CITY OF BISMARCK, Plaintiff and Appellee, v. Dale UHDEN, Defendant and Appellant.
Cr. No. 930293.
Supreme Court of North Dakota.
March 11, 1994.
513 N.W.2d 373
The court‘s decision in this case is not perfect. More detailed findings should normally be given, and the details relied upon in the person‘s medical history should be expressed in the court‘s decision. However, in light of R.N.‘s treatment history, the trial court‘s finding, that clear and convincing evidence supports her continued treatment, is not clearly erroneous. We affirm.
LEVINE and NEUMANN, JJ., RALPH J. ERICKSTAD, Surrogate Judge, and NORMAN J. BACKES, District Judge, concur.
RALPH J. ERICKSTAD, Surrogate Judge, sitting in place of VANDE WALLE, C.J., and NORMAN J. BACKES, District Judge, sitting in place of SANDSTROM, J., disqualified.
Paul H. Fraase, Asst. City Atty., Bismarck, for plaintiff and appellee.
Ralph A. Vinje, Vinje Law Firm, Bismarck, for defendant and appellant.
Dale Uhden appealed a county court judgment of conviction for driving while under the influence of alcohol, in violation of Bismarck City Ordinance, following an appeal by the City of Bismarck from a municipal court decision suppressing evidence and dismissing the action. We affirm the judgment of the county court.
On June 20, 1992, Uhden was stopped at a sobriety checkpoint, established on West Main Avenue in the City of Bismarck by the Bismarck Police Department. At the checkpoint, only eastbound traffic was stopped. Uhden, who was riding a motorcycle, was not observed to have violated any traffic laws nor otherwise to have been involved in any erratic driving prior to being stopped at the checkpoint. Uhden was asked to turn his motorcycle off and to produce his driver‘s license. When Uhden did so, the officer detected bloodshot eyes, an odor of alcohol, and poor balance. After failing field sobriety tests, Uhden was arrested for DUI.
Uhden entered a plea of not guilty in Bismarck Municipal Court and moved for suppression of the evidence of his impairment. At the suppression hearing, the City called only one witness, the arresting officer. The officer‘s testimony concerned both the general operation of the roadblock and the stop and arrest of Uhden. The municipal court judge issued a memorandum opinion concluding that the stop was illegal. The
The City appealed the decision to county court, where Uhden again made a motion to suppress the evidence. Uhden did not allege that the city‘s appeal constituted double jeopardy, but rather argued that review on appeal must be limited either to the record of the municipal court, or to the testimony of the sole witness who testified in municipal court. The county court rejected Uhden‘s arguments, however, and, after hearing testimony from a number of witnesses regarding the planning and organization of the roadblock, found that the stop of Uhden was permissible. The county court denied Uhden‘s motion for a jury trial and remanded the matter to municipal court.
A trial was held in municipal court and Uhden was convicted for DUI. Uhden appealed to the county court and again moved to suppress evidence. The motion was denied without a hearing. Following a trial, Uhden was convicted and judgment was entered accordingly.2 This appeal followed.
Uhden defines the issues on appeal as follows:
“1. ARE DUI ROADBLOCKS PERMISSIBLE STOPS IN NORTH DAKOTA IN LIGHT OF THE STATE CONSTITUTION AND N.D.C.C. 29-29-21?
“2. DOES DOUBLE JEOPARDY ARISE WHEN AN INDIVIDUAL ACQUITTED IN MUNICIPAL COURT IS RETRIED IN COUNTY COURT AND CONVICTED IN A TRIAL DE NOVO GRANTED AFTER THE CITY APPEALS THE ACQUITTAL?”
I
This court has previously considered the legality of particular law enforcement checkpoint stops in North Dakota and twice concluded the stops were “reasonable” under the Fourth Amendment to the United States Constitution. State v. Everson, 474 N.W.2d 695 (N.D.1991); State v. Wetzel, 456 N.W.2d 115 (N.D.1990); contra, State v. Goehring, 374 N.W.2d 882 (N.D.1985) [no evidence in record that standards, guidelines, or procedures used in vehicle stop were in compliance with Fourth Amendment]. However, we did not discuss in either Everson or Wetzel whether
First, Uhden contends that
“29-29-21. Temporary questioning of persons in public places—Search for weapons. A peace officer may stop any person abroad in a public place whom he reasonably suspects is committing, has committed, or is about to commit:
1. Any felony.
2. A misdemeanor relating to the possession of a concealed or dangerous weapon or weapons.
3. Burglary or unlawful entry.
4. A violation of any provision relating to possession of marijuana or of narcotic, hallucinogenic, depressant, or stimulant drugs.”
