from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Jon J. Jensen,
W. Gereszek, Grand Forks, ND, for plaintiff and appellee.
V. Jensen (on brief) and Tyler J. Morrow (argued), Grand
Forks, ND, for defendant and appellant.
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.
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.
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 ...