from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce A. Romanick, Judge.
Melanie Price Dornonville de la Cour, Assistant State's
Attorney, Burleigh County State's Attorney's Office,
for plaintiff and appellee.
Brown Weiler, for defendant and appellant.
1] Claude Joseph Mercier appeals after he pled guilty to
possession of methamphetamine and possession of drug
paraphernalia, reserving the right to appeal the denial of
his motion to suppress evidence. Because the district court
properly denied the motion to suppress, we affirm the
2] According to testimony at the suppression hearing, at
around 11 p.m. on May 4, 2015, Bismarck Police Officer April
McCarthy was dispatched to an area for a report of suspicious
activity. The identified caller described the suspect as a
white male wearing a black t-shirt, and believed this suspect
and a female individual were trying to rob him. When Officer
McCarthy arrived near the scene, she observed a male who
matched the description given, later identified as Mercier,
near the location indicated by the caller. She got out of her
vehicle and asked Mercier for identification, which he said
was in his backpack at a house across the street. When asked
for his name, Mercier identified himself as "Dewayne
Liggins" with a birth date of March 29, 1989, then as
"Dewayne Liggins" with a birth date of March 2,
1989, and then again as the same individual but from South
Dakota. Each time Officer McCarthy attempted to run this
information through dispatch, it came back negative, or not
3] While Officer McCarthy was attempting to identify Mercier,
Bismarck Police Officers Swenson and Bratsch also arrived on
the scene. Officer Swenson came to the scene because he
recognized the name Dewayne Liggins when he heard it over the
radio. Swenson informed McCarthy that he had known a Dewayne
Liggins previously and that he was an African-American male.
When Mercier informed the officers his backpack containing
his identification was across the street, the officers asked
him whether they could "go get the backpack."
Mercier gave the officers a description of the backpack, and
when Officer Bratsch went to retrieve the described backpack,
someone at the house told him "this is C.J.'s."
The name differed from the one Mercier had been giving the
officers. The record is silent as to whether the backpack was
retrieved from inside or outside the house where Mercier said
it was located. Upon Officer Bratsch's return with the
backpack, Mercier confirmed it was his. He declined to allow
the officers to search the backpack themselves, but was
allowed to go through it slowly himself to obtain his
identification. When asked whether there were any weapons in
the backpack, Mercier replied there was a knife. The officers
then placed Mercier in handcuffs for safety purposes and
searched him. While searching him, Officer Bratsch pulled
Mercier's wallet out of his pocket and found it contained
two identification cards, one belonging to Claude Mercier and
one to Dwayne Liggins, as well as some marijuana. After
running the correct name and date of birth through dispatch,
the officers discovered Mercier had active warrants for his
arrest. He was arrested, placed in the back of a squad car,
and read his Miranda rights. The officers searched
Mercier's backpack, finding several items that had been
reported stolen as well as methamphetamine and drug
paraphernalia. Mercier was initially arrested and held on
possession of stolen property, possession of marijuana, false
information to law enforcement, two counts of possession of
drug paraphernalia, and ingestion of a controlled substance.
4] After Mercier was formally charged with possession of drug
paraphernalia and possession of methamphetamine, he moved to
suppress evidence, claiming the police officers'
questioning of him and searches of his backpack and wallet
were illegal searches and seizures in violation of the Fourth
Amendment. After a hearing, the district court denied the
motion. Mercier conditionally pled guilty to the charges.
5] 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.
6] On appeal, Mercier argues the police questioning of him
and searches of his backpack and wallet were illegal searches
and seizures in violation of the Fourth Amendment.
7] This Court applies a deferential standard of review when
reviewing a district court decision on a motion to suppress:
The trial court's disposition of a motion to suppress
will not be reversed if, after 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. That standard of review
recognizes the importance of the trial court's
opportunity to observe the witnesses and assess their
credibility, and we "accord great deference to its
decision in suppression matters."
State v. Sabinash, 1998 ND 32, ¶ 8, 574 N.W.2d
827 (citations omitted).
