from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
K. Steiner, Assistant State's Attorney, Bismarck, ND, for
plaintiff and appellee.
Christopher M. Redmann, Bismarck, ND, for defendant and
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.
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.
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
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
When reviewing a district court's decision on a motion to
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).
"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.
Here, the State concedes a seizure occurred but argues it was
a reasonable investigatory traffic stop not ...