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State v. Morsette

Supreme Court of North Dakota

March 15, 2019

State of North Dakota, Plaintiff and Appellee
v.
Travis James Morsette, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable James S. Hill, Judge.

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

          Christopher M. Redmann, Bismarck, ND, for defendant and appellant.

          OPINION

          MCEVERS, JUSTICE.

         [¶1] Travis Morsette appeals from a judgment entered upon a guilty plea to possession of a controlled substance and unlawful possession of drug paraphernalia, reserving his right to appeal the district court's order denying his motion to suppress evidence. Because we conclude there was not reasonable suspicion to initiate the traffic stop, we reverse the judgment and remand for further proceedings to allow Morsette to withdraw his guilty plea.

         I

         [¶2] On September 8, 2017, a law enforcement officer, while on patrol stopped at a red light, observed a driver in the adjacent lane manipulating his touchscreen cell phone for approximately two seconds. The officer testified to observing the driver, later identified as Morsette, tap approximately ten times on the illuminated cell phone screen. The officer initiated a traffic stop based on his observations of the cell phone screen manipulations. Morsette told the officer he was changing the music on his cell phone. The officer conducted an investigation and Morsette was arrested and charged with possession of a controlled substance and unlawful possession of drug paraphernalia.

         [¶3] Prior to trial, Morsette moved to suppress all evidence, claiming the officer lacked reasonable suspicion to conduct the traffic stop. The district court denied Morsette's motion, holding the traffic stop was an investigatory stop and the officer had reasonable and articulable suspicion to initiate it.

         [¶4] On appeal, Morsette argues the district court erred in determining the officer had reasonable and articulable suspicion to conduct the traffic stop and that the officer's actions cannot be excused as a mistake of fact or law.

          II

         [¶5] When reviewing a district court's decision on a motion to suppress, we:

defer to the district court's findings of fact and resolve conflicts in testimony in favor of affirmance. We affirm the district court's decision unless we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence.

State v. Wolfer, 2010 ND 63, ¶ 5, 780 N.W.2d 650 (internal quotations and citations omitted). "Questions of law and the ultimate conclusion about whether the facts support a reasonable and articulable suspicion are fully reviewable on appeal." State v. Smith, 2005 ND 21, ¶ 11, 691 N.W.2d 203 (citation omitted).

         III

         [¶6] "Investigatory traffic stops are valid when the officer conducting the stop had a reasonable and articulable suspicion the motorist has violated or is violating the law." Wolfer, 2010 ND 63, ¶ 6, 780 N.W.2d 650 (internal quotation and citation omitted). "The ultimate issue is whether a reasonable person in the officer's position would have been justified in stopping the vehicle because of some objective manifestation to suspect potential criminal activity." State v. James, 2016 ND 68, ¶ 7, 876 N.W.2d 720 (internal quotations and citations omitted). "The reasonable and articulable suspicion standard requires more than a 'mere hunch,' but less than probable cause." Gabel v. N.D. Dep't of Transp., 2006 ND 178, ¶ 20, 720 N.W.2d 433 (quoting Lapp v. N.D. Dep't of Transp., 2001 ND 140, ¶ 11, 632 N.W.2d 419). "Whether an officer had a reasonable and articulable suspicion is a fact-specific inquiry that is evaluated under an objective standard considering the totality of the circumstances." State v. Rahier, 2014 ND 153, ¶ 13, 849 N.W.2d 212 (citation omitted); see also U.S. v. Arvizu, 534 U.S. 266, 273 (2002) ("When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing.") (citation omitted). Additionally, "an officer's objectively reasonable mistake, whether of fact or law, may provide the reasonable suspicion necessary to justify a traffic stop." State v. Hirschkorn, 2016 ND 117, ¶ 14, 881 N.W.2d 244. "The reasonable suspicion standard does not require an officer to see a motorist violating a traffic law or to rule out every potential innocent excuse for the behavior in question before stopping a vehicle for investigation." Gabel, at ¶ 20 (citation omitted). As such, the actual commission of criminal activity is not required to support a finding of reasonable suspicion.

         [¶7] Here, the State concedes a seizure occurred but argues it was a reasonable investigatory traffic stop not ...


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