8] "In the context of law enforcement-citizen contacts,
a 'Terry' stop, or investigative stop, temporarily
restrains an individual's freedom, which results in a
Fourth Amendment seizure." State v. Boyd, 2002
ND 203, ¶ 13, 654 N.W.2d 392 (citing State v.
Glaesman, 545 N.W.2d 178, 182 (N.D. 1996)). "Within
the meaning of the Fourth Amendment, a seizure occurs
whenever an officer stops an individual and restrains his
freedom." Terry v. Ohio, 392 U.S. 1, 16 (1968).
" Terry created a limited exception to this
general rule: certain seizures are justifiable under the
Fourth Amendment if there is articulable suspicion that a
person has committed or is about to commit a crime."
Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319
(1983). See also Glaesman, 545 N.W.2d at 182
(citations omitted) ("An investigative stop must be
'justified by some objective manifestation that the
person stopped is, or is about to be, engaged in criminal
9] In applying the Supreme Court's decision in
Terry, we have said that in reviewing a
Terry stop, a court must "(1) determine whether
the facts warranted the intrusion of the individual's
Fourth Amendment rights, and if so, (2) determine whether the
scope of the intrusion was reasonably related to the
circumstances which justified the interference in the first
place." State v. Sarhegyi, 492 N.W.2d 284, 286
(N.D. 1992). "We use an objective standard: would a
reasonable person in the officer's position be justified
by some objective evidence in believing the defendant was, or
was about to be, engaged in unlawful activity?"
State v. Boyd, 2002 ND 203, ¶ 14, 654 N.W.2d
392 (citing State v. Indvik, 382 N.W.2d 623, 627
10] To determine whether an officer has a reasonable and
articulable suspicion, we examine the information known to
the officer at the time of the stop. State v.
Robertsdahl, 512 N.W.2d 427, 428 (N.D. 1994) (citing
State v. Miller, 510 N.W.2d 638 (N.D. 1994)). The
reasonable-and-articulable-suspicion standard requires that
the officer justify the stop "with more than just a
vague 'hunch' or other non-objective facts; and...
the articulable facts must produce, by reasonable inference,
a reasonable suspicion of unlawful conduct."
Bryl v. Backes, 477 N.W.2d 809, 811 n.2 (N.D. 1991)
(quoting State v. VandeHoven, 388 N.W.2d 857, 858
n.1 (N.D. 1986)). In Geiger v. Backes, 444 N.W.2d
692, 693 (N.D. 1989), this Court noted law enforcement
officers do not have to analyze the individual factors of a
case in a vacuum. They also are not required "to point
to a single factor which, standing alone, signals a potential
violation of the law. Rather, officers are to assess the
situation as it unfolds and, based upon inferences and
deductions drawn from their experience and training, make the
determination whether all of the circumstances viewed
together create a reasonable suspicion of potential criminal
11] Here Mercier argues he was seized, for purposes of the
Fourth Amendment, prior to the officers' development of
reasonable suspicion. He claims he was seized during his
initial encounter with Officer McCarthy when she stopped him
and asked him for identification. The State argues Mercier
was not seized during his initial encounter with Officer
12] Not all encounters between law enforcement officers and
citizens constitute "seizures" implicating the
Fourth Amendment. City of Jamestown v. Jerome, 2002
ND 34, ¶ 5, 639 N.W.2d 478. "It is not a Fourth
Amendment seizure for a police officer to approach and talk
with a person in a public place...." State v.
Leher, 2002 ND 171, ¶ 7, 653 N.W.2d 56. A police
officer's "approach... is not a seizure if the
officer inquires... in a conversational manner, does not
order the person to do something, and does not demand a
response." State v. Langseth, 492 N.W.2d 298,
300 (N.D. 1992). A casual encounter between an officer and a
citizen can become a seizure if "a reasonable person
would view the officer's actions-if done by another
private citizen-as threatening or offensive." State
v. Boyd, 2002 ND 203, ¶ 7, 654 N.W.2d 392. A
seizure occurs only when "the officer, by means of
physical force or show of authority, has in some way
restrained the liberty of a citizen." Sayler v.
