DocketNumber： 20060003
Judges： Kapsner, Sandstrom, Vande Walle, Maring, Crothers
Filed Date： 8/16/2006
Status： Precedential
Modified Date： 11/12/2024
[¶ 1] The North Dakota Department of Transportation (“Department”) appeals from a district court judgment reversing a hearing officer’s decision to suspend Jay Gabel’s driving privileges for ninety-one days. We affirm the district court judgment.
I
[¶ 2] On April 23, 2005, a dispatcher at the Stutsman County Sheriffs Office sent a radio message to Officer Elizabeth Kapp stating that Chad Steele had reported a vehicle traveling on Highway 281 south of Jamestown that would speed up and slow down, not allowing Steele to pass. Steele also reported the license plate of the vehicle was “JAYBIRD.” Steele continued to follow the driver relaying his location to the dispatcher on his cell phone. Steele’s information was relayed from the dispatcher to Officer Kapp. The record does not reflect how many times Steele attempted to pass, what the road conditions were, how long Steele had been following Gabel, or at what speed Steele was attempting to pass Gabel’s vehicle.
[¶ 3] Officer Kapp passed Steele’s vehicle and located Gabel’s vehicle. Officer Kapp measured the speed of Gabel’s vehicle at 47 miles per hour in a 65 mile per hour zone. There was no posted minimum speed limit in the area. After determining the vehicle’s speed, Officer Kapp stopped Gabel’s vehicle based on the information she received from the dispatcher. Officer Kapp did not report independently viewing a traffic violation. Her testimony indicates she did not observe erratic or suspicious driving. Officer Kapp testified she had not noticed Gabel cross the center line, drive on the shoulder, or commit any moving violation. Officer Kapp stated the stop was based on Steele’s report that Gabel had previously sped up in his own lane, making it difficult for Steele to pass.
[¶ 4] When stopped, Gabel stated he was recently married. He admitted he had been drinking. Officer Kapp testified she administered several field sobriety' tests with Gabel failing each test. Officer Kapp then arrested Gabel for driving under the influence of alcohol.
[¶ 5] At the administrative hearing, Ga-bel claimed Officer Kapp lacked a reasonable and articulable suspicion to justify the traffic stop of his vehicle. Gabel argued a case decided by this Court a day before the administrative hearing precluded the officer from stopping Gabel. See
[¶ 6] Gabel appealed the hearing officer’s decision to the district court arguing that Anderson controlled and the officer did not have an independent basis to support the traffic stop. The district court reversed the hearing officer’s decision, concluding the officer did not have the requisite reasonable and articulable suspicion to stop Gabel’s vehicle. On appeal, the Department argues the identity of the informant was known by the officer and incriminating information was relayed from the dispatcher to the officer making this case distinguishable from Anderson.
II
[¶ 7] Our review of a decision to suspend a driver’s license is governed by N.D.C.C. ch. 28-32. Anderson, 2005 ND 97, ¶ 6, 696 N.W.2d 918. We review the record before the administrative agency and will affirm an agency’s decision unless:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.
N.D.C.C. § 28-32-46.
[¶ 8] We give deference to the Department’s sound findings, but review questions of law de novo. Bjerklie v. Workforce Safety and Ins., 2005 ND 178, ¶ 9, 704 N.W.2d 818; Gray v. N.D. Game and Fish Dep’t, 2005 ND 204, ¶7, 706 N.W.2d 614. In this appeal, the issue before this Court is a question of law, namely whether there existed a reasonable and articulable suspicion for Officer Kapp to stop Gabel’s vehicle.
[¶ 9] To justify the stop of a moving vehicle for investigation, an officer must have a reasonable and articulable suspicion the motorist has violated or is violating the law. City of Fargo v. Ovind, 1998 ND 69, ¶8, 575 N.W.2d 901. The flexible and fact specific inquiry into reasonable and articulable suspicion is not readily, or even usefully, reduced to a neat set of legal rules. State v. Loh, 2000 ND 188, ¶ 5, 618 N.W.2d 477. We have recognized “the test of reasonableness under the Fourth amendment requires careful attention to the severity of the crime.” State v. Anderson, 2006 ND 44, ¶24, 710 N.W.2d 392 (citing State v. Heitzmann, 2001 ND 136, ¶ 18, 632 N.W.2d 1). Nevertheless, observed traffic violations provide officers with the requisite suspicion for conducting investigatory stops. Loh, at ¶ 10. The validity of a stop is evaluated under an
[¶ 10] Both the hearing officer and the district court concluded this case was governed by Anderson v. Director, N.D. Dep’t of Transp., 2005 ND 97, 696 N.W.2d 918, although reaching different conclusions. In Anderson, the Cass County Sheriffs Office received a report about a “possible reckless driver or drunk driver” that had hit cones in a construction zone. Id. at ¶ 2. The informant continued to follow the driver until the deputy reached the vehicle. Id. at ¶ 3. The deputy followed Anderson for two miles without observing any illegal or erratic driving before the stop. Id. The informant’s name was not relayed to the officer although the informant had been pulled to the side of the road and was being interviewed by an assisting officer. Id. at ¶ 4. The record was “unclear whether the deputy learned of the construction zone allegation before he stopped Anderson.” Id. The Department suspended Anderson’s license, but the district court reversed because the arresting officer did not have reasonable and articulable suspicion necessary to support the stop. Id. We affirmed the district court’s decision because the “deputy was not acting on a directive from another officer and he did not directly observe illegal activity. Here, the deputy only received information from the dispatcher.” Id. at ¶ 9. We explained the tip was likely reliable or could eventually have become reliable and that the reliability of a tip was to be based on a sliding scale: “As the reliability of the tip moves up on the scale, the quantity of the information sufficient to raise a reasonable and articulable suspicion is less.” Id. at ¶ 18 (citing State v. Miller, 510 N.W.2d 638, 640 (N.D.1994)). But in Anderson, even though the tip was or could have been sufficiently reliable, the Department failed “to establish that the informant told the dispatcher the suspect hit cones in a construction zone and that the dispatcher gave that information to the deputy.” Id. at ¶ 19. The “bare assertion” of a “possible reckless driver or drunk driver” was not sufficient to justify the stop. Id. at ¶ 21.
