State v. Van Der Heever , 2021 ND 116 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 24, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 116State of North Dakota, Plaintiff and Appellant
v.
Marco Van Der Heever, Defendant and Appellee
No. 20200309
Appeal from the District Court of Pembina County, Northeast Judicial District,
the Honorable Laurie A. Fontaine, Judge.
REVERSED AND REMANDED.
Opinion of the Court by McEvers, Justice, in which Chief Justice Jensen,
Justices VandeWalle and Tufte joined. Justice Crothers filed an opinion
concurring specially.
Rebecca L. Flanders, State’s Attorney, Cavalier, ND, for plaintiff and apellant.
Dustin J. Slaamod, Cavalier, ND, for defendant and appellee.
State v. Van Der Heever
No. 20200309
McEvers, Justice.
[¶1] The State appeals from a district court order granting Marco Van Der
Heever’s motion to suppress evidence, arguing the officer had reasonable
suspicion to stop Van Der Heever’s vehicle. We reverse and remand for further
proceedings.
I
[¶2] Van Der Heever was charged with driving under the influence of
intoxicating liquors. He moved to suppress the evidence obtained as a result of
his vehicle being stopped by law enforcement. The district court held a hearing,
where Sergeant Cory Mortensen provided the sole testimony.
[¶3] Mortensen testified he was contacted by dispatch to respond to a possibly
impaired driver at approximately 12:30 a.m. on June 28, 2020. Dispatch
informed him that the reporting party, John Towes, stated a silver F-150
pickup with branches in the bed of the truck was traveling on Central Avenue
in Walhalla, North Dakota, stopping and reversing in the middle of the road.
Towes reported the driver’s actions caused him to stop and reverse his vehicle
to avoid being hit by the F-150, which occurred “many times.” Mortensen
testified that Central Avenue is the road between the two bars in Walhalla,
and that Towes reported the F-150 was parked “up town at the local bar all
afternoon.” Mortensen stated that he is personally familiar with Towes from
prior community contacts. After receiving Towes’ phone number from dispatch,
Mortensen called him. Towes identified the driver as male and believed he was
probably impaired. Towes did not know where the F-150 was located at that
time, but called back shortly after and said the vehicle was parked on 7th
Street, just north of Delano Avenue. Towes was parked down the road,
watching the F-150, and he told Mortensen the driver of the F-150 was outside
of his parked vehicle.
[¶4] About fifteen minutes later, Mortensen arrived at the location and pulled
behind the vehicle. He saw the driver’s side door was open. As Mortensen was
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about to exit his vehicle, the driver’s side door closed and the vehicle slowly
drove away. Mortensen activated his lights and stopped the vehicle. He
identified the driver as Van Der Heever. Following an investigation, Van Der
Heever was charged with driving under the influence.
[¶5] After the suppression hearing, the district court granted Van Der
Heever’s motion to suppress, concluding that Mortensen should have
corroborated some of Towes’ report before stopping Van Der Heever’s vehicle.
The State appealed, complying with N.D.C.C. § 29-28-07(5) by filing the
required statement from the prosecuting attorney.
II
[¶6] The State argues the district court erred in granting the motion to
suppress because Mortensen had reasonable suspicion to stop Van Der
Heever’s vehicle. Our standard for reviewing the district court’s decision on a
motion to suppress is well-established:
[T]his Court defers to the district court’s findings of fact and
resolves conflicts in testimony in favor of affirmance. This Court
will affirm a district court decision regarding a motion to suppress
if there is sufficient competent evidence fairly capable of
supporting the district court’s findings, and the decision is not
contrary to the manifest weight of the evidence. Questions of law
are fully reviewable on appeal, and whether a finding of fact meets
a legal standard is a question of law.
State v. Ashby, 2017 ND 74, ¶ 9, 892 N.W.2d 185. Whether the facts support a
reasonable and articulable suspicion is a question of law, which is fully
reviewable on appeal. Id.[¶7] The Fourth Amendment to the United States Constitution, applicable to
the states under the Fourteenth Amendment, and Article I, section 8, of the
North Dakota Constitution, protect individuals from unreasonable searches
and seizures. Ashby, 2017 ND 74, ¶ 8. “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 this provision.” Id. A law enforcement officer must have a
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reasonable and articulable suspicion that a motorist has violated or is violating
the law to justify stopping a moving vehicle for investigation. Gabel v. N.D.
