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State v. Zacher

Supreme Court of North Dakota

August 25, 2015

State of North Dakota, Plaintiff and Appellee
v.
Brett Eugene Zacher, Defendant and Appellant

Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

Justin M. Balzer, Morton County Assistant State's Attorney, Mandan, N.D., for plaintiff and appellee.

Kent M. Morrow, Bismarck, N.D., for defendant and appellant.

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

OPINION

Page 848

Dale V. Sandstrom, Justice.

[¶1] Brett Zacher appeals from a district court order denying his motion to suppress evidence and from a criminal judgment entered after his conditional guilty plea to the charge of possession of a controlled substance. We reverse, concluding the district court erred in relying on the plain view doctrine to justify the warrantless seizure of the plastic bag located in Zacher's vehicle, and remand to allow Zacher to withdraw his guilty plea.

I

[¶2] On April 6, 2014, a Mandan police officer saw a vehicle fail to stop at a stop sign. He followed the vehicle, checked its license and registration, and discovered the owner of the vehicle, Brett Zacher, had a suspended license. The officer stopped the vehicle, and after identifying Zacher as the driver, arrested him for driving under suspension and placed him in the police vehicle. The officer then informed Zacher of his Miranda rights, and in an attempt to prevent Zacher's car from being towed, asked Zacher if he could move his car from the lot it was parked in at the time of the arrest. Zacher gave the officer permission to enter his vehicle to move it from the parking lot. As he was moving Zacher's vehicle, the officer noticed the top portion of a small plastic bag between the driver's seat and the middle console. Although he could not see or identify the contents of the bag, the officer testified that because of his training and experience he was suspicious of the bag, so he removed it from in between the seat and console and discovered it contained " very small pieces of paper." At first, the officer was unable to identify the contents of the bag, but another officer at the scene believed it contained LSD. The officer then asked Zacher about the bag, and Zacher stated it was " bunk" or fake acid. After bringing Zacher to the law enforcement center, the officer performed a test which indicated the small pieces of paper in the plastic bag contained LSD. When the officer confronted Zacher about the test results, Zacher admitted the LSD was real.

[¶3] Zacher was charged with possession of a controlled substance, driving under suspension, and driving under the influence of drugs. Zacher moved to suppress the evidence found by the officer, arguing the officer lacked probable cause to search the interior of his vehicle after he had been arrested and placed in the officer's vehicle. After a hearing, the district court denied Zacher's motion, finding that because the contraband was in plain view, it was lawfully seized. Zacher then conditionally pled guilty to possession of a controlled substance, reserving his right to appeal the denial of his motion to suppress. Zacher was sentenced to one year of incarceration, with one year suspended and two years' probation.

[¶4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal from the criminal convictions was timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const. art. VI, § § 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶5] On appeal, Zacher argues the district court erred in denying his motion to

Page 849

suppress evidence, because the plain view doctrine does not apply and the plastic bag should not have ...


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