Gabel v. North Dakota Department of Transportation, 720 N.W.2d 433

Gabel v. North Dakota Department of Transportation

720 N.W.2d 433

N.D.

2006

Check Treatment

*1 M. JAMES [¶ 28] The Honorable D.J.,

BEKKEN, sitting place of WALLE, C.J., disqualified.

VANDE

2006 ND 178

Jay Appellee GABEL, Plaintiff and

NORTH DAKOTA DEPARTMENT OF

TRANSPORTATION, Defendant Appellant.

No. 20060003. Dakota.

Supreme Court North

Aug. *2 speed

Jamestown that would and slow pass. to allowing Steele Steele reported plate also the license vehi- cle was “JAYBIRD.” Steele continued to relaying his follow location phone. dispatcher on his cell dispatch- from the was The record Kapp. er Officer does many attempted reflect how times Steele were, pass, road conditions what Gabel, long following how had been Steele at what speed attempting Steele pass Gabel’s vehicle. pаssed Kapp

[¶ 3] Officer Steele’s vehi- cle and located vehicle. Officer Gabel’s Kapp speed of Gabel’s measured vehi- at 47 in a 65 cle miles hour mile posted hour zone. There minimum After determining limit in the area. speed, Kapp stopped the vehicle’s Officer on the Gabel’s vehicle based dispatcher. she received from the Kapp independently report viewing (argued) A. Colling L. and Thomas Jodi testimony a traffic Her violation. indi- (on brief), Office, Dickson Dickson Law оr suspi- cates she did not observe erratic Bismarck, ND, plaintiff appellee. for Kapp cious driving. Officer testified she had not cross the noticed Gabel center (argued), E. Pelham Zachary Assistant line, shoulder, drive commit General, Attorney Attorney Office Gen- violation. Officer stated the Bismarck, ND, eral, ap- for defendant and stop was based on Steele’s pellant. previously sped up Gabel had own his lane, KAPSNER, making Justice. it difficult for Steele stopped, [¶ 4] When Gabel stated he Thе North Dakota [¶ 1] recently married. He admitted (“Department”) Transportation appeals drinking. had been testified judgment reversing a from a district court sobriety' she administered several field Jay hearing suspend officer’s decision failing tests with each test. Officer driving privileges ninety-one for Kapp then un- arrested Gabel days. judg- affirm the district court der the influence of alcohol. ment. hearing, At the administrative Ga-

[¶ 5] I Kapp lacked reason- bel claimed Officer able and April On argued County trаffic of his vehicle. Gabel Stutsman Sheriffs Office sent day case decided this Court message radio to Officer Elizabeth hearing precluded stating reported that Chad Steele had administrative See stopping Gabel. traveling Highway on south of officer Director, N.D. of law conclusions and order of agency supported by are N.W.2d 918. its findings of fact. hearing officer concluded the facts *3 from 7. distinguishable findings Anderson were The of fact by agency sufficiently do facts this case this case the becаuse address the presented evidence to the by arresting agency by known offi appellant. license was subse cer. driver’s suspended. quently 8. The conclusions law and order of agency sufficiently do not explain appealed hearing 6] Gabel offi- [¶ agency’s for rationale not adopting decision to court arguing cer’s the district any contrary by a recommendations that Anderson controlled and the officer hearing an officer or administrative law not have an independent sup- basis to judge. the traffic The district port stop. court § N.D.C.C. 28-32-46. decision, reversed the officer’s hearing give [¶ 8] We deference to the concluding the did not officer have the findings, sound but review requisite suspi- reasonable articulable questions of novo. Bjerklie law de v. appeal, cion Gabel’s vehicle. On Ins., Safety and 2005 ND Workforce identity argues of the 818; Gray v. N.D. Game by informant was known the officer and 204, ¶7, and Fish Dep’t, 2005 incriminating information was appeal, N.W.2d 614. In this the issue the dispatcher from to the officer making law, a question this Court distinguishable case Anderson. namely whether there existed a reasonable articulable for II to stop Gabel’s vehicle. [¶ 7] Our review of decision to justify To

