Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.
Brian D. Grosinger, Assistant State's Attorney, Mandan, N.D., for plaintiff and appellee.
James A. Teigland (argued), Nicholas D. Thornton (appeared), Fargo, N.D., and Erin M. Conroy (on brief), Bottineau, N.D., for defendant and appellant.
Dale V. Sandstrom, Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers. Opinion of the Court by Sandstrom, Justice. I concur in the result. Gerald W. VandeWalle, C.J.
[¶1] Tamri Dawn Stewart appeals from a criminal judgment entered on a conditional plea of guilty to class C felony abuse or neglect of a child, reserving the right to challenge the district court's denial
of her motion to suppress evidence. Because the facts in this case do not support the district court's decision tat a police officer's entry into Stewart's home was justified by the emergency exception to the warrant requirement, we reverse the criminal judgment and remand to allow Stewart to withdraw her guilty plea.
[¶2] At about 5:30 p.m. on March 9, 2013, a police officer went to Parktown Trailer Park in Mandan in response to a call from a resident about the welfare of Stewart's dog. Stewart's neighbors were caring for the dog and told the officer that Stewart was working and her 10-year-old daughter was alone in Stewart's trailer home with a younger boy and that Stewart would not be returning home until 9 p.m. The couple also told the officer the trailer was in " horrible condition," " there were several hundred pieces of dog poop in the house, and it was not fit for a child."
[¶3] The officer went to Stewart's home. The officer testified he did " not necessarily" anticipate he would be required to take action when he approached the home and found " nothing emergent about the conditions." The officer used the term " emergent" to mean " an emergency condition to go in the house." The officer knocked on the door. The temperature was in the 30s and it was damp and windy. According to the officer, Stewart's daughter answered, " [a]nd she came outside, opened the door just far enough to sneak out, and close[d] the door behind her immediately, bang." Stewart's daughter was wearing a short-sleeved t-shirt without a coat. Although her clothes were dirty, her hair was unkempt and her mouth was slightly dirty, the officer testified the child's appearance did not concern him because " I've seen dirty kids before." The officer told Stewart's daughter why he was there and asked if he could come inside the trailer to talk to her, but she said " no." Stewart's daughter told the officer she was with a friend whose parents were watching her while her mother was at work. Stewart's daughter told him she and her mother were the only persons living at the home and the officer noted the child " sounded very mentally and emotionally mature for being ten years old."
[¶4] The officer returned to his vehicle and phoned a police lieutenant and Stewart, who was at work. The officer told Stewart why he was at her house and asked for permission to look through the home, but Stewart said " no" and explained " she did not want me looking through her house without her being there if I didn't have a warrant." Stewart was unable to give the officer the name or address of the person who was supposed to be watching her child while she was at work.
[¶5] After the officer had been in his vehicle between ten to twelve minutes, he returned to Stewart's residence and knocked on the door. Stewart's daughter again answered, stepped outside without a coat and closed the door. The officer asked her whether there was an adult in the home, whether she had a phone for emergencies, and when she had last eaten. He also questioned her about the conditions in the home. The officer testified:
And she had very clear answers for me that I took to be in my report a cover story. Just simple, quick answers to make the police officer go away. The concerns about the dog poop was, there was a problem, we got rid of the dog that was pooping in the house. So the problem is not there anymore. I clean the house. My mom helps me when she's not working because she works a lot. Stuff like that. Just quick answers so the cop would go away satisfied.
[¶6] After several minutes of talking on the porch, the officer saw Stewart's daughter was getting cold and asked her, " 'Can we just step inside your door so we can talk?'" Stewart's daughter allowed the officer inside, where he noticed an intense odor of dog feces and urine and found the home littered with garbage and dog feces. The officer called Social Services to remove Stewart's daughter from the home. The officer took the younger child home to his mother and learned the mother did not know who was supposed to be watching Stewart's daughter.
[¶7] Stewart was charged with class C felony abuse or neglect of a chid in violation of N.D.C.C. § 14-09-22. Stewart moved to suppress the evidence, arguing the officer's warrantless entry into her home was illegal under the Fourth Amendment. During the hearing on the motion, the officer testified:
Q. Okay. You went back to the door and second time asked the child to ...