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State v. Vetter

Supreme Court of North Dakota

May 16, 2019

State of North Dakota, Plaintiff and Appellee
v.
Dylan Benjamin Vetter, Defendant and Appellant

          Appeal from the District Court of Cass County, East Central Judicial District, the Honorable John C. Irby, Judge.

          Kara S. Olson (appeared), Assistant State's Attorney, and Nicholas Samuelson (argued), third-year law student, under the Rule on Limited Practice of Law by Law Students, Fargo, N.D., for plaintiff and appellee.

          Luke T. Heck, Fargo, N.D., for defendant and appellant.

          OPINION

          TUFTE, JUSTICE.

         [¶1] Dylan Vetter appeals from a criminal judgment entered after his conditional guilty plea to possession of controlled substances and drug paraphernalia. Vetter argues the deputy sheriff who stopped him for speeding lacked reasonable suspicion to believe Vetter's car contained contraband and unlawfully expanded the scope of the traffic stop by inquiring whether there were any illegal items in Vetter's vehicle and by conducting a canine sniff around the car. We affirm, concluding the district court did not err in denying Vetter's motion to suppress evidence because the stop was not expanded in violation of the Fourth Amendment.

         I

         [¶2] On March 1, 2018, around 11:35 p.m., Deputy Chad Thompson stopped Vetter for a speeding violation. Thompson is trained to handle a drug detection dog. His dog Zena was with him that night in his patrol vehicle. Before he approached Vetter's vehicle, but after it had come to a stop, Thompson noticed it rocking back and forth and saw two occupants moving around inside. He believed the occupants were trying to move or hide something. Thompson approached the vehicle, where he saw Vetter in the driver's seat. While talking with Vetter, Thompson saw an open alcoholic beverage can on the floor by Vetter's feet. In response to Thompson's questions, Vetter admitted he'd had a few drinks earlier. Thompson asked Vetter to come back to the patrol car, where he further questioned Vetter regarding consumption of alcohol. Vetter consented to field sobriety tests, including a preliminary breath test, none of which indicated impairment. After administering the tests, Thompson asked Vetter if there was anything illegal in his vehicle. Vetter denied having anything illegal in his vehicle.

         [¶3] Corporal Hedin arrived during this questioning. Deputy Thompson got out of his patrol car and asked Hedin to write Vetter a warning ticket. While Hedin wrote the warning ticket, Thompson and K-9 Zena conducted a canine sniff of Vetter's vehicle. Zena alerted on the passenger side door. The vehicle was then searched, and controlled substances and drug paraphernalia were discovered. Vetter filed a motion to suppress the evidence resulting from the search. The district court denied the motion to suppress, after which Vetter entered a conditional guilty plea to possession of controlled substances and drug paraphernalia.

         [¶4] Because the issue before us turns on whether the stop was expanded in time or in scope, we include immediately below a detailed time line of relevant events during the stop as it appears in the video recording of the stop presented to the district court. All times are in the eleven o'clock p.m. hour.

35:23 Deputy Thompson activates his flashing lights to initiate a stop of Vetter's vehicle.
36:45 Thompson introduces himself to Vetter, explains speeding was the reason for the stop, and asks for registration and insurance.
37:33 Vetter hands Thompson papers.
37:33 Thompson looks at the papers and looks into the car.
37:44 Thompson inquires if Vetter has any open alcohol in the car and says he sees Vetter is trying to hide a Twisted Tea can with his foot. Vetter says he was fishing earlier and hands the can to Thompson. Thompson asks for the registration card again. Vetter hands it to him.
38:35 Thompson asks Vetter to come back to the squad car. While Vetter is walking back to the squad car, Thompson asks if he has any weapons on him. Vetter says he does not. Thompson tells Vetter to put out his cigarette and sit in the front seat.
39:03 Vetter and Thompson enter the squad car. Once in the car, Thompson shows Vetter the "locked speed." He asks how much Vetter drank that night, when was the last drink, and if Vetter feels fine to drive. Vetter responds he is fine and mentions he was in Napoleon visiting his dad.
40:41 Thompson inquires into the condition of Vetter's eyes, asks to see them, and conducts a Horizontal Gaze Nystagmus test.
42:17 Vetter initiates conversation about the weather. They lapse into ...

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