Uhden asserts that
Courts have long recognized that police may briefly stop and question an individual in public, even in the absence of probable cause to believe the individual guilty of a crime. Charles H. Whitebread & Christopher Slobogin, Criminal Procedure § 9.01 (2d ed.) [1986] (citing, e.g., Lawrence v. Hedger, 3 Taunt. 14, 128 Eng.Rep. 6 [Common Pleas. 1810]). Although such stops are “seizures” within the meaning of the Fourth Amendment, Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968), the Fourth Amendment does not forbid ““all searches and seizures, but unreasonable searches and seizures.“” 392 U.S. at 9, 88 S.Ct. at 1873 [quoting Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960)]. The Terry Court recognized that it is not unreasonable for an officer to, “in appropriate circumstances and in an appropriate manner[,] approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22, 88 S.Ct. at 1880.
Following, and apparently in light of, Terry, the North Dakota State Legislature enacted
It is not clear from the legislative history whether the legislature intended to prohibit stops of motor vehicles on less than probable cause except in the limited circumstances listed in
In Everson, we balanced the competing interests of the State and the individual
The City has an important interest in controlling the problem of drunk driving. To determine the reasonableness of the stop, this interest “must be balanced with the degree to which this checkpoint advances the public interests, and the severity of the interference with individual liberty caused by the checkpoint.” Everson, supra, 474 N.W.2d at 701. Uhden does not challenge the public interest served by the checkpoint, nor does he point us to anything in the record regarding severity of the interference with individual liberty.8
The checkpoint was governed by carefully tailored guidelines, prepared by an advisory committee to the Board of City Commissioners of the City of Bismarck. Compare Goehring, supra. The guidelines enumerated factors to be considered in preparing a checkpoint, limited the discretion officers may use on the scene, and, among other things, expressly prohibited the stopping of motorists who avoided the checkpoint, unless the officers had reasonable suspicion of a violation of law.
As required by the guidelines, an operational briefing was prepared by the Bismarck Police Department regarding this particular checkpoint. The briefing provided that the checkpoint would run from 10:00 p.m., June 19, to 2:00 a.m., June 20, 1992. There was no discretion regarding who would be stopped; initially, every other vehicle was to be stopped, although the frequency of the stops could be adjusted by the supervising officer, if necessary. The location of the stop was chosen by the policy-making official. This particular location was chosen due, in part, to ample lighting, presumably so that “the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.” United States v. Ortiz, 422 U.S. 891, 894-95, 95 S.Ct. 2585, 2587, 45 L.Ed.2d 623 (1975); United States v. Martinez-Fuerte, 428 U.S. 543, 558, 96 S.Ct. 3074, 3083, 49 L.Ed.2d 1116 (1976); Sitz, 496 U.S. at 458, 110 S.Ct. at 2486. The briefing also called for the use of signs, flares, cones and other safety devices. The briefing carefully choreographed the en-
The record before us indicates that the officers at the checkpoint followed the directives of the guidelines and operational briefing. We believe the record supports the county court‘s finding of constitutionality, as the strictures of the guidelines and briefing adequately advance the public interests and limit interference with individual liberty, and Uhden does not draw our attention to any countervailing evidence in the record.
We note that in Everson, supra, and Wetzel, supra, we did not hold that all police checkpoints were per se constitutional under the Fourth Amendment, nor did the United States Supreme Court so hold in Sitz, supra. Likewise, we do not today hold that all sobriety checkpoints are per se constitutional under Article 1, section 8, of the North Dakota Constitution. However, Uhden points to nothing in the record to rebut the evidence of reasonableness, and we decline his invitation to hold all checkpoint stops per se unconstitutional under our State Constitution. We affirm the county court‘s decision to deny Uhden‘s motion to suppress evidence.
II
As to the double jeopardy argument raised on appeal, we believe Uhden has somewhat misstated the issue. The DUI charge was originally brought against Uhden in municipal court. Driving while under the influence is an offense both under Bismarck City Ordinance and the North Dakota Century Code.
Under subsections (1) and (5) of
We have defined the parameters of the protection against double jeopardy under both the Fifth Amendment to the United States Constitution and Article 1, section 12 of the North Dakota Constitution in the context of an appeal by a city as follows:
“The City has the same right to appeal that the State has ‘when the complaint charges the defendant with an act proscribed by city ordinance which is also proscribed by a state statute.’ City of Bismarck v. Hoopman [supra]; See also City of Minot v. Knudson [supra].... [T]he City‘s right to appeal is governed by
NDCC 29-28-07 . [footnote quoting text of statute omitted]“There can be no appeal from a true judgment of acquittal. State v. Flohr, 259 N.W.2d 293 (N.D.1977). The City can, however, appeal from ‘[a]n order quashing an information or indictment or any count thereof.’
