FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 17, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 155
State of North Dakota, Plaintiff and Appellee
v.
Jered Mark Petersen, Defendant and Appellant
No. 20230049
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Stephannie N. Stiel, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Tufte, Justice.
Casey W. Moen, Assistant State’s Attorney, Fargo, N.D., for plaintiff and
appellee.
Erica A. Skogen Hovey, Fargo, N.D., for defendant and appellant.
State v. Petersen
No. 20230049
Tufte, Justice.
[¶1] Jered Petersen appeals from a criminal judgment entered on a
conditional plea of guilty to actual physical control of a vehicle while under the
influence of alcohol, reserving the right to appeal the order denying his motion
to suppress evidence. He argues law enforcement unlawfully trespassed into
his vehicle, violating his right to be free from unreasonable searches and
seizures. We reverse, concluding law enforcement unlawfully searched
Petersen’s vehicle, and remand for further proceedings.
I
[¶2] Petersen was charged with being in actual physical control of a vehicle
while under the influence of alcohol, a fourth or subsequent offense in 15 years.
He moved to suppress evidence. The district court held a suppression hearing.
The relevant facts are undisputed.
[¶3] At approximately 1:48 a.m. on March 18, 2022, two Fargo Police Officers
responded to a report of a vehicle accident in a bar parking lot in south Fargo.
The complainant reported that his vehicle was struck by a semi-truck and the
driver was asleep behind the wheel of the parked semi. The first responding
officer spoke with the complainant at the scene, who told the officer that
although he did not see the accident, he believed the semi struck his vehicle
because he observed that the paint color on the semi’s bumper matched the
color of his vehicle.
[¶4] The second responding officer testified that upon arriving at the scene,
she noticed the semi was idling with the driver asleep. The officers then
approached the semi. The second responding officer approached the passenger-side door of the semi, while the first responding officer approached the driverside door. The second responding officer immediately opened the unlocked
passenger-side door and stepped up onto the running boards, followed by
announcing “Fargo Police.” The officer on the driver’s side then began tapping
on the outside window with his flashlight and shined the light into the cab.
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The individual asleep in the driver’s seat did not respond. The officers testified
it was difficult to hear because the semi’s engine was running.
[¶5] The second responding officer testified that after standing on the
running boards for about a minute, she flipped open the wallet lying on the
passenger seat. After walking around to the passenger side, the other officer
removed the identification card, identifying the individual as Jered Petersen.
The second responding officer then entered the cab and turned the engine off.
She gave Petersen sternum rubs, waking him up. She testified that at that
point she smelled an odor of alcohol emanating from Petersen and noticed he
had bloodshot watery eyes. The officers eventually administered field sobriety
tests, a preliminary breath test, and a chemical breath test.
[¶6] After the hearing, the district court denied the motion to suppress,
concluding the community caretaker exception to the warrant requirement
applied and the officers’ actions of opening the semi-truck door and checking
Petersen’s wallet for identification were reasonable under the circumstances.
Petersen conditionally pled guilty to the actual physical control charge,
reserving his right to appeal the order denying suppression. The court
sentenced Petersen, stayed execution of sentence pending appeal, and entered
judgment.
II
[¶7] Petersen argues the district court erred in denying his motion to
suppress evidence. The standard of review is well established:
When reviewing a district court’s decision on a motion to
suppress, we defer to the court’s findings of fact and resolve
conflicts in testimony in favor of affirmance. This Court will affirm
the district court’s decision on a motion to suppress unless we
conclude there is insufficient competent evidence to support the
decision, or unless the decision goes against the manifest weight of
the evidence. Whether a finding of fact meets a legal standard is a
question of law, which is fully reviewable on appeal. Whether law
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enforcement violated constitutional prohibitions against
unreasonable search and seizure is a question of law.
State v. Boger, 2021 ND 152, ¶ 7,
963 N.W.2d 742.
III
[¶8] Petersen argues law enforcement unlawfully trespassed into his vehicle
when the officer opened his semi-truck door to gather information and without
first attempting to get his attention.
[¶9] The Fourth Amendment and N.D. Const. art. I, § 8, protect individuals
against unreasonable searches and seizures of their persons, houses, papers,
and effects. A vehicle is an “effect” and the State’s trespass upon a vehicle with
the intent of obtaining information constitutes a search under the Fourth
Amendment. United States v. Jones, 565 U.S. 400, 404, 408 n.5 (2012); see also
New York v. Class,
475 U.S. 106, 114-15, 119 (1986) (holding that officer’s
reaching into vehicle to remove papers obscuring VIN was a search, albeit a
reasonable search under the circumstances). Because law enforcement did not
have a search warrant, an exception to the warrant requirement must apply
for law enforcement action to have been lawful. State v. Washington,
2007 ND
138, ¶ 10,
737 N.W.2d 382 (“Warrantless searches are unreasonable unless
they fall within a recognized exception to the warrant requirement.”).
