State v. Lelm , 2021 ND 118 ( 2021 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 8, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 118State of North Dakota, Plaintiff and Appellant
v.
Nicholas Dean Lelm, Defendant and Appellee
No. 20200236
Appeal from the District Court of Morton County, South Central Judicial
District, the Honorable Pamela A. Nesvig, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice, in which Justices Crothers,
McEvers, and Tufte joined. Justice VandeWalle filed an opinion concurring in
the result.
Austin Gunderson, Assistant State’ Attorney, Mandan, ND, for plaintiff and
appellant.
Aaron D. Pulanco (argued) and Joshua L. Weatherspoon (on brief), Bismarck,
ND, for defendant and appellee.
State v. Lelm
No. 20200236
Jensen, Chief Justice.
[¶1] The State appeals from an order suppressing evidence obtained from a
warrantless search of Nicholas Lelm’s backpack. The State argues the
warrantless search was reasonable under either the automobile exception or
search incident to arrest exception to the warrant requirement. Alternatively,
the State argues that even if the warrantless search was unreasonable, the
evidence is admissible under the inevitable discovery doctrine. Because neither
the automobile exception nor the search incident to arrest exception applied to
the warrantless search, and the State did not meet its burden of establishing
the evidence would have been inevitably discovered, we affirm.
I
[¶2] On August 28, 2019, a City of Mandan Police Officer initiated a traffic
stop of a vehicle with two occupants, a driver and a passenger. The driver was
arrested on outstanding warrants and for driving under suspension. The driver
provided his consent to search the vehicle. Lelm, the passenger, was seated in
the front passenger seat with a backpack on his lap.
[¶3] The officer who initiated the stop called for the assistance of a drug-
detection canine. After the canine arrived on the scene, Lelm was asked to exit
the vehicle. Lelm exited the vehicle and took his backpack with him. Lelm
placed his backpack on the ground some distance from the vehicle. The officers
then detained Lelm, conducted a pat-down search, placed him in handcuffs,
and secured him in the back of a patrol vehicle. While Lelm was detained and
secured in the patrol vehicle, his backpack remained on the ground.
[¶4] The canine positively alerted on the front passenger door prompting a
search of the vehicle. During the search the officers found drugs in the center
console, a gun on the passenger floorboard, and glass pipes in a grocery bag
near the gun.
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[¶5] While on the scene, the canine paid no attention to the backpack. Upon
completing the search of the vehicle, the officers searched the backpack and
discovered drug paraphernalia and marijuana.
[¶6] After he had been placed under arrest, Lelm complained of chest pains
and requested medical assistance. An ambulance was called to the scene to
transport Lelm to the hospital. At Lelm’s suppression hearing, an officer
testified that ambulance personnel generally require a search of personal
property before an individual is transported to the hospital. The officer
testified the backpack would have been searched if the backpack was in the
ambulance and if Lelm would have claimed the backpack as his property.
[¶7] Lelm moved to suppress the evidence found within the backpack arguing
he had a reasonable expectation of privacy and the warrantless search was
unreasonable. The State responded that the search was reasonable because it
fell within either the automobile exception or search incident to arrest
exception to the warrant requirement. Alternatively, the State argued that if
the search was unreasonable, the evidence is admissible under the inevitable
discovery doctrine. The district court granted Lelm’s motion to suppress, and
the State initiated this appeal.
II
[¶8] The standard of review for a district court’s decision on a motion to
suppress is well established:
In reviewing a district court’s decision on a motion to suppress
evidence, we 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.
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State v. Stands, 2021 ND 46, ¶ 7, 956 N.W.2d 366 (quoting State v. Hawkins,
2017 ND 172, ¶ 6, 898 N.W.2d 446).
[¶9] “The Fourth Amendment of the United States Constitution and Article
I, Section 8 of the North Dakota Constitution protect individuals from
unreasonable searches and seizures.” State v. Casson, 2019 ND 216, ¶ 7, 932
N.W.2d 380 (quoting State v. Gagnon, 2012 ND 198, ¶ 8, 821 N.W.2d 373).
