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State v. Asbach

Supreme Court of North Dakota

December 1, 2015

State of North Dakota, Plaintiff and Appellee
Tyler Asbach, Defendant and Appellant

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

Julie A. Lawyer, Assistant State's Attorney, for plaintiff and appellee.

Kiara C. Kraus-Parr, for defendant and appellant.



[¶ 1] Tyler Asbach appeals from a judgment entered after he conditionally pled guilty to a drug-related offense, reserving the right to challenge the denial of his motion to suppress evidence. We conclude: (1) Asbach was not illegally seized while the police officer was conducting duties related to the traffic stop; (2) the district court failed to make specific findings of fact as to whether the police officer acted in bad faith as required under the first part of the inevitable discovery test when searching beyond the scope of the consent to search; and (3) there was sufficient evidence to support a finding that contraband found in Asbach's suitcase would have inevitably been discovered after Asbach's suitcase was searched without his consent, satisfying the second part of the inevitable discovery test. We affirm in part, reverse in part, and remand.


[¶ 2] On April 30, 2014, Asbach was stopped by Bismarck Police Officer Colt Bohn for making an improper left turn. According to Bohn's testimony at the suppression hearing, he approached the vehicle, spoke with Asbach and a passenger, Clinton Walker, and was told Asbach was from Washington and Walker was from Indiana. Walker told Bohn he rented the vehicle in Indianapolis, drove to Washington to pick up Asbach, and they were returning to Indianapolis to visit Asbach's mother.

[¶ 3] After briefly speaking with Asbach and Walker, Bohn testified he returned to his vehicle and checked the status of their driver's licenses and checked whether there were any outstanding warrants. Bohn also called for backup to allow him to speak with Asbach and Walker separately to confirm their stories. Asbach told Bohn that Walker, his second cousin, drove to Washington and picked him up, and they were on their way back to Indianapolis to visit Asbach's mother, who was having surgery. Asbach told Bohn he did not know what type of surgery his mother was having, but indicated it was "for something gross." Bohn asked Asbach whether he could search the vehicle, but Asbach stated he could not give consent because Walker rented the vehicle. Bohn testified he then spoke with Walker, who stated he and Asbach, his third cousin, were traveling to Indianapolis to visit Asbach's mother, who was having carpal tunnel surgery. Walker told Bohn he rented the vehicle in Indianapolis on April 25, and it was due to be returned on May 2. Bohn requested to search the vehicle, and Walker consented. Bohn testified approximately twelve minutes elapsed from the time of the stop until the time Walker gave consent to search the vehicle. Bohn stated Asbach had not been given a ticket or warning for the traffic violation before Walker consented to a search of the vehicle.

[¶ 4] Bohn testified he is a certified drug recognition expert for the Bismarck Police Department and has attended multiple drug recognition and interdiction trainings, including trainings to look for suspicious indicators that may signal something is inside the vehicle that should not be. He testified renting a vehicle in Indianapolis, driving it to Washington to pick somebody up, and driving it back to Indianapolis in a very brief time was suspicious. He also stated the inconsistent stories about what kind of surgery Asbach's mother was having and how Asbach and Walker were related raised his suspicions that a search of the vehicle might reveal drugs.

[¶ 5] Bohn searched the vehicle while Asbach and Walker stood with the backup officer. After searching the interior of the vehicle, Bohn asked Walker to open the trunk, and Walker complied. The trunk contained several items, including backpacks, three large duffle bags, and a suitcase. Bohn testified he did not ask who owned the items in the trunk before he searched them. One of the first items removed and searched was a suitcase with a tag indicating it belonged to Asbach, and Bohn testified he did not notice the tag until after he had searched the suitcase. Inside the suitcase, Bohn found a large, heat-sealed bag containing numerous items with marijuana leaves on them, which he believed were marijuana edibles. In one of the large unmarked duffle bags, Bohn found a heat-sealed package of marijuana. Asbach and Walker never requested the search be stopped. Asbach and Walker were arrested and taken into custody. According to the affidavit attached to the complaint, Walker claimed ownership of the marijuana found in the duffle bag after his arrest.

