State v. Vetter , 927 N.W.2d 435 ( 2019 )

Filed 5/16/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 138
State of North Dakota, Plaintiff and Appellee
v.
Dylan Benjamin Vetter, Defendant and Appellant
No. 20180356
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable John C. Irby, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Kara S. Olson (appeared), Assistant State’s Attorney, and Nicholas Samuelson
(argued), third-year law student, under the Rule on Limited Practice of Law by Law
Students, Fargo, N.D., for plaintiff and appellee.
Luke T. Heck, Fargo, N.D., for defendant and appellant.
State v. Vetter
No. 20180356
Tufte, Justice.
[¶1] Dylan Vetter appeals from a criminal judgment entered after his conditional
guilty plea to possession of controlled substances and drug paraphernalia. Vetter
argues the deputy sheriff who stopped him for speeding lacked reasonable suspicion
to believe Vetter’s car contained contraband and unlawfully expanded the scope of
the traffic stop by inquiring whether there were any illegal items in Vetter’s vehicle
and by conducting a canine sniff around the car. We affirm, concluding the district
court did not err in denying Vetter’s motion to suppress evidence because the stop
was not expanded in violation of the Fourth Amendment.
I
[¶2] On March 1, 2018, around 11:35 p.m., Deputy Chad Thompson stopped Vetter
for a speeding violation. Thompson is trained to handle a drug detection dog. His dog
Zena was with him that night in his patrol vehicle. Before he approached Vetter’s
vehicle, but after it had come to a stop, Thompson noticed it rocking back and forth
and saw two occupants moving around inside. He believed the occupants were trying
to move or hide something. Thompson approached the vehicle, where he saw Vetter
in the driver’s seat. While talking with Vetter, Thompson saw an open alcoholic
beverage can on the floor by Vetter’s feet. In response to Thompson’s questions,
Vetter admitted he’d had a few drinks earlier. Thompson asked Vetter to come back
to the patrol car, where he further questioned Vetter regarding consumption of
alcohol. Vetter consented to field sobriety tests, including a preliminary breath test,
none of which indicated impairment. After administering the tests, Thompson asked
Vetter if there was anything illegal in his vehicle. Vetter denied having anything
illegal in his vehicle.
[¶3] Corporal Hedin arrived during this questioning. Deputy Thompson got out of
his patrol car and asked Hedin to write Vetter a warning ticket. While Hedin wrote the
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warning ticket, Thompson and K-9 Zena conducted a canine sniff of Vetter’s vehicle.
Zena alerted on the passenger side door. The vehicle was then searched, and
controlled substances and drug paraphernalia were discovered. Vetter filed a motion
to suppress the evidence resulting from the search. The district court denied the
motion to suppress, after which Vetter entered a conditional guilty plea to possession
of controlled substances and drug paraphernalia.
[¶4] Because the issue before us turns on whether the stop was expanded in time or
in scope, we include immediately below a detailed time line of relevant events during
the stop as it appears in the video recording of the stop presented to the district court.
All times are in the eleven o’clock p.m. hour.
35:23 Deputy Thompson activates his flashing lights to initiate a stop
of Vetter’s vehicle.
36:45 Thompson introduces himself to Vetter, explains speeding was
the reason for the stop, and asks for registration and insurance.
37:33 Vetter hands Thompson papers.
37:33 Thompson looks at the papers and looks into the car.
37:44 Thompson inquires if Vetter has any open alcohol in the car and
says he sees Vetter is trying to hide a Twisted Tea can with his
foot. Vetter says he was fishing earlier and hands the can to
Thompson. Thompson asks for the registration card again.
Vetter hands it to him.
38:35 Thompson asks Vetter to come back to the squad car. While
Vetter is walking back to the squad car, Thompson asks if he has
any weapons on him. Vetter says he does not. Thompson tells
Vetter to put out his cigarette and sit in the front seat.
39:03 Vetter and Thompson enter the squad car. Once in the car,
Thompson shows Vetter the “locked speed.” He asks how much
Vetter drank that night, when was the last drink, and if Vetter
feels fine to drive. Vetter responds he is fine and mentions he
was in Napoleon visiting his dad.
40:41 Thompson inquires into the condition of Vetter’s eyes, asks to
see them, and conducts a Horizontal Gaze Nystagmus test.
42:17 Vetter initiates conversation about the weather. They lapse into
silence at 42:38.
43:45 Vetter initiates conversation about fishing.