Dep’t of Transp., 2006 ND 178, ¶ 9, 720 N.W.2d 433. “Whether an officer had
a reasonable and articulable suspicion is a fact-specific inquiry that ‘is
evaluated under an objective standard considering the totality of the
circumstances.’” State v. Wolfer, 2010 ND 63, ¶ 6, 780 N.W.2d 650 (quoting
Gabel, at ¶ 9). Under this standard, “the articulable aspect requires that the
stop be justified with more than just a vague hunch or other non-objective facts;
and the reasonable aspect means that the articulable facts must produce, by
reasonable inference, a reasonable suspicion of unlawful conduct.” State v.
Taylor, 2018 ND 132, ¶ 11, 911 N.W.2d 905 (emphasis omitted).
[¶8] We have previously discussed three situations that provide an officer
with reasonable and articulable suspicion to stop a vehicle: (1) when the officer
relied upon a directive or request for action from another officer; (2) when the
officer received tips from other police officers or informants, which were then
corroborated by the officer’s own observations; and (3) when the officer directly
observed illegal activity. Anderson v. Director, N.D. Dep’t of Transp., 2005 ND
97, ¶ 9, 696 N.W.2d 918. Further, we have discussed the analytical framework
necessary to determine whether an informant’s tip is sufficiently reliable to
raise a reasonable suspicion without the officer’s corroboration:
Information from a tip may provide the factual basis for a stop. In
evaluating the factual basis for a stop, we consider the totality of
the circumstances. This includes the quantity, or content, and
quality, or degree of reliability, of the information available to the
officer. Although the totality-of-the-circumstances approach
makes categorization difficult, our cases involving reasonable
suspicion arising from an informant’s tip demonstrate the inverse
relationship between quantity and quality, and may be analyzed
generally according to the type of tip and, hence, its reliability. As
a general rule, the lesser the quality or reliability of the tip, the
greater the quantity of information required to raise a reasonable
suspicion.
Anderson, 2005 ND 97, ¶ 10 (cleaned up).
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[¶9] “Information from an informant whose identity is easily ascertainable
has a higher indicia of reliability than information obtained from a purely
anonymous informant.” Anderson, 2005 ND 97, ¶ 15. Citizen informants are
presumed to be a reliable source of information. State v. Ebel, 2006 ND 212, ¶
15, 723 N.W.2d 375. “A citizen informant is someone who volunteers
information, does not want anything in return for the information, and is not
at risk or in fear of going to jail.” City of Dickinson v. Hewson, 2011 ND 187, ¶
10, 803 N.W.2d 814 (cleaned up).
[¶10] Towes was a citizen informant. He volunteered information to dispatch
and Mortensen without wanting anything in return for the information he
provided. Further, he was not at risk or in fear of going to jail. Not only is
Towes’ identity easily ascertainable, but Mortensen testified that he personally
knew Towes from prior community contacts. Accordingly, the information
being provided by Towes has a high indicia of reliability and is presumed
reliable. See Hewson, 2011 ND 187, ¶ 10.
[¶11] The district court concluded that Mortensen lacked reasonable suspicion
to stop Van Der Heever’s vehicle because he failed to corroborate Towes’
information, relying on Anderson and Gabel. In Anderson, law enforcement
received a call from a motorist reporting a “possible reckless driver or drunk
driver” that had hit cones in a construction zone. 2005 ND 97, ¶ 2. The
informant reported a description of the vehicle and continued following him
and providing location updates. Id. The officer stopped the suspect after
following him for two miles without observing any illegal or erratic driving. Id.
at ¶ 3. Although the officer was unaware of the informant’s name, he knew the
informant had pulled off to the side of the road and was being interviewed by
an assisting officer. Id. Thus, we concluded the informant’s identity was easily
ascertainable, and he had a higher indicia of reliability than a purely
anonymous informant. Id. at ¶¶ 14, 21. However, the Department of
Transportation failed to establish that the officer was aware of the suspect
hitting the cones in the construction zone before the stop. Id. at ¶ 19. We held
that the “bare assertion of a ‘possible reckless driver or drunk driver,’” was not
of sufficient quantity to provide the officer with reasonable suspicion of
criminal activity. Id. at ¶ 21.
