Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Robert O. Wefald, Judge.
The opinion of the court was delivered by: Sandstrom, Justice
[¶1] Annette Harlan appeals a criminal judgment entered after her conditional guilty plea to the charge of possession of drug paraphernalia, a class A misdemeanor, following the district court's denial of her suppression motion. We reverse, concluding the district court erred when it found permissible a police officer's search of Harlan's pockets once a pat-down search of her outer clothing did not reveal anything that might feel like a weapon, and remand to permit Harlan to withdraw her conditional guilty plea.
[¶2] On November 3, 2007, the Bismarck Police Department received a report of Harlan being passed out in the bathroom at a McDonald's restaurant. When police officers arrived at the restaurant, Harlan was eating a meal at one of the booths. She appeared to be extremely intoxicated, but denied she needed assistance. The officers decided she needed help, or else they would transport her to a detoxification holding area. After some phone calls, they agreed to transport her to a friend instead. Before placing Harlan in the patrol vehicle, an officer pat-searched her. The officer testified that she pat-searches anyone who rides in her patrol car as a safety precaution. The pat-down search led to a pocket search, whereupon the officer discovered a plastic bag containing less than a half-ounce of marijuana and Zig-Zag cigarette rolling papers. The officer then placed Harlan under arrest. Harlan was charged with possession of drug paraphernalia. She moved to suppress on the ground that the evidence was the result of an impermissible search. After hearing, the district court denied her motion. She subsequently entered a conditional guilty plea, reserving the right to appeal the denial of her suppression motion, and the court sentenced her immediately.
[¶3] According to the officer's testimony, there was no indication or suspicion that Harlan possessed a weapon. She testified that she could not recall whether she found these items in a jacket or pants pocket. During her testimony, the officer conceded that the plastic bag would not feel like a hard object and that the items did not feel like a weapon or anything that could harm her.
[¶4] The district court had jurisdiction of the suppression hearing under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal from the district court's order was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.
[¶5] On appeal, Harlan argues the seized evidence should have been suppressed because the officer did not have a reasonable suspicion that she was armed and dangerous. In reviewing a district court's decision on a motion to suppress evidence, we defer to the district court's findings of fact. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. We will affirm a district court's decision on a motion to suppress if "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." City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D. 1994). On appeal, questions of law are fully reviewable, and whether a finding of fact meets a legal standard is a question of law. Graf, at ¶ 7.
[¶6] The Fourth Amendment of the United States Constitution and Article 1, § 8, of the North Dakota Constitution protect individuals from unreasonable governmental searches and seizures. State v. Gregg, 2000 ND 154, ¶ 22, 615 N.W.2d 515. A law enforcement officer may conduct a frisk or a pat-down search of a person only when the officer has a reasonable and articulable suspicion that the individual is armed and dangerous. Terry v. Ohio, 392 U.S. 1, 30 (1968). A pat-down search is justified only for the protection of the police officer or others nearby. Id. at 29. There is no requirement that the officer know with certainty that the individual is armed, but a reasonably prudent person under the circumstances must be warranted in the belief that his or her safety or that of others is endangered. Id. at 27. The scope of a constitutionally valid pat-down search is limited to the patting of a suspect's outer clothing for such concealed objects that might be used as weapons. Id. at 30. A pocket search is justified when the patting "reveals the presence of an object of a size and density that reasonably suggests the object might be a weapon." State v. Heitzmann, 2001 ND 136, ¶ 13, 632 N.W.2d 1 (citing State v. Zearley, 468 N.W.2d 391, 392 (N.D. 1991)). Thus, the police officer must have an articulable and reasonable suspicion that the person is armed and dangerous. Id. (citing State v. Zearley, 444 N.W.2d 353, 359 (N.D. 1989)).
[¶7] Harlan cites State v. Brockel, 2008 ND 50, 746 N.W.2d 423, in support of her position that the officer's conduct was illegal. In Brockel, the defendant was subject to a pat-down search before being placed in a patrol car for the completion of a speeding citation. Id. at ¶ 2. We held the district court erred in holding that an officer can, as a matter of law, conduct a pat-down search before placing an individual in a patrol car without a reasonable suspicion that the individual is armed or dangerous. Id. at ¶ 10. Consideration of safety in the confined space of an automobile where the police officer's attention is on driving rather than on the passenger was absent in Brockel.
[¶8] There is limited and divided case law from other jurisdictions dealing with the lawfulness of a police officer's pat-down search incident to a patrol car ride short of an arrest. Some courts have held "`the need to transport a person in a police vehicle is an exigency that justifies a pat-down search for weapons.'" E.g., People v. Queen, 859 N.E.2d 1077, 1084-85 (Ill. App. Ct. 2006) (quoting People v. Smith, 803 N.E.2d 1074 (Ill. App. Ct. 2004)). In Queen, the encounter between the defendant and the police officer occurred after the defendant, who appeared to be intoxicated, fell from a tree in front of the police car. Id. at 1078. The police officer offered to give the defendant a ride because he was concerned the defendant could not safely get home by himself. Id. at 1079. The Appellate Court of Illinois upheld the district court's denial to suppress the weapon found on the defendant as a result of a search incident to the police officer's offer for a ride, holding the officer was justified in pat-searching the defendant for safety purposes. Id. at 1084. Similarly, in State v. Lombardi, 727 A.2d 670, 674 (R.I. 1999), the Supreme Court of Rhode Island held a police officer was justified in pat-searching an inebriated passenger before asking a fellow officer to transport the defendant home after his friend's car was about to be impounded and the defendant did not object to the police officer's offer of a ride. That court concluded the ...