State v. Deviley , 803 N.W.2d 561 ( 2011 )

SANDSTROM, Justice.

[¶ 1] Timothy Deviley and Ryan Lee appeal from the criminal judgments entered on their conditional guilty pleas for possession of marijuana with intent to deliver and reserving the right to appeal the order denying their motions to suppress evidence. Deviley and Lee argue they were seized in violation of the Fourth Amendment because they were detained without reasonable and articulable suspicion they were engaged in criminal activity. Lee further argues the length of time for the drug dog to arrive created a de facto arrest. Lee also argues the district court erred by denying a motion to reduce the charge against him because of inconsistent statutes. We affirm the district court’s order denying the motions to suppress evidence, concluding there was reasonable and articulable suspicion the defendants were engaged in criminal activity, and there was no unreasonable delay creating a de facto arrest. Further, we conclude Lee was correctly charged with a Class A felony under N.D.C.C. § 19-03.1-23.1(l)(c)(ll), and affirm the criminal judgments.

I

[¶ 2] In November 2010, Lee was driving a pickup on Interstate 94 when he was stopped for speeding by a North Dakota Highway Patrol officer. Deviley was a passenger in the pickup. The officer testified he asked Lee to come to the patrol vehicle while he identified Lee and checked for outstanding warrants.

[¶ 3] During this time, the officer questioned Lee about his travel plans and about Deviley. The officer testified in his deposition that there were numerous things in this conversation that made him suspicious:

Some of the suspicious things were he’s riding with this person that he says is a friend of his. He doesn’t know how he really got out there, how he came to be with this person. He doesn’t know if he goes to school in Minneapolis. We’re talking about a road trip from the West Coast to North Dakota with a friend of his, and he knows very little about him or how he got to be with him.

According to the officer, Lee was unusually nervous, which he exhibited by “[t]he way he was acting, moving, breathing, the pulse, the way he answered questions, the shaky voice.... ”

[¶ 4] The officer testified to further observations that aroused his suspicion. While talking with Deviley and Lee, he noticed an open energy drink in the vehicle and noted the men were carrying a minimal amount of luggage. The latter observation was at odds with Lee’s stated plans of coming from California to spend the winter in Minnesota with his parents. Additionally, the officer testified that while Lee waited in the patrol vehicle, he approached the pickup and questioned Devi-ley about their travel plans. Deviley’s stated plans were inconsistent with what Lee had told the officer. According to the officer, Lee had told him their destination was Minnesota, but Deviley told him he was going to get dropped off in Wisconsin.

[¶ 5] The officer testified that after speaking with Deviley, he returned to his patrol car and told Lee he was “good to go.” He then asked, however, if he could search Lee’s pickup. Lee refused, but in a manner which the officer again characterized as “nervous.” The officer testified, “I told Mr. Lee due to his nervousness, his story, I’d be calling a canine to the scene.” Deviley and Lee were told not to enter the pickup until after the canine unit had arrived and completed its task. After a twenty-minute wait, an officer arrived with the canine, and according to both officers, indicated the scent of controlled substances. The officers inspected the various compartments in the pickup and found ninety-five pounds of marijuana.

[¶ 6] Deviley and Lee each were charged with a Class A felony for possession of marijuana with intent to deliver. Both men moved to suppress the marijuana evidence, arguing they were illegally seized because the officer lacked reasonable and articulable suspicion that they were engaged in criminal activity. In the district court, they argued the seizure became a de facto arrest because they were not free to leave and twenty minutes was an unreasonable length of time to be detained while waiting for the canine unit to arrive. The district court denied their motions to suppress. Deviley and Lee moved to reduce the charges against them, arguing the charges were based upon inconsistent statutes. The district court denied the motions to reduce the charges. Devi-ley and Lee then conditionally pled guilty to the charges, reserving the right to appeal the district court’s denial of their motions to suppress the marijuana evidence. Additionally, Lee appeals the court’s denial of his motion to reduce the charge against him.

