IN THE SUPREME COURT OF THE STATE OF NORTH DAKOTA
|City of Bismarck,|
|Kylie DePriest,||Supreme Court No.: 20060070;|
|Burleigh Co. No.: 05-K-01465|
|Jeffrey Kirby,||Supreme Court No.: 20060071;|
|Burleigh Co. No.: 05-K-01466|
|Deidre Handtmann,||Supreme Court No.: 20060072;|
|Burleigh Co. No.: 05-K-01467|
APPEAL FROM THE DISTRICT COURT,
SOUTH CENTRAL JUDICIAL DISTRICT,
BURLEIGH COUNTY, NORTH DAKOTA.
HONORABLE DONALD L. JORGENSEN, PRESIDING.
BRIEF OF APPELLANTS
|Ralph A. Vinje|
|Attorney for the Defendants|
|Bar ID #: 03449|
|523 North 4th Street, Ste. #3|
|Bismarck, N.D. 58501|
TABLE OF CONTENTS
|TABLE OF AUTHORITIESii|
|STATEMENT OF THE ISSUESiii|
|STATEMENT OF THE CASE¶ 1|
|STATEMENT OF THE FACTS¶ 2|
|I.THE DISTRICT COURT'S DECISION DENYING THE|
|DEFENDANTS' MOTIONS TO DISMISS SHOULD|
|BE REVERSED, BECAUSE LAW ENFORCEMENT|
|OFFICERS' USE OF UNDERAGE DECOYS IN ALCOHOL|
|COMPLIANCE CHECKS IS IMPERMISSIBLE..¶ 4|
|A.The officers' conduct in using underage decoys to|
|conduct alcohol compliance checks constitutes|
|entrapment as a matter of law...¶ 6|
|1.The use of underage decoys by law enforcement|
|officers violates the plain language of|
|N.D.C.C. § 5-01-08..¶ 7|
|2.The use of underage decoys by law enforcement|
|officers violates the legislative intent behind|
|N.D.C.C. § 5-01-08¶ 18|
|B.Both law and sound public policy prohibit law|
|enforcement officers from using underage decoys|
|in alcohol compliance checks.¶ 27|
|1.The Appellants' actions, forming the bases|
|of the charges concerned herein, are excused|
|under N.D.C.C. § 12.1-05-11(2).¶ 29|
|2.The use of underage decoys by law enforcement|
|officers is outrageous, and such conduct runs contrary|
|to sound public policy.¶ 34|
TABLE OF AUTHORITIES
|U.S. Const. amend. V||¶ 38|
|U.S. Const. amend. IV||¶ 38|
|N.D. Const. art. I, § 12||¶ 38|
|U.S. SUPREME COURT CASELAW|
|Rochin v. California, 342 U.S. 165 (1952)||¶ 35|
|United States v. Russell, 411 U.S. 423 (1973)||¶ 35|
|NORTH DAKOTA CASELAW|
|State v. Azure, 520 N.W.2d 574 (N.D. 1994)¶¶ 7, 8|
|State v. Hammeren, 2003 ND 6, 655 N.W.2d 707¶¶ 6, 33, 35|
|State v. Kummer, 481 N.W.2d 437 (N.D. 1992)¶¶ 6, 35|
|State v. Murchison, 541 N.W.2d 435 (N.D. 1995)¶¶ 6, 30|
|State v. Stavig, 2006 ND 63, 711 N.W.2d 183¶¶ 6, 22|
|Stein v. Workforce Safety and Ins., 2006 ND 34, 710 N.W.2d 364¶ 21|
|State v. Fitzpatrick, 690 N.W.2d 387 (Minn. App. 2004)¶ 19|
|United States v. Healy, 202 F. 349 (D. Mont. 1913)¶ 37|
|Voves v. United States, 249 F. 191 (7th Cir. 1918)¶ 37|
|Bismarck Mun. Ord. 5-01-18¶¶ 1, 40|
|M.S.A. § 340A.503¶¶ 19, 20|
|N.D.C.C. § 5-01-08passim|
|N.D.C.C. § 5-02-06¶¶ 18, 19, 22|
|N.D.C.C. § 12.1-05-02¶¶ 15, 17|
|N.D.C.C. § 12.1-05-11passim|
|N.D.C.C. § 14-10-06¶ 8|
|Strategies for Success: Combating Juvenile DUI, at <http://nhtsa.dot.gov/people/|
STATEMENT OF THE ISSUE
I. Whether law enforcement officers' use of underage decoys to conduct alcohol compliance checks is impermissible, warranting dismissal of the charges against the Appellants.
