State v. Sullivan , 2023 ND 125 ( 2023 )


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  •                                                                              FILED
    IN THE OFFICE OF THE
    CLERK OF SUPREME COURT
    JULY 7, 2023
    STATE OF NORTH DAKOTA
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2023 ND 125
    State of North Dakota,                                Plaintiff and Appellee
    v.
    Bret Nathaniel Tho Sullivan,                       Defendant and Appellant
    No. 20220337
    Appeal from the District Court of Burleigh County, South Central Judicial
    District, the Honorable Pamela A. Nesvig, Judge.
    AFFIRMED.
    Opinion of the Court by Tufte, Justice.
    Omid Kardoust, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and
    appellee.
    Chad R. McCabe, Bismarck, N.D., for defendant and appellant.
    State v. Sullivan
    No. 20220337
    Tufte, Justice.
    [¶1] Bret Sullivan appeals from a corrected criminal judgment after he pled
    guilty to driving under the influence in violation of section 39-08-01(1)(a),
    N.D.C.C. We affirm.
    [¶2] Corporal Harold Rochester stopped Sullivan’s vehicle because it was
    speeding and failed to remain in its lane. Corporal Justin Hoag was called to
    assist Rochester. Hoag decided to arrest Sullivan because of the information
    Rochester told him and because Sullivan’s vehicle emitted an alcoholic odor,
    Sullivan had glossy and bloodshot eyes, and he admitted to having consumed
    alcohol.
    [¶3] Sullivan moved to suppress the evidence resulting from the arrest, and
    the court denied his motion. On appeal, Sullivan argues the court erred in
    finding that he received a sufficient advisement regarding the cause of his
    arrest under N.D.C.C. § 29-06-17 and in finding that the officers had probable
    cause to arrest him.
    I
    [¶4] Our standard of review for a district court’s ruling on a motion to
    suppress is well established.
    When reviewing a district court’s ruling on a motion to
    suppress, we defer to the district court’s findings of fact and resolve
    conflicts in testimony in favor of affirmance. We affirm the district
    court’s decision unless we conclude there is insufficient competent
    evidence to support the decision, or unless the decision goes
    against the manifest weight of the evidence.... While the
    underlying factual disputes are findings of fact, whether the
    findings support a reasonable and articulable suspicion presents a
    question of law which is fully reviewable on appeal.
    State v. Suelzle, 
    2021 ND 194
    , ¶ 9, 
    965 N.W.2d 855
     (quoting State v. James,
    
