State v. Bolme , 2020 ND 255 ( 2020 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 17, 2020
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 255State of North Dakota, Plaintiff and Appellee
v.
Trevor Michael Bolme, Defendant and Appellant
No. 20200090
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Cynthia M. Feland, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Dennis H. Ingold, Assistant State’s Attorney, Bismarck, ND, for plaintiff and
appellee.
Tatum O’Brien, Fargo, ND, for defendant and appellant.
State v. Bolme
No. 20200090
Jensen, Chief Justice.
[¶1] Trevor Bolme appeals from a criminal judgment after entering a
conditional guilty plea to possession of methamphetamine and unlawful
possession of drug paraphernalia. Bolme argues the district court erred in
denying his motion to suppress because law enforcement lacked reasonable
suspicion to initiate a traffic stop based on a cracked windshield and lacked
probable cause to search his vehicle based on the odor of marijuana. We
conclude law enforcement had reasonable and articulable suspicion to stop and
probable cause to conduct the search. We affirm the criminal judgment of the
district court.
I
[¶2] At approximately 5:00 p.m. on October 3, 2019, a Lincoln Police
Department officer was parked in his vehicle conducting stationary radar. As
Bolme’s vehicle passed, the officer noticed a glint of sunlight reflect off a spider
web crack on the passenger side of Bolme’s windshield. Based on the size of the
crack and the glare, the officer believed the driver’s view was obstructed and
he initiated a traffic stop. The officer did not observe any other traffic
violations.
[¶3] Upon approaching the vehicle and speaking with Bolme, the officer
detected the odor of raw marijuana emanating from the vehicle’s interior.
Bolme denied having marijuana in the vehicle and claimed he did not know
why the car smelled like marijuana. Based on the odor of marijuana, the officer
conducted a search of the vehicle. Methamphetamine and drug paraphernalia
were seized during the search. Bolme was placed under arrest and charged
with possession of methamphetamine and unlawful possession of drug
paraphernalia, class C felonies.
[¶4] Bolme moved to suppress the evidence obtained during the search
arguing his Fourth Amendment right to be free from unreasonable searches
and seizures was violated. The district court denied Bolme’s motion after
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reviewing the evidence, including the officer’s testimony, pictures of the
vehicle’s windshield, and video of the traffic stop and arrest. The court found
the stop was justified because the officer had a reasonable and articulable
suspicion Bolme had violated the law by having a view-obstructing crack on
the windshield. Additionally, the court found the search was supported by
probable cause based on an odor of marijuana. After the court’s denial of his
motion to suppress, Bolme entered a conditional plea of guilty preserving his
right to appeal.
II
[¶5] When reviewing a district court’s decision on a motion to suppress, we
defer to the court’s findings of fact and resolve conflicts in testimony in favor
of affirmance. State v. Dowdy, 2019 ND 50, ¶ 4, 923 N.W.2d 109. This Court
will affirm the district court’s decision on a motion to suppress unless we
conclude there is insufficient competent evidence to support the decision, or
unless the decision goes against the manifest weight of the evidence. State v.
Selzler, 2020 ND 123, ¶ 7, 943 N.W.2d 762. Whether a finding of fact meets a
legal standard is a question of law, which is fully reviewable on appeal. State
v. White, 2018 ND 266, ¶ 6, 920 N.W.2d 742. Whether law enforcement violated
constitutional prohibitions against unreasonable search and seizure is a
question of law. State v. Uran, 2008 ND 223, ¶ 5, 758 N.W.2d 727.
III
[¶6] Bolme argues the court erred in denying his motion to suppress because
there was no valid basis for the stop. Bolme asserts a cracked windshield is not
a violation under North Dakota law. He also contends no objective, reasonable
person would have suspected Bolme’s vision was limited or obstructed based
on a small crack on the passenger side of the windshield.
[¶7] To initiate a valid stop of a moving vehicle for investigative purposes, an
officer must have a reasonable and articulable suspicion that a law has been
or is being violated. Sturn v. N.D. Dep’t of Transp., 2009 ND 39, ¶ 9, 763
N.W.2d 515. Determining whether an officer had a reasonable and articulable
suspicion is a fact-specific inquiry and is evaluated under an objective standard
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based on the totality of the circumstances. State v. Bornsen, 2018 ND 256, ¶ 5,
920 N.W.2d 314. “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.
Asbach, 2015 ND 280, ¶ 12, 871 N.W.2d 820 (quoting State v. Deviley, 2011 ND
182, ¶ 8, 803 N.W.2d 561).
