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State v. Montgomery

Supreme Court of North Dakota

January 22, 2018

State of North Dakota, Plaintiff and Appellee
v.
Shawn Alvah Montgomery, Defendant and Appellant

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia Feland, Judge.

          Derek K. Steiner, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

          Chad R. McCabe, Bismarck, ND, for defendant and appellant.

          OPINION

          Crothers, Justice.

         [¶ 1] Shawn Alvah Montgomery appeals from a criminal judgment entered after his conditional guilty plea to a charge of driving under the influence. Montgomery argues the State violated his Fourth Amendment right to be free from an unreasonable search by compelling his consent to a blood test. We affirm, concluding the district court did not err in denying Montgomery's motion to suppress.

         I

         [¶ 2] On October 1, 2016, Sergeant Michael Stoltz stopped Montgomery's vehicle for speeding. Sergeant Stoltz noticed signs of inebriation, conducted field tests, read the statutory implied consent advisory, [1] and administered an onsite screening test. Sergeant Stoltz placed Montgomery under arrest after the test indicated Montgomery was above the legal limit. Sergeant Stoltz then read Montgomery his Miranda rights and the statutory implied consent advisory a second time. Sergeant Stoltz did not read the criminal penalties portion of the advisory at first, but read it to Montgomery the second time. Montgomery requested a blood test before Sergeant Stoltz reached the end of the advisory to ask for consent to a chemical test. Montgomery later recalled feeling "intimidated, " and testified he would have taken a breath test instead of a blood test.

         [¶ 3] On October 1, 2016, the State charged Montgomery with driving under the influence of alcohol in violation of N.D.C.C. § 39-08-01. Montgomery filed a motion to suppress, and the district court held a suppression hearing on January 30, 2017. At the suppression hearing the district court heard testimony from both Sergeant Stoltz and Montgomery as well as listened to the audio recording of the arrest. The district court noted an extended dialogue between Sergeant Stoltz and Montgomery, leaving Montgomery ample opportunity to ask questions before he volunteered to take a blood test. The district court denied the motion to suppress after finding Montgomery gave voluntary consent. Montgomery signed a conditional guilty plea on April 19, 2017, which was filed on April 25, 2017.

         II

         [¶ 4] Our standard of review for a trial court's ruling on a motion to suppress is well-established:

"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. Bjornson, 531 N.W.2d 315, 317 (N.D. 1995) (citations omitted) (quoting State v. Brown, 509 N.W.2d 69, 71 (N.D. 1993)). "Whether findings of fact meet a legal standard is a question of law. While we do not conduct a de novo review of the findings of fact, questions of law are fully reviewable." State v. Kitchen, 1997 ND 241, ¶ 12, 572 N.W.2d 106 (citations omitted). Thus, we review whether sufficient competent evidence supported the district court's finding of voluntary consent, whether the district court correctly applied the law in its findings, and whether denial of Montgomery's motion to suppress was contrary to the manifest weight of the evidence. See Kitchen, at ¶¶ 11 73;12; Bjornson, at 317.

         [¶ 5] A blood test is a search for purposes of the Fourth Amendment. Birchfield v. North Dakota, 136 S.Ct. 2160, 2178 (2016); State v. Boehm, 2014 ND 154, ¶ 18, 849 N.W.2d 239. A warrantless search is presumptively unreasonable, but an exception to the warrant requirement may render a warrantless search reasonable. State v. Torkelsen, 2008 ND 141, ¶ 21, 752 N.W.2d 640. Consent is one such exception, provided the consent is voluntary. Id. The State bears the burden of showing voluntariness. Id. "[M]otorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Birchfield, at 2186. "The totality of the circumstances must be examined to determine voluntariness. The inquiry focuses on two non-determinative elements: (1) the characteristics and conditions of the accused at the time of the confession, including the age, sex, race, education level, physical or mental condition, and prior experience with police; and (2) the details of the setting in which the confession was obtained, including the duration and conditions of detention, police attitude toward the defendant, and the diverse pressures that sap the accused's powers of resistance or self-control." State v. Syvertson, 1999 ND 134, ¶ 20, 597 N.W.2d 652 (citations omitted). "Because the district court is in a superior position to judge credibility and weight, we show great deference to the court's determination of voluntariness." State v. Torkelsen, 2008 ND 141, ¶ 21, 752 N.W.2d 640 (quotation marks omitted) (quoting State v. Genre, 2006 ND 77, ¶ 30, 712 N.W.2d 624).

         [¶ 6] Montgomery argues the district court should have suppressed the blood test results because the State did not meet its burden of proving voluntary consent. Montgomery equates his situation to Hawkins, in which this Court upheld a motion to suppress blood test results. State v. Hawkins, 2017 ND 172, ¶ 10, 898 N.W.2d 446 (affirming the district court's finding of involuntary consent under the totality of the circumstances). In Hawkins, the defendant refused the onsite screening test after receiving an implied consent advisory, then asked to take a blood test before the officer could complete a second advisory. Id. at ¶ 2. At a subsequent suppression hearing the district court heard testimony from the arresting officer and reviewed dash cam footage. Id. at ¶ 3. The district court in Ha ...


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