suspend governed by driver’s license investigation, vehicle for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍an officer Anderson, ch. 28-32. N.D.C.C. ND must have a ¶97, 6, 696 N.W.2d 918. We review the suspicion the has motorist violated or is before the agency record administrative Ovind, violating City Fargo the law. will affirm an agency’s decision unless: 69, ¶8, 1998 ND 575 N.W.2d 901. The specific inquiry flexible and fact intо rea The 1. order is not in accordance with sonable and articulable is not the law. readily, usefully, or even reduced to a neat 2. The order is in of the violation con- Loh, legal set of rules. State 2000 ND rights appellant. stitutional recog 477. We have nized “the test of reasonableness under the provisions chapter The 3. have Fourth requires amendment careful atten complied not been the proceed- with severity tion to the the crime.” State v. ings agency. before the Andеrson, 44, ¶24, procedure agen- 4. rules or Heitzmann, (citing State v. cy appellant have not a fair afforded Nevertheless, 18, 632 N.W.2d hearing. provide observed traffic violations officers findings fact made by 5. the with requisite conducting Loh, agency by are not supported prepon- investigatory 10. The stops. validity derance of the evidence. evaluated stop is under an totality zone and that the considering the construction objective standard Ovind, gave deputy.” at 8. Id. the circumstances. thаt information “possi assertion” of a “bare hearing officer and 10] Both ble or drunk driver” reckless driver gov case court concluded this district stop. sufficient Director, N.D. erned Anderson ¶ 21. Transp., 2005 ND reaching different conclusions. although [¶ 11] To determine whether County Sheriffs Cass has a and articulable “possible about Office received suspicion, we examine *4 had driver or drunk driver” that reckless stop the at the of the known to officer time ¶ zone. Id. at 2. hit cones in a construction to officer imputed and information the to follow the driv The informant continued to based on another officer’s directive the vehicle. deputy er until the reached 203, Boyd, stop. a State v. make ¶ deputy 3. Id. at followed 392; City Devils Lake 654 N.W.2d of any observing illegal two for miles without ¶ Lawrence, 31, 9, v. stop. or before the Id. The erratic di (recognizing 466 that when one officer the informant’s name was not stop to effectuate a rects another officer the had although been relaying facts and underlying without the rоad pulled to the side the and was circumstances, directing officer’s the assisting an being officer. interviewed acting offi knowledge imputed ¶at 4. record was “unclear wheth Id. cer). An officer use re can the construction deputy er the learned of or her from other officers with his ceived stopped zone he allegation factual personal observations to form the Department suspend Anderson.” Id. The stop. legal investigatory basis needed a license, but the district ed Andеrson’s ¶ Boyd, upheld investiga have at We arresting court reversed because the offi tory stops stopping when the vehicles not and cer did have reasonable articulable illegal activ officer received information necessary support stop. the ity other officers and the officer cor affirmed the district court’s deci personal the “deputy acting tip sion because the on roborated with observa Kenner, 1, 12, a directive from another officer and hе did 1997 tions. State ND Here, directly activity. illegal observe facts surrounding 559 538. If the N.W.2d deputy only the received information from verify an circumstances explained Id. at dispatcher.” the 9. We can reliability, tip a known informant’s likely could tip the reliable or eventu justify stop. a provide a sufficient basis have the ally become reliable Miller, (citing 510 N.W.2d 640-41 reliability tip was to be based on Williams, 143, 407 U.S. 92 S.Ct. Adams v. sliding reliability tip the scale: “As (1972)). 1921, 32 L.Ed.2d 612 scale, quantity moves she testified

information sufficient raise reasonable in her “professional knew the informant аnd articulable is less.” Id. a criminal capacity”; she believed Miller, (citing 18 State v. (N.D.1994)). tips have from known Anderson, record. We allowed But in stop pro criminal informants though even was or could have reliable, is otherwise reliable. State Department vided sufficiently been ¶¶ 44, 2006 710 ND failed “to that the informant told establish rule, the lesser general hit in a 392. “As a suspect cones N.W.2d

