from the District Court of Burleigh County, South Central
Judicial District, the Honorable Thomas J. Schneider, Judge.
K. Demello Rice (argued) and Julie A. Lawyer (on brief),
Assistant State's Attorneys, Burleigh County Courthouse,
for plaintiff and appellee.
Costa Kraus-Parr, for defendant and appellant.
1] Tyler Asbach appeals the district court's criminal
judgment entered on a conditional plea of guilty, reserving
the right to appeal and seeking review of the order denying
his motion to suppress evidence. On appeal, he argues the
district court erred in its amended order in concluding
evidence found when his suitcase was searched was admissible
under the inevitable discovery doctrine. Specifically, he
claims the police officer was acting in bad faith to
accelerate discovery of the challenged evidence by exceeding
the scope of consent to search. We affirm.
2] The relevant facts in this case are summarized in
State v. Asbach, 2015 ND 280, 871 N.W.2d 820. A
brief recitation of those facts regarding the issue for this
appeal are summarized below.
3] According to testimony at the suppression hearing, in
April 2014 Officer Colt Bohn stopped a vehicle for making an
illegal turn. Bohn stopped the vehicle at the request of
another drug enforcement officer who thought he recognized
the driver of the vehicle. Bohn spoke briefly with the
occupants, later identified as Tyler Asbach and Clinton
Walker, who told him they were traveling in a rented car from
Washington State to Indiana to visit Asbach's mother.
Asbach and Walker both provided identification and denied
there was anything illegal in the vehicle.
4] Officer Bohn testified he is a certified drug recognition
expert for the Bismarck Police Department and has had
training in drug interdiction specific to motor vehicles,
including training to recognize suspicious indicators that
there may be something illegal inside a vehicle. On the basis
of this training and the travel plans of Asbach and Walker,
Bohn believed they might be trafficking illegal drugs.
5] Officer Bohn provided the names and travel plans of Asbach
and Walker to the officer who had requested the stop, and
that officer said he did not know them. Bohn ran their
identities through dispatch and requested another officer
come to the location. Officer Bleth arrived on scene to
assist, and Asbach and Walker were separated by the officers
to question them about their trip. Bohn asked Asbach for
consent to search the vehicle, but Asbach stated he could not
give consent because Walker rented the vehicle. Bohn then
spoke to Walker, who gave permission for him to search the
6] Officer Bohn searched the vehicle while Asbach and Walker
stood with the backup officer near his squad car. Bohn did
not find anything illegal while searching the passenger
compartment of the vehicle. Bohn asked Walker to open the
trunk of the vehicle, and he complied. The trunk contained
several backpacks and some suitcase luggage. Bohn did not ask
who owned which items in the trunk before he searched them.
In a suitcase, later identified as belonging to Asbach, Bohn
found a large heat-sealed bag containing numerous items with
marijuana leaves on them, which he believed were edible
products containing marijuana. In one of the duffel bags,
Bohn found a heat-sealed package of marijuana. Neither Asbach
or Walker ever requested that the search be stopped. Both
individuals were arrested, and Walker claimed ownership of
the marijuana found in the duffel bag after his arrest.
7] Asbach was charged with possession of marijuana with
intent to deliver and possession of tetrahydrocannabinols
with intent to deliver. He moved to suppress the evidence,
which the district court denied after a hearing. The court
found the officer's search of Asbach's suitcase
without first obtaining his consent was illegal, but under
the inevitable discovery doctrine, the contraband was
admissible because the suitcase would have been searched
after the marijuana was discovered in Walker's duffel
bag. Asbach conditionally pled guilty, reserving his right to
appeal. On appeal, this Court affirmed in part, reversed in
part, and remanded to the district court for further
proceedings to determine whether the State proved that the
officer was not acting in bad faith to accelerate discovery
of the challenged evidence. State v. Asbach, 2015 ND
280, ¶ 21, 871 N.W.2d 820.
8] On remand, the district court found the officer was not
acting in bad faith to accelerate discovery of the challenged
evidence. Asbach appealed.
9] 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. ...