State v. Guscette

2004 ND 71, 678 N.W.2d 126, 2004 N.D. LEXIS 178, 2004 WL 771756

• Court: North Dakota Supreme Court
• Decided: April 13, 2004
• Docket: 20030177
• Status: Published

Opinions

KAPSNER, Justice.

[¶ 1] Stephanie Guscette appealed from a conviction for possession of drug paraphernalia. We hold there is sufficient competent evidence fairly supporting the trial court’s findings that Guscette had not been seized under the Fourth Amendment when she allowed a law enforcement officer to search her vehicle and that she voluntarily consented to the search of her vehicle and a purse in the vehicle. We affirm.

I

[¶ 2] At about 8 pm. on February 4, 2003, Fargo Police Officer Kyle Olson stopped a vehicle driven by Guscette for a broken taillight. Olson approached Gus-cette’s véhicle, informed her why she had been stopped, and asked for her driver’s license. Olson verified Guscette had a valid driver’s license, and when he returned to the vehicle, he engaged her in further conversation about automobile insurance and the whereabouts of Corey Mock. Olson ultimately asked Guscette to step out of her vehicle. After Guscette stepped out of the vehicle, Olson engaged her in further conversation about Mock and a previous encounter she had had with law enforcement officers. He ultimately informed her that he was giving her a warning and she was free to leave. Before Guscette got back into her vehicle, however, Olson asked her if she had any weapons, needles, knives, or anything else illegal in the vehicle. Guscette responded she did not, and Olson then asked her for permission to search the vehicle, which she granted. Guscette and a passenger were directed to the back of the vehicle with another officer while Olson searched the vehicle. Olson found a black purse in the front seat. Upon opening the purse, Olson found drug paraphernalia. According to Olson, after he found the drug paraphernalia, he heard Guscette tell the other officer she had consented to a search of the vehicle, but not the purse. According to Guscette, Olson found the drug paraphernalia after she objected to him searching her purse.

[¶ 3] Guscette was charged with possession of drug paraphernalia. She moved to suppress evidence seized during the search of her purse. The trial court denied Guscette’s motion to suppress, concluding Olson was authorized to ask Gus-cette to search the vehicle even though the initial stop was merely for a traffic violation. The court concluded Olson was not required to have a reasonable and articula-ble suspicion of any other wrongdoing to ask Guscette for permission to search the vehicle. The court also concluded Gus-cette’s consent to search the vehicle was voluntary under the totality of the circumstances, and Olson did not exceed the scope of her consent.

II

[¶ 4] Guscette appealed from the order denying her motion to suppress. Gus-cette’s attempted appeal from the order denying her motion to suppress is not authorized by N.D.C.C. § 29-28-06. After the denial of her motion to suppress, however, Guscette entered a conditional guilty plea to the charge of possession of drug paraphernalia in which she, the State, and the trial court acknowledged she had reserved the right on appeal to review of the adverse ruling on her motion to suppress, and a judgment of conviction was entered. Because the record contains a subsequently entered judgment consistent with the order denying Guscette’s motion to suppress and the State and the trial court approved the reservation of her right to appeal, we treat Guscette’s appeal from the suppression order as an appeal from the judgment. State v. Keilen, 2002 ND 133, ¶¶ 7-9, 649 N.W.2d 224.

III

[¶ 5] When reviewing a trial court’s ruling on a motion to suppress, we defer to the court’s findings of fact and resolve conflicts in the evidence in favor of affirmance. State v. Tognotti, 2003 ND 99, ¶ 5, 663 N.W.2d 642. We will affirm a trial court’s disposition of a motion to suppress unless, after resolving conflicting evidence in favor of affirmance, there is insufficient competent evidence fairly capable of supporting the trial court’s findings, or the decision is contrary to the manifest weight of the evidence. Id. Our deferential standard of review recognizes the importance of a trial court’s opportunity to assess the credibility of the witnesses. State v. Fields, 2003 ND 81, ¶ 6, 662 N.W.2d 242.

A

[¶ 6] Guscette argues her continued detention after the time necessary to complete the initial traffic stop violated her Fourth Amendment right to be free from an unreasonable seizure. Guscette concedes the initial stop of her vehicle for a traffic violation was proper, and once a traffic violation has occurred and a traffic stop made, an officer may temporarily detain a traffic violator at the scene of the violation. Guscette contends, however, Olson’s conduct after the time necessary to complete the traffic stop constituted an illegal seizure under the Fourth Amendment. She argues the facts and circumstances did not give Olson a reasonable suspicion she was engaged in criminal activity, and her consent to search the vehicle following the illegal seizure was tainted.

