ 20. A police officer must have a reasonable and articulable suspicion the motorist has violated or is violating the law to stop a vehicle for investigative purposes. State v. Addai, 2010 ND 29, ¶ 18, 778 N.W.2d 555 (N.D. 2010).
¶ 21. In Johnson v. Sprynczynatyk, 2006 ND 137, ¶ 9, 717 N.W.2d 586, 589 (N.D. 2006), the Supreme Court explained as follows:
"The reasonable suspicion standard must be objective and is based on the totality of the circumstances." Kappel v. Director, N.D. Dept. of Trans., 1999 ND 213, ¶ 7, 602 N.W.2d 718. Reasonable suspicion to justify a stop is present when a reasonable person in the officer's position would be justified by some objective manifestation to suspect potential criminal activity. Id. "The reasonable suspicion standard is not as exacting as the probable cause standard." Id. "Nevertheless, a mere hunch illegal activity is taking place is not enough to justify the detention of a motorist." Id. "An investigative stop of a moving vehicle must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity, and mere curiosity, suspicion, vague hunches, or other non-objective facts will not suffice." Salter v. North Dakota Dep't of Transp., 505 N.W.2d 111, 114 (N.D. 1993).
717 N.W.2d at 589. See, also, State v. Kenner, 1997 ND 1, ¶¶ 7-11, 559 N.W.2d 538, 540-541 (N.D. 1997).
¶ 22. In Salter v. North Dakota Department of Transportation, 505 N.W.2d 111, 113-114, (N.D. 1993), the Supreme Court affirmed a district court judgment reversing the suspension of Salter's driving privileges. 505 N.W.2d at 112. Salter was traveling 30-35 miles per hour in a 50 mile-per-hour zone, made "slight movement back and forth" within his lane, and other vehicles were coming up behind him. Id. at 112-13. In Salter, the Court noted there was no evidence of erratic movement, sharp veering, or any other factors, but instead, the movement was "slight" or "minimum". Id. at 113.
¶ 23. This is precisely the type of "slight weaving" which the North Dakota Supreme court cautioned in State v. VandeHoven, 388 N.W.2d 857 (N.D. 1986), would not serve as a valid basis for a vehicle stop. See, also, Warrick v. Commissioner of Public Safety, 374 N.W.2d 585, 586 (Minn.Ct.App. 1985).
¶ 24. In Warrick, supra, which the North Dakota Supreme Court relied upon in VandeHoven, supra, the police officer stopped the defendant's vehicle at approximately 1:45 A.M. after observing "subtle" weaving of the vehicle within its own lane, and slow speed ranging from 40 to 45 miles per hour. The court held that these facts were insufficient to justify a reasonable and articulable suspicion, thereby making the vehicle stop constitutionally illegal.
¶ 25. The above-narrated principles described by the North Dakota Supreme Court in Salter v. North Dakota Department of Transportation, supra, were explicitly embraced and discussed in an expansive context by the Supreme Court of Wisconsin in State v. Post, 2007 W.I. 60, ¶ 19 n.4, 733 N.W.2d 634, 639 n.4 (Wis. 2007).
¶ 26. In State v. Post, the Wisconsin Supreme Court explained as follows:
In addition, the rule that weaving within a single lane may alone give rise to reasonable suspicion fails to strike the appropriate balance between the State's interest in detecting, preventing, and investigating crime with the individual's interest in being free from unreasonable intrusions. "[R]epeated weaving within a single lane" is a malleable enough standard that it can be interpreted to cover much innocent conduct. In U.S. v. Lyons, a police officer made an investigatory stop after having seen the defendant's vehicle weave three to four times within a single lane. 7 F.3d 973, 974 (10th Cir. 1993). The court recognized "the universality of drivers' 'weaving' in their lanes." Id. at 976. It therefore cautioned that allowing weaving to justify a vehicle stop may subject many innocent people to an investigation. "Indeed, if failure to follow a perfect vector down the highway or keeping one's eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy." Id.; United States v. Colin, 314 F.3d 439, 446 (9th Cir. 2002). (emphasis added).
