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State v. Otto

Supreme Court of North Dakota

December 19, 2013

STATE of North Dakota, Plaintiff and Appellee
v.
Wayne James OTTO, Defendant and Appellant.

Page 590

Dawn M. Deitz, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

Thomas J. Glass, Bismarck, N.D., for defendant and appellant; submitted on brief.

SANDSTROM, Justice.

[¶ 1] Wayne Otto appeals after the district court denied his motion to suppress evidence obtained during a warrantless search of a camper and he entered a conditional plea of guilty. We affirm the judgment, concluding the camper falls within the scope of the automobile exception to the warrant requirement, justifying the warrantless search because law enforcement had probable cause to believe drugs were present in the vehicle.

I

[¶ 2] Bismarck Police Officer Scarlet Vetter testified she has been working for the Bismarck Police Department for three years, and while on patrol at approximately 1:27 a.m. on July 26, near Frontier Drive in Bismarck, she observed a camper in a parking lot with the front door wide open. She testified to seeing a light flashing around it, like some type of flashlight, so she stopped her vehicle in the middle of the street, turned off the headlights, and watched the camper. She testified the door to the camper was shut several times but kept swinging open, so she called for backup. Officer Vetter testified that once backup arrived, she and two other officers approached the camper and she could immediately smell a very strong odor of marijuana coming from the camper. She testified that as the officers approached the camper, a female came out of the camper and they began speaking with her. She testified the female, later identified as Loretta Stroud, said she was there to check on and secure the camper for her stepfather, Wayne Otto. Officer Vetter testified Stroud said no one else was inside the camper. She testified the officers heard someone moving around inside the camper, and as they began approaching it, the front door slammed shut. She testified Stroud said the person in the camper was Mark Backer, but when the officers asked Stroud to ask him to come out of the camper, it was Wayne Otto who came out. Officer Vetter testified they arrested Otto because there was an outstanding warrant for him.

[¶ 3] Officer Vetter testified Bismarck Police Sergeant Jesse Hellman, the patrol sergeant for the shift, then arrived at the scene. She testified Sergeant Hellman contacted Bismarck Police Detective Bolme, informing him of the odor of marijuana and his intention to seek a search warrant for the camper. Officer Vetter testified that prior to the granting of the warrant, she and Sergeant Hellman entered the camper with guns drawn to make sure there was no one else inside. She testified they decided to do a sweep of the camper because the lighting was poor and they did not know whether anyone else was inside, so they were concerned for their safety. She testified, " [W]e were concerned for our safety." She testified she did not know at the time of the sweep, but was later informed, Otto did not consent

Page 591

to the officers' entering the camper. In Officer Vetter's follow-up report, she stated that when she and Sergeant Hellman entered the camper during the sweep, she observed a large shoe box full of marijuana and two zip-lock baggies containing a white substance she believed to be meth.

[¶ 4] Sergeant Hellman testified that he has 13 years of experience working for the Bismarck Police Department and that he arrived on the scene about 30 minutes after the initial call for backup and entered the camper for a security sweep about five minutes after arriving on the scene. He testified there was absolutely concern for officer safety when the protective sweep was done, stating in his testimony, " We're not safe standing out there[.]" He testified Stroud had already falsely stated that no one was inside the camper, the area was known to be high in crime, the camper was close to a known drug hangout with persons likely therein, and the officers were standing out in the open in a parking lot, with no cover, and they were not sure whether someone else was still in the camper. He also testified they wanted to make it safe for everyone because there was a child in Stroud's nearby vehicle. He testified he assumed when he arrived on the scene that the camper had already been checked. But when he found out the scene was not secure, he decided the officers needed to secure the scene, stating, " Maybe that's why I'm a supervisor." Additionally, he testified camper walls are very thin and unable to stop any kind of gunfire rounds.

[¶ 5] The State charged Otto with three drug-related offenses: possession of methamphetamine with intent to deliver, possession of marijuana with intent to deliver, and usage or possession with intent to use drug paraphernalia. Otto moved to dismiss the charges and to suppress evidence obtained from the warrantless entry of his camper. The State argued the search was valid as a safety sweep, and also as within the scope of the automobile exception. The district court denied the motion, finding a safety sweep was properly conducted for exigent circumstances present at the scene. Otto entered a conditional guilty plea, reserving the right to appeal the denial of his suppression motion, and a criminal judgment was entered.

[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Otto timely appealed under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 29-28-06. See State v. Guscette, 2004 ND 71, ¶ 4, 678 N.W.2d 126 (appeal from suppression order treated as an appeal from subsequently entered judgment).

II

[¶ 7] Otto argues his residence was illegally searched when Officer Vetter and Sergeant Hellman searched his camper prior to obtaining a search warrant. He claims the possible presence of unidentified persons, without more, fails to create an exigent circumstance justifying the warrantless safety sweep of the camper, which he claims was his residence. Although the district court upheld the search on the basis of a safety sweep, we may affirm the district court on any basis properly before it. See State v. Ramsey, 2005 ND 42, ¶ 12, 692 N.W.2d 498.

A

[¶ 8] We first consider whether the search falls within the scope of the automobile exception.

[¶ 9] We have outlined the standard of review for pre-trial suppression motions:

A trial court's findings of fact in preliminary proceedings of a criminal case will not be ...

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