[¶ 11] To determine whether an officer has a reasonable and articulable suspicion, we examine the information known to the officer at the time of the stop and information imputed to the officer based on another officer’s directive to make a stop. State v. Boyd, 2002 ND 203, ¶ 15, 654 N.W.2d 392; City of Devils Lake v. Lawrence, 2002 ND 31, ¶ 9, 639 N.W.2d 466 (recognizing that when one officer directs another officer to effectuate a stop without relaying the underlying facts and circumstances, the directing officer’s knowledge is imputed to the acting officer). An officer can use information received from other officers with his or her personal observations to form the factual basis needed for a legal investigatory stop. Boyd, at ¶ 16. We have upheld investigatory stops of vehicles when the stopping officer received information of illegal activity from other officers and the officer corroborated the tip with personal observations. State v. Kenner, 1997 ND 1, ¶ 12, 559 N.W.2d 538. If the surrounding facts and circumstances verify an informant’s reliability, a known informant’s tip can provide a sufficient basis to justify a stop. Miller, 510 N.W.2d at 640-41 (citing Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)).
[¶ 12] Officer Kapp testified she knew the informant in her “professional capacity”; she believed he had a criminal record. We have allowed tips from known criminal informants to justify a stop provided the tip is otherwise reliable. State v. Anderson, 2006 ND 44, ¶¶ 13, 17, 710 N.W.2d 392. “As a general rule, the lesser
[¶ 13] The Department argues this case is stronger than Anderson v. Director, N.D. Dep’t of Transp., 2005 ND 97, 696 N.W.2d 918 because the information relayed to the officer was more specific and provided the officer with evidence of a traffic violation. Officer Kapp testified she observed Gabel driving below the posted speed limit, but she did not notice Gabel cross the center line, drive on the shoulder, or commit any moving violation. The Department does not argue that Gabel’s speed of 47 miles per hour in a 65 mile per hour zone provides a sufficient basis to justify a stop. See, e.g., Johnson v. Sprynczynatyk, 2006 ND 137, ¶ 13, 717 N.W.2d 586 (traveling 8-10 miles per hour in a 25 mile per hour zone does not constitute reasonable and articulable suspicion to support a stop); State v. Brown, 509 N.W.2d 69, 71 (N.D.1993) (evidence that driver is traveling at slower than usual speed does not create reasonable and ar-ticulable suspicion); Salter v. North Dakota Dep’t of Transp., 505 N.W.2d 111, 114 (N.D.1993) (officer did not have reasonable and articulable suspicion to stop a car traveling 30-35 miles per hour in a 50 mile per hour zone even though the car was weaving slightly within own lane).
[¶ 14] The basis of the Department’s argument is that a traffic violation occurred. As authority for this conclusion, the Department cites N.D.C.C. § 39-10-11(2), which states: “the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and may not increase the speed of that driver’s vehicle until completely passed by the overtaking vehicle.” Based on the record we have before us, it is not entirely clear the information Steele conveyed amounted to a violation of this statute. There was no information to suggest Steele made an “audible signal” that he intended to pass. The record we have is limited to Officer Kapp’s testimony:
MR. SHARP: What information did you receive out in the patrol car?
DEPUTY KAPP: That the vehicle,
JAYBIRD, would speed up, slow down, would not allow Mr. Steele to pass him.
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MR. DICKSON: You never noticed any crossing of the center line or any driving*438 on the shoulder or anything like that. Isn’t that correct?
DEPUTY KAPP: No.
MR. DICKSON: Okay. You never noticed ... you, yourself, never noticed any moving violations, did you?
DEPUTY KAPP: Other then I locked him in on radar 47 in a 65.
MR. DICKSON: And there’s no minimum speed on that highway, is there?
DEPUTY KAPP: If there’s traffic behind him, he’s impeding traffic.
MR. DICKSON: Officer, there’s no minimum speed on that highway, is there?
DEPUTY KAPP: No, not that I recall.
[¶ 15] Officer Kapp testified she did not observe a traffic violation. The sole reason Officer Kapp gave for justifying the stop was based on Steele’s report that Gabel had previously sped up in his own lane, making it difficult for Steele to pass. Officer Kapp testified that this unverified report provided her with sufficient information that Gabel was an impediment to traffic. Officer Kapp did not independently observe or corroborate Gabel speeding up and slowing down nor did she view Gabel impede the ability of others to pass his vehicle. Based upon the information conveyed, there is only a possibility that a violation had occurred. This is the functional equivalent of the “possible reckless driver or drunk driver” held to be insufficient to establish a reasonable and articu-lable suspicion in Anderson, 2005 ND 97, ¶ 21, 696 N.W.2d 918.
III
[¶ 16] We conclude, under the totality of the circumstances, Officer Kapp did not have a reasonable and articulable suspicion to justify the stop of Gabel’s vehicle. We affirm the district court’s judgment reinstating Gabel’s driving privileges.