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State v. Pogue

Supreme Court of North Dakota

August 25, 2015

State of North Dakota, Plaintiff and Appellant
v.
Rebekah Maxine Pogue, Defendant and Appellee

Page 523

[Copyrighted Material Omitted]

Page 524

Appeal from the District Court of McKenzie County, Northwest Judicial District, the Honorable Robin Ann Schmidt, Judge.

Jacob T. Rodenbiker, State's Attorney, Watford City, ND, for plaintiff and appellant.

Daniel S. El-Dweek, Williston Public Defender Office, Williston, ND, for defendant and appellee.

Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner. Opinion of the Court by McEvers, Justice. VandeWalle, Chief Justice, concurring specially.

OPINION

Page 525

Lisa Fair McEvers, Justice.

[¶1] The State appeals from a district court order granting Rebekah Maxine Pogue's motion to suppress evidence. We affirm the district court's order because the State did not satisfy its burden to show law enforcement's warrantless search of Pogue's vehicle qualified as a valid inventory search, an exception to the warrant requirement, or that the good faith exception to the exclusionary rule applies.

I

[¶2] Officer Andrew Langowski, a Watford City police officer, initiated a traffic stop of a vehicle for exceeding the speed limit. The driver of the vehicle could not produce any form of identification, proof of insurance, or registration, but identified herself as Sarah Hernandez. The officer detected an odor of alcohol coming from the vehicle and noticed the driver had bloodshot, watery eyes, slurred speech and displayed slow, sluggish movements. After the driver submitted to field sobriety testing and an onsite screening test, she was arrested for driving under the influence. The officer received the driver's permission to move the vehicle out of a private driveway, across the street. The driver submitted to a chemical blood test and was taken to jail for booking.

[¶3] During the booking process, law enforcement realized the driver had provided false identification information. When confronted by law enforcement, the driver identified herself as Pogue and admitted she had initially provided a false name. According to Pogue's arrest report, law enforcement then impounded the vehicle Pogue had been driving and performed an inventory search of it due to " the vehicle

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not belonging to her, expired registration, and False Information charge . . . ." During the search, law enforcement found a black cloth bag containing drug paraphernalia items and methamphetamine. The officer applied for a warrant to further search the vehicle and submitted an affidavit in support of the application. In the affidavit, the officer stated he impounded the vehicle " due to no current registration, false information to a police officer, and obstruction of a private driveway." The officer also stated " [u]pon completing an impound inventory, per department directive," he found a black cloth bag containing multiple items of drug paraphernalia and a clear plastic container of a white crystalline substance, which tested positive for the presence of methamphetamine. The district court issued a search warrant for the vehicle based upon the affidavit. The officer executed the search warrant and found additional used syringes and what resembled a drug transaction ledger.

[¶4] Pogue was charged with four counts of possession of a controlled substance and two counts of possession of drug paraphernalia. Pogue moved to suppress the evidence found as a result of the inventory search. Neither party requested a hearing, and no hearing was held. The district court granted Pogue's suppression motion, concluding the vehicle was not impounded for caretaking or safety concerns, therefore, the inventory search exception did not apply. The State moved the district court to reconsider. Pogue responded arguing a motion to reconsider is not an available remedy under North Dakota law and the appropriate remedy is to appeal.

[¶5] The State appealed the district court's order granting Pogue's suppression motion, before the district court ruled on its motion to reconsider. The State argues the district court erred when it granted Pogue's motion to suppress because the initial warrantless search qualified as an inventory search, an exception to the warrant requirement. Alternatively, the State argues the district court's order granting Pogue's motion to suppress should be reversed because the good faith exception to the exclusionary rule applies. Pogue argues the State's appeal is not ripe for review because the State appealed before the district court ruled on its motion to reconsider.

II

[¶6] As a preliminary matter, we address Pogue's argument that the State's appeal is not ripe for review because the State filed its notice of appeal before the district court ruled on its motion to reconsider. Under N.D.R.App.P. 4(b)(1)(B), the State must file the notice of appeal within 30 days after entry of the order being appealed. A motion for reconsideration does not toll the time for filing a notice of appeal. See State, ex rel. Harris v. Lee, 2010 ND 88, 782 N.W.2d 626 (granting a supervisory writ to address the jurisdiction of the district court where the State failed to timely file an appeal when the district court denied the motion for reconsideration after the deadline to appeal had passed). The State could have lost its opportunity to file a timely notice of appeal, had it waited for the district court to rule on its motion to reconsider because the State's motion to reconsider would not have tolled the time for filing a notice of appeal from the district court's order suppressing evidence. Therefore, the State properly filed a notice of appeal in order to avoid losing the opportunity to appeal. As such, we conclude the appeal is ripe for review.

III

[¶7] The State argues the district court erred by granting Pogue's motion to

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suppress because the initial warrantless search of Pogue's vehicle qualified as an inventory search, which is an exception to the warrant requirement. Pogue argues the initial warrantless search of Pogue's vehicle does not qualify as a valid inventory search because 1) law enforcement did not impound Pogue's vehicle under its caretaking function, and 2) law ...


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