437 der, any quality tip, or commit or violation. The greater of information re- quantity argue does Gabel’s suspicion.” quired to raise рer of 47 miles hour in 65 per a mile Miller, Id. at 13 510 N.W.2d at hour provides zone a sufficient basis to evaluating “In the factual basis for See, justify a stop. e.g., Johnson v. stop, must consider investigatory we Sprynczynatyk, circumstances, totality including N.W.2d (traveling 8-10 miles hour content, quantity, quality, in a 25 mile hour zone does ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍consti degree reliability, infor- the officer’s tute Here, and quality mation.” Id. the content support stop); Brown, State v. she officer’s when (N.D.1993) (evidence justify was insufficient to traveling driver is than slower usual only vehicle. officer was able speed does not create reasonable and ar- location of suspicion); ticulable Salter North Dako plate and its but to corrobo- license unable ta Dep’t Transp., 505 activity suspicious rate or other (N.D.1993) (officer did not have reasonable *5 activity reliability that confirm the would stop a car trav nothing There tip. eling 30-35 miles hour in a 50 mile record in case that ensures infor- hour though zone even the car was weav Kapp mant did was reliable. Offiсer not lane). ing slightly within own testify reliability. about basis of [¶ 14] The testimony, nothing Given her there is argument is that traffic violation oc- suggest this record re- authority conclusion, curred. As for this garded as other Steele than a member of § the Department cites 39-10- N.D.C.C. the “criminal milieu.” Members of the 11(2), which states: “the of an over- “criminal must their reliabili- milieu” have taken give way right shall vehicle However, ty Id. at established. we favor on overtaking audible need not determine the signal not may speed increase the Steele, because, assuming even he was a completely that vehicle until driver’s informant, reliable his of a vehicle passed by overtaking Based vehicle.” down, speeding up and allow- us, on it the record we have before is not ing pass support a car to is insufficient to entirely Steele con- clear the information traffic stop absent corroboration other- veyed amounted to a violation this stat- activity wise suspicious conduct. ute. no highway suggest There was Driving slightly on a below the speed sufficiently suspicious limit is not to Steele that he signal” “audible support stop. a traffic we intended to The record have is testimony: Kapp’s limited to Officer argues

[¶ 13] case is than stronger Di you MR. SHARP: What information did rector, N.D. patrol receive out in the car? 696 N.W.2d 918 because the information vehicle, KAPP: That DEPUTY specific to the officer was more JAYBIRD, speed slow up, would provided with evidence Mr. him. would not allow Steele

traffic violation. Officer testified she posted observed Gabel below

speed limit, MR. You noticed but she did not notice Gabel DICKSON: never line, any driving crossing cross the center drive on the shoul of the center line or WALLE, W. VANDE anything that. GERALD like on the shoulder C.J., MARING, and MARY MUEHLEN that correct? Isn’t CROTHERS, JJ., DANIEL concur. J. DEPUTY KAPP: No. Okay. You no- never MR. DICKSON: Justice, SANDSTROM, dissenting. you, yourself, ... never noticed ticed tip the respectfully dissent. The [¶ 18]I violations, you? any moving specific. was reliable and officer received KAPP: then I locked DEPUTY Other Therefore, justified. traffic 47 in a 65. him on radar Although majority ultimately declares mini- And there’s no MR. DICKSON: dicta, majority’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍them statements highway, is there? speed mum on Amendment obscure established Fourth If there’s traffic be- DEPUTY KAPP: jurisprudence, blurring be- the standards him, traffic. impeding hind he’s a criminal tween a citizen Officer, there’s MR. DICKSON: suspi- informant and between reasonable highway, minimum on Then, pen- cause. in its probable cion and there? returns paragraph, ultimate to what it has told us does not matter No, not that I DEPUTY KAPP: recall. erroneously order conclude that because testified she did 15] tip, officеr did violation. observe traffic The sole justified. I would affirm. Kapp gave justifying reason Officer stop was based on Steele’s I previously sped up own his

