N.D. Supreme Court says misplaced license sticker justified traffic stop

Bartch v. ND Dept. of Transportation:

The officer followed the petitioner for over 5 miles and observed no traffic violations. The officer then noticed that although the defendant had a current license sticker it was located in an incorrect spot on the license plate as defined by North Dakota law. Additionally, the officer noticed that he had an expired license sticker that was in the correct spot. Based on the this, he pulled over the petitioner's vehicle. Of course, when the officer approached the driver, he "detected the odor of alcohol" and noticed "bloodshot" and "glossy" eyes (it is amazing how every DUI police report says the exact same thing). He was arrested for DUI and his license was revoked.

The petitioner acknowledged the violation but challenged the constitutionality of the stop on the grounds that the statute that gave the Department of Transportation authority to create a crime, and determine where the sticker should be placed, is unconstitutional.

The court rejected the petitioner's argument and basically held that they dont have to decide constitutional arguments if they don't want to. The basic reason for declining to decide the constitutional question was that another statute required that all other proof of registration be removed other than the current registration. Petitioner did not remove the old license sticker.

The specific language the court used: "This Court historically refuses to make "unnecessary pronouncement[s] on constitutional issues" and "premature interpretations of statutes in areas where their constitutional application might be cloudy." State v. Anderson, 427 N.W.2d 316, 319 n.1 (N.D. 1988) (quoting United States v. Raines, 362 U.S. 17, 22 (1960))."

Moral: If the police want to pull you over, they will follow you until they find a reason.

Diminished Expectation of Privacy if Your Roommate is on Probation

State v. Hurt, Filed December 13, 2007:

The Defendant was arrested and charged with a misdemeanor and felony count of possession of drug paraphernalia. The Defendant resided with a roommate that was on probation. A condition of the roommate's probation was that her residence was subject to search without a search warrant at any time of the day or night. Although home at the time, the Defendant did not see the law enforcement officials enter the residence.

After entering the apartment, the officers walked through the kitchen and living room. When the officers reached the living room, they saw drug paraphernalia on the coffee table. The officers told the individuals in the living room if they were nonresidents, they could leave the apartment. The Defendant admitted he was a resident and stayed. A police officer, who was called to the scene after the initial entry, placed the Defendant under arrest for possession of drug paraphernalia. The Defendant was searched incident to arrest, and the officer found a glass pipe with what appeared to be drug residue in the pocket of his sweatshirt.

The Defendant moved to suppress the evidence obtained during the probation search, arguing the evidence violated his Fourth Amendment rights because there was no warrant or warrant exception specific to him; therefore, the probation search and all evidence gathered as a result should be admissible only against his probationer roommate.

It is well settled that in order for law enforcement officials to Constitutionally enter and search a person's home, the search must be accompanied by a warrant. The search may also be constitutional if there is no warrant and the search falls within one of the accepted warrant exceptions, such as consent. In Illinois v. Rodriguez, the Supreme Court held that a co-occupant's consent was a valid exception to the warrant requirement as to his fellow occupants, even when the fellow occupant was not physically present and thus could not object to the search. 497 U.S. 177, 184-86 (1990).

In 2006, the Supreme Court reinforced the "co-occupant consent" exception to the warrant requirement in Georgia v. Randolph when it held that a co-occupant's consent to search common areas of a home in the absence of the other occupant was constitutional, and evidence gathered during the search could be used against the absent, nonconsenting occupant. 547 U.S. 103, 109 (2006). The Court explained its rationale for such a holding by explaining that such authority to give consent

rests on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the
common area to be searched.

Essentially, the recent Supreme Court decisions in Rodriguez and Randolph have held that law enforcement officials do not need the consent of all occupants of a residence in order to conduct a constitutional search. Simply put, if a single co-occupant gives consent to a search and the other occupants remain silent or do not otherwise express an objection to the search, law enforcement officials have free reign to search the common areas of the residence, commonly including hallways, kitchens and living rooms. Moreover, a co-occupant need not even be present or given an opportunity to object to the search:

the co-occupant who is not present at the door and does not flatly refuse the search at the time his fellow occupant provides consent "loses out" on his opportunity to exclude evidence gathered in a common area co-occupant consent search.

If, however, one of the co-occupants does indeed refuse consent to search, this refusal trumps any consent offered by any other co-occupant and the law enforcement officials may not constitutionally search the residence based on consent.