STATEMENT OF THE CASE
[¶1] Kylie DePriest, Jeffrey Kirby, and Deidre Handtmann ("Appellants") jointly appeal from the District Court's Orders denying their Motion to Dismiss and Motion for Reconsideration. (Appellants' App. at 1-8.) In 2005, the City of Bismarck charged each of the Appellants with one count of sale or delivery of alcoholic beverages to a person less than twenty-one (21) years of age. The Appellants were charged with class A misdemeanors, in violation of Bismarck Municipal Ordinance 5-01-18, which references N.D.C.C. § 5-02-06. (Appellants' App. at 9.) On September 8, 2005, the Appellants filed a joint Motion to Dismiss the charges. The District Court denied the Appellants' Motion, and the Appellants responded with a Motion for Reconsideration on December 29, 2005. (Id. at 1-4.) The District Court again denied the requested relief, and the Appellants subsequently entered conditional guilty pleas. (Id. at 5-8.) The Appellants filed a timely Notice of Appeal, giving rise to the issues contested herein.
STATEMENT OF THE FACTS
[¶2] In December 2004, the law enforcement officials in Burleigh and Morton Counties initiated an alcohol compliance check program ("compliance checks"). (Appellants' App. at 22.) Compliance checks entail the use of underage decoys, who are volunteers between eighteen (18) and twenty (20) years of age. (Appellants' App. at 16.) The decoys are paired with plainclothes police officers or sheriff's deputies and driven to establishments that sell alcoholic beverages. (Id. at 16-17.) After parking, law enforcement officers instruct the decoys to enter the alcohol-selling establishment in order to purchase alcohol illegally. (Id. at 17.) If entering a bar, the decoys must order a simple drink; if entering a liquor store, the decoys must approach the cashier with a six-pack of beer. (Id.) The decoys are instructed to show their actual identification when prompted, and not to lie about their ages. (Id.) After conducting the transaction, the decoys exit the premises to report back to the waiting officers. (Id.)
[¶3] Law enforcement officers again conducted alcohol compliance checks in April, 2005. (Id. at 20, 42, 53.) As a result of these compliance checks, Appellants Kylie DePriest, Jeffrey Kirby, and Deidre Handtmann found themselves charged with class A misdemeanors. (Id. at 1.)
I. THE DISTRICT COURT'S DECISION DENYING THE
DEFENDANTS' MOTIONS TO DISMISS SHOULD
BE REVERSED, BECAUSE LAW ENFORCEMENT
OFFICERS' USE OF UNDERAGE DECOYS IN ALCOHOL
COMPLIANCE CHECKS IS IMPERMISSIBLE
[¶4] The District Court should have granted the Appellants' Motion to Dismiss the charges against them resulting from law enforcement's use of underage decoys during alcohol compliance checks. The officers and the decoys violate the law when the alcohol compliance checks are conducted, constituting entrapment as a matter of law. Their conduct is in defiance of statutes prohibiting underage persons from entering premises where alcoholic beverages are sold or displayed, and it is in defiance of a statute penalizing actions contributing to the delinquency of minors. There is no excuse for this behavior under the plain language of the statutes; nor is there an excuse for this behavior when the legislative intent behind the statutes is examined. The law enforcement activity constituted entrapment as a matter of law, therefore warranting the dismissal of charges against the Appellants.
[¶5] Further, the District Court erred in failing to find that the Appellants' conduct, forming the bases of the charges herein concerned was otherwise excused. The officers' use of underage decoys during alcohol compliance checks falls afoul of North Dakota's entrapment statute. Also, the use of underage decoys by law enforcement officers is outrageous police conduct, violating notions of due process and sound public policy. Either rationale merits dismissal of the charges against the Appellants.
A. The officers' conduct in using underage decoys to
conduct alcohol compliance checks constitutes
entrapment as a matter of law.