NDCC 29-28-07(1) . This includes the right to appeal from a dismissal, regardless of its label, that has the same effect as an order quashing an information. State v. Hogie, 424 N.W.2d 630 (N.D.1988). A majority of this court holds that a dismissal based upon legal conclusions, rather than resolution of any factual element of the offense, is equivalent to an order quashing an information, and is therefore appealable by the State. State v. Bettenhausen, 460 N.W.2d 394 (N.D.1990); State v. Thill, 468 N.W.2d 643, 645 (N.D.1991). The propriety of this appeal depends upon whether the trial court reached only legal conclusions or resolved factual elements.*
“The question of what constitutes an acquittal, as distinguished from a dismissal, is not controlled by the trial court‘s characterization of the ruling. State v. Melin, 428 N.W.2d 227 (N.D.1988). ‘Rath-
er, one must look at the substance of the judge‘s ruling, whatever its label, and determine whether it actually represents a resolution of some or all of the factual elements of the offense charged.’ Melin, 428 N.W.2d at 229 (quoting Flohr, 259 N.W.2d at 295, which emphasizes language from United States v. Martin Linen Supply Co., 430 U.S. 564, at 574-75, 97 S.Ct. 1349, at 1354-55, 51 L.Ed.2d 642 (1977)). Thus, we assess the substance of the trial court‘s ruling to determine whether it actually represents a resolution of a factual element of the charged offense.” City of Dickinson v. Kraft, 472 N.W.2d 441, 442-44 (N.D.1991).
See also, State v. Hammond, 498 N.W.2d 126 (N.D.1993) [discussing our determinations of when jeopardy attaches]. In this case, the municipal court judge only entertained evidence and ruled on the issue of whether Uhden had been legally stopped, after Uhden‘s pretrial motion to suppress. The judge did not make any factual determination that insufficient evidence of impairment was presented. The judge properly dismissed the action, rather than acquit Uhden, because evidence was not “heard by the judge acting as factfinder during trial.” Hammond, supra, at 128 n. 2.
Because municipal courts are not courts of record, appeals from municipal court to county court require “trial anew.” See
The judgment of the county court is affirmed.
MESCHKE and NEUMANN, JJ., and BRUCE E. BOHLMAN, District Judge, concur.
BRUCE E. BOHLMAN, District Judge, sitting in place of SANDSTROM, J., disqualified.
APPENDIX
The Sobriety Checkpoint Operational Briefing stated that each stop was to be carried out as follows:
“9. When Sergeant Haas (or his replacement) stops a vehicle he will greet them by saying ‘Good evening, I‘m Sergeant/Officer ________ and this is a Bismarck Police Department Sobriety Checkpoint.’ The motorist will then be directed to a contact officer.
“10. After the contact officer directs the motorist to a stop position, they will greet them by saying, ‘Good evening, I‘m Officer ________ and this is a Bismarck Police Department Sobriety Checkpoint.’ The officer will then ask for the driver‘s license, and they will ask the driver his current address. If there is no suspicion of impairment, the driver‘s license should be handed back at about the time the officer asks the driver if they have consumed an alcoholic beverage or other drugs this evening. If the driver says ‘no’ and there is no other compelling reason to detain the driver, the brochure/questionnaire should be given to the driver and they should be allowed to leave.
“If the driver interrupts or the circumstances are such that you can‘t use the exact greeting and an arrest is made, explain what was said when you complete your report.
“11. If the driver isn‘t able to produce a driver‘s license, a driver‘s license check may be requested from dispatch. If you are unable to determine the driver‘s license status or if the status is revoked, suspended, expired, et cetera, follow the current Bismarck Police Department policy.
“If a driver simply refuses to produce a driver‘s license, they should not be allowed to leave until they have been positively identified.
*
“12. If a driver indicates that they have consumed an alcoholic beverage or other
drugs during the evening, and the circumstances indicate a further investigation is warranted, or if there are other compelling reasons to continue the investigation, the driver may be asked to exit the vehicle for further investigation.”
LEVINE, Justice, concurring in the result.
