State v. Bartelson

2005 ND 172, 704 N.W.2d 824, 2005 N.D. LEXIS 205, 2005 WL 2650092

Opinions

KAPSNER, Justice.

[¶ 1] Brent Bartelson appeals from a criminal judgment entered on a conditional plea of guilty for possessing marijuana with the intent to deliver, reserving his right to review a denial of his motion to suppress the marijuana found in his car. Bartelson claims the marijuana was unconstitutionally seized as a result of an “extremely pretextual” stop. We conclude the district court properly refused to suppress the marijuana obtained from a search of Bartelson’s vehicle, and therefore, affirm the criminal judgment of the district court.

I.

[¶ 2] Around 3:30 p.m., Bartelson was stopped on Highway 83 south of Minot and cited for a tinted window violation by Officer Pat Hudson. An anonymous caller informed the Ward County Sheriffs Office that a vehicle stopped south of Minot on Highway 83 contained a large amount of marijuana. After investigation, Agent Michael Marchus learned that Officer Pat Hudson had recently stopped Bartelson on Highway 83. Marchus knew from previous intelligence that Bartelson transported large amounts of marijuana from Colorado in his vehicle. Marchus learned this information during a federal debriefing when he was informed that an individual known as “Bart” drove a Mazda with the license plate number GRR 105 to transport drugs. Marchus ran the number and discovered the vehicle was registered to Brent Bartelson. Marchus also knew, from two separate sources, that a large amount of marijuana had recently been stolen from Bartelson’s home. Marchus asked Officers Pat Hudson and Kevin Huston to help in the search for Bartelson’s Mazda.

[¶ 3] Traveling in an unmarked vehicle, Marchus was the first officer to locate Bartelson’s car. Marchus followed Bartel-son for a few miles until Officer Kevin Huston caught up to him, followed by Officer Pat Hudson. Approximately forty-two minutes after Bartelson was first stopped by Officer Pat Hudson, Officer Kevin Huston passed Marchus and stopped Bartel-son’s vehicle. Marchus, Hudson, and three other task force officers also arrived at the scene.

[¶ 4] Bartelson explained to the officer that he had just been pulled over for the same tinted window violation. Officer Kevin Huston then went back to his police car to issue a written warning for the violation. As Officer Kevin Huston was writing out the warning, Marchus approached Bartelson and asked if he could search his vehicle. Marchus testified Bar-telson gave his consent to search the vehicle during the stop. A video recording of the stop shows Bartelson assisting the officers with the search.

[¶ 5] When the search began, Officer Pat Hudson checked the driver’s license of Bartelson’s passenger, Lance Cotton. Cotton was arrested for possession of a suspended license. While searching the vehicle, law enforcement found marijuana in the passenger compartment of the car. Bartelson was arrested for possession of marijuana with intent to deliver. Bartel-son moved to suppress the evidence, arguing the stop and resulting search were unconstitutional. The trial court denied the motion. Bartelson conditionally pled guilty, reserving his right to appeal.

II.

[¶ 6] On appeal, Bartelson argues the trial court erred in denying his motion to suppress because the stop of his vehicle was unconstitutional. The State argues the stop was constitutional because the officer had reasonable articulable suspicion that Bartelson was committing a tinted window violation. The State argues whether the stop was pretextual is irrelevant because the officer had observed a traffic violation.

[¶ 7] When reviewing the denial of a suppression motion, we defer to the trial court’s findings of fact. State v. Kitchen, 1997 ND 241, ¶ 11, 572 N.W.2d . Although we defer to the trial court’s findings of fact, questions of law are fully reviewable. State v. Overby, 1999 ND 47, ¶ 5, 590 N.W.2d 703. The trial court determined:

Trooper Huston had a valid basis to stop of [sic] Bartelson’s vehicle on the date and time in question. Trooper Huston observed that Bartelson’s vehicle had tinted windows in violation of N.D.C.C. § 39-21-39. That Trooper Huston had been asked by Agent Marehus to locate and stop the described vehicle based on the anonymous tip Marehus had received does not vitiate the reasonableness or validity of the stop.

[¶ 8] The Fourth Amendment of the United States Constitution and Article I, § 8 of the North Dakota Constitution guarantee “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” The United States Supreme Court has stated:

Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a “seizure” of “persons” within the meaning of [the Fourth Amendment]. An automobile stop is thus subject to the constitutional imperative that it not be “unreasonable” under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.

Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (citations omitted). Traffic violations, even if pretextual, provide the requisite probable cause to conduct an investigatory vehicle stop. State v. Loh, 2000 ND 188, ¶ 10, 618 N.W.2d 477. Under Whren, a police officer’s subjective intentions in making a stop are not important as long as a traffic violation has occurred. Whren, 517 U.S. at 813, 116 S.Ct. 1769. As we have noted, “a party ‘is going to have difficulty in using subjective motive to attack an arrest which is otherwise objectively justified by probable cause.’ ” State v. Gregg, 2000 ND 154, ¶ 46, 615 N.W.2d 515 (citing Holland v. City of Portland, 102 F.3d 6, 11 (1st Cir.1996)).

