State v. Everson

474 N.W.2d 695, 60 U.S.L.W. 2191, 1991 N.D. LEXIS 156, 1991 WL 154930
CourtNorth Dakota Supreme Court
DecidedAugust 16, 1991
DocketCr. 900342, 900343
StatusPublished
Cited by32 cases

This text of 474 N.W.2d 695 (State v. Everson) 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
State v. Everson, 474 N.W.2d 695, 60 U.S.L.W. 2191, 1991 N.D. LEXIS 156, 1991 WL 154930 (N.D. 1991).

Opinions

VANDE WALLE, Justice.

Keith Everson appealed from two judgments of conviction for class C felony possession of a controlled substance. He asserts on appeal that the trial court erred in refusing to suppress the controlled substances which were discovered by law enforcement officers when he was stopped at a multi-purpose highway checkpoint. We disagree, and accordingly, affirm the judgments of conviction.

During the summer of 1989, Larry Buck, a detective with the Stark County Sheriffs Office, Sgt. Don Glarum of the State Highway Patrol, and Stark County Deputy Sheriff Mike Adolph, were assigned by their supervisors to establish a highway checkpoint in Stark County to coincide with the upcoming annual motorcycle rally in Stur-gis, South Dakota. On June 26, 1989, District Eight Highway Patrol Captain David Messer issued Operation Order 2-89 which stated in part:

“Due to the rally in Sturgis, South Dakota and the large volume of drugs on our highways, the North Dakota Highway Patrol along with the Stark County Sheriffs Office and other agencies will conduct a drivers license and registration check. If probable cause presents its self [sic], for drugs and other contraband, a search will be conducted. The check will be conducted on Highway 85 on 5-6 and 13-14 August 1989.
* * * * * *
“It will be the mission of the North Dakota Highway Patrol to attempt to alleviate the problem of drugs being transported by vehicle, on state highway’s [sic] in North Dakota.”

On July 17, 1989, Stark County Sheriff James Rice issued a memorandum in preparation for the operation which stated:

“[C]heek points [sic] will be set up and operated as listed below:
“1. All vehicles heading in an assigned direction will be stopped.
“2. Vehicle registration will be checked for current status.
“3. Driver of vehicle will be checked for current operator’s drivers license.
“4. A vehicle inspection will be conducted.
“Checkpoints will be located on # 85, #22, #8 and # 10 during assigned times.”

On August 5-6 and 13-14, 1989, law enforcement officers conducted a checkpoint 12 miles south of Belfield on U.S. Highway 85. Personnel from the Stark, Billings, and Slope County Sheriff’s Offices, the State Highway Patrol, the State Drug Enforcement Unit, the United States Border Patrol, and the Minot Police Department participated in the operation. On August 5 and 6, which coincided with the beginning of the motorcycle rally, all southbound traffic was stopped. On August 13 and 14, which coincided with the conclusion of the rally, all northbound traffic was stopped. The checkpoint was located in a small valley so oncoming traffic could not see it from a long distance. A driver would first see a large sign that said “Please stop.” The actual checkpoint was located approximately two-tenths of one mile from the sign. The checkpoint was conducted only during daylight hours.

Every vehicle was stopped at the checkpoint. The driver would first encounter three fluorescent orange traffic cones and an officer referred to as the “point man” who was located at an intersection of the highway and a gravel road. Parked on the gravel road to the driver’s right were sheriff’s cars, a camper used as a command post, and Drug Enforcement Unit vehicles. Drug Enforcement Unit officers and sheriff’s deputies conducted searches of vehicles referred to this area if the driver consented to a search. Two Highway Patrol officers were stationed further down [697]*697the highway to conduct vehicle-safety inspections.

The point man made the initial determination whether a vehicle would be sent to the search area or the inspection area, but any officer had the authority to send a vehicle to the search area. The point man would tell drivers that a vehicle safety cheek was being conducted and that they should have their drivers’ licenses and vehicle registrations ready for inspection. The point man could send a vehicle to the search area based on the observation of any illegal activity. Before the law enforcement officers went on duty, they were also given a drug courier profile containing a list of “indicators” of narcotics traffickers. These “indicators” included the following:

“Vehicle Appearance:
“a. low riding, or low rear end
“b. obvious alterations to body
“c. alterations to suspension-new adjustable air shocks
“Interior of vehicle
“a. little or no luggage and long way from alleged home
“b. luggage or spare tire on back seat
“c. coolers/water jugs, fast food wrappers, coffee, bedding
“d. ‘Bounce’, or similar laundry fresheners
“e. multiple air freshening devices, sprays
“f. ‘Glad’ type storage bags or aluminum foil or masking tape
“Occupants:
“a. overly courteous, especially if receiving a citation
“b. in a hurry to leave
“c. overly cautious drivers
“d. signs of overt nervousness
“e. won’t make eye contact
“f. don’t ‘know’ each other
“g. after questioning the driver outside of the car and away from other occupants, check the story of the other occupants as to destinations, purposes of trip, length of stay, where stayed, etc., and check for discrepencies [sic].
“h. unkempt physical appearance, such as 3-day beard growth, matted hair, fatigued, or ‘wired’ from stimulants to stay awake.”

If a driver or other occupant caused the point man to become suspicious, the driver was sent to the search area where the driver was asked to consent to a search of the vehicle. Otherwise, the driver was sent to the vehicle safety inspection area. If a driver refused to consent to a search, the officers were instructed to allow the driver to proceed without a search.

On August 13, 1989, Everson, traveling from Sturgis to Williston, was stopped at the checkpoint. Everson was driving a 1981 Mazda GLC and pulling a trailer which contained a Harley Davidson motorcycle. The license plate on Everson’s trailer was partially broken off. The point man informed Everson that the officers were conducting vehicle safety inspections and that he should get out his driver’s license and vehicle registration. The point man then directed Everson toward the vehicle safety inspection area. Sgt. Glarum of the Highway Patrol, who was conducting safety inspections at the time, checked Ever-son’s driver’s license and vehicle registration and conducted a safety check. Sgt. Glarum then had Everson pull his vehicle over to the side of the road. Apparently, other drivers who were given vehicle safety inspections were not required to pull over to the side of the road. Sgt. Glarum explained:

“Q [By Mr. Hope] ... Why was it you had him pull over to the side of the road?

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Bluebook (online)
474 N.W.2d 695, 60 U.S.L.W. 2191, 1991 N.D. LEXIS 156, 1991 WL 154930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-everson-nd-1991.