I take issue with footnote 6 and its attempt to equate the pretext involved in a looking-for-drugs checkpoint, see State v. Everson, 474 N.W.2d 695 (N.D.1991), the constitutionality of which has not been decided by the United States Supreme Court, with the so-called “pretext” of the sobriety checkpoint in this case. It‘s the old apples-and-oranges fallacy. The constitutionality of the sobriety checkpoint depends upon the absence of pretext. The safety of the vehicle and sobriety of the driver each has been deemed of sufficient public interest to make a brief, publicized, nondiscretionary seizure reasonable under the Fourth Amendment even without individualized suspicion. See Michigan Dep‘t of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481 (1990); Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
In Sitz, the purpose of the sobriety checkpoint stop was to implement the strong public interest in having licensed sober drivers on public roads by deterring intoxicated persons from driving on those roads. No comparable public interest has been enunciated yet by the United States Supreme Court that would constitutionalize checkpoints for general law enforcement purposes to catch criminals. Indeed, if the primary purpose of the sobriety checkpoint stop were to detect crime or make arrests of drunk drivers, an individualized suspicion of wrongdoing would be required by the Fourth Amendment and certainly, by Article 1, section 8 of the North Dakota Constitution. See, e.g., Ingersoll v. Palmer, 241 Cal.Rptr. 42, 46, 743 P.2d 1299, 1303-04 (1987) [concluding that sobriety checkpoints primarily promote public safety and therefore do not require an individualized suspicion of wrongdoing under the federal and state constitutions]. And the Fourth Amendment‘s requirement of reasonableness, to-wit, individualized suspicion, may only be repealed by action of the states, and not by the United States Supreme Court or this court.
Article 1, section 8 of our state constitution requires us to protect the integrity of the individual freedom it ensures North Dakotans against unwanted, uninvited, unreasonable government interference. In criminal law, government interference, to be reasonable, must be accomplished by probable cause generally, individualized suspicion occasionally and until recently, never without one or the other.
In upholding the sobriety checkpoint in Sitz, supra, the Supreme Court used a balancing test, applicable generally to administrative proceedings, see Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), in which it weighed the gravity of the public concerns served by the checkpoint stop against the degree to which the seizure advanced the public interest against the degree to which the seizure interfered with individual liberty. Suffice it to say, individual liberty lost the Supreme Court‘s weigh-in. We need not decide in this case whether we should accept the federal balancing method of analysis for interpreting our state constitution, see, e.g., Sitz v. Department of State Police, 443 Mich. 744, 506 N.W.2d 209 (1993), because even if we did accept the balancing scheme, under the North Dakota constitution, it is this court, not the United States Supreme Court, that does the weigh-in and this court should weigh the relevant factors independently under the North Dakota constitution. See, e.g., Ascher v. Commissioner of Pub. Safety, 505 N.W.2d 362 (Minn.Ct.App.1993).
Were we to apply a balancing test, the state would bear the burden of proof by a preponderance of the evidence to establish the reasonableness of the checkpoint stop made without a warrant or individualized suspicion. See State v. Kirk, 493 A.2d 1271 (N.J.Super.Ct.App.Div.1985); State v. Blackburn, 63 Ohio Misc.2d 211, 620 N.E.2d 319 (Clark County Mun.Ct.1993); see also State v. Orr, 375 N.W.2d 171, 180 n. 11 (N.D.1985). Circumstances may make a checkpoint unreasonable unless the state shows that it is closely related to accomplishing its intended goal. State v. Tykwinski, 170 Ariz. 365, 824 P.2d 761 (1991); Pimental v. Department of Transp., 561 A.2d 1348 (R.I.1989). In balancing the interests at stake, we would weigh the invasion of liberty against the necessity for the invasion and the invasion‘s effectiveness in achieving the state‘s goal. See, e.g., Ingersoll v. Palmer, supra. The question is whether a particular roadblock is either necessary or effective enough to warrant the intrusion it causes on the individual. See State v. Henderson, 114 Idaho 293, 756 P.2d 1057 (1988); State v. Koppel, 127 N.H. 286, 499 A.2d 977 (1985); Lowe v. Commonwealth, 230 Va. 346, 337 S.E.2d 273 (1985), cert. denied, 475 U.S. 1084, 106 S.Ct. 1464, 89 L.Ed.2d 720 (1986).
In this case, the defendant relied exclusively on his statutory argument to attack his seizure and arrest. I agree with the majority‘s resolution of the statutory argument. I also agree that the defendant did not raise the state constitutional argument and did not develop the argument that this sobriety checkpoint did not advance the public interest under the North Dakota constitution, see Ascher, supra, or that the serious invasion of privacy and liberty rights by suspicionless seizures outweighs the public interest at stake. Our resolution of such issues must therefore await another day.
Therefore, I concur in the result.
GERALD W. VANDE WALLE
CHIEF JUSTICE