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State v. Ostby

Supreme Court of North Dakota

September 23, 2014

State of North Dakota, Plaintiff and Appellee
v.
Arthur Bruce Lanakila Ostby, Jr., Defendant and Appellant

Page 557

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

Gary E. Euren, Assistant State's Attorney, Fargo, N.D., for plaintiff and appellee.

Laura L. Reynolds, Fargo Public Defender Office, Fargo, N.D., for defendant and appellant.

Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.

OPINION

Page 558

McEvers, Justice.

[¶1] Arthur Bruce Lanakila Ostby, Jr., appeals from a criminal judgment entered on a jury verdict finding him guilty of possession of methamphetamine with intent to deliver and possession of drug paraphernalia. We conclude the district court did not err in denying Ostby's suppression motion, Ostby's due process rights were not violated by the State's failure to preserve evidence, and the evidence is sufficient to sustain the conviction. We affirm.

I

[¶2] On October 13, 2010, Fargo law enforcement officers conducted a controlled drug buy in which they had a confidential informant arrange to buy methamphetamine from M.B., an unwitting go-between. A detective and the informant picked M.B. up and drove to a convenience store where M.B. had arranged to meet a person who would provide her with the methamphetamine. M.B. was given $500 for the purchase and she got out of the vehicle and walked around the building where other officers on the scene saw her enter a black Nissan. M.B. returned to the detective's vehicle with the methamphetamine about seven minutes later. Another officer at the scene radioed his observations to other officers in the surveillance team and described the black Nissan.

[¶3] A police sergeant, who was accompanied by another officer, followed the black Nissan. When the sergeant observed the black Nissan veer over a solid white line as it entered onto the eastbound ramp leading to Interstate 94, he initiated a traffic stop. The officers learned that the driver, Ostby, had a suspended license and several outstanding warrants for his arrest. Ostby was handcuffed and placed under arrest, and a search of his person revealed methamphetamine and a glass pipe. Ostby received permission to smoke a cigarette, and he asked one of the officers to retrieve a lighter from the center console between the front seats of the black Nissan. The officer found a baggie of methamphetamine on top of the lighter in the console. Officers then searched the vehicle and found multiple plastic baggies, two digital scales, and three bags of methamphetamine. The officers took into custody the items from the vehicle they believed to be pertinent to the case, photographed other items, and left the remainder of the items in the vehicle. Items not taken into evidence included blankets, jackets, a helmet, fishing poles and letters addressed to Ostby. No cash was found. The vehicle was impounded, but an impound inventory was not performed in violation of police department policy. The vehicle, which was not registered in Ostby's name, was sold at auction along with the items remaining in the vehicle after no one claimed them.

[¶4] Ostby was charged with class A felony possession of methamphetamine with intent to deliver in violation of N.D.C.C. § 19-03.1-23(1) and class C felony possession of drug paraphernalia in violation of N.D.C.C. § 19-03.4-03. Ostby moved in limine to suppress evidence, claiming the traffic stop was pretextual and there was no reasonable and articulable suspicion to validate the stop. The district court denied the motion. During the trial, Ostby's attorney questioned officers about their failure to preserve evidence and requested an adverse-inference instruction based on NDJI-Civil C-80.30 (2001), which the court gave to the jury.

Page 559

The jury found Ostby guilty of ...


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