State v. Hajicek , 2020 ND 231 ( 2020 )

20200071
FILED NOVEMBER 19, 2020
CLERK OF THE SUPREME COURT
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 231
State of North Dakota, Plaintiff and Appellee
v.
Timothy Paul Hajicek, Defendant and Appellant
No. 20200071
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Lolita G. Hartl Romanick, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Kathryn Jund (argued), third-year law student, under the Rule on Limited
Practice of Law by Law Students, and Sarah W. Gereszek (appeared),
Assistant State’s Attorney, Grand Forks, ND, for plaintiff and appellee.
Alexander F. Reichert (argued) and Challis D. Williams (on brief), Grand
Forks, ND, for defendant and appellant.
State v. Hajicek
No. 20200071
Crothers, Justice.
[¶1] Timothy Hajicek appeals from a criminal judgment entered after he
conditionally pled guilty to driving under the influence. Hajicek claims the
district court erred in denying his motion to suppress evidence because a
University of North Dakota police officer acting outside his jurisdiction was
without official capacity and without the official power to seize. We affirm,
concluding the UND police officer was lawfully responding to a request for
assistance under N.D.C.C. § 44-08-20(3).
I
[¶2] In August 2019, Grand Forks Police Department (“GFPD”) Officer Adam
Solar was driving to work in his personal car, dressed in street clothes, when
he observed a pickup weaving within its lane. Solar later testified he thought
the weaving was an indicator of an impaired driver. After the pickup crossed
the center line, Solar reported the vehicle to dispatch, which broadcasted the
information on GFPD’s radio. Solar continued to follow the vehicle and
observed several additional traffic violations, including crossing the center
line, turning into the wrong lane, driving through a red light and stopping in
the middle of the intersection, and almost rear-ending a stopped vehicle at a
red light. He relayed these observations to dispatch.
[¶3] Corporal Jayson Waltz from the University of North Dakota Police
Department overheard the radio broadcasting that an off-duty GFPD officer
was traveling in his personal vehicle and was unable to initiate a traffic stop
on a suspected intoxicated driver. Waltz located the pickup within his
jurisdiction, and continued to follow it outside of his jurisdiction to relay the
direction of travel to dispatch and assist GFPD if requested. After leaving his
jurisdiction, Waltz observed the pickup commit two traffic violations: failing to
stop at a stop sign and failing to use a turn signal. He reported these
observations to dispatch and asked them to contact GFPD to inquire whether
they wanted assistance to stop the vehicle.
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[¶4] Waltz followed the pickup for approximately a minute and a half to two
minutes before it stopped on its own in a residential driveway. Waltz parked
his patrol car at the end of the driveway, exited, and went to speak with Solar,
who also had been following the pickup. Waltz informed Solar he was out of his
jurisdiction and asked if he wanted assistance in making contact with the
driver. Solar said yes, directing Waltz to contact the driver.
[¶5] Waltz walked up the driveway and approached the driver, who had just
left his vehicle. While speaking with the driver, Waltz observed the driver to
have a swayed balance, an odor of alcoholic beverages emanating from his
person, and slurred speech. He asked the driver for his driver’s license, and
identified him as Hajicek. As other officers arrived on the scene, Waltz
informed Hajicek he was not free to leave. Waltz spoke with officers from
GFPD and the Grand Forks County Sheriff’s Office before the investigation
was turned over to the sheriff’s office. Hajicek was arrested and charged with
driving under the influence.
[¶6] Hajicek moved to suppress evidence and dismiss the charge. After a
hearing, the district court denied the motion, concluding Waltz acted upon the
request of Solar and, alternatively, would have had authority as a private
citizen to arrest Hajicek. Hajicek entered a conditional guilty plea to the DUI
charge, and the court entered judgment.
II
[¶7] Hajicek argues the district court erred in denying his motion to suppress
evidence. The standard of review of a district court’s decision on a motion to
suppress is well established:
“[W]e give deference to the district court’s findings of fact and we
resolve conflicts in testimony in favor of affirmance. State v.
Tognotti, 2003 ND 99, ¶ 5, 663 N.W.2d 642. We ‘will not reverse a
district court decision on a motion to suppress . . . if there is
sufficient competent evidence capable of supporting the court’s
findings, and if the decision is not contrary to the manifest weight
of the evidence.’ State v. Gefroh, 2011 ND 153, ¶ 7, 801 N.W.2d
429.”
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City of Grand Forks v. Reilly, 2017 ND 135, ¶ 5, 895 N.W.2d 322 (quoting State
v. Kaul, 2017 ND 56, ¶ 5, 891 N.W.2d 352). Statutory interpretation is a
question of law fully reviewable on appeal. State v. Hirschkorn, 2016 ND 117,
¶ 5, 881 N.W.2d 244.
A
[¶8] “[A]s a general rule a police officer acting outside his jurisdiction is
without official capacity and without official power to arrest.” Kroschel v. Levi,
2015 ND 185, ¶ 7, 866 N.W.2d 109. It is undisputed Waltz was acting outside
his jurisdiction when he detained Hajicek. The district court found Waltz had
authority to act outside his jurisdiction under N.D.C.C. § 44-08-20(3), which
states: “Peace officers employed by a law enforcement agency within the state
have the power of a peace officer . . . [w]hen responding to requests from other
law enforcement agencies or officers for aid and assistance.”
[¶9] Hajicek claims Waltz did not have authority to seize him under N.D.C.C.
§ 44-08-20(3) because Solar did not request assistance from Waltz.