lane, making for Steele it difficult to misstates the stan- [¶ 19] that this unverified appeals. testified dard review administrative ¶ 8, provided Safety her with sufficient infor- At v. citing Bjerklie Workforce 178, impediment Ins., 9, an mation that Gabel was ND 704 N.W.2d 2005 818, not N.D. independent- Gray traffic. Officer did v. Game and Fish 614, 204, 7, or Gabel ly speeding Dep’t, observe ND 2005 nor did view majority says, give down she the “We deferеnce ability impede findings, the of others to the sound but re- upon the But that questions his vehicle. Based view of law de novo.” conveyed, only possibility in either there is is the standard enunciated func- Bjerklie Gray. majority’s attempt had occurred. This the violation equivalent “possible findings” reckless to limit tional deference “sound jurispru- or drunk held to be insuffi- driver” inconsistent with Court’s cient to a reasonable and articu- dence since the standard —based on establish ever 2005 suspicion separation powers lable ND constitutional —was Elkin, Fuels 696 N.W.2d 918. set forth in Power (N.D.1979):

III the construing “preponderance In conclude, permit apply us to totality under evidence” standard 16] We circumstances, test weight-of-the-evidence an findings of administrative suspicion articulable factual have reasonable and independent agency, we do make justify stop Gabel’s vehicle. We judg- or substitute our judgment findings of fact affirm the district court’s rein- agency. deter- ment for that of stating driving privileges. conclusion, only reasoning reaсhing reject whether a mind mine we respondent’s argument reasonably could have determined stop only cause for a and frisk can factual were conclusions reached personal based on the officer’s observa- by weight evidence proved tion, than on supplied rather entire record. person. tips, another Informants’ like all clues and coming other evidence II scene, policeman vary to a may “The reasonable [¶20] greatly reliability. in their value аnd requires standard than a more rule simple every One will not cover hunch,’ probable but ‘mere less than tips, situation. completely lacking Some v. N.D. Lapp cause.” reliability, in indicia would either war- 140, 11, police response rant no fur- require “ ‘Reasonable investigation ther before a forcible when “a person exists suspect would be But authorized. position justified by officer’s would be example, some situations —for when objective suspect some manifestation to the victim of a street crime seeks imme- ’” potential activity.” Kappel criminal police gives diate aid and a description Dir., Dep’t Transp., N.D. assailant, of his or when a infor- credible Fargo 602 N.W.2d 718 City of mant of a specific impending warns Ovind, 69, 8, subtleties of hearsay crime—the rule stan “[T]he reasonable appropriate should not thwart an police to see a require dard does response. violating motorist a traffic law or rule 407 U.S. S.Ct. every potential out innocent excuse (1972). L.Ed.2d 612 question bеhavior ve stopping investigation.” hicle for Id. at 10. III “As the reliability of [¶ 21] majority argues that be- scale, up on quantity moves record, *7 had a cause the informant criminal information sufficient raise a reasonable a implying he was member of the “criminal is less.” milieu,” Kapp had to corroborate Dir., N.D. Anderson the known informant’s could she ¶97, 18, In suspi- have a reasonable and articulable anonymous tip, context states, majority cion. The at “Officer required cases have “our that the in she knеw Kapp testified the informant the tip by observing some be capacity’; her ‘professional she believed driver, on the part havior either had a criminal record.” misdirected or indicative that impairment, in opinion dicta State possible the officer to a violation.” alerts a differentiated between member of (N.D. Miller, State v. and a “criminal milieu” citizen informant. 