Where an individual has a reasonable expectation of privacy in an area, the
government must obtain a search warrant unless the search falls within a
recognized exception to the warrant requirement. State v. Pogue, 2015 ND 211,
¶ 9, 868 N.W.2d 522. If an exception does not apply to the search, evidence
discovered in violation of the Fourth Amendment must be suppressed under
the exclusionary rule. Id. The burden is on the State to prove a warrantless
search falls within an exception to the warrant requirement. State v. Zacher,
2015 ND 208, ¶ 7, 868 N.W.2d 847.
III
[¶10] The State argues the search of the backpack was a proper warrantless
search under the automobile exception. Under the automobile exception,
officers may, when probable cause exists, search a vehicle for illegal
contraband without a warrant. State v. Lark, 2017 ND 251, ¶ 16, 902 N.W.2d
739; see State v. Reis, 2014 ND 30, ¶ 18, 842 N.W.2d 845 (stating a search is
limited to the vehicle and any containers within the vehicle that may contain
the object of the search).
Probable cause exists to search a vehicle if it is established that
certain identifiable objects are probably connected with criminal
activity and are probably to be found at the present time at an
identifiable place. If a warrantless search of an automobile is made
with probable cause, based on a reasonable belief arising out of the
circumstances known to the officer that the automobile contains
articles which are subject to seizure, the search is valid.
Reis, at ¶ 15 (quoting State v. Dudley, 2010 ND 39, ¶ 7, 779 N.W.2d 369)
(internal quotations omitted). A drug-sniffing dog indicating the presence of a
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controlled substance in a vehicle establishes probable cause for officers to
search that vehicle. State v. Gefroh, 2011 ND 153, ¶ 9, 801 N.W.2d 429.
[¶11] The district court found the automobile exception did not apply in this
case because the backpack was not inside the vehicle when probable cause to
search was established. The backpack was removed from the vehicle before
officers performed an open air test with their drug-detection canine. The canine
alerted to the passenger side of the vehicle but did not pay attention to the
backpack that was outside the car. The court found there was insufficient
information in the record to determine how long the backpack was outside the
vehicle before the drug-detection canine was engaged and insufficient
information to determine the amount of time the canine may indicate on a
vehicle after a substance is removed.
[¶12] Once the drug-detection canine indicated the presence of a controlled
substance in the vehicle, officers had probable cause to search the vehicle and
any containers within the vehicle that may have concealed a controlled
substance. The probable cause established by the canine’s indication to the
vehicle limited the search for potential illegal contraband within the vehicle
and present at the time the sniff was conducted. Because the backpack was not
within the vehicle at the time of the canine deployment, officers did not have
probable cause to search the backpack and the automobile exception did not
apply.
IV
[¶13] The State also argues the search of the backpack was reasonable under
the search incident to arrest exception. The United States Supreme Court has
noted the following regarding searches incident to arrest:
Among the exceptions to the warrant requirement is a search
incident to a lawful arrest. See Weeks v. United States, 232 U.S.
383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The [search incident to
arrest] exception derives from interests in officer safety and
evidence preservation that are typically implicated in arrest
situations. See United States v. Robinson, 414 U.S. 218, 230–234,
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94 S.Ct. 467, 38 L.Ed.2d 427 (1973); [Chimel v. California, 395 U.S.
752, 763 (1969)].
In Chimel, we held that a search incident to arrest may only
include “the arrestee’s person and the area ‘within his immediate
control’—construing that phrase to mean the area from within
which he might gain possession of a weapon or destructible
evidence.” [Chimel, 395 U.S. 752, 763 (1969)]. That limitation,
which continues to define the boundaries of the exception, ensures
that the scope of a search incident to arrest is commensurate with
its purposes of protecting arresting officers and safeguarding any
evidence of the offense of arrest that an arrestee might conceal or
destroy. See ibid. (noting that searches incident to arrest are
reasonable “in order to remove any weapons [the arrestee] might
seek to use” and “in order to prevent [the] concealment or
destruction” of evidence (emphasis added)). If there is no
possibility that an arrestee could reach into the area that law
enforcement officers seek to search, both justifications for the
search-incident-to-arrest exception are absent and the rule does
not apply. E.g., Preston v. United States, 376 U.S. 364, 367–368, 84
S.Ct. 881, 11 L.Ed.2d 777 (1964).