[¶10] In State v. Graven, an anonymous tip by a truck driver was transmitted
over state radio that a driver might be under the influence of alcohol. 530
N.W.2d 328, 329 (N.D. 1995). Both a highway patrolman and the Casselton
chief of police heard the transmission and proceeded to the reported location.
Id. The chief of police was first to locate the driver, and observed several lane
violations while following the driver. Id. The chief of police, who was outside of
his geographical jurisdiction, radioed the highway patrolman, and the
patrolman told him to “pull him over.” Id. The police chief stopped the driver,
and within minutes, the patrolman arrived at the scene. Id. The patrolman
took over the investigation and arrested the driver. Id. The driver moved to
suppress evidence, arguing the chief of police was outside his jurisdictional
authority when he made the stop. Id. The district court denied the motion, and
this Court affirmed, concluding the patrolman’s request for the chief of police
to “pull him over” constituted a request for assistance, vesting the chief of
police with authority under N.D.C.C. § 44-08-20(3). Graven, at 329-30.
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[¶11] Here, the district court found Waltz acted upon the request for assistance
of Solar. Evidence supports the court’s finding. Waltz testified “[Solar]
informed me that he would stand by in his vehicle while I made contact with
the driver.” Waltz understood this to mean Solar was requesting assistance.
Solar testified Waltz approached him and Solar “told him we should stop the
vehicle.” Asked if he “direct[ed] . . . Waltz to approach the vehicle,” Solar
responded, “Yeah. If I remember right, [Waltz] said something like, ‘Should I
stop him?’ and I said, ‘Yeah, stop him.’” The two officers also testified that
because Solar was off-duty, he was without his normal equipment, such as his
safety vest. The court found “Waltz understood Solar was unable to safely
contact a driver at that time” and “Solar needed and was requesting Waltz to
contact the driver.”
[¶12] Hajicek suggests the determinative issue is who first asked for, or
offered, assistance. “When a statute’s language is clear and unambiguous, the
letter of the statute cannot be disregarded under the pretext of pursuing its
spirit, as legislative intent is presumed clear from the face of the statute.” State
v. Beilke, 489 N.W.2d 589, 592 (N.D. 1992) (citing N.D.C.C. § 1-02-05). “In
interpreting a statute, we give words their plain, ordinary and commonly
understood meaning.” Beilke, at 592 (citing N.D.C.C. § 1-02-02). Even if Waltz
offered Solar assistance first or solicited his request, this did not negate the
fact Solar ultimately requested Waltz’s assistance in contacting Hajicek. The
plain language of N.D.C.C. § 44-08-20(3) only requires a request for assistance
from another agency or officer, not that it must be the first request or an
unsolicited request. Based on the factual similarities, and the same statute,
Graven is controlling. We conclude Waltz lawfully responded to a request for
assistance under N.D.C.C. § 44-08-20(3).
B
[¶13] During oral argument Hajicek claimed that he was seized when Waltz
parked his patrol car behind his pickup at the end of the driveway, and that
the seizure was illegal because it preceded Solar’s request for assistance. The
district court did not determine when Hajicek was seized for purposes of the
Fourth Amendment, or if the positioning of Waltz’s vehicle constituted a Terry
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stop. Instead, the issue before the district court was whether Waltz acted with
authority either under N.D.C.C. § 44-08-20(3) or the citizen’s arrest statute.
[¶14] Initially, Hajicek argued in his brief in support of the motion to suppress
that Waltz’s “actions prior to contacting” him constituted a seizure. He seems
to later identify these actions as “blocking in” his pickup and a “uniformed
police officer approaching” him. Hajicek then identified the initial interaction
between him and Waltz as the point of seizure. Thus, Hajicek argued he was
seized either when Waltz blocked in his pickup and approached him, or when
they initially interacted. Hajicek did not argue the car positioning alone was
tantamount to a seizure.
[¶15] At the suppression hearing Hajicek’s attorney briefly argued in his
closing remarks that the position of the car alone was a seizure:
“Hajicek would have had to drive up on the curb to get around his
vehicle. Well, that sounds like he’s blocking the vehicle in. This
vehicle can’t leave even if it wanted to. It’s a marked UND squad
car that’s now blocking in this vehicle. At that point, there’s a
seizure.”
We are skeptical that Hajicek’s reframing of the issue in his closing argument
at the suppression hearing preserves this issue for appeal. However, we need
not decide that question because Hajicek did not properly raise the issue on
appeal.
[¶16] Hajicek raised two issues on appeal: whether Waltz acted with authority
under N.D.C.C. § 44-08-20(3), and whether Waltz acted with authority
contrary to the citizen’s arrest statute. Hajicek did not argue here that the
district court failed to determine when he was seized for purposes of the Fourth
Amendment. The State did not address the point of seizure in its brief opposing
the motion to suppress or in its appellate brief. “Issues raised on appeal should
be fully briefed, with a fair and adequate opportunity for response from
opposing parties.” Roise v. Kurtz, 1998 ND 228, ¶ 10, 587 N.W.2d 573.
Moreover, we will not consider issues not briefed on appeal. See id. (stating “we
do not consider issues raised for the first time at oral argument on appeal”).
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[¶17] Because Waltz acted with authority under N.D.C.C. § 44-08-20(3), we do
not need to determine whether he also had authority under the citizen’s arrest
statute.
III
[¶18] The criminal judgment and order denying Hajicek’s motion to suppress
are affirmed.
[¶19] Gerald VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
William Neumann, S.J.
[¶20] The Honorable William A. Neumann, S.J., sitting in place of Jensen,
C.J., disqualified.
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