The North Dakota Supreme Court relied on Rodriguez and Randolph and held that the Defendnat "lost out" on his opportunity to exclude evidence gathered in the common area of the residence because he did not object to the consent to search given by the terms of his roommate's probation.

Moral of the story: chose your roommates wisely.

Ambiguous Test Refusal/Implied Consent Law

State v. Netland, Minnesota Court of Appeals, Published Opinion, Filed December 11, 2007:

The defendant was arrested on January 7, 2006, for DWI. At the station house she was read the Minnesota Implied Consent Advisory. She invoker her right to counsel. Counsel advised her that, "Whatever you do, do not refuse the test. It’s way worse than coming up with a positive.”

She subsequently agreed to submit to a breath test. An audio recording of Netland’s Intoxilyzer test was a focal point of the trial. The officer instructed Netland to blow into the Intoxilyzer and told her that she would hear a tone once she started. He also told Netland that she “need[ed] to keep the tone going.” According to the printout of test results, Netland made 19 attempts in fewer than three minutes and 30 seconds before the officer terminated the test, and informed Netland that he considered her performance a refusal to submit to testing.

Netland insisted that she was not refusing and asked that she be allowed to submit to a blood or urine test. The officer refused her request. Netland, however, hired an independent tester to obtain and analyze a urine sample that she submitted, which subsequently measured her alcohol concentration to be 0.036.

A jury acquitted Netland of the DWI charge, but found her guilty of refusing to submit to the Intoxilyzer test.

Several issues were raised on appeal: (1) that section 169A.20, subdivision 2, is unconstitutional on its face because it requires a surrender of the Fourth Amendment protection against unreasonable searches and seizures as a condition of driving in Minnesota; and (2) that constitutional due-process guarantees of fundamental fairness prohibit convicting Netland of “refusing” to submit to a chemical test that she was attempting to take and seeking an alternative means of administration. Although we reject Netland’s facial challenge to the statute, a thorough review of the record convinces us that Netland was denied the guarantees of procedural due process.

Regarding the challenge to the statute as unconstitutional on its face, the court held the implied-consent law does not require a driver to surrender the right to be free from unreasonable searches because the officer must have probable cause to require testing, and because exigent circumstances necessitate a warrantless search to prevent evidence of the driver’s intoxication from imminent destruction by physiological processes.

Regarding, the appeal on this issue of whether it was "fundamentally unfair to convict her of test refusal when she was imploring the officer for an opportunity to take an alternative test" the court reversed and held:

The failure to offer an alternate test under the totality of circumstances present here deprived Netland of the opportunity to make this choice freely, which fundamental fairness requires. The alternate test requested by Netland would have facilitated the purpose of section 169A.20, subdivision 2, namely, to provide the state with scientific evidence of the amount of alcohol in the driver’s body. Because Netland was not given a meaningful opportunity to demonstrate her willingness to submit to chemical testing, we hold that Netland’s conviction was obtained in violation of due process.

The court emphasized several key facts to support the conclusion. First, Officer Hagen deemed Netland to have refused after approximately three minutes and 30 seconds. Both expert testimony and our prior implied-consent decisions acknowledge that the four-minute requirement is programmed into the Intoxilyzer so that the subject will have a sufficient opportunity to provide a reliable sample for analysis. E.g., Genia v. Comm’r of Pub. Safety, 382 N.W.2d 284, 286 (Minn. App. 1986). Second, Netland never refused to submit to the breath test. She asked to be allowed another chance to perform the breath test, and in the alternative asked to be allowed to submit to either a blood or uring test. Additionally, Netland secured and submitted to a urine test at her own expense. This was further evidence of her willingness to submit to testing and rebutted the officer's contention that she was “playing games”.

How the court weighed these individual factors is unclear. However, the court determined under the totality of circumstances that: When the evidence of a driver’s refusal to submit to chemical testing is ambiguous and based primarily on an Intoxilyzer machine’s determination of a failure to provide an adequate breath sample, rather than the driver’s unwillingness to be tested, and the driver insists that she is not refusing and asks for an alternative test, which the officer declines to provide, a conviction of driving while impaired for refusal to submit to a chemical test is contrary to fundamental fairness and deprives the driver of due process of law.