II

[¶ 7] The Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures. Deviley and Lee argue they were seized without reasonable suspicion of criminal activity after Lee was issued a warning ticket for speeding and the district court erred in denying their motions to suppress the marijuana evidence obtained after this allegedly illegal seizure.

[¶ 8] The standard of review for pre-trial suppression motions is well-established:

A trial court’s findings of fact in preliminary proceedings of a criminal case ■will not be reversed if, after the 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. We do not conduct a de novo review. We evaluate the evidence presented to see, based on the standard of review, if it supports the findings of fact.

City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994) (citations omitted). Our review in this case is limited to whether there was sufficient and competent evidence showing that the officer had reasonable and articulable suspicion of criminal activity to detain Deviley and Lee and search their vehicle. We have explained that the existence of reasonable suspicion is examined using an objective standard:

To determine whether a reasonable suspicion exists, we consider the totality of the circumstances and apply an objective standard, taking into consideration the inferences and deductions an investigating officer would make based on the officer’s training and experience. 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. Whether the facts support a reasonable and articulable suspicion is a question of law....

State v. Franzen, 2010 ND 244, ¶ 12, 792 N.W.2d 533 (quotations and citations omitted).

[¶ 9] Deviley and Lee concede the initial stop of the vehicle for speeding was proper. Traffic violations justify a stop by police officers. Whren v. United States, 517 U.S. 806, 819, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “An officer may detain an individual at the scene of a traffic stop for a reasonable period of time necessary for the officer to complete his duties resulting from the traffic stop.... ” Franzen, 2010 ND 244, ¶ 8, 792 N.W.2d 533. “The investigative detention may continue as long as reasonably necessary to conduct [duties resulting from a traffic stop] and to issue a warning or citation.” Id. (quotations omitted). The officer may request that the individual wait in the patrol car during this time. State v. Fields, 2003 ND 81, ¶ 8, 662 N.W.2d 242. The Fourth Amendment of the United States Constitution is violated by the continued seizure of a traffic violator after the purposes of the initial traffic stop are completed, unless the officer has reasonable and articulable suspicion that criminal activity is afoot. Franzen, at ¶ 9.

[¶ 10] The district court found Deviley and Lee were seized within the meaning of the Fourth Amendment after the officer told Lee he was “good to go.” “An individual is 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.” Franzen, 2010 ND 244, ¶ 11, 792 N.W.2d 533 (quotation omitted); see also United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In Fields, this Court noted the officer completed his duties related to a proper traffic stop when he issued Fields a citation for expired registration tabs, said goodbye, and started walking back to his vehicle. 2003 ND 81, ¶ 9, 662 N.W.2d 242. Because the purposes of the stop had been completed, we concluded Fields was seized when the officer asked him to wait outside his vehicle until a drug-sniffing canine unit arrived. Id. at ¶ 12. In this case, the officer questioned Deviley and Lee, issued Lee a warning ticket for speeding, returned his documentation, and said “you’re good to go.” At this point, the legitimate investigative purposes related to the traffic stop for speeding were completed. The district court did not err in finding Deviley and Lee were seized after Lee was told he was “good to go.” The issue is whether there was sufficient and competent evidence in the record for the district court to conclude the officer had reasonable suspicion of criminal activity to justify this seizure.

[¶ 11] In its order denying the motions to suppress evidence, the district court noted seven observations made by the officer prior to his detaining Devi-ley and Lee and calling in the canine unit:

1) nervous behavior, to include the heavy breathing, strong pulse, and shaky voice; 2) the inconsistencies in the travel plans given by Lee and Deviley; 3) the open energy drink; 4) Lee telling the Trooper he was moving to Oregon to start a business but was travelling to Minneapolis to spend the winter visiting family and not working; 5) the presence of luggage to last a week and not several months; 6) Lee indicating that Deviley was his friend but not knowing much information about him; and [7]) the continued display of nervousness by Lee to include the heavy breathing, strong pulse, and shaky voice that did not diminish throughout the duration of the stop as the Trooper usually observes from the general motoring public.

