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State v. Ngale

Supreme Court of North Dakota

July 11, 2018

State of North Dakota, Plaintiff and Appellee
v.
Kenneth Ndumbe Ngale, Defendant and Appellant

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Thomas R. Olson, Judge.

          Mark R. Boening (argued), Assistant State's Attorney, and Kimberlee J. Hegvik (on brief), Assistant State's Attorney, Fargo, ND, for plaintiff and appellee.

          Luke T. Heck, Fargo, ND, for defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶ 1] Kenneth Ndumbe Ngale appeals from a judgment entered after he conditionally pled guilty to actual physical control of a motor vehicle. He argues the district court erred in denying his motion to suppress because he was seized and arrested by a person who was not a licensed law enforcement officer and did not have authority to investigate and arrest. We affirm.

         I

         [¶ 2] On January 7, 2017, Craig Keller, a volunteer reserve deputy for the Cass County Sheriff's Office, was on patrol and saw a running vehicle in the ditch with two male occupants. Keller stopped his squad car to conduct a motorist assist and to check on the occupants' welfare. Keller approached the vehicle and Ndumbe Ngale exited from the driver's door. After speaking to Ndumbe Ngale, Keller noted a strong odor of alcohol emanating from Ndumbe Ngale's breath, he had trouble keeping his balance, and he admitted he consumed alcohol earlier that evening. Keller contacted dispatch to request assistance and Cass County Sheriff's Deputy Chad Thompson arrived at the scene. Keller administered three field sobriety tests, two of which Ndumbe Ngale failed. Keller asked Ndumbe Ngale to submit to a preliminary breath test. Keller testified Ndumbe Ngale initially attempted to "trick" the machine by giving a partial breath and then pretending to blow, and he was unable to obtain an adequate sample. Deputy Thompson then advised Keller to attempt another test using the manual capture technique. Keller administered the preliminary breath test again, and the test indicated a blood alcohol concentration of 0.118 percent. Keller arrested Ndumbe Ngale for actual physical control of a motor vehicle. Ndumbe Ngale was transported to the Cass County Jail. At the jail, Deputy Thompson requested Ndumbe Ngale submit to a chemical test and Ndumbe Ngale refused. Ndumbe Ngale was charged with actual physical control of a motor vehicle and refusal to submit to a chemical test.

         [¶ 3] Ndumbe Ngale moved to suppress all evidence obtained after his seizure. He claimed the seizure was unlawful because Keller is an unlicensed peace officer with no field sobriety training, an individual may not perform peace officer duties without a license under state law, and Keller lacked probable cause to arrest him based on Keller's lack of DUI detection and field sobriety training. The State opposed the motion.

         [¶ 4] After a hearing, the district court denied Ndumbe Ngale's motion. The court found Keller is a reserve deputy, as a reserve deputy Keller is exempt from statutory licensing requirements, and Keller had probable cause to arrest Ndumbe Ngale for actual physical control.

         [¶ 5] Ndumbe Ngale conditionally pled guilty to the charge of actual physical control, and reserved the right to appeal the court's decision denying his motion to suppress. The charge of refusal to submit to chemical testing was dismissed.

         II

         [¶ 6] Ndumbe Ngale argues the district court erred by denying his motion to suppress. He claims N.D.C.C. § 12-63-02 requires a person performing peace officer law enforcement duties to be licensed, Keller is not a licensed law enforcement officer, and therefore Keller did not have authority to investigate and arrest him.

         [¶ 7] The district court denied Ndumbe Ngale's motion to suppress. The court concluded the officer licensing requirement under N.D.C.C. § 12-63-02 does not apply in this case because Keller meets the exception under N.D.C.C. § 12-63-03(2) for reserve officers who are not salaried and have full arrest authority. The court found Keller is not formally trained in DUI investigations, but evidence established he is competent and authorized to conduct an investigation. The court concluded Keller is not a special deputy because he does not meet the requirements for a special deputy under N.D.C.C. § 11-15-02, and he is a reserve deputy exempt from the licensing requirement under N.D.C.C. § 12-63-03(2). The court also rejected Ndumbe Ngale's arguments that Keller failed to satisfy the Cass County Sheriff's Office Reserve Unit minimum requirements as specified on the sheriff's office website. The court said the website does not show what the requirements were when Keller was sworn into the reserve unit, and there was no evidence he did not then meet the requirements for the reserve unit.

         [¶ 8] In reviewing a district court's decision on a motion to suppress, this Court gives deference to the district court's findings of fact and resolves conflicts in testimony in favor of affirmance. State v. Broom, 2018 ND 135, ¶ 6, 911 N.W.2d 895. The court's findings of fact will not be reversed on appeal if there is sufficient competent evidence fairly capable of supporting the findings. Id. ...


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