Fourth Amendment and Nighttime Warrants

In State v. Susan Ranae Jackson, the Minnesota Supreme Court held that the Fourth Amendment of the United States Constitution prohibits official intrusions into the home during a period of nighttime repose without proper justification, which period of nighttime encompasses the right to be free from official intrusion into the home during the nighttime when personal and private activities are likely to occur.

Although no other court in the nation has gone so far in defining a "period of nighttime repose", the court reasoned that special interests must be protected at night:

We believe that at certain times it will be readily apparent what is protected during this period of nighttime repose. For example, if the police search an unlit home at 3 a.m. without proper nighttime authorization, they run considerable risk of violating the occupants’ interest in being free from intrusion during a nighttime period of repose. But if the police search a home at 8:30 p.m. on the summer solstice when the doors are open and a party is underway at a home, they are much less likely to run the risk of seriously violating the occupants’ interest in being free from such intrusion. These examples illustrate a key aspect that we recognize and acknowledge about the interest we have articulated, especially at its beginning and end. This definition is a bit nebulous and necessarily encompasses what Justice Robert Jackson might refer to as a “zone of twilight,” within which the right to protection is less certain and will depend “on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

Having concluded that there is a "period of nighttime repose" at which time there are special interests to be protected inside the home that a normal search warrant does not address, and that the search warrant was executed during this "period of nighttime repose", the court held:

the police violated Jackson’s right to be free from unreasonable searches and seizures guaranteed by the United States Constitution when, without information indicating that Jackson had not yet entered a period of nighttime repose, they entered her home at 9:25 p.m. in the wintertime—December 11—with a search warrant that invalidly authorized a nighttime entry. In reaching this conclusion we need not decide the exact time when Jackson’s constitutionally protected period of nighttime repose began and ended. Rather, we need only conclude that the search of her home fell within the protected time period.

Minnesota state troopers have authority to stop and arrest individuals anywhere in the state

STATE OF MINNESOTA, IN COURT OF APPEALS, A07-0914:

Thomas William Westby, petitioner, Respondent, vs. Commissioner of Public Safety, Appellant; Filed December 4, 2007:

A Minnesota State Patrol trooper was on County Road 7 in Cook County when he noticed a vehicle stopped at a stop sign on County Road 15. The trooper followed the vehicle and noticed respondent weaving within the lane of traffic and driving briefly over the fog line onto the gravel shoulder of the Gunflint Trail.

The trooper stopped the vehicle. The stop led to arrrest for DWI and the defendant's license was revoked under Minnesota's implied-consent law.

After an implied-consent hearing the judge revoked the revocation of the defendant's license, holding:

“[t]here is no authority . . . for troopers to take it upon themselves to decide when and under what circumstances to patrol city streets, county or township roads, or, indeed which streets or roads to patrol beyond state Trunk Highways.”

The State appealed and the Court of Appeals reversed. The argument centered around two statutes. Minn. Stat. § 299D.03, subd. 1(b)(1), (7) (2006), states that members of theMinnesota State Patrol are permitted to “enforce the provisions of the law relating to the protection of and use of trunk highways” and to “exercise upon all trunk highways the same powers with respect to the enforcement of laws relating to crimes, as sheriffs and police officers.”

The other statute, Section 299D.03, subdivision 1(b)(12), provides that Minnesota State Patrol troopers shall have the power and authority “as peace officers to make arrests for public offenses committed in their presence anywhere within the state. Persons arrested for violations other than traffic violations shall be referred forthwith to the appropriate local law enforcement agency for further investigation or disposition.”

The defendant/Respondent argued that to give meaning to subdivision 1(b)(12) would be to “render[] the first portions of the statute a nullity—completely superfluous.”

The court disagreed and held:

Under subsections 1(b)(1) and (7) of section 299D.03, the subsections which most closely resemble 1(b)(12), troopers have the authority to enforce both traffic and criminal laws on state trunk highways. But these subsections are readily distinguishable from 1(b)(12), which allows state troopers to arrest anywhere in the state but limits that power to public offenses committed in his or her presence. We conclude that subdivision 1(b)(12) is not duplicative.

Based on this, the court held that the "statutory language specifically states that a trooper can arrest a person for a public offense 'anywhere within the state,' the only limit being that the offense occur in the state trooper’s presence."