[¶8] Reasonable suspicion of a minor traffic violation will provide a sufficient
basis to justify a stop. State v. Leher, 2002 ND 171, ¶ 12, 653 N.W.2d 56. A
traffic stop may also be valid in the absence of a traffic violation where “an
officer’s objectively reasonable mistake, whether of fact or law, may provide
the reasonable suspicion necessary to justify a traffic stop.” State v.
Hirschkorn, 2016 ND 117, ¶ 14, 881 N.W.2d 244. “[T]he reasonable suspicion
standard does not require an officer to see a motorist violating a traffic law or
to rule out every potential innocent excuse for the behavior in question before
stopping a vehicle for investigation.” Kappel v. Dir., N.D. Dep’t of Transp., 1999
ND 213, ¶ 10, 602 N.W.2d 718. The actual commission of a crime is not required
to support a finding of reasonable suspicion. State v. Morsette, 2019 ND 84, ¶
6, 924 N.W.2d 434.
[¶9] Bolme argues the small crack on the passenger side of the vehicle was
not a violation of N.D.C.C. § 39-21-39(1) as asserted by the officer and that the
officer’s belief there was a violation was not an objectively reasonable mistake.
North Dakota’s law requires all motor vehicles be equipped with a windshield.
N.D.C.C. § 39-21-39(1). “An individual may not drive any motor vehicle with
any sign, poster, or other nontransparent material upon the front windshield,
side wings, or side or rear windows which obstructs the driver’s clear view of
the highway or any intersecting highway.” N.D.C.C. § 39-21-39(1).
[¶10] This Court has not previously determined whether operating a motor
vehicle with a cracked windshield is a violation of N.D.C.C. § 39-21-39(1).
However, several other courts have interpreted nearly identical statutes to
conclude that a crack is not included within the definition of nontransparent
material. State v. Elmore, 241 Or.App. 419, 426, 250 P.3d 439, 443 (2011)
(concluding a windshield crack is not “any material ... upon any vehicle
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window” because it is not a tangible physical object separate from the window
itself); U.S. v. Whiteside, 22 Fed.Appx. 453, 458 (6th Cir. 2001) (noting
concession that a windshield crack does not violate ordinance prohibiting “any
sign, poster or other nontransparent material upon the front windshield”);
State v. Carpenter, 231 Kan. 235, 642 P.2d 998, 1001 (1982) (a windshield crack
does not violate statute prohibiting driving “any motor vehicle with any sign,
poster or other non-transparent material upon the front windshield, side wings
or side or rear windows”); State v. Jones, 97 Wash.App. 1025 (Wash. Ct. App.
1999) (per curiam) (operating a vehicle with a cracked windshield does not
violate the statute prohibiting driving “any motor vehicle with any sign, poster,
or other nontransparent material upon the front windshield, side wings, or side
or rear windows”); State v. Cantsee, 130 Nev. 210, 321 P.3d 888, 891 (2014)
(driving with a cracked windshield does not violate prohibition on “driving a
vehicle ‘with any sign, poster or other nontransparent material upon the front
windshield’”); J.D.I. v. State, 77 So.3d 610, 615-16 (Ala.Crim.App. 2011)
(“Despite any possible legislative intent, cracks or dings in windshields are not
included as improper obstructions within” the plain meaning of statute stating
“[n]o person shall drive any motor vehicle with any sign, poster, or other
nontransparent material upon the front windshield, sidewings, or side or rear
windows”); see also State v. Moser, 20 Neb.App. 209, 822 N.W.2d 424, 434
(2012) (“This statute makes it unlawful to have any material, such as a sign or
poster, on the windshield and is arguably not referring to the windshield
itself.”). While we refrain from determining whether operating a motor vehicle
with a crack may constitute a violation under a different statutory provision,
we are persuaded by the preceding decisions that operating a motor vehicle
with a crack in the windshield is not a violation of N.D.C.C. § 39-21-39(1).
[¶11] Our conclusion that the cracked windshield was not a violation of
N.D.C.C. § 39-21-39(1) does not end our review. The district court found the
officer had a reasonable, articulable suspicion sufficient to justify the stop of
Bolme’s vehicle based on the cracked windshield. In reaching that finding, the
court noted it was not objectively unreasonable for the officer to believe the
crack on Bolme’s windshield would make it difficult for a driver to see the
roadway on that side of the windshield and that the officer had an objectively
reasonable belief that such an obstruction was a violation of North Dakota law
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prohibiting drivers from having nontransparent material on a windshield that
obstructs a driver’s clear view. The court findings on the objectively reasonable
belief of the officer were as follows:
Officer Seim had a reasonable suspicion that Bolme was driving in
violation of the law based on what he observed at the time of the
stop. While pictures in retrospect may show a crack that seems less
significant, this does not change the fact that at the time of the
stop, Officer Seim observed a crack he believed obstructed the
driver’s view out of the windshield. Further, whether or not Bolme
violated any traffic laws, or actually had a view-obstructing crack
in his windshield, does not control whether Officer Seim had the
reasonable suspicion necessary to justify the traffic stop.