44:16 Thompson asks Vetter if he is familiar with the alphabet and
counting backwards from 100 to 1. Vetter indicates that he is.
Thompson has Vetter recite the alphabet from the letter C to the
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letter T. Vetter recites the alphabet as instructed. Thompson then
asks Vetter to count backwards from 75 to 58. Vetter does so.
45:42 Thompson tells Vetter that he wants to administer a preliminary
breath test. Thompson reads the implied consent advisory.
Vetter consents to the test. Thompson administers the test.
During this exchange, at 46:43, the video shows the picture
becoming illuminated from behind the patrol car.
46:57 Thompson: “Sir when you guys came to a stop I could see the
whole car like rocking. Were you guys hiding anything or
anything like that in there?”
Vetter: “No. I need new shocks on it.”
Thompson: “You were already stopped for a bit at this point
though. Nothing illegal in the car or anything like that?”
Vetter: “No.”
47:13 Thompson: “Okay.”
47:15 Audible throat clearing, but no further conversation.
47:25 Sound of car door shutting.
47:26 Dialog between Thompson and Hedin takes place outside car.
Thompson: “You just want to hop in my driver seat there and
start writing him a warning for 75 in a 65?”
Hedin: “Okay.”
Thompson: “When he stopped, his whole car was shaking, I
think they were probably hiding something so . . . ”
Hedin: “How many people are in there?”
Thompson: “Just him and one passenger. The driver’s in my
front seat. He’s not, he blew zeros but drank earlier.”
Hedin: “Warning for what?”
Thompson: “75 in a 65 at about 40th street.”
Hedin: “40th street?”
Thompson: “Yeah.”
47:57 Hedin enters Thompson’s car. Dialog between Hedin and Vetter
is indistinguishable.
48:06 Thompson opens rear car door to get K-9 Zena out of the
vehicle. Thompson and K-9 Zena circle Vetter’s car twice.
49:05 Thompson begins a third pass around the car.
49:13 K-9 Zena alerts on passenger side door.
Vetter argues the scope of the stop was expanded at 11:46:57 when Officer Thompson
inquired whether Vetter and his passenger were hiding anything or whether there were
illegal items in the car, because it was not within the purpose of the traffic stop. He
also argues the length of the stop extended past the time required to issue him a
speeding ticket. He does not argue that the expansion of the initial stop for speeding
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to complete the DUI investigation lacked a constitutionally sufficient basis. Vetter
claims there was no reasonable suspicion to expand a traffic stop for speeding into an
investigation of controlled substances, including questions about illegal items and
conducting a dog sniff during the stop.
II
[¶5] Under our standard of review,
[t]he trial court’s disposition of a motion to suppress will not be
reversed if, after conflicts in the testimony are resolved in favor of
affirmance, there is sufficient competent evidence fairly capable of
supporting the trial court’s findings, and the decision is not contrary to
the manifest weight of the evidence. [This standard] recognizes the
importance of the trial court’s opportunity to observe the witnesses and
assess their credibility, and we “accord great deference to its decision
in suppression matters.”
State v. Montgomery, 2018 ND 20, ¶ 4, 905 N.W.2d 754 (quoting State v. Bjornson,
531 N.W.2d 315, 317 (N.D. 1995)). “Whether findings of fact meet a legal standard
is a question of law. While we do not conduct a de novo review of the findings of fact,
questions of law are fully reviewable.” Id. “Whether the facts support a finding of
reasonable articulable suspicion is a question of law, and thus, is fully reviewable by
this Court.” State v. Adan, 2016 ND 215, ¶ 9, 886 N.W.2d 841 (citing State v. Fields,
2003 ND 81, ¶ 6, 662 N.W.2d 242).
[¶6] “Traffic violations justify a stop by police officers.” State v. Deviley, 2011 ND
182, ¶ 9, 803 N.W.2d 561. When an officer seizes an individual for a traffic violation,
it “justifies a police investigation of that violation.” Rodriguez v. United States, 135
S. Ct. 1609, 1614 (2015); United States v. Fuehrer, 844 F.3d 767, 772 (8th Cir. 2016)
(“If a defendant is detained incident to a traffic stop, the officer does not need
reasonable suspicion to continue the detention until the purpose of the traffic stop has
been completed.”). Because a routine traffic stop is relatively brief, it is more like a
“Terry stop” than an arrest. Rodriguez, at 1614. The time it takes to complete the
“mission” of the stop, to “address the traffic violation that warranted the stop and
attend to related safety concerns,” is a permissible length of time to detain someone.