1994). In the infor ¶15, context a known “A 710 N.W.2d 392. however, tip, mant’s our have held cases the ‘criminal milieu’ member of is someone that a can tip provides activity the information ‘who involved in criminal is himself is, least, sufficient to itself be raise a reasonable someone who enjoys ” Miller, at 640- suspicion. and articulable criminals.’ confidence of Id. (N.D. Dahl, Supreme 41. As the United States Court State 1989)). probable said in Adams v. Williams: But Dahl related to a informant. cause, suspicion. is citizen He volunteered the not reasonable The contains no evi- information. record suspicion be- not discount reasonable did sought somеthing dence that he somehow “criminal milieu” so-called cause in tip. Finally, return for the he was no majority The is unable to cite argument. jail, made a going risk of unless he false a any case States which United law The record enforcement. a informant tip from known discounted no evidence that the informant contains a in- suspicion because known presently activity was involved in criminal part was of the “criminal milieu.” formant enjoyed of criminals. confidence majority any cite other case in Nor can Therefore, imply Mr. Steele was says “criminal the United States a member of “criminal mi- somehow record,” more, equals part of being without lieu,” tip, of his requiring thus validation is said, however, “criminal milieu.” any contain baffling. The record does not a citizen informant is someone who history evidence of what his criminal was. information, nothing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍seeks volunteers majority basically categorized has all return, and is not at risk or in fear of into past informants with criminal jail. Although we going to milieu” “criminal without consideration to decide whether the informant was need past past what criminal or how that is a member the “criminal milieu” or case logi- is relevant to the at hand. The ¶ 16, informant, Id. at we held the citizen premise cal that any- conclusion of qual- informant was reliable because past, one criminal matter with a how ity of his information: irrelevant, long ago or how cannot be a Greg’s higher information has a indi- majority, citizen informant. reliability cia of he was a known beсause states, only “The officer able to cor- voluntarily gave Deputy who the location of vehicle and roborate its prior information on Gress occasions. but plate license unable to corroborate that, Deputy except Gress testified illegal activity or suspicious activity other occasion, Greg was always the one truth- that would confirm the Greg gave The information in this ful. case tip.” Corroboration higher case also indicia reliabili- required, becаuse the ty Greg because Jamestown informant, known citizen not a member of information involved events in Far- tip provided the “criminal milieu.” The Greg go, which Officer Crane verified. give Kapp sufficient information to rea- knowing his volunteered the information suspicion. sonable and articulable Daniel, son, if law could arrested is also inconsistent 24] *8 about and enforcement learned Jesse in At majority its conclusions. the plan. Deputy contacted Greg Daniel’s “Here, states, quality first the and content Gress because he was worried about when she made officer’s information safety and and Jesse Daniel’s he wanted justify stop the stop was insufficient to Greg did Deputy help. Gress’ not ask later, Gabel’s vehicle.” Five sentences anything exchange in for the infor- however, majority that it is the tells us all mation, and not at risk going he was dicta, “we stating, need not determine jail in with this incident. connection Steele, because, even assum- reliability ¶at 17. informant, tip ing a reliable his he was down, slowing Apрlying present speeding the facts and pass a car to is insufficient to allowing case to the definition of “criminal milieu” informant, support a traffic absent corroboration and citizen this case’s informant