733 N.W.2d at 639-640.
¶ 27. Furthermore, it must be remembered that a traffic stop is a "major interference in the lives of the [vehicle's] occupants." Coolidge v. New Hampshire, 403 U.S. 443, 479, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).
¶ 28. Significant interests are at stake when determining the permissibility of a traffic stop. Delaware v. Prouse, 440 U.S. 648, 653-663 (1979). An invasion of privacy occurs every time a law enforcement officer stops a car, regardless of the motivation for the stop. Id.
¶ 29. The United States Supreme Court further emphasized in Delaware v. Prouse that "(t)he Fourth and Fourteenth Amendments are implicated . . . because stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief." Id. at 653. Traffic stops "interfere with freedom of movement, are inconvenient, and consume time," and they "may create substantial anxiety" for those detained, and moreover, a traffic stop provides law enforcement officers with an opportunity for further intrusion on the driver and passengers. Id. at 657.
¶ 30. Giving the compelling evidence of University of North Dakota Officer Daniel Weigel's "dash cam" video -- it is respectfully submitted that the state has failed to shoulder its burden in demonstrating that a reasonable and articulable suspicion existed to justify the stop of the vehicle driven by defendant Kyle Jordan Varnson on March 18, 2012.
¶ 31. It is further respectfully submitted that this "dash cam" video evidence simultaneously rebuts the suppression hearing testimony of Officer Weigel, as it effectively impeaches his credibility.
¶ 32. Where a police officer's squad car camera does not support the testimony of the officer in a "Terry stop" situation instead showing a different sequence of events described by the police officer in court, the actual evidence of the videotape controls. See, e.g., Carmouche v. the State of Texas, 10 S.W.3d 323, 331-332 (Tex. Crim. App. 2000).
¶ 33. Where the "dash cam" video admitted into evidence by the District Court at the suppression hearing over the objection of the prosecution after having been offered by the defense -- clearly showed no impaired-indicative vehicular operation by the defendant, and where that video showed no indication of cellular phone use by the defendant, this evidence must deemed to superintend over the contradictory testimony which was given by Officer Weigel at the suppression hearing
¶ 34. With regard to the written decision of the District Court in which the District Court engages in supposition and conjecture about a "momentary flash of light possibly coming from a cellular phone screen" -- this discussion on page 3 of that Order the discussion can hardly be termed findings of fact as the bright lights of the University of North Dakota Memorial Union parking garage clearly flicker through the trees and through defendant Kyle Jordan Varnson's pickup truck window.
¶ 35. Finally, the District Court's conclusion that "the video does show that Varnson's vehicle does weave within its own lane and crossed the right line of the turning lane" is unsupported by a clear viewing of the video itself -- and would fail in any event to provide reasonable and articulable suspicion so as to justify Officer Weigel's stop of the Varnson vehicle under the decisional law recited above herein.
¶ 36. On the basis of the documentation of the District Court factual record, and further upon argument and authorities which have been set forth herein, appellant Kyle Jordan Varnson respectfully submits that the Order of the District Court denying the motion by defendant Kyle Jordan Varnson for suppression and/for dismissal, should be reversed and vacated.
|Dated this 30th day of April, 2013.|
|DAVID C. THOMPSON, P.C.|
|/s/ David C. Thompson||David C. Thompson (ND Id. No. 03921)|
|Attorney at Law|
|321 Kittson Avenue|
|P.O. Box 5235|
|Grand Forks, ND 58201-5235|
|(701) 775-2520 (facsimile)|
|Counsel for Appellant|
1. At the sentencing hearing in the proceedings below, the District Court affirmed from the bench the fact of the conditional guilty plea which was incorporated within the Rule 11 plea agreement which defendant/appellant Kyle Jordan Varnson entered into with the prosecution. This approval was reduced to writing in the official transcript of the sentencing hearing of January 11, 2013, at pages 2-5 thereof. Appx. 46-49. The District Court expressly stated on the record in this regard: "But this is a conditional guilty plea. So that means you can appeal the suppression order to the North Dakota Supreme Court, and I would guess if they reverse it, then the case will probably be dismissed because there won't be any evidence. I just don't -- I don't remember the facts here; so I'd have to look and see. But otherwise you could have a trial on it. You understand that?" Appx. 48-49.