[¶6] The charges against the Appellants should be dismissed, as law enforcement officers illegally sent underage decoys into bars and liquor stores to purchase alcoholic beverages. "[E]ntrapment as a matter of law [is] established when the undisputed facts of the case demonstrat[e that] the police used unlawful means to induce the crime." State v. Hammeren, 2003 ND 6, ¶ 8, 655 N.W.2d 707 (citing State v. Kummer, 481 N.W.2d 437 (N.D. 1992) (modified by N.D.C.C. § 12.1-05-11(2), as explained in State v. Murchison, 541 N.W.2d 435, 440-41 (N.D. 1995)). The central holding of Kummer survives, despite changes in the factual determination of entrapment: "When the police themselves violate the law in order to induce a crime, they employ unlawful means." Kummer, 481 N.W.2d at 442. The question of entrapment is an issue of law fully reviewable on appeal when the facts and their inferences relating to that affirmative defense are undisputed. Hammeren, 2003 ND 6, ¶ 7 (internal citations omitted). In the case at bar, the facts relating to whether the officers' conduct was lawful are not in dispute, leaving only questions of statutory interpretation. State v. Stavig, 2006 ND 63, ¶ 12, 711 N.W.2d 183 ("Statutory interpretation is a question of law, fully reviewable on appeal.").
1. The use of underage decoys by law enforcement
officers violates the plain language of
N.D.C.C. § 5-01-08.
[¶7] The District Court should have determined that law enforcement officers violate the law when sending underage decoys into bars and liquor stores to purchase alcohol. Section 5-01-08 forbids persons less than twenty-one (21) years of age from entering licensed premises where alcoholic beverages are being sold or displayed, except under the following circumstances:
a. [When the establishment is a] restaurant[,] if accompanied by a parent or legal guardian;
b. In accordance with section 5-02-06;
c. If the person is an independent contractor or the independent contractor's employee engaged in contract work and is not engaged in selling, dispensing, delivering, or consuming alcoholic beverages;
d. If the person is a law enforcement officer or other public official who enters the premises in the performance of official duty; or
e. If the person enters the premises for training, education, or research purposes under the supervision of a person twenty-one or more years of age with prior notification of the local licensing authority.
N.D.C.C. § 5-01-08(2). In this case, the only exceptions claimed by the City are listed at (d) and (e). However, neither exception sanctions the conduct of the underage decoys here, who would be facing class B misdemeanors for the violations under N.D.C.C. § 5-01-08(3). See State v. Azure, 520 N.W.2d 574, 576 (N.D. 1994) ("It is a criminal act for persons under twenty-one years of age to enter a liquor establishment ").
[¶8] The law enforcement conduct in encouraging and facilitating these violations is itself a violation of the law. State law penalizes "[a]ny person who by any act willfully encourages, causes, or contributes to the delinquency or deprivation of any minor[.]" N.D.C.C. § 14-10-06(1). This section prohibits adults from accompanying minors to a bar or liquor store, and it also prohibits the facilitation of minors' purchases of alcoholic beverages. Azure, 520 N.W.2d 574, 575-76. The facts of the instant case fit those of Azure. Law enforcement officers drove underage decoys to bars and liquor stores, gave the decoys money, and instructed them to enter the premises and attempt to purchase alcoholic beverages. Absent one of the statutory exceptions of Section 5-01-08(2), the underage decoys violated the law when inducing bartenders and liquor store clerks to sell them alcoholic beverages, implicating the officers' conduct as well, and constituting entrapment as a matter of law.
[¶9] The District Court erred when it held that the underage decoys fit the "training, education, or research purposes" exception codified at N.D.C.C. § 5-01-08(2)(e). (See Appellants' App. at 2-3) (the Court conducted its analysis using N.D.C.C. § 5-02-06(3), which contains the same exceptions as the statute forbidding underage purchases of alcoholic beverages.)
[¶10] The decoys' own testimony shows that they did not participate in any program for the purposes of training, education, or research. Karalee Nelson, the underage decoy responsible for Appellant Kylie DePriest's arrest, swore under oath that she was not getting college credit for her part in the compliance checks, nor was she receiving any training; rather, Ms. Nelson admitted she became involved in the compliance checks due to a sense of obligation owed to a friend. (Appellants' App. at 44-45.) Janel Schuler, the underage decoy responsible for Appellant Jeffrey Kirby's arrest, also swore under oath that her participation in the compliance checks entailed no training, education, or research; she similarly became involved through a friend, and because she thought the compliance checks were exciting. (Appellants' App. at 53, 56, 58, 70) Finally, Sheena Kenner, the underage decoy responsible for the arrest of Appellant Deidre Handtmann, swore under oath that her participation in the compliance checks involved no training, education, or research. (See id. at 30) (where Ms. Kenner testified that she only received training on how to behave during the compliance checks.) None of the materials furnished by the City for this matter make mention of training, education, or research purposes behind the compliance checks. (Id. at 10-23.) These facts, which are undisputed, show that training, education, or research was not the purpose driving the alcohol compliance checks, as required by law.