[¶ 7] The Fourth Amendment of the United States Constitution, applicable to the states through the Fourteenth Amendment, protects individuals from unreasonable searches and seizures. Tognotti, 2003 ND 99, ¶7, 663 N.W.2d 642. In Fields, 2003 ND 81, 662 N.W.2d 242, this Court discussed an issue similar to the one raised by Guscette. There, in the context of a concededly valid traffic stop for expired license tabs, a police officer asked Fields for consent to search his vehicle after the officer had released him from the incidents of the traffic stop and reap-proached him to inquire about drugs or weapons in the vehicle. Id. at ¶ 4. When Fields refused to consent to a search of his vehicle, the officer detained him until a drug detection dog arrived at the scene and detected drugs in the vehicle. Id. In Fields, 2003 ND 81, ¶¶ 8-13, 662 N.W.2d 242, a majority of this Court outlined standards for a traffic stop and concluded the continued detention of Fields until a drug detection dog arrived constituted a seizure under the Fourth Amendment because a reasonable person in Fields’ position would not have felt free to leave the scene:

When conducting a traffic stop, an officer can temporarily detain the traffic violator at the scene of the violation. See State v. Mertz, 362 N.W.2d 410, 412 (N.D.1985) (citing N.D.C.C. §§ 39-07-07 and 39-07-09). The constitutionality of an investigative detention is judged under the framework established in Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), requiring that an investigative detention be “reasonably related in scope to the circumstances which justified the interference in the first place.” This Court has explained that for traffic stops, “[a] reasonable period of detention includes the amount of time necessary for the officer to complete his duties resulting from the traffic stop.” Mertz, at 412. Those duties, according to the Court of Appeals for the Eighth Circuit, may include:

requesting] the driver’s license and registration, requesting] that the driver step out of the vehicle, requesting] that the driver wait in the patrol car, conducting] computer inquiries to determine the validity of the license and registration, conducting] computer searches to investigate the driver’s criminal history and to determine if the driver has outstanding warrants, and making] inquiries as to the motorist’s destination and purpose.

United States v. Jones, 269 F.3d 919, 924 (8th Cir.2001). The investigative detention may continue “as long as reasonably necessary to conduct these activities and to issue a warning or citation.” Id. at 925; see also Mertz, at 412 (“[A] traffic violator is subject to the arresting officer’s authority and restraint until the officer completes issuance of the traffic citation and expressly releases the violator.”).

In this case, the officer issued Fields a citation for the expired tabs and expressly released Fields by saying goodbye, turning around, and starting to walk back to his vehicle. After the officer issued the traffic citation, the legitimate investigative purposes of the traffic stop were completed. See Jones, 269 F.3d at 925 (stating that once the trooper had determined that the driver was not tired or intoxicated, had verified that the driver’s license and registration were valid, and had checked for any outstanding arrest warrants, the legitimate investigative purposes of the traffic stop were completed).

Once the purposes of the initial traffic stop are completed, a continued seizure of a traffic violator violates the Fourth Amendment unless the officer has a reasonable suspicion for believing that criminal activity is afoot. See Jones, 269 F.3d at 925. Therefore, the constitutional inquiry in this case is reduced to two determinations: whether Fields was “seized” within the meaning of the Fourth Amendment when he was held awaiting the arrival of the drug detection dog, and if so, whether there was a reasonable suspicion to support the seizure. See id.

[¶ 8] Our inquiry first focuses on whether Olson seized Guscette when he asked to search her vehicle. Not every law enforcement contact with a citizen is a seizure, and law enforcement officers do not violate the Fourth Amendment merely by approaching individuals on the street or in other public places. United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). In Drayton, at 201, 122 S.Ct. 2105, the United States Supreme Court explained that as long as law enforcement officers do not induce cooperation by coercive means, they may pose questions and ask for consent to search even when they have no basis for suspecting criminal activity. A seizure does not occur simply because a law enforcement officer questions a person, and as long as reasonable persons would feel free to disregard the officer and go about their business, the encounter is consensual and a reasonable suspicion of criminal activity is not required. Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). If reasonable persons would feel free to terminate the encounter, they have not been seized under the Fourth Amendment. Drayton, at 201, 122 S.Ct. 2105. To constitute a seizure, an officer must in some way restrain an individual’s liberty by physical force or show of authority. City of Fargo v. Ovind, 1998 ND 69, ¶ 7, 575 N.W.2d 901. In Fields, 2003 ND 81, ¶ 11, 662 N.W.2d 242, we have said a person has been seized within the meaning of the Fourth Amendment, if, in view of all the surrounding circumstances, a reasonable person would have believed he or she was not free to leave the scene.