[¶ 9] After learning Officer Pat Hudson had recently stopped Bartelson on Highway 83, Marehus requested Officer Kevin Huston’s help to locate and stop Bartel-son’s vehicle because Marehus had information that Bartelson might be transporting illegal drugs. Officer Kevin Huston testified he observed a black vehicle with tinted windows in violation of N.D.C.C. § 39-21-39. Officer Kevin Huston testified he probably would not have stopped a vehicle for the same violation, at that time, if the vehicle did not match the vehicle description given to him by Marehus. But under Whren, an officer’s subjective intent is not relevant in determining probable cause. Whren, 517 U.S. at 813, 116 S.Ct. 1769.

[¶ 10] In Whren, the United States Supreme Court held that an officer’s actual motivation for initiating a traffic stop did not affect the constitutional reasonableness of a stop based on probable cause. Id. While patrolling a high drug area, plain clothed officers became suspicious of a truck at a stop sign with temporary license plates and young occupants. Id. at 808, 116 S.Ct. 1769. The truck remained at the stop sign for an unusually long time, turned suddenly without signaling, and sped off at an “unreasonable” speed. Id. The officers stopped the vehicle, and large quantities of illegal drugs were found. Id. at 808-09, 116 S.Ct. 1769. The defendants did not dispute the officers had probable cause to believe they had committed a traffic violation. Id. at 810,116 S.Ct. 1769. They argued, because the use of automo biles is so heavily regulated and total compliance is nearly impossible, an officer will be able to catch any person with a violation. Id. This allows officers to use a traffic stop as a means for investigating other possible violations for which there is no probable cause. Id. The defendants argued probable cause should not be the standard for traffic stops, but rather, whether a reasonable police officer would have made the stop for the given reason. Id. The Whren court rejected this argument finding an officer’s subjective intent did not affect the constitutionality of a traffic stop based on probable cause. Id. at 813, 116 S.Ct. 1769. We have similarly held a valid stop is not vitiated because the officer’s actual reason for stopping the vehicle was not adequate. State v. Loh, 2000 ND 188, ¶ 14, 618 N.W.2d 477; Wheeling v. Director, N.D. Dep’t of Transp., 1997 ND 193, ¶ 11, 569 N.W.2d 273; Kohl v. Director, N.D. Dep’t of Transp., 1997 ND 147, ¶ 14, 567 N.W.2d 197; Zimmerman v. N.D. Dep’t of Transp., 543 N.W.2d 479, 483 (N.D.1996).

[¶ 11] Based on Whren, other jurisdictions have also held stops based on probable cause are not invalidated because they are pretextual. In Sanchez v. State, 847 So.2d 1043, 1044 (Fla.Dist.Ct.App.2003), officers received an anonymous tip that Sanchez was transporting cocaine. Law enforcement began surveillance of his home and followed him when he did not take his normal route to work. Id. Local law enforcement requested assistance from other jurisdictions in locating his vehicle. Id. The officers were told to look for a green Suburban possibly carrying drugs and were given the license plate number. Id. Approximately a half hour later, an officer located and followed Sanchez’s vehicle. Id. The officer paced the vehicle at eight miles per hour over the posted speed limit and initiated a stop. Id. Sanchez argued the stop was a pretext, and the “egregious” facts of the officers’ “lying in wait” until he committed a traffic offense took his case outside of the Whren rationale. Id. at 1045. The court disagreed finding the stop did not violate the Fourth Amendment under the objective standard in Whren. Id. at 1045-46 (citing Whren, 517 U.S. at 817-19,116 S.Ct. 1769).

[¶ 12] In Damato v. State, 64 P.3d 700, 702 (Wyo.2003), an officer stopped Damato for exceeding the posted speed limit by seven miles per hour. During the stop, the officer became suspicious of Damato for a number of reasons. Id. After questioning Damato, the officer released him without issuing a speeding citation. Id. The officer radioed dispatch and informed other officers of his suspicions, requesting they look for the vehicle. Id. at 702-03. A second officer received the call and proceeded to look for Damato’s vehicle. Id. at 703. He located the vehicle, turned around, and followed the vehicle looking for probable cause to initiate a stop. Id. The officer stopped Damato for traveling two miles per hour over the seventy-five mile per hour posted speed limit. Id. The court noted that although it was concerned about this “tag-team” approach to stopping vehicles, the stop was valid because the officer had observed a traffic violation. Id. at 705-06.