[¶11] Additionally, an underage decoy admits that she was not supervised by a person more than twenty-one (21) years of age, as required under Section 5-01-08(2)(e). When Janel Schuler entered a liquor store to purchase a six-pack of Bud Light during the April compliance checks, the accompanying officer did not follow her into the liquor store. (Id. at 57.) Rather, the officer entered the connected convenience store, and he was unable to witness Ms. Schuler purchase the beer. (Id.) On at least one occasion, then, an undercover decoy was not supervised as required by law.
[¶12] Finally, the City admits that it failed to notify the local licensing authority prior to conducting the alcohol compliance checks, flatly contravening the final condition of the exception at N.D.C.C. § 5-01-08(2)(e). In response to a subpoena duces tecum, the City made this admission: "There was no prior notice to the local licensing authority." (Appellants' App. at 10). This failure to notify the local licensing authority, as required by statute, renders the aforementioned exception inapplicable.
[¶13] Law enforcement cannot in good faith ignore the letter of the law and profit therefrom. The underage decoys do not fit the exception codified at N.D.C.C. § 5-01-08(2)(e), making their actions during the compliance checks illegal. The officers' conduct in facilitating this crime is also illegal. The officers broke the law in order to induce the Appellants' sale of alcoholic beverages to the underage decoys, constituting entrapment as a matter of law. The charges against the Appellants should be dismissed.
[¶14] Similarly, the statutory language of Section 5-01-08(2)(d), excepting law enforcement officers or other public officials entering the premises in the performance of official duty, does not apply here. One reason for this conclusion is that the underage decoys are not law enforcement officers. The underage decoys admitted under oath that law enforcement officers did not deputize them or make them police officers. (Appellants' App. at 29-30, 40, 56.) Further, Ms. Nelson admitted that she was not even "basically involved in law enforcement[.]" (Appellants' App. at 40.) Another point supporting the conclusion that the underage decoys are not law enforcement officers is the fact that they are required to hold harmless the entities involved in the administration of the compliance checks:
Because of my voluntary participation with the compliance checks, I agree to hold harmless from any claims, actions, suits, proceedings, costs, damages, and liabilities, including attorney fees, resulting directly or indirectly from my participation with the compliance checks, any and all members of the Capitol City Coalition For A Safe Community/Community Action Program Region VII, Inc., the State of North Dakota, the Bismarck Police Department, the Mandan Police Department, [the] Burleigh County Sheriff's Department, and any other affiliate of the Capitol City Coalition For A Safe Community.
(Appellants' App. at 11, 20.) Also, the underage decoys are not required to wear any clothing identifying themselves as law enforcement officers. (Appellants' App. at 16-18.) Based on the foregoing facts, the underage decoys are not law enforcement officers within the meaning of Section 5-01-08(2)(d).
[¶15] The City argued, incorrectly, that N.D.C.C. § 12.1-05-02(4) relates to the exception at Section 5-01-08(2)(d), excusing the illegal conduct of the decoys as an execution of public duty.
Conduct engaged in by an individual at the direction of a public servant, known by that individual to be a law enforcement officer, to assist in the investigation of a criminal offense is justified unless the individual knows or has a firm belief, unaccompanied by substantial doubt, that the conduct is not within the law enforcement officer's official duties or authority. 
N.D.C.C. § 12.1-05-02(4).
[¶16] The underage decoys are not assisting in the investigation of a criminal offense, as required by the statute. The police did not inform Ms. Kenner of a suspicion that the Elbow Room bar was selling alcohol to minors, nor did they inform Ms. Nelson or Ms. Schuler of any suspicion of illegal activity pertaining to other establishments. (Appellants' App. at 31, 46, 57.) Instead of investigating existing crimes, "[t]he Safe Communities Coordinator randomly selects the establishments that are to be checked." (Appellants' App. at 16.) The language of the statute excusing otherwise illegal conduct in the actor's execution of a public duty precludes its application to the case at bar. The language of the statute refers to "the investigation of a criminal offense[,]" but the alcohol compliance checks are not aimed at any specific target.