[¶10] The community caretaker doctrine is an exception to the warrant
requirement. State v. Stewart,
2014 ND 165, ¶ 12,
851 N.W.2d 153. Community
caretaking functions are “totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute.”
Bridgeford v. Sorel,
2019 ND 153, ¶ 8,
930 N.W.2d 136. “Contact with citizens
falls within the community caretaking role when an officer’s objective is to help
a person in possible need of assistance.”
Id. Petersen contends that because the
officers were investigating the possibility of his violating the law, their actions
were not totally divorced from the criminal investigation and the community
caretaker exception does not apply.
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[¶11] In Bridgeford, we analyzed a law enforcement encounter with a sleeping
individual in a parked vehicle and concluded knocking on the window was
reasonable:
Where it is obvious a citizen neither needs nor desires
assistance, an officer has no community caretaking role to fill.
However, the appearance of an individual slumped over sleeping is
not an obvious indication that a citizen does not need assistance.
When an officer encounters a person whose state of consciousness
prevents a conversational inquiry from occurring, the officer must
decide the actions necessary to get the person to respond and may
need to approach a non-responsive person differently from a
person who is conscious and able to converse with the officer. To
determine if assistance is needed, it is reasonable for an officer to
knock on a vehicle’s window. By knocking, an officer is doing “no
more than any private citizen might do.” Florida v. Jardines, 569
U.S. 1, 8 (2013) (discussing warrantless searches of homes).
2019 ND 153, ¶ 10 (cleaned up). Thus, we concluded the officer’s knocking on
the vehicle window was within the scope of the community caretaking function
and not an impermissible trespass. Id. at ¶ 13.
[¶12] Additionally, the Court in Bridgeford reviewed whether the officer’s
subsequent opening of the vehicle’s unlocked door was also a community
caretaking function. There, the officer saw an individual asleep in a running
vehicle at a gas station parking lot at 1:38 a.m.
2019 ND 153, ¶ 2. The officer
approached the vehicle and “knocked loudly on the window and raised his voice
for approximately 15 seconds.”
Id. After the individual, Bridgeford, failed to
respond, the officer opened the door and shook him until he awoke.
Id. The
majority of the Court noted there was no indication in the record of “any
obvious sign Bridgeford did not need or desire assistance.” Id. at ¶ 18. The
majority concluded the officer’s entering of the vehicle was within the
community caretaker function, stating “our caselaw allows an officer to
continue a community caretaker role from outside a vehicle to the inside of a
vehicle when a sleeping individual fails to respond to attempts to get a response
from outside the vehicle.” Id. at ¶ 20 (emphasis added); see also Rist v. N.D.
Dep’t of Transp.,
2003 ND 113, ¶¶ 2, 11,
665 N.W.2d 45 (concluding community
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caretaker exception applied where officer shouted “Sheriff ’s Department, wake
up!” several times through an open window prior to reaching inside and
shaking occupant); Lapp v. N.D. Dep’t of Transp., 2001 ND 140, ¶¶ 15-16,
632
N.W.2d 419 (applying community caretaker exception where prior to officer’s
opening door, security guard told officer he had unsuccessfully tried to awaken
occupant for ten minutes by knocking on window, officer tapped on window
twice within two minutes, and officer observed occupant’s glossy eyes).
[¶13] The dissenting justices in Bridgeford noted, “the State must prove the
officer objectively thought Bridgeford needed help.”
2019 ND 153, ¶ 25
(Crothers, J., concurring in part and dissenting in part). The dissent concluded
that because there was no sign of distress and “it was not incumbent on
Bridgeford to communicate that he did not need or desire assistance,” the
officer’s entry into the vehicle exceeded the community caretaking function. Id.
at ¶¶ 25-26. The majority’s conclusion that the community caretaking function
applied to opening the door was based on the premise that the sleeping
individual failed to respond to law enforcement’s attempts to get a response
from outside the vehicle. Id. at ¶ 20. Here, we need not revisit whether the
State must show there was objective indication of a need for assistance or
merely the lack of an indication there was no need for assistance because the
door was opened prior to any attempt to elicit a response.
[¶14] Unlike Bridgeford and other precedents, the officers in this case did not
attempt to get a response from Petersen from outside of the vehicle prior to
opening the semi door and stepping up onto the running boards. In Bridgeford,
the officer knocked and raised his voice for approximately 15 seconds prior to
opening the door. Because the occupant did not respond during those 15
seconds, the majority viewed the officer’s action of opening the door as a
reasonable step in fulfilling his caretaking duty. In this case, the officer
immediately opened the semi door without first attempting to elicit a response
from the exterior of the semi.
