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State of North Dakota v. Kevin James Gefroh

August 15, 2011

STATE OF NORTH DAKOTA,
PLAINTIFF AND APPELLANT
v.
KEVIN JAMES GEFROH, DEFENDANT AND APPELLEE



Appeal from the District Court of Ward County, Northwest Judicial District, the Honorable Douglas L. Mattson, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme CourtState v. Gefroh,

2011 ND 153

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Concurrence & Dissent filed.

AFFIRMED.

Opinion of the Court by Kapsner, Justice.

[¶1] The State appeals the district court order granting Kevin James Gefroh's motion to suppress evidence. The State argued law enforcement officers had probable cause to search for contraband, and because of the automobile exception to the warrant requirement, a warrant was not required to search Gefroh's person. We affirm the order suppressing the evidence found on Gefroh's person.

I

[¶2] The Ward County Narcotics Task Force had information suggesting Gefroh received a shipment of controlled substances and had been selling controlled substances. After receiving this information, Officer Craig Sandusky saw Gefroh leave a bar with two women and noticed Gefroh had three different registration tabs displayed on his license plate. Officer Sandusky called Officer David Chapman's police canine unit to follow Gefroh. Officer Chapman followed Gefroh's vehicle and observed the different registration tabs and saw Gefroh make an illegal left turn. Gefroh was stopped for the traffic violations. Officer Chapman had a drug-sniffing dog walk around the vehicle during the traffic stop, while Gefroh was still sitting in his vehicle, and the drug-sniffing dog indicated the presence of controlled substances at the passenger-side door of the vehicle. Gefroh made furtive movements toward his jacket pockets while sitting in his vehicle. Gefroh was asked to step out of his vehicle, and he complied. Law enforcement officers searched Gefroh's vehicle and found a plastic bag with what appeared to be marijuana residue, but they did not arrest him at this point. According to Officer Trevor Huber, Gefroh stared at Officer Huber and put his hand by the right side of his body and made furtive movements. Officer Huber performed a pat-down search on Gefroh and discovered four bundles of white powder that tested positive for cocaine. Gefroh was arrested after the officers discovered the cocaine.

[¶3] Gefroh was charged with unlawful possession of cocaine with intent to deliver. Gefroh made a motion to suppress his statements and all physical evidence obtained by law enforcement during the stop, arguing he was illegally seized and searched. At the suppression hearing, the State asked, "And did you search Mr. Gefroh and the truck because the dog alerted on him?" Officer Sandusky replied, "I believe Officer Huber searched Gefroh because of his actions during the stop, and once he was out of the vehicle. And yes the vehicle was searched, as well." The district court ordered the cocaine found in Gefroh's pocket suppressed because the automobile exception to the warrant requirement did not justify the warrantless search of Gefroh's person, and the officers exceeded the scope of a proper pat-down search for weapons. On appeal, the State argued the automobile exception allowed the search of Gefroh's person.

II

[¶4] The district court concluded the pat-down search of Gefroh conducted by Officer Huber was initially justified out of concern for the safety of the police officers. "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." State v. Beane, 2009 ND 146, ¶ 9, 770 N.W.2d 283 (quoting State v. Harlan, 2008 ND 220, ¶ 6, 758 N.W.2d 706); see also Terry v. Ohio, 392 U.S. 1, 30 (1968). Officer Huber testified Gefroh made several "furtive gestures" while seated in his vehicle. After leaving his vehicle, Gefroh continued to reach for his jacket pocket several times and refused to keep his hands on the tailgate of his vehicle as instructed by Officer Huber.

[¶5] During the pat-down search, Officer Huber discovered a "soft object" in Gefroh's pockets, which was later determined to be bundles of cocaine. Citing Harlan, the district court noted that the scope of a pat-down search is limited and concluded the search of the contents of Gefroh's pocket was not justified. 2008 ND 220, ¶ 6, 758 N.W.2d 706 ("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. . . . 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.'"). The district court found there was no testimony indicating Officer Huber believed the soft object could be a weapon, and concluded Officer Huber lacked a reasonable and articulable suspicion Gefroh's pocket contained a weapon.

[ΒΆ6] The State did not argue the district court erred in its decision that the search of Gefroh's pocket was not justified by the pat-down search. The State argued the district court's error was in deciding the automobile exception to the warrant requirement did not apply, and "[the district court] then further turned a search of the defendant based on probable cause into a 'Terry' pat down search for weapons based on the officers other concerns." At oral argument before this Court, the State's attorney was asked if he would agree with the district court if the search had simply been a pat-down search. The State's attorney said, "I absolutely would, but I don't believe that's what it was." Later, the State's attorney was asked if another exception to the warrant requirement applied, and the State's attorney responded, "No, it was a search based on probable cause and the automobile exception." The State did not appeal the issue of the district court's decision on the scope of the pat-down search for weapons and the ...


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