[¶17] As stated before, law enforcement cannot in good faith ignore the letter of the law and profit therefrom. The underage decoys do not fit the exceptions codified at N.D.C.C. §§ 5-01-08(2)(d) or 12.1-05-02(4), making their actions during the compliance checks illegal. The officers' conduct in facilitating this crime is also illegal. The officers broke the law in order to induce the Appellants' sale of alcoholic beverages to the underage decoys, constituting entrapment as a matter of law. The charges against the Appellants should be dismissed.
2. The use of underage decoys by law enforcement
officers violates the legislative intent behind
N.D.C.C. § 5-01-08.
[¶18] The District Court should have considered the intent of the Legislature, because the meanings of N.D.C.C. §§ 5-01-08 and 5-02-06 are rendered ambiguous by law enforcement officers' illegal use of underage decoys in alcohol compliance checks.
[¶19] The Minnesota statute and caselaw relied on by the District Court in making its decision are distinguishable from the facts of the case at hand. The relevant portion of the Minnesota law reads as follows:
Purchasing. It is unlawful for any person:
(1) to sell, barter, furnish, or give alcoholic beverages to a person under 21 years of age;
(2) under the age of 21 years to purchase or attempt to purchase any alcoholic beverage unless under the supervision of a responsible person over the age of 21 for training, education, or research purposes. Prior notification of the licensing authority is required unless the supervised alcohol purchase attempt is for professional research conducted by postsecondary educational institutions or state, county, or local health departments; or 
M.S.A. § 340A.503(2). Under that State's statutory scheme, the Minnesota Court of Appeals upheld the prosecution of a bartender who failed a compliance check similar to the ones conducted in North Dakota. State v. Fitzpatrick, 690 N.W.2d 387 (Minn. App. 2004). In that case, the lack of express language creating a law enforcement exception was deemed irrelevant, as the violation at issue concerned the illegal sale of alcoholic beverages, not an illegal purchase. Fitzpatrick, 690 N.W.2d at 391-92. In adopting the foregoing rationale, the District Court attempted to circumvent the rules by citing N.D.C.C. § 5-02-06, the statute proscribing conduct of licensees. (Appellants' App. at 2-3.) That reasoning is circular when applied to the laws of this State.
[¶20] North Dakota law explicitly forbids a person less than twenty-one (21) years of age from entering any premises, excluding restaurants, that are licensed to sell alcoholic beverages, while Minnesota law does not. N.D.C.C. § 5-01-08(2); cf. M.S.A. §§ 340A.503(1)(a)(1) and 340A.503(4)(a) (forbidding entry only to those who would purchase or consume alcoholic beverages). So, in North Dakota, before an illegal sale can occur, an illegal entry must happen. The District Court's reasoning thusly comes full circle: if a decoy is not allowed in a bar or liquor store in the first place, then the government would have no illegal sale to prosecute. In considering the defense of entrapment as a matter of law, it is all-important that courts must consider whether illegal law enforcement conduct was used to induce the defendant's acts.
[¶21] A reading of North Dakota law that implies a law enforcement exception allowing underage decoys to enter bars and liquor stores creates a paradox, as explained in the preceding paragraph. There is a presumption that the Legislature did not intend absurd or ludicrous results, unjust consequences, or unresolved paradoxes. Stein v. Workforce Safety and Ins., 2006 ND 34, ¶ 9, 710 N.W.2d 364 (internal citation omitted). The paradox is eliminated when the language is given its "plain, ordinary, and commonly understood meaning." Stein, 2006 ND 34 at ¶ 9. North Dakota's law does not expressly include a law enforcement exception, so until such time as the Legislature sees fit to amend the law, police use of underage decoys in alcohol compliance checks should be prohibited. However, the District Court's interpretation warrants an examination of the intent behind the statute.
