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City of Grand Forks v. Reilly

Supreme Court of North Dakota

June 7, 2017

City of Grand Forks, Plaintiff and Appellee
v.
Kevin Jason Reilly, Defendant and Appellant

         Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Jon J. Jensen, Judge.

          Sarah W. Gereszek, Grand Forks, ND, for plaintiff and appellee.

          Mathew V. Jensen (on brief) and Tyler J. Morrow (argued), Grand Forks, ND, for defendant and appellant.

          OPINION

          CROTHERS, JUSTICE.

         [¶ 1] Kevin Reilly appeals a criminal judgment entered after conditionally pleading guilty to having actual physical control of a vehicle while under the influence of alcohol. Reilly reserved the right to appeal the district court's denial of his motion to suppress evidence and dismiss his case. Reilly argues the district court erred in denying his motion by ruling the stop was a casual encounter and did not violate his Fourth Amendment rights. We affirm.

         I

         [¶ 2] In March 2016 Grand Forks Police Corporal Robert Buelow and Officer Daniel Essig received a call from dispatch of a possible drunk driver, describing the color of the vehicle, the license plate number and the area the vehicle was last seen. The officers located the vehicle, parked with its headlights on, at the apartment building of the vehicle's registered owner. The officers parked about 20-30 feet away from the vehicle and did not activate the overhead lights. Buelow testified he observed Reilly stumble and regain his balance while getting out of the vehicle. Buelow attempted to get his attention by saying, "Excuse me, sir, " but Reilly kept walking towards the apartment door. Buelow ran ahead of Reilly to meet him on the sidewalk. Buelow did not know whether Reilly was intentionally ignoring him.

         [¶ 3] When Buelow was in front of Reilly, Buelow asked if he was okay, but Reilly did not verbally answer. According to Buelow, he "explained to [Reilly] that he got called in as a possible drunk driver. [Reilly] shook his head and kind of shrugged his shoulders." Reilly was observed swaying and smelled of alcohol. Buelow asked him for his driver's license. Reilly took out his driver's license but, instead of handing it to Buelow, he began arguing about the stop. According to Buelow, Reilly's speech was slurred and he was not making complete sentences. Buelow took the license and after identifying Reilly brought him to the squad car for field sobriety tests. Reilly was charged with having actual physical control of a vehicle while under the influence of alcohol.

         [¶ 4] Reilly filed a motion to suppress evidence and dismiss his case, arguing he was unlawfully seized in violation of the Fourth Amendment. The City argued the officers were performing a community caretaker function when approaching Reilly. After a hearing, the district court entered an order denying Reilly's motion to suppress evidence and dismiss. The district court determined the officers were not acting in the community caretaker role but Reilly's Fourth Amendment rights were not violated. The district court ruled the officers did not threaten Reilly with a show of authority and reasonable suspicion existed. Reilly conditionally pled guilty, reserving his right to appeal the district court's order denying his motion to suppress evidence and dismiss. Reilly appeals.

         II

         [¶ 5] Reilly argues the district court erred in denying his motion to suppress evidence and dismiss his case. This Court applies a deferential standard when reviewing a district court's decision on a motion to suppress:

"[W]e give deference to the district court's findings of fact and we resolve conflicts in testimony in favor of affirmance. State v. Tognotti, 2003 ND 99, ¶ 5, 663 N.W.2d 642. We 'will not reverse a district court decision on a motion to suppress... if there is sufficient competent evidence capable of supporting the court's findings, and if the decision is not contrary to the manifest weight of the evidence.' State v. Gefroh, 2011 ND 153, ¶ 7, 801 N.W.2d 429. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. Id. " State v. Kaul, 2017 ND 56, ¶ 5, 891 N.W.2d 352 (quoting State v. Reis, 2014 ND 30, ¶ 8, 842 N.W.2d 845).

         [¶ 6] Reilly argues the district court erred in determining the stop was a casual encounter that did not violate his Fourth Amendment rights. The Fourth Amendment prohibits unreasonable searches and seizures. Abernathey v. Department of Transp., 2009 ND 122, ¶ 8, 768 N.W.2d 485. "A temporary restraint of a person's freedom, or a 'Terry stop, ' is a seizure within the meaning of the Fourth Amendment." City of Jamestown v. Jerome, 2002 ND 34, ¶ 5, 639 N.W.2d 478 (citing Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). A "Terry Stop" must be supported by reasonable and articulable suspicion of criminal activity. Richter v. North Dakota Dept. of Transp., 2010 ND 150, ¶ 9, 786 N.W.2d 716. "[A] person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at ¶ 10 (citations and quotation marks omitted).

         [¶ 7] "[N]ot all personal intercourse or communications between law enforcement officers and citizens involve seizures implicating Fourth Amendment rights." City of Jamestown v. Jerome, 2002 ND 34, ¶ 5, 639 N.W.2d 478. "For example, a community caretaking encounter does not constitute a seizure within the meaning of the Fourth Amendment." Id. In State v. Langseth, 492 N.W.2d 298, 300 (N.D. 1992), this Court held an officer's approach of a parked vehicle is not a seizure if the officer "inquires of the occupant in a conversational manner, does not order the person to do something, and does not demand a response." Further, this Court has held it is not a seizure for an officer to walk up to and talk to a person in a public place. State v. Steinmetz, 552 N.W.2d 358, 360 (N.D. 1996). "A seizure occurs within the context of the ...


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