[¶12] Under our deferential standard of review, the district court’s findings of
fact are affirmed. The court did not err in finding the officer’s belief the law
prohibits a cracked windshield which obstructs a driver’s clear view was
objectively reasonable under these circumstances. See Hirschkorn, 2016 ND
117, ¶ 14 (“Whether a driver committed a traffic violation does not control
whether an officer had the reasonable suspicion necessary to justify a traffic
stop.”). Prior to this case, we had not interpreted N.D.C.C. § 39-21-39(1) with
respect to cracked windshields. While we have concluded that operating a
motor vehicle with a cracked windshield is not a violation of N.D.C.C. § 39-21-
39(1), absent the determination provided by this opinion, it was not objectively
unreasonable for the officer to believe a violation occurred.
[¶13] We conclude there is sufficient competent evidence capable of supporting
the court’s findings, and these findings meet the legal standard for reasonable
suspicion to justify the traffic stop.
IV
[¶14] Bolme argues the court erred in denying his motion to suppress because
the warrantless search of his vehicle was unconstitutional. Bolme contends an
odor of marijuana, without other indicators, no longer provides probable cause
to search a vehicle. Bolme’s argument that odor of marijuana is no longer
sufficient for a finding of probable cause is dependent on the assertion
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possessing a small amount of marijuana was decriminalized during the 2019
legislative session.
[¶15] “Under the automobile exception, law enforcement may search for illegal
contraband without a warrant when probable cause exists.” State v. Doohen,
2006 ND 239, ¶ 10, 724 N.W.2d 158. “Probable cause to search exists if it is
established that certain identifiable objects are probably connected with
criminal activity and are probably to be found at the present time at an
identifiable place.” Roth v. State, 2006 ND 106, ¶ 13, 713 N.W.2d 513 (internal
citation omitted). When a search is made with probable cause, based on a
reasonable belief arising out of the circumstances known to the officer that the
automobile contains articles that are subject to seizure, the search is valid.
State v. Reis, 2014 ND 30, ¶ 15, 842 N.W.2d 845. This Court has previously
held the mere odor of marijuana, detected by a trained and experienced officer,
creates a sufficient factual basis to establish probable cause. See State v.
Schmalz, 2008 ND 27, ¶ 20, 744 N.W.2d 734; State v. Binns, 194 N.W.2d 756,
758 (N.D. 1972); State v. Overby, 1999 ND 47, ¶ 13, 590 N.W.2d 703.
[¶16] Since August 1, 2019, the penalty for possession of less than one-half
ounce, or 14.175 grams, of marijuana has been reduced to an infraction offense.
N.D.C.C. § 19-03.1-23(7)(d)(1). Before August 1, 2019, possession of a similar
amount of marijuana was a class B misdemeanor. S.L. 2019, ch. 186 (H.B.
1050), § 3. An infraction is a criminal offense under North Dakota law. State v.
Brown, 2009 ND 150, ¶ 48, 771 N.W.2d 267; N.D.C.C. § 12.1-32-01(7). Contrary
to Bolme’s assertion, possession of less than one-half ounce of marijuana was
not decriminalized when the penalty was reduced to an infraction because an
infraction is a criminal offense. Brown, at ¶ 48.
[¶17] This Court’s prior cases determining the odor of marijuana establishes
probable cause are controlling. Schmalz, 2008 ND 27, ¶ 20, 744 N.W.2d 734;
Binns, 194 N.W.2d 756, 758 (N.D. 1972); Overby, 1999 ND 47, ¶ 13, 590 N.W.2d
703. The odor of marijuana provides law enforcement probable cause to search
a vehicle. Id.
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[¶18] The officer detected an odor of raw marijuana emanating from the
interior of the vehicle during the traffic stop. The court determined the officer
was trained in identifying the odor of marijuana in its raw and burnt form.
Based on these facts, there was probable cause to believe criminal activity was
afoot. We affirm the district court’s denial to suppress evidence.
V
[¶19] Although we have concluded that operating a motor vehicle with a
cracked windshield is not a violation of N.D.C.C. § 39-21-39(1), the observation
of a cracked windshield on Bolme’s vehicle prior to this opinion provided a
reasonable and articulable suspicion for the officer to initiate a traffic stop. The
smell of raw marijuana provided probable cause for the search of Bolme’s
vehicle. The court did not err in denying Bolme’s motion to suppress and we
affirm the judgment.
[¶20] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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