North Dakota Dep't of Transp., 2007 ND 165, ¶
18, 740 N.W.2d 94.
13] In this case, Officer McCarthy did not need reasonable
suspicion simply to approach Mercier and speak with him in a
conversational manner. The issue is whether McCarthy
escalated the casual encounter into a seizure by ordering
Mercier "to do something, by demanding a response, or by
threatening [him] with a show of authority or command, "
and if so, whether she had reasonable suspicion to order him
to stop and identify himself. City of Jamestown v.
Jerome, 2002 ND 34, ¶ 9, 639 N.W.2d 478. This Court
has held: "If... an officer directs a citizen to exit a
parked vehicle, or otherwise orders a citizen to do
something, then the officer has arguably made a stop which,
consistent with the Fourth Amendment rights of the citizen,
requires the officer to have a reasonable and articulable
suspicion that person has been or is violating the law."
State v. Leher, 2002 ND 171, ¶¶ 7, 10, 653
14] Under N.D.C.C. § 29-29-21 (emphasis added):
A peace officer may stop any person abroad in a public place
whom the officer reasonably suspects is committing,
has committed, or is about to commit:
(1) Any felony.
(2) A misdemeanor relating to the possession of a concealed
or dangerous weapon or weapons.
(3) Burglary or unlawful entry.
(4) A violation of any provision relating to possession of
marijuana or of narcotic, hallucinogenic, depressant, or
The peace officer may demand of such person the person's
name, address, and an explanation of the person's
15] Here the initial contact between Officer McCarthy and
Mercier occurred when McCarthy approached Mercier for the
purpose of having him identify himself because he matched the
physical description of a suspicious person recently reported
in the area. Under this Court's case law, a simple
request made by McCarthy for Mercier to identify himself
would not be a seizure for purposes of the Fourth Amendment.
A command to do so, however, would be. See State v.
Leher, 2002 ND 171, ¶¶ 7, 10, 653 N.W.2d 56.
16] Officer McCarthy testified at the suppression hearing
regarding her initial encounter with Mercier. She testified
she got out of her vehicle to speak with him and asked him
for his identification card or some sort of identification.
Mercier informed McCarthy that his identification was in his
backpack at a house across the street. When asked if she
specifically told Mercier whether or not he was free to
leave, McCarthy stated that "the only thing I told him
was that once I identify him and he came up where he
didn't have any kind of warrants, he was going to be cut
loose as long as he wasn't involved in this
investigation." We believe a reasonable person in
Mercier's position would not feel free to leave at that
moment until he or she provided identification. Officer
McCarthy was ordering Mercier to do something (provide
identification), and told Mercier he would be "cut
loose" as soon as he did so. This is an order to do
something which, consistent with the Fourth Amendment rights
of the citizen, "requires the officer to have a
reasonable and articulable suspicion that person has been or
is violating the law." Leher, 2002 ND 171,
¶¶ 7, 10, 653 N.W.2d 56.
17] We conclude Officer McCarthy did have a reasonable
suspicion Mercier was, or was about to be, engaged in
criminal activity. While normally his action of simply
walking on the street would not suggest criminality, when
paired with the information known to Officer McCarthy at the
time, his actions could give rise to reasonable suspicion.
The United States Supreme Court has held that in evaluating
the validity of an investigatory stop to determine whether
there was reasonable suspicion of criminal activity, courts
must consider the totality of the circumstances. United
States v. Sokolow, 490 U.S. 1, 8 (1989). The Court
Any one of these factors is not by itself proof of any
illegal conduct and is quite consistent with innocent travel.
But we think taken together they amount to reasonable
suspicion.... We said in Reid v. Georgia, 448 U.S.
438 (1980) (per curiam), "there could, of course, be
circumstances in which wholly lawful conduct might justify
the suspicion that criminal activity was afoot."
Id., at 441, 100 S.Ct. at 2754. Indeed,
Terry itself involved "a series of acts, each
of them perhaps innocent" if viewed separately,
"but which taken together warranted further
Sokolow, 490 U.S. at 9-10. The facts in this case,
when viewed in their totality through the eyes of a trained
law enforcement officer, are sufficient to give rise to a
reasonable suspicion of unlawful activity. Mercier matched
the description of a suspicious person reported to the
police, and he was in the location reported to the police
late at night when few other people would be out.