[¶22] The intent behind N.D.C.C. §§ 5-01-08 and 5-02-06 militates for an end to law enforcement's illegal use of underage decoys in alcohol compliance checks. (See Appellants' App. at 76-77) (showing that the relevant provisions of both statutes share the same legislative intent.) Courts "may consult extrinsic aids, such as legislative history[,]" if the language of a statute is ambiguous. See State v. Stavig, 2006 ND 63, ¶¶ 12-13, 711 N.W.2d 183 (a statute is ambiguous if susceptible to rational, but inconsistent, meanings). The following discussion of the legislative history of N.D.C.C. §§ 5-01-08 and 5-02-06 shows that the intent behind the laws was to allow business owners to self-police, and that underage decoys acting on behalf of law enforcement officers does not fit any of the listed exceptions.
[¶23] Tom Woodmansee, president of the North Dakota Grocers Association, introduced S.B. 2190 at a House Judiciary Committee hearing dated March 10, 2003. The relevant language added to both statutes reads as follows: "or if the person enters the premises for training, education, or research purposes under the supervision of a person twenty-one or more years of age with prior notification of the local licensing authority." (Appellants' App. at 76-77.) Mr. Woodmansee's words leave no doubt as to the effect that these additions were meant to have:
This bill was at the request of one of our retailers who has an off-sale liquor establishment in conjunction with his grocery store. Sen. Klein was kind enough to introduce a bill for us. We have talked to law enforcement in this particular case, Mr. Olson, they have no problem with the bill. What this simply does is make ND law available so that an independent retailer may hire or have someone under the age of 21, under the direct supervision of somebody 21 or older, attempt to purchase product in that retail store, for the sole purpose of seeing if their employees are following procedures that they are supposed to follow and card, and do the proper procedures so they do not have to deal with law enforcement. Under state law, you are allowed to do that with tobacco, but they always notify local law enforcement authorities prior to doing this. It does not give them the authority to check anybody else's establishment, with under age people, it simply allows them to make sure their own employees are following the training that they received, in the proper procedure in checking on minors. In the amendments that were prepared by Mr. Bennett, in the legal term, he said these amendments would confirm all six of the ND Century Code, so that it would not just say a restaurant, or off-sale or on-sale liquor store. It gives us the opportunity to have ourselves self-policed so that we don't have to deal with license restrictions, violations and fines.
(Appellants' App. at 85-86.) Chairman DeKrey's language supports Mr. Woodmansee's testimony: "I spoke with the prime sponsor, so all the amendments do is make sure we get it clear through the Century Code for the section that deals with that, so the industry can self-police itself." (Appellants' App. at 86.) Bismarck State College student John Sundlie's testimony lays to rest any though that police would be allowed to rely on this law:
I am here representing minors. I though this bill meant that the police department was going to regulate this, which I think would probably be a better idea, because of the increase in the restrictions on tobacco, we're getting minors with the sale of tobacco, and I think that it would actually be safer to get the police department to regulate it, to keep corrupt people from being employed by honest businessmen and entrepreneurs, who would rather sell their products to people who are of age to use them by law, than people who can get them in trouble, such as minors and would also keep minors in a safer position, knowing that there are legal consequences, by the law catching them in the act, than sometimes just by reprimand by an owner. I just think it would be better for the safety of the people my age to be policed by the police, [than] (sic) by somebody in a store.
(Id. at 86-87.) Mr. Sundlie's words were duly noted by Chairman DeKrey: "Thank you. Any further testimony in opposition. We will close the hearing. " (Id. at 87.)
[¶24] The testimony reproduced above shows that the Legislature intended that the "training, education, or research" exceptions intentionally preclude law enforcement officers from using underage decoys in conducting alcohol compliance checks. Further, this discussion shows that no such exception existed under the "law enforcement officer" provision contained in each statute, or there would be no need for Mr. Sundlie to testify in favor of an underage decoy exception.
[¶25] As an ironic, yet telling, side-note to this discussion, Mark Leischner, the owner of Unistop, Inc., one of the establishments randomly chosen for an alcohol compliance check, was told that the law forbade him from policing his own establishment. Mr. Leischner testified that he "called the Bismarck Police Department and spoke with Chief Debra Ness to ask if [he] would be allowed to do so. [He] was told absolutely not, that type of activity is illegal." (Id. at 75.)
[¶26] The testimony reproduced above shows that the Legislature never intended to create a statutory exception allowing underage decoys to enter bars or liquor stores for the purposes of alcohol compliance checks. As a result, the conduct of the underage decoys, and that of the police was illegal. This illegal conduct induced the Appellants to commit the acts concerned in this appeal, constituting entrapment as a matter of law. The charges against the Appellants should be dismissed.