441 Dir., activity or suspicious Anderson v. N.D. of otherwise majority answered the conduct.” 696 918. This case N.W.2d is Anderson, of whether the informant was re- question different which the re- negative in the it said the when officer, liable port “possible communicated to the was the information insufficient. quality driver,” reсkless driver or drunk was con- required when the Validation clusory nature, lacking any specified i.e., reliability, of the informa- quality Anderson, conduct. As in Anderson, poor. tion See ND ¶ was case reliable. See added) (emphasis (the tip greater was of because (“In evaluating the factual basis for an deputy “the was aware before the vehicle investigatory must consider the stop, we stop that the informant could be identified circumstances, totality of the including the dispatch becаuse had described the infor- content, quality, quantity, degree and or him, addition, mant’s vehicle to and in information.”). reliability, of the officer’s pull observed the informant’s vehicle over stopped as he Anderson and he knew an 15, states, majority, 25] The assisting interviewing officer was the infor- independently did not ob- “Officer mant”). Here, dispatcher communicat- speeding up or corroborate serve Gabel name and ed nor she view and down Kapp. to Officer Officer knew who ability pass of othеrs to his impede was, again allowing informant confuses the her to meas- vehicle.” Also, credibility. apply tip’s standards that to a citizen informant ure the infor- car, a criminal informant and to a known following pro- mant was anonymous tip. and an viding dispatcher, more information to the could base and artic- her reasonable and was available to be interviewed after information provid- ulable Thus, the traffic made. the tip Furthermore, by the ed informant. case, greater reliability. ¶ 15, states, majority, upon “Based Anderson, however, unlike the informa- conveyed, only pos- there is dispatcher tion sibility that a occurred. violation had This Kapp specific, providing was far more equivalent ‘possible is the functional officer with a reasonable driver’ reckless driver or drunk held to (“the suspicion. See id. at communi- insufficient....” the reasonable- Under deputy cation however, standard, “possibili- ‘possible the bare assertion of reckless ty” required of violation is all that is as driver,’ is not of drunk sufficient “as ‘a long person the offi- quantity ar- provide position justified by cer’s would be some sufficient to ticulable objective suspect potential manifestation to vehicle”). Here, stop of Offi- Anderson’s ” activity.’ criminal Kappel, vehicle, Kapp was told that “the JAY- cer Ovind, N.W.2d 718 1998 BIRD, up, would slow [and] majori- not allow Mr. Steele to him.” would *9 ty has confused the standards for a known specific This information con- addressed citizen and a criminal informant. duct, lending reliability to the infor- more tip.

mant’s The conduct also described a TV specific driving: impeding a type of erratic faster car’s lawful Section majority wrongly concludes 26] [¶ N.D.C.C., 39-10-11(2), indistinguishable specifically requires that this case is from mov- V car allow a faster that an overtaken pass: ing car to Ultimately, Kapp was Officer 27] [¶ a known specific, tip rehable given on overtaking passing Except when scene, Upon informant. arriving at of an permitted, the driver right forty- driving Kapp observed Gabel Officer way to thе give overtaken vehicle shall sixty-five hour in a mile- seven miles overtaking vehicle right in favor zone, which, although illegal, per-hour signal may not increase on audible the con- logically unusual and would be until speed of that driver’s might if someone be observed duct ve- passed by overtaking completely driving slowly, up pre- speeding were hicle. again. pass, slowing and then down vent spe- ignore attempts however, logically expect, cannot One cific, by stating, at erratic pre- sрeeding would continue us, it on the record we have before “Based arrived on after officer had vent entirely clear information Steele is not Therefore, scene. corroboration of this conveyed amounted to a violation of, in conduct Gabel was accused exact sug- There was information to statute. unlike- being unnecessary, addition gest signal’ Steele an ‘audible have to ly happen. did not pass.” every intended to The fact that con- tip corroborate the or observe been may of the violation not have element duct to have reasonable and however, met, is irrelevant when measur- tip alone was suspicion; reliable ing Kapp’s and articula- enough. re- suspicion, because she was not

ble know, fact, quired to for a that Gabel VI job a violation. Her committed I court would reverse the district specific tip to a known respond order. and reinstate driving. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of erratic When Officer arrived, driving forty- she observed Gabel Dale V. 29] Sandstrom sixty-five mile- seven miles hour speed- If per-hour zone. “JAYBIRD” was

ing up a slow logically suspicious

would conduct tip. was more

than the “functional equivalent”

in Anderson.