Additionally, when he did comply and provide information
regarding his identity to the officers, it was clear he was
providing false information, because nothing he provided came
back as valid. Therefore, while Mercier was
"seized" for purposes of the Fourth Amendment, the
seizure was reasonable and valid under the circumstances of
this case. The district court did not err in finding the
seizure to be valid. 
18] Mercier also argues the searches of both his wallet and
backpack were unlawful under the Fourth Amendment. The State
argues these searches were valid exceptions to the warrant
requirement as searches incident to a lawful arrest.
19] Under the Fourth Amendment of the United States
The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches and
seizures, shall not be violated; and no warrants shall issue
but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.
North Dakota Constitution similarly prohibits unreasonable
searches and seizures. See N.D. Const. art. I,
20] The United States Supreme Court has held "searches
conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable
under the Fourth Amendment-subject only to a few specifically
established and well-delineated exceptions." Katz v.
United States, 389 U.S. 347, 357, 88 S.Ct. 507 (1967)
(footnote omitted). A search incident to a lawful arrest is
one such exception. Weeks v. United States, 232 U.S.
383, 392, 34 S.Ct. 341 (1914). We have held that "[a]
search incident to arrest is justified because '[a]
custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that
intrusion being lawful, a search incident to the arrest
requires no additional justification... [i]t is the fact of
the lawful arrest which establishes the authority to
search.'" State v. Overby, 1999 ND 47,
¶ 7, 590 N.W.2d 703 (quoting United States v.
Robinson, 414 U.S. 218, 235 (1973)).
21] The United States Supreme Court has also held that so
long as probable cause to arrest exists before the search,
and the arrest is substantially contemporaneous, a
warrantless search preceding arrest is reasonable under the
Fourth Amendment. See Rawlings v. Kentucky, 448 U.S.
98, 111, 111 n.6 (1980) ("Where the formal arrest
followed quickly on the heels of the challenged search of
petitioner's person, we do not believe it particularly
important that the search preceded the arrest, rather than
vice versa, " so long as the fruits of the search were
"not necessary to support probable cause to
22] Under the Rawlings search incident to arrest
rationale, Officer Bertsch's search of Mercier was
reasonable if (1) Bertsch had probable cause to arrest
Mercier before searching him; and (2) the arrest was
substantially contemporaneous to the search. Id.
Mercier claims the search of his wallet was an illegal
pat-down search because the officer knew it was a wallet and
had no reason to believe it was a dangerous weapon. The
Supreme Court has held, "[I]t is reasonable for the
arresting officer to search the person arrested in order to
remove any weapons that the latter might seek to use in order
to resist arrest or effect his escape.... In addition, it is
entirely reasonable for the arresting officer to search for
and seize any evidence on the arrestee's person in order
to prevent its concealment or destruction." Chimel
v. California, 395 U.S. 752, 763, 89 S.Ct. 2034 (1969).
Similarly, in United States v. Robinson, 414 U.S.
218, 236, 94 S.Ct. 467 (1973), the Court noted, "Having
in the course of a lawful search come upon the crumpled
package of cigarettes, [the officer] was entitled to inspect
23] Here the officers searched Mercier when he said there was
a knife in his backpack while he was rifling through it to
find his identification. This search was subsequent to his
being handcuffed, but prior to his being placed formally
under arrest. While a warrantless search prior to formal
arrest should be the exception to the ordinary practice of a
search following arrest, the facts of this case demonstrate
that the officers had probable cause to arrest Mercier, even
absent any of the evidence obtained during the pre-arrest
search. At the time Mercier was placed in handcuffs and his
wallet was searched, the officers already knew he was not the
person he was claiming to be. Officer Swenson specifically
knew who Dwayne Liggins was and knew he was African-American,
which Mercier was not. Although his formal arrest occurred
after the search, this does not invalidate the search since
the officers already had probable cause to arrest him for
giving them false information ...