The officer testified that on the basis of these observations, he was “suspicious with the totality of the stop,” though his testimony reflected he may have relied on certain observations more than others. The officer took care to record all of these observations, and we remain mindful that an officer’s subjective basis for action does not vitiate objective reasonable suspicion or probable cause. Zimmerman v. N.D. Dep’t of Transp., 543 N.W.2d 479, 482-83 (N.D.1996).

[¶ 12] The totality of the circumstances must be considered in deciding whether reasonable suspicion exists. City of Fargo v. Ovind, 1998 ND 69, ¶ 8, 575 N.W.2d 901. In his testimony, the officer made numerous references to what he considered Lee’s unusually nervous behavior. “Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” State v. Heitzmann, 2001 ND 136, ¶ 15, 632 N.W.2d 1. The officer also testified he was suspicious of the incomplete and inconsistent stories given by Deviley and Lee regarding their travel arrangement and their destination. “Inconsistencies about the details of a trip is a relevant factor in deciding whether reasonable suspicion exists.” Franzen, 2010 ND 244, ¶ 15, 792 N.W.2d 533. Although this evidence was disputed by Deviley and Lee, under our standard of review, we “re-solv[e] conflicting evidence in favor of af-firmance.” Fields, 2003 ND 81, ¶ 6, 662 N.W.2d 242.

[¶ 13] Further, the officer noted the presence of an energy drink in the pickup and the minimal amount of luggage carried by Deviley and Lee. The officer explained they are among the things he is trained to look for in cases of suspected drug smuggling. He testified he is directed by his training to look for “items they may have with them, luggage, multiple cell phones, energy drinks, et cetera.” The existence of reasonable suspicion is assessed by “taking into account the inferences and deductions that an investigating officer would make that may elude a layperson.” Fields, 2003 ND 81, ¶ 13, 662 N.W.2d 242. On the basis of his training and experience, the officer’s suspicions could reasonably have been increased by the presence of the energy drink and the minimal amount of luggage.

[¶ 14] The district court concluded that the officer, relying on his training and experience, “properly ‘read’ both Lee and Deviley and made proper deductions from all of the circumstances he observed and the statements made to him.... ” There is ample, competent evidence in the record reflecting the observations that raised reasonable suspicion for the officer. Accordingly, on the basis of the totality of the circumstances, the officer was justified in detaining Deviley and Lee until the canine unit arrived for further investigation.

[¶ 15] Lee, primarily relying on U.S. v. Bloomfield, 40 F.3d 910 (8th Cir.1994), also argues that the additional time for the drug dog to arrive created a de facto arrest requiring probable cause. In Bloomfield, 40 F.3d at 917, the Eighth Circuit held a substantially longer delay of one hour was not unreasonable. In Fields, 2003 ND 81, ¶¶ 12-13, 662 N.W.2d 242, this Court held that reasonable and articu-lable suspicion was the correct standard for a half-hour wait for a drug dog.

[¶ 16] The evidence is sufficient to support the district court’s denial of Deviley and Lee’s motions to suppress, and we affirm the district court’s order denying these motions.

Ill

[¶ 17] Lee appeals from the district court’s order denying his motion to reduce his possession of marijuana with intent to deliver charge from a Class A to a Class B felony.

[¶ 18] Lee’s argument stems from two allegedly contradictory statutes in North Dakota’s Uniform Controlled Substances Act. Lee was charged with possession of marijuana with intent to deliver under N.D.C.C. § 19 — 03.1—23(1)(b). Section 19-03.1-23.1, N.D.C.C., provides for increased penalties when certain aggravating factors are present. Directly at issue in this case is N.D.C.C. § 19 — 03.1—23.1(l)(c)(ll), which provides:

A person who violates section 19-03.1-23 is subject to the penalties provided in subsection 2 if:

[[Image here]]

c. The offense involved:

[[Image here]]

(11) Five hundred grams or more of marijuana[.]

Under the aggravating factors in N.D.C.C. § 19 — 03.1—23.1(l)(c)(ll), the fact that Lee was transporting ninety-five pounds of marijuana requires that his Class B felony charge be elevated to a Class A felony charge.