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Id. (internal citations omitted). However, a stop may not extend longer than the
amount of time necessary to effectuate the purpose of the traffic stop. Id.; see also
State v. Phelps, 2017 ND 141, ¶ 10, 896 N.W.2d 245 (stating officer must conduct
duties of stop within a “reasonable period of detention”). An officer’s seizure of a
person is permitted only until the “tasks tied to the traffic infraction are—or
reasonably should have been—completed.” Rodriguez, at 1614. A traffic stop
prolonged beyond the “time reasonably required to complete the stop’s mission” is
unlawful. Id. at 1616. Unrelated inquiries are permitted during a stop as long as they
do not prolong the stop and extend the time the individual is detained. Id. at 1615; see
also Arizona v. Johnson, 555 U.S. 323, 333 (2009). A stop may be prolonged only if
the officer has reasonable suspicion to justify detaining the individual for inquiries
unrelated to the stop. Rodriguez, at 1615.
[¶7] During a lawfully-initiated traffic stop and continuing through the completion
of the officer’s duties pertaining to the mission of the stop, the “traffic violator is
subject to the . . . officer’s authority and restraint until the officer completes issuance
of the traffic citation and expressly releases the violator.” State v. Mertz, 362 N.W.2d
410, 412 (N.D. 1985). We have recognized that a traffic stop may include activities
related to traffic enforcement but not absolutely necessary to issuing a traffic ticket.
Phelps, 2017 ND 141, ¶ 10, 896 N.W.2d 245; see Rodriguez, 135 S. Ct. at 1615. In
addition to issuing a traffic ticket, the duties can include:
[R]equesting 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.
Phelps, at ¶ 10. An officer may also ask the “passenger similar questions to confirm
the information the driver provided.” State v. Asbach, 2015 ND 280, ¶ 11, 871
N.W.2d 820. Such activities as these “serve the same objective as enforcement of the
traffic code: ensuring that vehicles on the road are operated safely and responsibly.”
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Rodriguez, at 1615. The traffic stop may continue “as long as reasonably necessary
to conduct these activities.” State v. Fields, 2003 ND 81, ¶ 8, 662 N.W.2d 242; see
also Rodriguez, at 1616.
[¶8] Our cases have held that after the completion of the traffic stop duties, if the
officer continues the seizure, he violates the Fourth Amendment “unless the officer
has a reasonable suspicion for believing that criminal activity is afoot.” Fields, 2003
ND 81, ¶ 10, 662 N.W.2d 242; see also Asbach, 2015 ND 280, ¶ 12, 871 N.W.2d 820.
Reasonable suspicion of an unrelated offense can arise during a lawful traffic stop.
Asbach, at ¶ 12.
[¶9] To determine whether an officer has a reasonable suspicion, an objective
standard is applied:
[T]his Court looks at the totality of the circumstances, applies an
objective standard, and takes into account the inferences and deductions
that an investigating officer would make that may elude a layperson.
The question is whether a reasonable person in the officer’s position
would be justified by some objective manifestation to suspect the
defendant was, or was about to be, engaged in unlawful activity.
State v. Adan, 2016 ND 215, ¶ 12, 886 N.W.2d 841 (internal citations and quotation
marks omitted). This Court has “recognized that [although] the concept of reasonable
suspicion is not readily reduced to a neat set of legal rules, it does require more than
a ‘mere hunch.’” Fields, 2003 ND 81, ¶ 13, 662 N.W.2d 242. However an “officer’s
inquiries into matters unrelated to the justification for the traffic stop . . . do not
convert the encounter into something other than a lawful seizure, so long as those
inquiries do not measurably extend the duration of the stop.” Johnson, 555 U.S. at
333.
[¶10] A dog sniff is not a search implicating an individual’s Fourth Amendment
rights. Illinois v. Caballes, 543 U.S. 405, 410 (2005); State v. Gefroh, 2011 ND 153,
¶ 9, 801 N.W.2d 429. As long as “a traffic stop is not extended in order for officers
to conduct a dog sniff, the dog sniff is lawful.” United States v. Fuehrer, 844 F.3d
767, 773 (8th Cir. 2016). If a dog sniff was conducted while the purposes of the traffic
stop were still being performed and the traffic stop was not prolonged or delayed,
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there is no need to consider whether reasonable suspicion was present to support
extending the stop. Id. at 772. If the purpose of the stop was completed, or there was
an unreasonable delay prior to completion, then reasonable suspicion would be
required to justify the seizure.