Arizona v. Gant, 556 U.S. 332, 338–39 (2009); see also State v. Tognotti, 2003
ND 99, ¶ 8, 663 N.W.2d 642 (recognizing the scope of the search incident to
arrest exception is limited).
[¶14] The search incident to arrest exception is limited to searches that
implicate interests in protecting officer safety and evidence preservation. The
State does not argue the search was necessary to prevent the destruction or
concealment of evidence. The district court made specific findings regarding
officer safety. Those findings included the following:
When Lelm was detained, he was placed in the back of a patrol
vehicle after he voluntarily informed law enforcement officers
there was a gun in the vehicle. Officers did locate the weapon Mr.
Lelm identified. Once detained, Lelm’s backpack was no longer
within his reach. Lelm did not have access to his backpack at the
time it was searched, nor was it a part of his “person.” Officers did
not search the backpack due to officers’ safety concerns, but rather,
based upon the K-9 hit on Bloom’s vehicle. Officer Belgarde
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specifically testified the search of the backpack was not based upon
officer safety. The exception to search the backpack based upon
officer safety is without justification and does not apply to these
facts.
[¶15] “This Court merely reviews findings of fact and does not make its own
findings of fact.” State v. Knox, 2016 ND 15, ¶ 13, 873 N.W.2d 664. Here, the
State does not argue the search was necessary to prevent the destruction or
concealment of evidence. Additionally, the district court made specific findings,
supported by the testimony of a law enforcement officer, that the search was
not for safety concerns. In the absence of either a concern for officer safety, or
a need to preserve evidence from destruction or concealment, the search
incident to arrest exception to the requirement to obtain a warrant does not
apply.
V
[¶16] The State argues that even if the warrantless search was unreasonable,
the evidence is still admissible under the inevitable discovery doctrine. The
inevitable discovery doctrine allows evidence obtained during an unlawful
search to be admissible “where it is shown that the evidence would have been
gained even without the unlawful action.” State v. Hollis, 2019 ND 163, ¶ 19,
930 N.W.2d 171 (quoting State v. Friesz, 2017 ND 177, ¶ 26, 898 N.W.2d 688).
Under the North Dakota Constitution, this Court has adopted a two-part test
to determine whether the inevitable discovery doctrine applies to a search:
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 (quoting State v. Phelps, 297
N.W.2d 769, 775 (N.D. 1980)).
[¶17] Lelm does not assert law enforcement acted in bad faith when searching
his backpack. The district court correctly found the first prong of the inevitable
discovery doctrine had been satisfied.
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[¶18] After Lelm was placed under arrest, an ambulance was called to the
scene to transport Lelm to the hospital for medical treatment. At Lelm’s
suppression hearing, the arresting officer testified that ambulance personnel
generally require a search of personal property before an individual is
transported to the hospital. The officer testified the backpack would have been
searched if the backpack was in the ambulance and if Lelm would have claimed
the backpack as his property. The following testimony was elicited at the
hearing:
Q. This is — I guess, fast forward to when the ambulance is called.
If there wasn’t a search of the backpack at that time, what would
law enforcement normally do before transporting that backpack, I
guess, staying in the ambulance as a piece of property.
A. The ambulance require[s] we search prior to us sending him to
the hospital.
Q. So the backpack would have been searched through a piece of
property, you’re saying, if he would have claimed that as his
property?
A. Yes.
[¶19] During subsequent re-cross examination, the officer clarified his
previous testimony by articulating that an individual who is being transported
to a hospital by ambulance would need to consent to a search of the backpack
before officers would search the backpack:
Q. You mentioned just briefly before I started asking questions
that before somebody’s taken to the hospital, a search of their
property has to be done; right?
A. A lot of time ambulances will ask if we can please search
somebody before they take them, yes.
Q. And is that just —
A. For their safety and the subject’s safety.
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Q. So specific for the reason of like, say, a firearm or kind of an
explosive material, anything like that; right?
A. Yes.
Q. Okay. And that includes even personal property such as a
luggage, backpack; right?
A. If they allow it to be searched, yes. If not, we’re probably going
to take it into evidence for them to come pick up or —
Q. If who allows it? The subject?
A. Yeah.
Q. Okay. And so Nick would have had to consent to the search of
the property otherwise you would have just taken it into evidence?