[¶ 19] The source of confusion, and the basis for Lee’s argument, is that N.D.C.C. § 19-03.1-23(l)(b) contains its own enhancement provision. This statute provides, in part:

Any person who violates this subsection with respect to:

b. Any other controlled substance classified in schedule I, II, or III, is guilty of a class B felony, except that any person who delivers one hundred pounds [⅛5.36 kilograms] or more of marijuana is guilty of a class A felony. Except for a person who manufactures, delivers, or possesses with the intent to manufacture or deliver marijuana, any person found guilty under this subdivision must be sentenced:

(1) For a second offense, to imprisonment for at least three years.

(2) For a third or subsequent offense, to imprisonment for ten years.

Id. (emphasis added).¹ Lee argues this enhancement provision overrides the separate enhancement provision found in N.D.C.C. § 19-03.1-23.1(l)(c)(ll). He contends that because his possession of ninety-five pounds of marijuana does not meet the one-hundred-pound threshold under N.D.C.C. § 19-03.1-23(l)(b), he should have been charged with a Class B felony.

[¶ 20] Under our rules of statutory interpretation, “[w]henever a general provision in a statute is in conflict with a special provision in the same or in another statute, the two must be construed, if possible, so that effect may be given to both provisions....” N.D.C.C. § 1-02-07; see also Matter of Estate of Hansen, 458 N.W.2d 264, 273 (N.D.1990) (“Inconsistent statutes should be construed, if possible, to give effect to both.”). “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears....” N.D.C.C. § 1-02-02. Section 19-03.1-23.1(l)(c)(ll), N.D.C.C., requires a charge be enhanced to a Class A felony in cases involving 500 grams or more of marijuana and involving any of the following activities: manufacture, delivery, or possession with intent to manufacture or deliver, or delivery, distribution, or dispensing of a controlled substance by means of the Internet. Conversely, N.D.C.C. § 19 — 03.1—23(1)(b) requires enhancement of the charge to a Class A felony only in eases in which 100 pounds or more of marijuana are delivered.

[¶ 21] These two provisions are not inconsistent under our rules of statutory interpretation. There is a redundancy in cases in which one hundred or more pounds of marijuana are actually delivered, but in all other instances, the provisions are functionally distinct. Under the common usage of the word “delivers,” a physical transfer of the item must occur. The word “deliver” is defined as an act to “[g]ive, transfer; yield possession or control of[J” Webster’s Third New International Dictionary of the English Language 597 (1971). In this case, Lee never transferred or delivered to another party any of the marijuana that was present in his pickup. It was seized by law enforcement immediately after his arrest. Accordingly, the enhancement provision for delivery of marijuana does not apply to this case.

[¶ 22] The enhancement provision found in N.D.C.C. § 19-03.1-23.1(l)(c)(ll) does apply, however. This statute requires enhancement of the charge when the defendant manufactures, delivers, or possesses with intent to deliver an amount of marijuana equal to five hundred grams or greater. The ninety-five pounds of marijuana that Lee possessed far exceeded five hundred grams (or less than two pounds), and he has pled guilty to the crime of possession of marijuana with intent to deliver. Accordingly, the charge is required to be enhanced under N.D.C.C. § 19 — 03.1—23.1(l)(c)(ll). We affirm the district court’s order denying Lee’s motion to reduce the charge against him.

IV

[¶ 23] The evidence before the district court provided a sufficient basis to conclude the officer had reasonable suspicion of criminal activity to detain Deviley and Lee for further investigation following the initial traffic stop. Additionally, Lee’s enhanced charge for possession of marijuana with intent to deliver was proper. We affirm the district court’s denial of Deviley and Lee’s motions and affirm their criminal judgments.

[¶ 24] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, and MARY MUEHLEN MARING, JJ., concur.

1 . The emphasized language was removed from N.D.C.C. § 19-03.l-23(l)(b) in 2011. See 2011 N.D. Sess. Laws ch. 162, § 1. We consider the previous version of the statute, however, because this case predates the amendment.