B. Both law and sound public policy prohibit law
enforcement officers from using underage decoys
in alcohol compliance checks.
[¶27] The charges against the appellants should be dismissed, because law enforcement's use of underage decoys during alcohol compliance checks falls afoul of North Dakota' entrapment statute, codified at Section 12.1-05-11. The officers encouraged the underage decoys to enter the Appellants' workplaces and illegally order alcoholic beverages, thus inducing the criminal acts concerned in this appeal. Further, the undisputed evidence shows that the Appellants were not predisposed toward the commission of the offenses at bar. Any conscientious person would eventually fall prey to the officers' tactics, and the charges against the Appellants should be dismissed.
[¶28] Additionally, law enforcement's use of underage decoys during alcohol compliance checks is outrageous conduct violating notions of due process and sound public policy. Courts should not approve illegal police action; nor should courts allow police conduct that is at odds with the philosophical goals of the criminal justice system. The charges against the Appellants should be dismissed.
1. The Appellants' actions, forming the bases
of the charges concerned herein, are excused
under N.D.C.C. § 12.1-05-11(2).
[¶29] The use of underage decoys by law enforcement officers during alcohol compliance checks violated North Dakota's entrapment statute, warranting the dismissal of the charges against the Appellants. The law provides an affirmative defense for those who are entrapped into committing offenses by law enforcement personnel or "any person cooperating with such an agency[:]"
A law enforcement agent perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, the law enforcement agent induces or encourages and, as a direct result, causes another person to engage in conduct constituting such a crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
N.D.C.C. § 12.1-05-11(1)-(3). It is undisputed that law enforcement officers direct underage decoys to enter bars and liquor stores for the purpose of obtaining alcoholic beverages. Such facts establish the requisite law enforcement nexus to begin an inquiry under the entrapment statute.
[¶30] The key factor exonerating the Appellants lies in the "subjective" focus of N.D.C.C. § 12.1-05-11(2). The object of the entrapment must be induced to perform a crime as a direct result of the law enforcement agent's actions; additionally, the method of inducement or persuasion must create a substantial risk that the crime would be committed by a person not predisposed to such acts. N.D.C.C. § 12.1-05-11(2); see Murchison, 541 N.W.2d at 440-41 (explaining that the criminal predisposition of the accused is relevant in conducting a "subjective test" for entrapment). Again, there is no dispute that law enforcement's compliance checks brought about or induced the crimes in this case. The question becomes whether this inducement would cause bartenders and liquor store clerks--not predisposed to sell alcohol to underage persons--to do the same.
[¶31] The answer is yes, and the City concedes as much. As noted above, law enforcement officers did not inform the decoys that any specific locations or individuals were targeted during the randomly-conducted alcohol compliance checks. (Appellants' App. at 16, 31, 46, 57.) Further, the City introduced no evidence showing that the individuals in this case were predisposed to commit these crimes. The City may argue that proof of the crime is proof enough, but that reasoning is flawed.
[¶32] Bartenders work physically- and mentally-demanding jobs, typically serving large groups of customers a myriad of often-complex combinations of alcoholic beverages. Bartenders clean up when there are spills; they transport refuse-laden trash bags to the dumpster; they sometimes succeed in preventing inebriated patrons from assaulting one another; they lift heavy packages to restock their wares; they perform arithmetic functions ad nauseum through the course of a days' work. Bartenders are not richly compensated, and second or even third jobs are facts of life. Outside the workplace, bartenders raise families and pursue educations. Of course, none of these factors prevents the hypothetically-perfect bartender from asking every customer to prove his or her age, displayed in three-eighths inch-by-one-sixteenth inch numeric strings on identification cards.
[¶33] The legal standard does not require that a perfect bartender, or liquor store clerk, be swayed by the conduct of law enforcement, though. A bartender or liquor store clerk who is not predisposed to sell alcohol to underage persons, subjected to the pressures described in the paragraph above, will not always pass an alcohol compliance check, as shown in the present case. It may be so, that "[c]onduct merely affording a person an opportunity to commit an offense does not constitute entrapment." Hammeren, 2003 ND 6 at ¶ 10 (quoting N.D.C.C. § 12.1-05-11(2)). However, conduct that will inevitably cause anyone to break the law is. The charges against the Appellants should be dismissed.