[¶ 6] Asbach was charged with possession of marijuana with intent to deliver and possession of tetrahydrocannabinols (edible THC). Asbach moved to suppress the evidence found in the search, arguing he was illegally seized after the purposes of the traffic stop were completed. The district court denied the motion to suppress, finding Bohn did not take any action outside the duties related to the traffic stop and Asbach was not illegally seized. The court also found the officer's search of Asbach's suitcase without first obtaining his consent was illegal, but under the inevitable discovery doctrine, the contraband discovered in Asbach's suitcase was admissible because the suitcase would have been searched after marijuana was discovered in Walker's bag. Asbach conditionally pled guilty to the charges, reserving the right to appeal the denial of his motion to suppress.

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Asbach's appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.


[¶ 8] Asbach argues the district court erred in denying his motion to suppress because he was detained longer than necessary for a traffic stop and without reasonable suspicion. Asbach also argues the court erred in concluding the contraband found in his suitcase was admissible under the inevitable discovery doctrine. Asbach is not challenging Bohn's stop of the vehicle.

[¶ 9] This Court has discussed its standard of review of a district court's findings of fact in preliminary proceedings:

A trial court's findings of fact in preliminary proceedings of a criminal case will not be reversed if, after the conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence. We do not conduct a de novo review. We evaluate the evidence presented to see, based on the standard of review, if it supports the findings of fact.

City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D. 1994) (internal citations omitted).


[¶ 10] Asbach argues Bohn completed his duties related to the traffic stop after speaking with Asbach and any investigation after that was an extension of the traffic stop in violation of Asbach's constitutional right against unreasonable seizures under the Fourth Amendment of the United States Constitution and Article 1, § 8, of the North Dakota Constitution.

[¶ 11] "An officer may detain an individual at the scene of a traffic stop for a reasonable period of time necessary for the officer to complete his duties resulting from the traffic stop." State v. Deviley, 2011 ND 182, ¶ 9, 803 N.W.2d 561 (quoting State v. Franzen, 2010 ND 244, ¶ 8, 792 N.W.2d 533). The officer may check the driver's license and registration, ask the driver about his destination and purpose, and request the driver step over to the patrol car. State v. Guscette, 2004 ND 71, ¶ 7, 678 N.W.2d 126. The officer may also ask a passenger similar questions to confirm the information the driver provided. United States v. Brown, 345 F.3d 574, 578 (8th Cir. 2003). The investigative detention may continue as long as reasonably necessary to conduct duties relating to a traffic stop and to issue a warning or citation. Deviley, at ¶ 9.

[¶ 12] "The Fourth Amendment of the United States Constitution is violated by the continued seizure of a traffic violator after the purposes of the initial traffic stop are completed...." Id. See also United States v. Peralez, 526 F.3d 1115, 1119 (8th Cir. 2008) ("A constitutionally permissible traffic stop can become unlawful... 'if it is prolonged beyond the time reasonably required to complete' its purpose." (quoting Illinois v. Caballes, 543 U.S. 405, 407 (2005))). On-scene investigation into other crimes detours from the purpose of the stop. Rodriguez v. United States, 135 S.Ct. 1609, 1616 (2015). If, during the course of completing the duties resulting from a traffic stop, "the officer develops reasonable suspicion that other criminal activity is afoot, the officer may expand the scope of the encounter to address that suspicion." Peralez, at 1120; see also Rodriguez, at 1615. This Court has applied an objective standard to decide whether reasonable suspicion exists:

To determine whether a reasonable suspicion exists, we consider the totality of the circumstances and apply an objective standard, taking into consideration the inferences and deductions an investigating officer would make based on the officer's training and experience. The question is whether a reasonable person in the officer's position would be justified by some objective manifestation to suspect the defendant was, or was about to be, ...

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