[¶ 9] The trial court found Olson gave Guscette a verbal warning, handed Gus-cette her driver’s license, and told her she was free to leave. According to Olson’s written uniform incident report, which was before the trial court by incorporation into the State’s return to Guscette’s motion to suppress and was referred to by Olson during his testimony at the suppression hearing, Olson gave Guscette a verbal warning for the taillight, returned her identification, told her she was free to leave, and she indicated she understood. Before Guscette returned to her vehicle, Olson asked her if she had any weapons, needles, knives, or anything else illegal in the vehicle, and she replied she did not. Olson then asked Guscette for consent to search her vehicle, which she granted. This is not a case where Olson detained Guscette while a drug detection dog was called to the scene. Rather, after Olson told Guscette she was free to leave, he asked her about items in the vehicle and asked her for permission to search her vehicle. Nothing in the record indicates this exchange required anything more than a minimal period of time, and Guscette testified she was not “nervous or anything” during her encounter with Olson. The trial court found Olson told Guscette she was free to leave before Olson asked for consent to search the vehicle, and there was no threat or show of force by Olson when he asked for consent to search the vehicle. The court found Guscette consented to the search “right after receiving her driver’s license back and being told she was free to go.” The trial court effectively found Guscette had not been seized when she consented to the search of her vehicle.

[¶ 10] We conclude there is sufficient competent evidence supporting the trial court’s finding Guscette was free to leave and had not been seized when she consented to the search of her vehicle, and the court’s decision is not contrary to the manifest weight of the evidence. We, therefore, conclude Guscette was not seized under the Fourth Amendment when she consented to the search of her vehicle.

B

[¶ 11] In City of Fargo v. Ellison, 2001 ND 175, ¶ 13, 635 N.W.2d 151, we outlined our standard for determining the validity of a consent to search:

“[W]hen the validity of a consent to search is called into question, the trial court must satisfy itself that the consent was given voluntarily before it can permit the use of evidence obtained from the search against the accused at trial.” State v. Discoe, 334 N.W.2d 466, 467 (N.D.1983). “[T]he way in which the trial court is to make its determination on the issue of voluntariness is by examining the totality of the circumstances which surround the giving of a confession or consent to a search to see whether it is the product of an essentially free choice or the product of coercion.” Id. “Under a ‘totality of the circumstances’ standard, although the existence or absence of certain factors concerning (1) the characteristics and condition of the accused at the time [he or she] confessed or consented and (2) the details of the setting in which the consent or confession was obtained are significant in deciding voluntariness, no one factor in and of itself is determinative.” Id. at 467-68.

[¶ 12] The trial court found Guscette voluntarily consented to the search of her vehicle under the totality of the circumstances. Guscette testified she was not nervous during her encounter with Olson. The court found there was no threat or show of force by Olson when Guscette consented to the search, and nothing in this record supports a conclusion Gus-cette’s consent was the product of coercion. The court’s findings and conclusions are supported by the record and are not contrary to the manifest weight of the evidence.

[¶ 13] In State v. Schmitz, 474 N.W.2d 249, 251 (N.D.1991), this Court discussed the scope of a consent to search:

To be valid as an exception to the warrant and probable cause requirements of the Fourth Amendment, a consent search must be “conducted according to the limitations placed upon an officer’s right to search by the consent.” State v. Huether, 453 N.W.2d 778, 782 (N.D.1990). “The scope of a search is generally defined by its expressed object.” Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). The question whether a search exceeds the scope of consent is a factual one, subject to the “clearly erroneous” standard of review. Huether, 453 N.W.2d at 782; State v. Padgett, 393 N.W.2d 754, 757 (N.D.1986).

[¶ 14] In Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), the United States Supreme Court said a defendant’s general consent to search a car includes a consent to search containers within the vehicle which may contain the items sought. The trial court found Olson asked Guscette for consent to search the vehicle after asking her if there were any weapons, knives or anything else illegal in the vehicle. Guscette’s purse was in the vehicle, and weapons or knives are items that could be found in a purse. The court found Guscette put no limitations on her initial consent to search the vehicle, and by the time Guscette may have withdrawn her consent, the contraband had already been discovered. That finding is supported by Olson’s testimony he had already found the drug paraphernalia when he heard Guscette telling the other officer she had not consented to a search of her purse, but just to the search of the vehicle. Although Guscette testified she did not believe Olson had found drug paraphernalia in her purse when she objected to the other officer, there is evidence supporting the trial court’s finding. We conclude there is sufficient competent evidence fairly supporting the trial court’s findings of consent and those findings are not contrary to the manifest weight of the evidence.

IV

[¶ 15] We affirm Guscette’s conviction.

[¶ 16] DALE V. SANDSTROM and WILLIAM A. NEUMANN, JJ., concur.