III
[¶11] Vetter argues Officer Thompson’s inquiry regarding illegal contents in the car
was beyond the scope of the traffic stop, detouring into investigation of unrelated
crimes, and thus necessarily delayed the stop, allowing for the canine search to be
completed before the warning ticket was finished. Vetter’s argument requires us to
determine whether an officer may use any time during a traffic stop to inquire about
matters beyond those approved in Phelps. Vetter does not contest either the initial
basis for the stop here or the extension of that initial stop to investigate possible
driving under the influence. Here, Deputy Thompson noticed Vetter’s vehicle
shaking, and testified he thought Vetter was nervous because he was chatty. When he
ran a check on Vetter’s license, Deputy Thompson learned that Vetter’s criminal
history included charges relating to controlled substances. The district court did not
find there was reasonable articulable suspicion to believe Vetter had contraband in his
vehicle, thereby justifying extending the stop for a dog sniff. The court concluded,
and the State argues on appeal, there was no expansion of the stop that implicates
Vetter’s Fourth Amendment rights.
[¶12] After a stop has been completed, any further detention to conduct further
investigation, such as a canine sniff, is a seizure requiring its own constitutional basis.
See Rodriguez, 135 S. Ct. at 1609 (holding Fourth Amendment was violated where
the officer returned all documents and gave the driver a written warning and then
detained the driver until a dog arrived and a canine sniff was conducted); United
States v. Beck, 140 F.3d 1129, 1139-40 (8th Cir. 1998) (reversing denial of motion to
suppress where officer told driver he was free to go, began walking away, returned
to inquire if there were any guns, drugs, or knives in the vehicle, and then required the
driver to wait for a canine unit to conduct a drug sniff); Adan, 2016 ND 215, ¶ 11, 886
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N.W.2d 841 (affirming extension of traffic stop after concluding district court
correctly found reasonable suspicion under the circumstances); Deviley, 2011 ND
182, ¶¶ 15-16, 803 N.W.2d 561 (affirming denial of motion to suppress where officer
extended stop to await arrival of canine unit, because the extension was supported by
reasonable suspicion); Fields, 2003 ND 81, ¶¶ 4, 21, 662 N.W.2d 242 (affirming
suppression of evidence obtained after the officer issued a citation for expired tags,
said goodbye, turned and started walking away, came back and asked if the driver had
any drugs in the vehicle, and then made the driver wait for a drug detection dog). In
each of these cases, the stop was prolonged after it otherwise would have been
completed. Here, Vetter argues the impermissible delay occurred in the middle of the
traffic stop. K-9 Zena alerted to the contraband while Corporal Hedin was still writing
the ticket.
[¶13] If there are two officers present and one is performing the mission of the traffic
stop while the other contemporaneously conducts a dog sniff, there is no violation
because there is no delay or extension of the stop. Phelps, 2017 ND 141, ¶ 1, 896
N.W.2d 245; see also Fuehrer, 844 F.3d at 770-71, 773. In Phelps, the first officer
pulled Phelps over because his boat trailer did not have a license plate. Phelps, at ¶ 2.
The officer received Phelps’ driver’s license and registration and was returning to his
vehicle to run the information when Sergeant Sass arrived with a canine unit. Id. After
running the information, the first officer got out of his vehicle, Phelps got out of his
vehicle, and the two of them (the first officer and Phelps) met behind the boat trailer
and spoke. Id. While they were talking, Sergeant Sass directed his canine around
Phelps’ vehicle, and the canine indicated the presence of drugs. Id. We held Phelps
was not detained beyond the time reasonably necessary. Id. at ¶ 13. Vetter’s situation
differs somewhat from the facts in Phelps because here the officer who initiated the
traffic stop, Thompson, took a brief period of time to hand off to Hedin the ticket-
writing task so that Thompson would be free to conduct the dog sniff. In Phelps, there
was no hand-off and thus no delay in the ticket-writing process. The time taken by
one officer to hand off traffic stop duties such as completing the ticket to another
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officer is within the mission of the stop. The time taken by Thompson to instruct
Hedin on what ticket to write was reasonable and did not prolong the stop contrary
to the Fourth Amendment.
