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State v. Hollis

Supreme Court of North Dakota

June 27, 2019

State of North Dakota, Plaintiff and Appellee
v.
Alexander James Hollis, Defendant and Appellant

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

          Julie A. Lawyer, Burleigh County State's Attorney, Bismarck, ND, for plaintiff and appellee.

          Yancy B. Cottrill, Bismarck, ND, for defendant and appellant.

          OPINION

          VandeWalle, Chief Justice.

         [¶1] Alexander Hollis appealed from an order denying his motion to suppress evidence, which we treat as an appeal from the subsequently entered criminal judgment. Hollis argues the evidence should be suppressed because he was subject to an illegal pat-down search and he was illegally seized when he was taken to the county detention center for detoxification. We affirm the judgment.

         I

         [¶2] In April 2018, Bismarck Police Officer Michael Mehrer responded to a call about a loud verbal dispute between a man and a woman in the area of Washington Court. When Mehrer arrived at the scene where the disturbance reportedly occurred, Hollis was standing on the sidewalk. Mehrer testified Hollis had his hands in his pockets, Mehrer requested Hollis to remove his hands from his pockets, and Hollis complied. Mehrer testified Hollis later put his hands back in his pockets, and Mehrer requested he remove them a second time. Mehrer testified Hollis failed to respond to his questions, and Hollis was incoherent when he spoke and did not make sense. Mehrer testified Hollis acted "peculiar" and appeared to be under the influence of a controlled substance.

         [¶3] Other officers arrived on the scene, and Hollis was detained while the officers investigated the reported disturbance. Hollis was handcuffed and Mehrer performed a pat search. Mehrer testified he felt a hard object, approximately 3 inches by 3 inches during the search; the object was not a wallet; and he was concerned the object was a weapon or could be used as a weapon. Mehrer removed the object from Hollis' pocket, and found it was a small scale. Mehrer testified he concluded it was probably drug paraphernalia, but he planned to have the scale sent to the state laboratory for testing and he did not intend to immediately arrest Hollis for possession of drug paraphernalia.

         [¶4] Hollis was placed in the back of the squad car while officers continued to talk to him, and he asked the officers to kill him. Mehrer testified, based on his observations and Hollis' statement, he believed Hollis should be detoxed to prevent danger to himself and the public. Hollis was eventually taken to the Burleigh Morton County Detention Center for detoxification. At the detention center, Hollis was searched and officers located a substance alleged to be heroin on his person. Hollis was charged with unlawful possession of a controlled substance, unlawful possession of drug paraphernalia, and preventing arrest.

         [¶5] Hollis moved to suppress evidence, arguing he was illegally seized and subject to an illegal pat-down search. He claimed he should have been released at the scene after the domestic disturbance investigation was complete, and the detention and transport to the detention center constituted an illegal seizure. He also claimed the pat-down search was illegal because the item in his pocket was not of a size and density that would reasonably suggest it might be a weapon.

         [¶6] After a hearing, the district court denied Hollis' motion. The court found it was reasonable for officers to detain Hollis while they investigated the reported disturbance because Hollis was the only person at the scene of an event in which officers could reasonably assume presented danger to a potential victim and to officers, Hollis put his hands in his pockets even after being told to remove them, his behavior was "peculiar," he did not respond to inquiries, and his speech was incoherent. The court found a pat-down search was reasonable because the officers could reasonably believe that Hollis posed a danger and that he was armed. The court concluded the pat-down search and removal of the object from Hollis' pocket were permissible. The court found it was reasonable to take Hollis to the county detention center for detoxification based on the officer's observations and Hollis' request that officers kill him. The court also found the booking search at the detention center was reasonable.

         [¶7] Hollis conditionally pled guilty to all three charges, reserving the right to appeal the denial of his motion to suppress. A criminal judgment was subsequently entered.

         II

         [¶8] Hollis argues the district court erred by denying his motion to suppress evidence. He contends he was illegally seized ...


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