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State v. Mercier

Supreme Court of North Dakota

August 17, 2016

State of North Dakota, Plaintiff and Appellee
Claude Joseph Mercier, Defendant and Appellant

         Appeal 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.

          Bobbi Brown Weiler, for defendant and appellant.


          Sandstrom, Justice.

         [¶ 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 criminal judgment.


         [¶ 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 on file.

         [¶ 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 activity.'").

         [¶ 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 (N.D. 1986)).

         [¶ 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 activity." Id.

         [¶ 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 McCarthy.

         [¶ 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 N.W.2d 56.

         [¶ 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 stimulant drugs.
The peace officer may demand of such person the person's name, address, and an explanation of the person's actions....

         [¶ 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 stated:

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 investigation."

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. [1]


         [¶ 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 Constitution:

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.

         The North Dakota Constitution similarly prohibits unreasonable searches and seizures. See N.D. Const. art. I, § 8.

         [¶ 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 arrest.").

         [¶ 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 it."

         [¶ 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 ...

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