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State v. Musselman

Supreme Court of North Dakota

June 7, 2016

State of North Dakota, Plaintiff and Appellee
Chili Carlene Musselman, Defendant and Appellant

         Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Thomas R. Olson, Judge.

          Gary E. Euren, Assistant State's Attorney, Cass County Courthouse, for plaintiff and appellee; submitted on brief.

          Benjamin C. Pulkrabek, for defendant and appellant; submitted on brief.


          Sandstrom, Justice.

         [¶ 1] Chili Musselman appeals after a jury found her guilty of possession of methamphetamine with intent to deliver. On appeal, she argues a Fourth Amendment violation because the police officers who arrested her did not have reasonable grounds to stop and question her. Because there was reasonable suspicion to stop her, the order denying the motion to suppress was proper, and we affirm the criminal judgment.


         [¶ 2] According to testimony at the suppression hearing, in October 2013, Fargo Police Officer Matt Christensen received information from a department detective that Musselman would be traveling from Washington State to Fargo on an Amtrak train and that she would have drugs in her possession. The detective had obtained this information from a named informant in another case. Officer Christensen testified the informant's information given to the detective matched up with other information he had been given from drug task force officers, including Christopher McCarthy. Officer Christensen passed the information on to other officers, including McCarthy, who were investigating Musselman in another case.

         [¶ 3] Officer McCarthy also testified at the suppression hearing that he and two other agents had been working on a multi-jurisdictional methamphetamine case from Washington to Fargo and that a number of people had told him Musselman was connected to the source for that case. The officers decided to attempt to make contact with Musselman when she got off the train in Fargo.

         [¶ 4] To verify the information given to him by Officer Christensen, McCarthy testified he spoke to a detective with the Amtrak police who verified that Musselman and a man traveling with her were due to arrive in Fargo on October 23rd. This information was further verified when the officers, while waiting at the Amtrak station for the train to arrive, noticed a man they recognized as Steven Buzalsky arrive in a vehicle registered to Musselman. Officer McCarthy testified he saw Musselman and a man with whom she appeared to be traveling get off the train and approach Buzalsky as he got out of the vehicle and walked toward them, further confirming these were the individuals they were looking for, based on the original information from the informant. Officer McCarthy testified that at this point and with this information at his disposal, he approached Musselman to ask her some questions regarding their investigations. Officer McCarthy testified his intent in approaching Musselman was to make contact with her and question her, since the information from Officer Christensen was consistent with the information they had that she was bringing drugs from Washington to Fargo. He testified a decision on any other action, such as an arrest, was to be made during questioning. Officer McCarthy testified the only time Musselman was ever told she was being detained was after they had actually found methamphetamine in her possession.

         [¶ 5] According to testimony at trial, there were 8 to 10 officers present at the Amtrak station, but only three were involved in actually talking with Musselman and the other individuals. Officer McCarthy testified Musselman was advised of the information the officers had, and they told her they wanted to speak with her about that information. He testified she became defensive, denied being involved with narcotics, and stated she wanted to speak with her boyfriend. Steven Buzalsky walked over to speak with her. McCarthy testified that when Buzalsky walked over, Musselman attempted to put a black cylinder into his pocket. Another officer opened the cylinder and identified the substance inside it as methamphetamine.

         [¶ 6] Musselman was charged with possession of methamphetamine with intent to deliver - 3rd offense or more, a class A felony. Before trial, she moved to suppress the evidence and dismiss the charge, claiming her questioning and arrest were an illegal search and seizure. The district court denied the motion. Musselman was found guilty and sentenced to twenty years' incarceration. She appealed, and this Court dismissed because the appeal was untimely. Musselman applied for post-conviction relief, claiming ineffective assistance of counsel because her attorney failed to appeal in a timely manner. After an evidentiary hearing, the district court granted partial relief by allowing this appeal of the original conviction.

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


         [¶ 8] On appeal, Musselman argues the police officers' meeting and questioning her was an unreasonable search and seizure in violation of the Fourth Amendment, and ...

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