2. The use of underage decoys by law enforcement
officers is outrageous, and such conduct runs contrary
to sound public policy.
[¶34] Law enforcement officers' use of underage decoys during alcohol compliance checks is outrageous conduct violating due process of law and running contrary to sound public policy, warranting the dismissal of the charges against the Appellants.
[¶ 35] "[W]e may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction[.]" United States v. Russell, 411 U.S. 423, 431-32 (1973) (citing Rochin v. California, 342 U.S. 165 (1952) (where law enforcement officers attempted to forcibly empty the contents of a suspect's stomach while searching for suspected contraband)). This rule allows courts to step beyond the limited focus of entrapment statutes:
But rather than confuse what heretofore has been a clear judicial exposition of a clear legislative statute on the law of entrapment by attempting to tug and stretch the concept of entrapment so that it fits our view of the case, I believe we should confront the issue directly and declare that as a matter of public policy we will not sustain a conviction obtained by intolerable conduct on the part of law enforcement agents, notwithstanding the entrapment statute. That is a neater and more candid position for this court.
Hammeren, 2003 ND 6, ¶ 18 (VandeWalle, C.J., concurring) (quoting Kummer, 481 N.W.2d at 445).
[¶36] The law enforcement conduct at issue in this case is outrageous, warranting a dismissal of the charges against the Appellants. The National Highway Traffic Safety Administration admits that sending underage decoys into bars for alcohol compliance checks is a suspect practice:
Because some members of the court and enforcement system believe that these sting operations constitute entrapment and thus are illegal, many jurisdictions have eliminated the use of stings and have opted to conduct expensive and lengthy surveillance operations outside the businesses.
Strategies for Success: Combating Juvenile DUI, at <http://www.nhtsa.dot.gov/people/injury/alcohol/juveniledui/part2/page5.html>.
[ 2;37] Further, past courts decried law enforcement's use of decoys to safeguard against violations of liquor laws that were based on the status of the purchaser:
Grant that the government may use a decoy to discover evidence of a committed crime of whatever nature; that, where one has the intent to commit a malum in se, or the willingness to do a malum prohibitum, a decoy may accompany the wrongdoer and even participate in the offense; that a liquor seller is guilty, despite his honest and reasonable belief respecting the age or race of the purchaser; and even that he must take his chance that a purchaser, who is not a government decoy, may willfully deceive him by camouflage--still the question remains: May the government maintain an indictment against a person for doing a malum prohibitum when the government's conduct has misled the person into believing that the prohibited act was a lawful act?  Is our government of the superman type that releases the ruler from the obligations of honesty and fairness that are imposed upon the citizens? Is one's liberty or reputation as a law-abider to have less protection than his property? We are strongly of the view that sound public policy estops the government from asserting that an act which involves no criminal intent was voluntarily done when it originated in and was caused by the government agents' deception.
Voves v. United States, 249 F. 191, 192 (7th Cir. 1918); United States v. Healy, 202 F. 349 (D. Mont. 1913).
[¶38] As explained above, the police conduct in this case is not explicitly sanctioned by law, leading one to question whether notions of due process, guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution, and guaranteed in Section 12 of the First Article of the N.D. Constitution. Illegal conduct by law enforcement officers should not be approved by the judiciary.
[¶39] Policy arguments also militate for dismissal. The law enforcement officers' tactics show their young wards that it is acceptable to violate the law in certain circumstances, especially at the direction of law enforcement. Further, prosecuting the Appellants for these violations is at odds with the philosophical goals of the criminal justice system. Deterrence is not served by these prosecutions, as the Appellants' mistakes are those that can be made by anyone. Compliance checks repel notions of retributive justice, as smiling decoys receive pats on the back for breaking the law, while the Appellants, negligent at worst, live in the shadow of their so-called crimes for the rest of their lives. The charges against the Appellants should be dismissed.
[¶40] For all the foregoing reasons, the Appellants respectfully request that this Court reverse the District Court's decision to deny their Motion to Dismiss the charges levied against them under Bismarck Municipal Ordinance 5-01-18, and that this Court grant any such other relief as is deemed just and proper.
Dated at Bismarck, North Dakota, this day of April, 2006.
|Ralph A. Vinje|
|Attorney for the Defendants|
|Bar ID #: 03449|
|523 North 4th Street, Ste. #3|
|Bismarck, N.D. 58501|