[¶ 13] Here Officer Kevin Huston had probable cause to stop Bartelson’s vehicle the second time because of the tinted window traffic violation. Officer Kevin Huston testified that it is not uncommon for the same vehicle to be pulled over for the same violation twice in one evening by two different officers. We can imagine a scenario where an officer repeatedly stops the same vehicle for the same violation. In such a situation, the unreasonableness of the officer’s action may violate the Fourth Amendment, but this is not such a case.

[¶ 14] Bartelson’s vehicle was stopped twice by two different officers in a short period of time for the same tinted window violation. At the suppression hearing, Officer Kevin Huston gave unclear testimony about his knowledge of the prior stop of Officer Pat Hudson. He testified he was not aware that the vehicle he stopped was the same vehicle Officer Pat Hudson had stopped:

Q. And you were informed that this is the second time that it had been stopped for tinted windows by Hudson by Underwood?

A. After I stopped the vehicle?

Q. After you stopped it?

A. Correct.

Q. How long after you stopped it?

A. After I talked to Mr. Bartelson.

Q. That’s the first thing you learned after you stopped the vehicle was that he had already been given a citation?

A. That’s correct.

Officer Kevin Huston also testified that he thought it possibly was the same vehicle:

A. It’s possible that that vehicle could have been stopped, yes.

Q. Well, were you aware of that fact?

A. At the — when I met the vehicle and saw it, I wasn’t sure if that was the particular vehicle or not, no. The only description I got was a black 4-door vehicle with tinted windows.

When questioned by defense counsel, he further testified:

Q. So you initiated a stop of a vehicle, presumably what your belief was, believing that this vehicle had just previously been stopped and ticketed for a tinted window violation. That was your knowledge and belief that this vehicle had just been stopped and ticketed for a tinted window violation, and your purpose then was to simply give it another warning for the same tinted window violation?

A. Correct.

[¶ 15] The trial court acknowledged the ambiguity of Officer Kevin Huston’s knowledge of the prior stop, but made no factual findings about Officer Kevin Huston’s credibility in describing his motives for the stops. The trial court relied instead on our prior case law that motivation is irrelevant if probable cause exists citing State v. Loh, 2000 ND 188, ¶ 10, 618 N.W.2d 477: “Traffic violations provide a proper basis for stops, even if pretextual, and evidence discovered during such stops is admissible.”

[¶ 16] Whren does not require us to delve into an officer’s intent. An officer’s probable cause does not disintegrate simply because another police officer had previously stopped the same vehicle for the same violation. It is not unreasonable for officers to request assistance locating a vehicle. It is not unreasonable for different law enforcement officers to stop a vehicle twice for the same tinted window infraction in a short period of time. Officer Kevin Huston observed the traffic violation. He testified: “I saw the vehicle with the tinted windows and made the stop.” Accordingly, the stop of Bartelson’s vehicle was constitutional because Officer Kevin Huston had probable cause to believe Bar-telson was committing a tinted window violation.

III.

[¶ 17] Bartelson argues he did not voluntarily consent to the vehicle search. The State argues that whether Bartelson consented to the search is immaterial because the search was valid as a search incident to the arrest of his passenger, Lance Cotton. When a vehicle’s occupant is arrested, law enforcement can conduct a search of the vehicle’s passenger compartment contemporaneous to the arrest. State v. Tognotti, 2003 ND 99, ¶ 8, 663 N.W.2d 642. A search incident to a valid custodial arrest is an exception to the warrant requirement. Id. at ¶ 7.

[¶ 18] Officer Kevin Huston testified that Lance Cotton was asked for his identification and subsequently arrested for possession of a suspended driver’s license when the “consent search was being conducted.” The officers started the consent search in the vehicle’s trunk. A review of the video tape made during the stop indicates that law enforcement began searching inside the passenger compartment of Bartelson’s vehicle before Cotton’s arrest. The contraband which is the subject of the suppression motion was found in the passenger compartment, although it is unclear whether it was discovered before Cotton’s arrest. We do not need to decide whether the evidence was discovered before or after Cotton’s arrest.

[¶ 19] We have stated, “ ‘[w]here the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa’ so long as the fruits of the search were ‘not necessary to support probable cause to arrest.’ ” State v. Wanzek, 1999 ND 163, ¶ 17, 598 N.W.2d 811 (citations omitted). Because Cotton possessed a suspended driver’s license, the officer had independent probable cause to arrest Cotton before the drug evidence was discovered. Cotton was arrested moments after the search of the passenger compartment began. Therefore, the search was a valid search incident to arrest. We conclude, therefore, the trial court properly refused to suppress the evidence obtained during the search of Bartelson’s vehicle.

IV.

[¶ 20] Because we conclude the stop did not violate the Fourth Amendment and the search was a valid search incident to arrest, the criminal judgment is affirmed.

[¶ 21] DALE V. SANDSTROM and DANIEL J. CROTHERS, JJ., concur.