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State v. Broom

Supreme Court of North Dakota

June 5, 2018

State of North Dakota, Plaintiff and Appellee
v.
Jessica Ann Broom, Defendant and Appellant

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

          Justin J. Schwarz, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

          Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

          OPINION

          VandeWalle, Chief Justice.

         [¶ 1] Jessica Ann Broom appealed from a judgment entered upon a conditional guilty plea to possession of drug paraphernalia and possession of a controlled substance with intent to deliver, reserving her right to appeal the denial of her motion to suppress evidence. We conclude the police officer's invasive search of Broom's person violated her rights under the Fourth Amendment and N.D. Const. art. I, § 8. We reverse and remand for further proceedings.

         I

         [¶ 2] On March 3, 2017, Bismarck Police Officers Jones and Girodat were patrolling near the intersection of 12th Street and Main Street in Bismarck. While waiting for a train to pass, the officers checked the license plate of the red 1998 Pontiac Grand Prix in front of them. The license plate check revealed the car was stolen, and once the train passed, the officers stopped the vehicle. Because the stop was a "felony, high-risk" stop, the officers approached the stolen vehicle with their handguns out. Officer Jones approached the driver's side. Officer Girodat approached the passenger side. The officers repeatedly instructed the occupants to get their hands up, and the driver complied immediately. The passenger, who the officers recognized from previous drug arrests as Jessica Broom, did not comply with the officers' orders. Broom moved side to side in the vehicle, made furtive movements in the passenger compartment, and did not put her hands up.

         [¶ 3] Officer Jones took the driver into custody while Officer Girodat detained Broom after removing her from the vehicle. Other officers arrived at the scene and a female officer, Officer Gallagher, approached as Broom was being handcuffed. Officers Jones and Girodat told Officer Gallagher that Broom was known to conceal items in her orifices, had not complied with commands, and she appeared to be moving around in the vehicle after the stop. As Officer Gallagher conducted a pat-down search of Broom's person, she felt a large, soft bulge in Broom's bra which Broom claimed was cash. Officer Gallagher retrieved the money from the bra to verify Broom's claim. In addition to a wad of money, Officer Gallagher discovered a baggie filled with several other baggies, a small glass vial, and a rolled-up ten dollar bill. Officer Gallagher put Broom in the back of her police car and placed her under arrest.

         [¶ 4] Broom was charged with possession of drug paraphernalia and possession of a controlled substance with intent to deliver, and subsequently moved to suppress all evidence obtained as a result of the search. On August 17, 2017, a hearing was held. The district court denied Broom's motion to suppress evidence, finding under the totality of the circumstances the officers had sufficient concern for their safety, and, therefore, the search was permissible under the Fourth Amendment. The district court explained:

The uncertainty of what Broom was concealing, together with the facts that Broom was discovered in a stolen vehicle, that Broom had failed to comply with their lawful commands and continued to make furtive actions after being directly told to stop doing the same, her extreme anxiety and nervousness, in addition to the officer's knowledge of Broom's criminal history and ability to furtively conceal items on and in her body, they had reasonable grounds to search for possible weapons and to determine what was concealed in her bra.

         II

         [¶ 5] On appeal, Broom argues Officer Gallagher exceeded the scope of the Terry frisk by searching in her bra, and, therefore, all evidence obtained as a result of the search should be suppressed.

         [¶ 6] This Court reviews a district court's decision on a motion to suppress as follows:

[W]e give deference to the district court's findings of fact and we resolve conflicts in testimony in favor of affirmance. 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. Questions of law are fully ...

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