State v. Foote

                                                                            FILED
                                                                    IN THE OFFICE OF THE
                                                                 CLERK OF SUPREME COURT
                                                                      DECEMBER 17, 2020
                                                                  STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

State of North Dakota,                                Plaintiff and Appellee
      v.
Stephanie Ann Foote,                               Defendant and Appellant



                                No. 20200145

Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Todd L. Cresap, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

John M. Gonzalez, Assistant State’s Attorney, Minot, N.D., for plaintiff and
appellee.

Danny L. Herbel, Bismarck, N.D., for defendant and appellant.
                                State v. Foote
                                No. 20200145

Tufte, Justice.

[¶1] Stephanie Ann Foote appeals from an order denying her motion to
suppress evidence and from the criminal judgment entered after she
conditionally pled guilty to a charge of actual physical control (APC) of a motor
vehicle while under the influence of alcohol. On appeal, Foote argues the
district court erred in determining that she was not unconstitutionally seized
and, thus, her motion to suppress should have been granted. We affirm the
judgment.

                                        I

[¶2] On December 8, 2019, at approximately 2:15 a.m., Deputy Michael Miller
and trainee Deputy Leif Binckley of the Ward County Sheriff’s Department
were on patrol. The officers observed a vehicle parked on an approach and
decided to perform a welfare check. Miller testified there was ice behind the
tires of the vehicle and skid marks on the ice from the tires spinning, leading
him to believe the vehicle was stuck. He also testified that the temperature on
that night was below zero and the vehicle was running.

[¶3] Binckley approached the vehicle on the driver’s side while Miller
approached the vehicle on the passenger side. Binkley either instructed or
requested that Foote roll down her window, and she complied. Foote explained
that she had pulled over to call her sister and that when she tried to leave, she
realized she was stuck. Miller testified that he “realized that this wasn’t just a
stuck vehicle and that this was probably going to be an APC situation” when
Foote was explaining that she was stuck. He then took over the encounter,
moved to the driver’s side, and requested that Foote exit her vehicle.

[¶4] When Foote exited her vehicle, Miller observed that she had difficulty
maintaining her balance, her eyes were watery, and her speech was slurred.
When she entered the patrol vehicle and sat in the front passenger seat, Miller
detected a strong odor of alcoholic beverages and felt that she seemed
extremely confused when answering his initial questions. Foote admitted to

                                        1
having had a beer earlier in the evening, and at this point Miller requested she
complete Standard Field Sobriety Tests, during which Miller recognized clues
suggesting a possible blood alcohol count at or above the legal limit. Foote then
consented to a preliminary breath test, which yielded a result over the legal
limit. Miller informed Foote she was being placed under arrest for APC, and
she was placed in the rear of the patrol vehicle and read her Miranda rights.

[¶5] Subsequently, an administrative hearing was held to consider whether
Foote’s driving privileges should be suspended. A criminal case was also
brought against Foote, in which she filed a motion to suppress. The district
court held a hearing on the motion to suppress. At the hearing, Foote argued
Binckley instructed her to roll down the window, the instruction was in
violation of the Fourth Amendment, and any evidence acquired subsequent to
the instruction was inadmissible. During the hearing, the officer testified he
was not investigating a crime when he came into contact with Foote but was
performing a welfare check on a stuck vehicle. A written order followed,
denying the motion to suppress. Foote then entered a conditional guilty plea to
the charge of actual physical control.

                                        II

[¶6] Foote argues the district court erred in denying her motion to suppress
evidence. This Court has described the standard of review of a district court
decision on a motion to suppress:

      [W]e defer to the district court’s findings of fact and resolve
      conflicts in testimony in favor of affirmance. We will affirm a
      district court’s decision on a motion to suppress if there is sufficient
      competent evidence fairly capable of supporting the trial court’s
      findings, and the decision is not contrary to the manifest weight of
      the evidence. Our standard of review recognizes the importance of
      the district court’s opportunity to observe the witnesses and assess
      their credibility. Questions of law are fully reviewable on appeal,
      and whether a finding of fact meets a legal standard is a question
      of law.

State v. Bohe, 

, 

 (quoting State v. Hawkins,

, 

).

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[¶7] Foote argues the district court erred in determining the original contact
was done in a community caretaker role that did not violate the Fourth
Amendment. The Fourth Amendment to the United States Constitution and
N.D. Const. art. I, § 8, prohibit unreasonable searches and seizures. State v.
Reis, 

, 

; Richter v. N.D. Dep’t of Transp., 

, 

; Abernathey v. Dep’t of Transp., 

, 

. Not all encounters between law enforcement officers and
citizens constitute seizures. Reis, at ¶ 10; Abernathey, at ¶ 8.

[¶8] “A seizure occurs within the context of the Fourth Amendment only when
the officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.” State v. Schneider, 

, 

 (citation omitted). “[A] person has been ‘seized’ within the meaning
of the Fourth Amendment only if . . . a reasonable person would have believed
that he was not free to leave.” 

 (citation omitted).

[¶9] “In cases involving motor vehicles, the ‘law distinguishes between the
approach of an already stopped vehicle and the stop of a moving one.’”
Bridgeford v. Sorel, 

, 

 (quoting Abernathey,

). An “officer’s approach of a parked vehicle is not a seizure if
the officer ‘inquires of the occupant in a conversational manner, does not order
the person to do something, and does not demand a response.’” Richter, 

, ¶ 10 (quoting City of Jamestown v. Jerome, 

, 

). “A casual encounter between an officer and a citizen can become
a seizure ‘if a reasonable person would view the officer’s actions—if done by
another private citizen—as threatening or offensive.’” Schneider, 

. “A consensual encounter becomes a seizure implicating the Fourth
Amendment when, considering the totality of the circumstances, the
questioning is ‘so intimidating, threatening, or coercive that a reasonable
person would not have believed himself free to leave.’” Id. at ¶ 11. (quoting
United States v. Flores-Sandoval, 

 (8th Cir. 2007)).