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[¶12] In Gabel, the informant reported a vehicle was speeding up and slowing
down, not allowing him to pass. 2006 ND 178, ¶ 2. The informant also reported
the license plate, and continued to follow the driver and relay his location. Id.The officer located the vehicle traveling at a speed of 47 miles per hour in a 65
mile per hour zone, and stopped the vehicle. Id. at ¶ 3. There was no minimum
speed limit required on the road, and the officer did not observe a traffic
violation. Id. The officer knew the informant, but believed he had a criminal
record. Id. at ¶ 12. Although the reliability of the tip was discussed, we
ultimately did not determine the issue, and assumed the informant reliable,
stating:
However, we need not determine the reliability of [the informant],
because, even assuming he was a reliable informant, his tip of a
vehicle speeding up and slowing down, not allowing a car to pass
is insufficient to support a traffic stop absent corroboration of
otherwise illegal activity or suspicious conduct. Driving on a
highway slightly below the speed limit is not sufficiently
suspicious to support a traffic stop.
Id. The majority concluded that based upon the information conveyed, there
was only a possibility the driver violated the law, and thus was functionally
equivalent to the tip in Anderson of the “possible reckless driver or drunk
driver.” Id. at ¶ 15. The Court held the officer lacked reasonable suspicion to
stop the vehicle. Id. at ¶ 16.
[¶13] However, where a known, or easily ascertainable, informant provides a
greater quantity of information than a bare assertion of possible impaired or
erratic driving, the officer need not personally observe, or corroborate, evidence
of criminal activity in order to have reasonable suspicion to stop a vehicle. See,
e.g., Ashby, 2017 ND 74, ¶¶ 13-17; Hewson, 2011 ND 187, ¶¶ 11-14; State v.
Lykken, 406 N.W.2d 664, 666 (N.D. 1987). In Navarette v. California, 572 U.S.
393, 395 (2014), an anonymous 911 caller reported that a vehicle had run her
off the road and provided the vehicle description and location. The officer
stopped the vehicle without observing any suspicious conduct. Id. at 403. The
United States Supreme Court held the officer had reasonable suspicion of
drunk driving based on the 911 caller’s tip. Id. at 404. The Court concluded the
tip was reliable because the caller claimed an eyewitness basis of knowledge,
5
the short time between the incident and the call suggested the caller had little
time to fabricate the report, and a reasonable officer could conclude that a false
tipster would hesitate to call 911 because of the features the system has to
safeguard against making false reports with immunity. Id. at 399-401. The
Court determined further corroboration of the tip was unwarranted, noting
that “an officer who already has such a reasonable suspicion need not surveil
a vehicle at length in order to personally observe suspicious driving.” Id. at
404.
[¶14] The information provided by Towes was more than a bare assertion of a
“possible reckless driver or drunk driver.” Towes, a known citizen informant
whose tip is presumed reliable, identified the color and model of the vehicle,
with the unique descriptor of it having branches in the bed of the truck. He
reported the F-150 was parked at the bar “all afternoon.” He specifically
described the actions of the driver of the vehicle as stopping and reversing the
vehicle in the middle of Central Avenue in Walhalla, causing him to do the
same to avoid a collision, which occurred “many times.” Mortensen testified
that Central Avenue was the road between the two bars in Walhalla. Towes
identified the driver as male and believed he was probably impaired. Further,
Towes supplied the location of the vehicle, while simultaneously watching it
from down the road, and noted the driver was outside of his parked vehicle.
Mortensen arrived at the location provided approximately fifteen minutes later
and found the described vehicle with the driver’s side door open. Mortensen
corroborated the location of the vehicle and the vehicle’s description, but he did
not corroborate the criminal activity. Such corroboration is not required under
the Fourth Amendment, Navarette, 572 U.S. at 404, and Van Der Heever has
not provided any argument for a different approach under N.D. Const. art. I, §
8. Thus, the district court misapplied the law when it concluded Mortensen
needed to further corroborate Towes’ information. Under the totality of the
circumstances, Mortensen had reasonable suspicion of criminal activity, and
the court erred by granting Van Der Heever’s motion to suppress evidence.
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III
[¶15] We reverse the suppression order and remand for further proceedings.
[¶16] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte
Crothers, Justice, specially concurring.
[¶17] I concur in the result here based on my writing in State v. Hendrickson,
2019 ND 183, ¶¶ 17-24, 931 N.W.2d 236 (Crothers, J., specially concurring).
[¶18] Daniel J. Crothers
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