    2016 ND 68
    , ¶ 5, 
    876 N.W.2d 720
    ).
    1
    II
    [¶5] Sullivan argues that the police officer who arrested him violated section
    29-06-17, N.D.C.C., because the officer did not inform Sullivan of the cause of
    his arrest. He argues suppression of the evidence is the proper remedy for a
    violation of this statute. The State argues that Sullivan was sufficiently
    informed under the statute because the circumstances of his arrest provided
    him with adequate notice and, alternatively, that the exception in N.D.C.C.
    § 29-06-17(1) applies to this case and the officer was not required to inform
    Sullivan of the cause of his arrest.
    [¶6] Section 29-06-17, N.D.C.C., provides:
    When making an arrest without a warrant, the officer shall
    inform the person to be arrested of the officer’s authority and the
    cause of the arrest, unless:
    1. The person to be arrested then is engaged in the
    commission of an offense;
    2. Such person is pursued immediately after the commission
    of an offense or after an escape;
    3. Such person flees or forcibly resists before the officer has
    opportunity so to inform the person; or
    4. The giving of such information will imperil the arrest.
    [¶7] We conclude that the officers were not required to inform Sullivan of the
    cause of his arrest because the first statutory exception applies.
    [¶8] Sullivan was arrested while he was engaging in the commission of an
    offense. Individuals under age twenty-one are guilty of an infraction when they
    “consume or have recently consumed,” are under the influence of, or are in the
    possession of an alcoholic beverage. N.D.C.C. § 5-01-08(1). An infraction is an
    offense. N.D.C.C. § 12.1-32-01(7).
    [¶9] Sullivan was driving a motor vehicle on a public road when he was
    stopped for speeding. Sullivan told Corporal Hoag that he was under age
    twenty-one at the time and had been consuming alcohol. There is sufficient
    evidence in the record to support the finding that Sullivan was engaging in the
    commission of an offense under N.D.C.C. § 5-01-08. The exception in N.D.C.C.
    2
    § 29-06-17(1) therefore applies, and we need not consider the State’s argument
    that the circumstances and context were sufficient to inform Sullivan of the
    cause of the arrest or Sullivan’s argument that suppression is the proper
    remedy for a violation of this statute.
    III
    [¶10] Sullivan argues that the arresting officers violated his constitutional
    rights under the Fourth Amendment to the United States Constitution and
    Article I, section 8 of the North Dakota Constitution because there were not
    sufficient facts to support a finding of probable cause that he was driving under
    the influence of alcohol before his arrest.
    [¶11] Whether the facts rise to the level of probable cause to arrest is a
    question of law we review de novo. State v. Boehm, 
    2014 ND 154
    , ¶ 8, 
    849 N.W.2d 239
    . 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 prohibit unreasonable searches and
    seizures. N.D. Const. art. I, § 8; U.S. Const. amend. IV; see also State v.
    Morales, 
    2015 ND 230
    , ¶ 8, 
    869 N.W.2d 417
    . “An arrest is a seizure under the
    Fourth Amendment, and must be supported by probable cause.” State v.
    Terrill, 
    2018 ND 78
    , ¶ 7, 
    908 N.W.2d 732
    . All that is necessary to establish
    probable cause “is knowledge that would furnish a prudent person with
    reasonable grounds for believing a violation has occurred.” 
    Id.
    [¶12] There is probable cause to arrest a driver for driving under the influence
    of alcohol if a police officer first observes some signs of physical or mental
    impairment and also has reason to believe the driver’s impairment is caused
    by alcohol. Boehm, 
    2014 ND 154
    , ¶ 12. “Relevant factors in determining
    probable cause to arrest a person for DUI include the detection of the odor of
    alcohol, observation of signs of impairment, the person’s own words, and failure
    of one or more field sobriety tests.” Id. at ¶ 13. This Court determined there
    was probable cause that a person was driving under the influence when the
    individual had red and bloodshot eyes, admitted to consuming an alcoholic
    beverage, and failed the HGN test. Id. at ¶ 15 (citing Brewer v. Ziegler, 2007
    
    3 ND 207
    , ¶ 21, 
    743 N.W.2d 391
    ). “A traffic violation and erratic driving are
    relevant factors in determining whether probable cause exists to arrest for an
    alcohol-related traffic offense.” Moran v. North Dakota Dep’t of Transp., 
    543 N.W.2d 767
    , 770 (N.D. 1996) (citing Mayo v. Moore, 
    527 N.W.2d 257
    , 259-60
    (N.D. 1995)).
    [¶13] Here, there was sufficient evidence to support the district court’s finding
    that Corporal Hoag had probable cause to arrest Sullivan for driving under the
    influence. Hoag testified that he smelled the odor of alcohol emitting from
    Sullivan’s vehicle, that Sullivan had bloodshot eyes or “red and glossy eyes,”
    and that Sullivan admitted he had “drank a few beers.” Finally, according to
    Hoag, Corporal Rochester observed Sullivan’s vehicle speeding and failing to
    maintain its own lane. On our de novo review, we conclude these facts rise to
    the level of probable cause.
    IV
    [¶14] We affirm.
    [¶15] Jon J. Jensen, C.J.
    Daniel J. Crothers
    Lisa Fair McEvers
    Jerod E. Tufte
    Douglas A. Bahr
    4
    

Document Info

Docket Number: 20220337

Citation Numbers: 2023 ND 125

Judges: Tufte, Jerod E.

Filed Date: 7/7/2023

Precedential Status: Precedential

Modified Date: 7/19/2023