As Corrected October 29, 2014.
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.
Alexander James Stock, Assistant State's Attorney, Courthouse, Bismarck, ND, for plaintiff and appellee.
Samuel A. Gereszek, East Grand Forks, MN, for defendant and appellant.
Daniel J. Crothers, Lisa Fair McEvers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Carol Ronning Kapsner. Opinion of the Court by Crothers, Justice. Kapsner, Justice, dissenting.
[¶1] Robert Allen Schneider appeals the district court's order denying Schneider's motion to suppress evidence following a conditional guilty plea to possession of marijuana by a driver and possession of drug paraphernalia. Schneider argues the deputy's pre-arrest conduct went beyond a welfare check and was a seizure under the Fourth Amendment, requiring a reasonable and articulable suspicion of criminal activity, which the deputy lacked. We affirm.
[¶2] On November 6, 2012, at approximately 11 p.m., Schneider was parked along a gravel road near the Double Ditch historical site. Burleigh County Deputy
Sheriff Vyska pulled onto the gravel road, turned on his flashing lights and parked about a car's length behind Schneider's vehicle. The gravel road continued in front of Schneider's vehicle, and another gravel road was immediately to the left of Schneider's vehicle. The district court determined Schneider could have driven forward or could have traveled down the gravel road to the left. It is not clear which lights were activated on the deputy's vehicle. The deputy exited his vehicle and approached Schneider's vehicle with a flashlight. A video camera recorded the event, but audio did not begin until 6 minutes and 50 seconds elapsed, which was after Schneider exited his vehicle.
[¶3] According to the deputy's report, the deputy asked Schneider if anything illegal was in the vehicle. Schneider stated there was not. The deputy asked to search the vehicle and Schneider consented. The deputy asked Schneider to step out of the vehicle, which Schneider did. The deputy asked if he could pat search Schneider and Schneider consented. The search revealed a bottle containing marijuana. Schneider then told the deputy that a small metal container in the center console of the car contained marijuana. A search of the vehicle revealed a small metal container containing marijuana and a wooden smoking device containing marijuana. Schneider was charged with possession of marijuana and possession of drug paraphernalia. Schneider filed a motion to suppress.
[¶4] Neither party requested a hearing. Schneider offered the DVD from the police dash cam and the deputy's report into evidence; however, each party argues facts not contained in the DVD or deputy report. No evidence was presented that Schneider did not feel free to leave. The State concedes the deputy had no reasonable suspicion to stop Schneider. The district court determined the deputy conducted a welfare check, stating, " [T]he deputy approached an already parked car, did not order the defendant to do anything, and did not demand a response from the defendant. The defendant consented to a search of his person and his car." The district court found no seizure occurred and denied the motion to suppress. Schneider conditionally pled ...