[¶15] The district court concluded the opening of the semi door was “minimally
intrusive” and reasonable under the circumstances, citing United States v.
Lewis,
869 F.3d 460 (6th Cir. 2017). In Lewis, an officer responded to a report
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of an intoxicated woman in a big-box retail store. Id. at 461. After observing
signs of impairment, the officer inquired whether she was by herself.
Id. When
she responded her boyfriend was outside in his truck, the officer responded,
“Well, we’ll go see if your boyfriend’s all right, talk to him and he can drive you
out of here. You can go home.”
Id. After approaching the tinted truck, the officer
saw the boyfriend asleep in the passenger seat.
Id. Although it was disputed
who opened the door, the court assumed it was one of the officers.
Id. After the
door was opened, the boyfriend tossed a baggie onto the back floorboard.
Id. at
461-62. The baggie contained pills, which were later determined to be
controlled substances.
Id. at 462. The Sixth Circuit concluded the district court
did not err in concluding the community caretaker exception applied and
finding the officers’ “sole purpose was to find [the woman] a safe ride home”
and they “were not investigating a crime.”
Id. at 462-63. Further, the court
reasoned that the opening of the door was “minimally intrusive” and “any
failure to knock or attempt to speak does not make the officers’ actions here
unreasonable.”
Id. at 464.
[¶16] Community caretaking does not give law enforcement unfettered
discretion to trespass without taking reasonable steps prior to a warrantless
entry. If the officers attempted to ascertain information prior to their
warrantless entry into Petersen’s vehicle, they may have served a community
caretaking role, depending on what information was gathered from outside the
vehicle. Bypassing that necessary step under these circumstances is fatal to
the caretaker exception. Again, an officer is performing a community
caretaking function when “help[ing] a person in possible need of assistance.”
Bridgeford,
2019 ND 153, ¶ 8. In Lewis, the officers were solely engaged in
finding the intoxicated shopper a ride home. Here, the complainant did not see
the accident or talk with Petersen, nor did he state Petersen was in need of
assistance. Likewise, the officers did not see the accident. Nor did they attempt
to talk with Petersen prior to opening his vehicle. On this record, we cannot
conclude the officers’ actions were “totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a criminal
statute.” Bridgeford, at ¶ 8. Thus, we conclude law enforcement was acting
outside the scope of the community caretaking function when opening the semi
door and stepping onto the running boards in an attempt to gather information
6
without first attempting to get a response from outside of the vehicle. From
this unlawful intrusion into Petersen’s vehicle, the officers were able to obtain
information they would not otherwise have been able to obtain, such as the
odor of alcohol emanating from Petersen and his bloodshot watery eyes. This
warrantless trespass was an unreasonable search in violation of Petersen’s
constitutional rights.
IV
[¶17] The State argues that even if Petersen’s rights were violated, the
inevitable discovery doctrine applies to prevent suppression of evidence. The
district court concluded it was unnecessary to reach this issue, having applied
the community caretaker exception. The inevitable discovery doctrine
“establishes that evidence derived from information obtained in an unlawful
search is not inadmissible under the fruit-of-the-poisonous-tree doctrine where
it is shown that the evidence would have been gained even without the
unlawful action.” State v. Asbach, 2016 ND 152, ¶ 13,
882 N.W.2d 251. We
apply a two-part test:
First, use of the doctrine is permitted only when the police have
not acted in bad faith to accelerate the discovery of the evidence in
question. Second, the State must prove that the evidence would
have been found without the unlawful activity and must show how
the discovery of the evidence would have occurred.
State v. Holly, 2013 ND 94, ¶ 54,
833 N.W.2d 15.
[¶18] The State argues it was not acting in bad faith, because the officers were
providing assistance to Petersen. However, the State fails to argue how the
evidence obtained—Petersen’s identity and statements, the officer’s
observations, and the results of the field sobriety tests, preliminary breath test,
and chemical test—would have otherwise been obtained, other than simply
stating the officer “would have stopped Petersen from leaving the scene of the
crash.” In other words, the State does not assert how it would have legally
obtained the evidence. Because the State has not met its burden under prong
two by showing “how the discovery of the evidence would have occurred,” we
conclude the inevitable discovery doctrine does not apply.
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V
[¶19] We reverse the order denying suppression and the criminal judgment.
Evidence obtained after law enforcement unlawfully opened Petersen’s semi
door must be suppressed under the exclusionary rule. See State v. Krall, 2023
ND 8, ¶ 12,
984 N.W.2d 669. We remand to the district court to allow Petersen
to withdraw his guilty plea and for further proceedings consistent with this
opinion.
[¶20] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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