City of Minot v. Keller

2008 ND 38, 745 N.W.2d 638, 2008 N.D. LEXIS 38, 2008 WL 483860
CourtNorth Dakota Supreme Court
DecidedFebruary 25, 2008
Docket20070116, 20070117
StatusPublished
Cited by8 cases

This text of 2008 ND 38 (City of Minot v. Keller) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Minot v. Keller, 2008 ND 38, 745 N.W.2d 638, 2008 N.D. LEXIS 38, 2008 WL 483860 (N.D. 2008).

Opinion

CROTHERS, Justice.

[¶ 1] The City of Minot appeals the district court’s order suppressing all evidence in a case involving Corey Keller, who was charged with driving under the influence of intoxicating liquor and possessing a loaded firearm in a motor vehicle. We reverse the district court’s order, concluding the law enforcement officer had reasonable and articulable suspicion to stop Keller’s vehicle, and we remand for further consideration.

I

[¶ 2] On November 28, 2006, the manager of Wendy’s restaurant in Minot reported to the Minot Police Department that an individual driving a blue GMC pick-up truck licensed EIY289 was bothering an employee. Several restaurant employees claimed the individual smelled of alcohol and believed he was intoxicated. Law enforcement officer Cassidy Halseth located the pick-up truck parked by another store. Halseth located Keller inside the store and identified him as the driver. Halseth spoke with Keller and concluded Keller was intoxicated based on his observations that Keller had poor balance, slurred speech, bloodshot eyes and an odor of alcohol about him. Halseth did not perform any field sobriety tests or preliminary breath tests on Keller, but he did recommend to Keller that he not drive in his condition. After the contact with Keller, Halseth waited outside the store for approximately one hour, but did not observe Keller return to his truck.

[¶ 3] Halseth told fellow officer Larry Haug that Keller was intoxicated, and he showed Haug where Keller’s pick-up truck was parked. Haug did not observe Keller return to his vehicle, but he later saw the vehicle being driven by a male matching Keller’s description. Haug was able to identify Keller’s vehicle because he ran the license plate number earlier in the evening; however, Haug could not positively identify Keller as the driver of the vehicle. Haug followed Keller’s vehicle, turned on his lights and initiated a traffic stop. Haug observed the vehicle weaving onto the shoulder of the road many times, but this occurred after Haug turned on his lights to initiate the stop.

[¶ 4] Ultimately, Haug arrested' Keller for driving under the influence of intoxicating liquor and possessing a loaded firearm in a motor vehicle. A medical technologist at Trinity Medical Center obtained a blood sample from Keller. The lab results showed a blood alcohol concentration of 0.26 percent by weight. Keller was charged with driving under the influence and with possessing a loaded firearm in a motor vehicle.

[¶ 5] On February 13, 2007, Keller filed a motion to suppress all evidence obtained in the November 28, 2006 traffic stop. The district court granted the order, concluding Haug did not have reasonable and articulable suspicion necessary to make the stop under Anderson v. Dir., N.D. Dep’t of Transp., 2005 ND 97, ¶ 9, 696 N.W.2d 918. Minot appeals, arguing the district court misinterpreted Anderson and failed to sufficiently consider the interaction between Keller and Halseth. Minot contends the interaction between Keller and Halseth, when considered among the totality of circumstances, provided sufficient grounds for the stop.

II

[¶ 6] “Questions of law and the ultimate conclusion about whether the facts support a reasonable and articulable suspicion are fully reviewable on appeal.” State v. Smith, 2005 ND 21, ¶ 11, 691 *640 N.W.2d 203. A law enforcement “officer must have a reasonable and articulable suspicion that [a driver] has violated or is violating the law” before making an investigative stop. State v. Graven, 530 N.W.2d 328, 330 (N.D.1995). “[M]ere curiosity, suspicion, vague hunches, or other nonobjective facts will not suffice.” State v. Johnson, 2006 ND 248, ¶9, 724 N.W.2d 129.

[¶ 7] Section 39-08-01, N.D.C.C., states, “A person may not drive ... upon a highway or upon public or private areas to which the public has a right of access for vehicular use in this state if: ... That person is under the influence of intoxicating liquor.” Here, each of the two officers observed information sufficient to satisfy one of the two elements of the crime. Halseth observed Keller in an intoxicated state, and Haug observed Keller driving. Neither officer’s independent observations created reasonable and articulable suspicion to stop Keller’s vehicle.

[¶ 8] The matter before this Court is whether Halseth’s uncorroborated communication that Keller was intoxicated, together with Haug’s observation of Keller driving, is sufficient to establish reasonable and articulable suspicion to stop the vehicle.

[¶ 9] The United States Supreme Court explored a similar issue in Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). In Whiteley, two men were arrested by an officer who relied on a bulletin from another agency describing the men and the car they were driving. Id. at 563, 91 S.Ct. 1031. The bulletin indicated there were arrest warrants for the men, but it did not include sufficient underlying information justifying the warrants. Id. The warrants were found improperly supported, and there were no facts justifying an arrest without the warrants. Id. at 564-65, 91 S.Ct. 1031. The Court determined the officers were justified in acting on the bulletin alone and should not be subject to civil charges. See id. at 568, 91 S.Ct. 1031. However, because neither the issuing agency nor the arresting officers had probable cause, the defendant’s Fourth Amendment rights were violated and the exclusionary rule applied. Id. at 568-69, 91 S.Ct. 1031.

[¶ 10] The Whiteley rule, also known as the collective knowledge doctrine, allows law enforcement officers to rely on information from other officers to establish probable cause. “[E]ffeetive law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another.” United States v. Hensley, 469 U.S. 221, 231, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). Hensley held that information from other officers can also be used to establish reasonable and articulable suspicion. Id. This Court has found the federal approach persuasive when considering communications between officers. State v. Miller, 510 N.W.2d 638, 643 (N.D.1994).

[¶ 11] Whiteley establishes that if an officer has probable cause and communicates that fact to a second officer, the second officer also enjoys the benefit of that probable cause. What is not clear from Whiteley is whether facts from one officer or agency may be combined with facts from a second officer or agency to establish reasonable and articulable suspicion if the facts, uncombined, fall short of this legal standard. Keller’s intoxication, alone, is not a criminal act under North Dakota law. Schwindt v. State, 510 N.W.2d 114, 117 (N.D.1994).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Hendrickson
2019 ND 183 (North Dakota Supreme Court, 2019)
Lies v. N.D. Dep't of Transportation
2019 ND 83 (North Dakota Supreme Court, 2019)
Ell v. Director, Department of Transportation
2016 ND 164 (North Dakota Supreme Court, 2016)
State v. Rahier
2014 ND 153 (North Dakota Supreme Court, 2014)
Osaba v. North Dakota Department of Transportation
2012 ND 36 (North Dakota Supreme Court, 2012)
Horsted v. Horsted
2012 ND 24 (North Dakota Supreme Court, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
2008 ND 38, 745 N.W.2d 638, 2008 N.D. LEXIS 38, 2008 WL 483860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-minot-v-keller-nd-2008.