[¶10] An officer is engaged in the role of community caretaker when the officer
approaches a parked vehicle to inquire in a conversational manner whether
the occupant is okay or needs assistance. State v. Leher, 

, 

. “A request that the suspect open the door or roll down the window

                                       3
would seem equally permissible, but the same would not be true of an order
that he do so. Likewise, the encounter becomes a seizure if the officer orders
the suspect out of the car.” Abernathey, 

 (quoting Wibben v.
North Dakota State Highway Comm’r, 

 (N.D. 1987)
(VandeWalle, J., concurring in result) (emphasis omitted)). “[A]n occupant of a
vehicle has not been ‘seized’ when a law enforcement officer requests, rather
than orders or commands, that the occupant open a window or exit a vehicle.”
Abernathey, at ¶ 12 (citations omitted).

                                      III

[¶11] Foote argues the first unconstitutional seizure occurred when Binckley
knocked on her window and instructed her to roll it down. The officers had
noticed a vehicle parked on an approach around 2 a.m. on a cold December
night and had stopped to perform a welfare check on the vehicle. There was
conflicting testimony between the administrative hearing and the motion to
suppress hearing as to whether Binckley instructed or requested that Foote
roll down her window. This Court, in its review, “will not weigh conflicting
evidence or judge the credibility of witnesses.” State v. Hennings, 

, 

 (citations omitted). During the administrative hearing,
Miller testified:

      Q. Okay, did you direct her to roll down her window?

      A. I — I was training on this date. My trainee instructed her to roll
      her window down. He then passed her ID to me, at what [sic] point
      then I had her exit the vehicle.

At the hearing on Foote’s motion to suppress, Miller testified:

      A. It’s a situation where he knocked on the window. The window
      was rolled down. So in my mind, I guess, in the admin — I just —
      the window was rolled down. He instructed her to roll the window
      down at which point they began speaking.
      Q. So he did instruct her to roll the window down?
      A. I didn’t hear him say, ma’am, roll your window down, so I can’t
      — I can’t testify to that fact, sir.


                                       4
      Q. But you’ve already testified to that fact at the administrative
      hearing.
      A. I — it was a word I used.
      Q. So you’re saying that was not truthful testimony that day?
      A. It’s — it’s just — it’s a word I use, sir.

[¶12] This Court will resolve conflicts in testimony in favor of affirmance.
Bohe, 

. The district court here found that the officer asked
Foote to roll down her window and that the initial contact was done by law
enforcement in the role of community caretaker. The court further found that
Foote provided no indication that she felt compelled or otherwise intimidated
to engage in this conversation. “Recognizing the importance of the trial court’s
opportunity to observe witnesses and assess their credibility, we accord great
deference to the trial court’s findings of fact in suppression matters.” State v.
Taylor, 

, 

 (quoting Jerome, 

).
Whether an officer communicated a request or an order is a question of fact
that depends on the words used. The court did not have testimony on the words
communicated to Foote, nor did it have much about the nonverbal aspects of
the communication such as tone of voice, body language, context, and other
considerations. The court’s findings turn on credibility determinations about
how one officer described the actions of another officer. The court’s findings are
supported by sufficient competent evidence, and its decision is not contrary to
the manifest weight of the evidence. Foote was not seized in violation of the
Fourth Amendment when Binckley asked that she roll down her window.

[¶13] Foote also argues that Miller instructed her to return to the patrol
vehicle with him and that this constituted a second unconstitutional seizure.
There was some conflicting testimony during the administrative hearing as to
whether Miller requested or instructed Foote to exit her vehicle. Miller’s
testimony during the motion to suppress hearing, however, was undisputed.
Counsel for Foote asked Miller, “And you asked her to come back to your
vehicle; is that right?” Miller responded that he did. The district court found
that Miller requested Foote exit the vehicle and that Foote provided no
indication she was ordered, compelled, or otherwise intimidated into leaving
her vehicle and going to Miller’s patrol vehicle. The court’s findings are

                                          5
supported by sufficient competent evidence, and the court’s decision is not
contrary to the manifest weight of the evidence. Foote was not seized in
violation of the Fourth Amendment when Miller asked that she exit her vehicle
and return to the patrol vehicle with him.

[¶14] “[I]f an officer learns something during a public encounter with a person
that causes a reasonable suspicion or probable cause, the encounter can justify
further investigation, seizure, and even arrest. A public encounter does not
foreclose the officer from making observations that reasonably lead to further
action.” Abernathy, 

 (quoting State v. Franklin, 

 (N.D. 1994)). When Foote exited her vehicle, Miller observed that she
had difficulty maintaining her balance, her eyes were watery, and her speech
was slurred. Upon Foote’s entering the front passenger seat of the patrol
vehicle, Miller detected a strong odor of alcoholic beverages and felt that Foote
seemed extremely confused when answering his initial questions. Miller
testified that it was at this point when Foote was no longer free to leave.
Assuming a seizure occurred after Foote had voluntarily entered the front
passenger seat of the patrol vehicle, Miller had by then already observed
enough to give him a reasonable and articulable suspicion of actual physical
control.

[¶15] We conclude the court did not err in determining that Foote’s Fourth
Amendment rights were not violated in this case, and therefore the court did
not err in denying Foote’s motion to suppress evidence obtained as a result of
that encounter.

                                      IV

[¶16] The judgment is affirmed.

[¶17] Jon J. Jensen, C.J.
      Gerald W. VandeWalle
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte



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