[¶14] In Rodriguez, the arresting officer waiting for a drug detection dog to arrive
after the stop was complete was the action that prolonged the traffic stop. 135 S. Ct.
at 1613. Here, the questioning about the illegal contents and the handing off of the
ticket writing during the stop is what allegedly prolonged the stop. In Rodriguez, the
delay for the drug dog was a detour from the mission and thus prolonged the seizure
after the stop was completed. Id. at 1613, 1616. The “reasonableness of a seizure . . .
depends on what the police in fact do”; the “critical question, then, is not whether the
[act] occurs before or after the officer issues a ticket . . . but whether conducting the
[act] ‘prolongs’—i.e., adds time to—‘the stop.’” Rodriguez at 1616.
[¶15] Deputy Thompson testified Corporal Hedin arrived on the scene as Thompson
was administering the breath test. In the squad car video, headlights can be seen
arriving at the scene at 11:46:43. This is just before Thompson questioned Vetter
about illegal contents. Thompson finished administering the breath test and asked
about illegal contents at 11:46:57. The exchange between Thompson and Vetter
regarding whether Vetter’s car contained illegal contents took 16 seconds. The
exchange between Deputy Thompson and Corporal Hedin regarding the instructions
for writing the ticket took 31 seconds. In total, the time spent by Deputy Thompson
asking the questions allegedly outside the scope of the stop and handing off the ticket
writing was one minute. This did not unreasonably prolong the stop, especially
because the ticket was still being written when the dog alerted to the presence of
contraband.
[¶16] We acknowledge that Rodriguez rejected a de minimus time exception for
extending a traffic stop beyond its completion. Under the reasoning in Rodriguez,
detaining a driver even 16 seconds after giving the driver a ticket and completing the
traffic stop requires a constitutionally sufficient basis to seize the driver. It is one
thing to conclude the Fourth Amendment prohibits such a detention after a stop is
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complete. It is quite another to scrutinize a traffic stop looking for 16 seconds that
were not strictly necessary for the officer to complete the traffic stop. Absent evidence
of an officer deliberately delaying a stop so that, for example, a drug-detecting dog
may arrive, Fields, 2003 ND 81, ¶ 21, 662 N.W.2d 242, such minor inefficiencies in
traffic stops are unlikely to establish a Fourth Amendment violation.
[¶17] The questions regarding illegal contents at issue here may constitute
investigating other crimes, about which we have said “[o]n-scene investigation into
other crimes detours from the purpose of the stop,” Asbach, 2015 ND 280, ¶ 12, 871
N.W.2d 820 (citing Rodriguez, 135 S. Ct. at 1616), but we have made allowances for
other conversation not absolutely necessary to the stop. Vetter’s argument would
require us to examine an officer’s actions step-by-step throughout the traffic stop for
utmost efficiency. Such strict efficiency is not required by the Constitution. Although
“[i]f an officer can complete traffic-based inquiries expeditiously, then that is the
amount of ‘time reasonably required to complete the stop’s mission,’” Rodriguez, at
1616, we “are not persuaded that it is necessary to parse every citizen-officer
interaction for indications of efficiency of purpose.” Curry v. Indiana, 90 N.E.3d 677,
686 (Ind. Ct. App. 2017). There is no reason an officer needs to use a stop watch or
avoid incidental conversation about fishing or the weather to reasonably accomplish
the mission of the stop.
[¶18] We conclude there is no Fourth Amendment violation established by the
questioning of Vetter in the manner that occurred here. The Fourth Amendment does
not call us to scrutinize traffic stops for unnecessary casual conversation or impose
a constitutional mandate for time efficiency over incidental questions or conversation.
The hallmark of a Fourth Amendment claim is whether the search or seizure was
“reasonable.” State v. Helm, 2017 ND 207, ¶ 6, 901 N.W.2d 57. There is no objective
indication here that any question or conversation was a delaying tactic to extend the
seizure so that officers could continue an investigation. The canine was already
present at the beginning of the stop. On this record, the 16 seconds the officer spent
asking about whether the shaking of the car was due to concealment of contraband
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and the short time spent handing off the ticket writing did not extend the time of the
stop such that Vetter would have been free to go before the dog alerted to his car.
IV
[¶19] We affirm the district court’s order and judgment denying Vetter’s motion to
suppress the evidence resulting from the dog sniff, because the traffic stop was not
extended under the prevailing case law.
[¶20] Jerod E. Tufte
Daniel J. Crothers
Lisa Fair McEvers
Jon J. Jensen
Gerald W. VandeWalle, C.J.
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