A. If I didn’t find the paraphernalia and stuff in the vehicle is what
you’re saying?
Q. Say he requested medical assistance and — so we’re just talking
about the medical, the search regarding any kind of property going
with him. If, say, you only found the paraphernalia and he was
being transported to the hospital, would you have searched the
backpack at that time without his consent?
A. So you’re saying if he wasn’t placed under arrest, he was going
to the hospital —
Q. Based on chest pains —
A. And he had the backpack on him?
Q. Yes.
A. What’s that?
Q. Yep, just that.
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A. Yeah. Then it’d be we’d either take it into evidence or find
somebody to pick it up or something if we can’t do a pat search of
the backpack. I can pat search him for weapons but the backpack
is going to come into evidence or find a place for it to go.
[¶20] The district court, after hearing the above testimony, made the following
findings:
The State attempted to present evidence that the backpack would
have been searched based upon ambulance policy/request when
Mr. Lelm was taken by ambulance to the hospital. However,
Officer Belgarde testified he would still need consent of Mr. Lelm
to search the backpack and absent that consent, the backpack
would be taken back to the law enforcement center. No other
examples or information [were] presented to the court to warrant
an exception under the inevitable discovery exception, therefore,
the court finds it does not apply to the backpack search in this case.
[¶21] The State has the burden to prove “by a preponderance of the evidence
that the challenged evidence would have otherwise been discovered by lawful
means in the course of the investigation.” Friesz, 2017 ND 177, ¶ 26 (quoting
State v. Asbach, 2015 ND 280, ¶ 16, 871 N.W.2d 820). Our standard of review
on a motion to suppress requires us to affirm a district court’s decision 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.” Stands, 2021 ND 46, ¶ 7 (quoting Hawkins, 2017 ND 172, ¶ 6).
[¶22] The State argues the officer’s testimony regarding the need for consent
only applied to situations where the individual had not been placed under
arrest and, because Lelm was under arrest, the district court erred in finding
Lelm’s consent would have been required. Regardless of what would have
happened had the backpack been with Lelm while he was under arrest in the
ambulance and whether the ambulance policy is sufficient to abrogate the need
to obtain a warrant, the State ignores the remainder of the court’s finding. “No
other examples or information [were] presented to the court to warrant an
exception under the inevitable discovery exception[.]” Here, Lelm was placed
under arrest and placed in the ambulance without the backpack. What is
absent from the record is an explanation of what would have happened to the
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backpack under these circumstances had it not already been searched. We do
not know if it would have been placed in the back of a patrol car, if someone
would have been contacted to retrieve the backpack on Lelm’s behalf, if it
would have been placed with Lelm in the ambulance, or if something else would
have been done with the backpack. All we know is that the ambulance service
policy is not to allow a personal item, like a backpack, to be transported in an
ambulance without it first being searched.
[¶23] After a review of the record, we conclude the district court’s finding that
the State failed to establish the evidence from the backpack would have been
inevitably discovered is not contrary to the manifest weight of the evidence.
Because the State failed to establish the evidence would have been inevitably
discovered absent the unlawful search, the inevitable discovery doctrine does
not apply.
VI
[¶24] Lelm had a reasonable expectation of privacy in his backpack. Neither
the automobile exception nor the search incident to arrest exception applied to
the warrantless search of Lelm’s backpack, and the State failed to establish
the evidence would have been inevitably discovered absent the unlawful
search. Because an exception does not apply to the search, evidence discovered
during the search of Lelm’s backpack must be suppressed under the
exclusionary rule. We affirm the order of the district court.
[¶25] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
VandeWalle, Justice, concurring in the result.
[¶26] Although I suspect we have not heard the last from the United States
Supreme Court on the automobile exception, the search incident to arrest
exception, and the inevitable discovery doctrine, I agree with parts I through
IV and part VI of the opinion. With regard to part V, inevitable discovery, I
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concur in the result. While I may have drawn different inferences and
conclusions from the testimony, it is, as the opinion notes, the function of the
trial judge to find those facts.
[¶27] Gerald W. VandeWalle
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