State v. Guscette

ND 71 Dakota, Plaintiff North STATE Appellee GUSCETTE,

Stephanie Jonell Appellant.

Defendant

No. Dakota. of North Court

Supreme 13, 2004.

April

voluntarily consented to the search of her purse vehicle and a in the vehicle. We affirm. At on pm. February about 8

2003, Fargo Kyle Police Officer Olson stopped a vehicle driven Guscette for a taillight. broken approached Olson véhicle, why cette’s informed her she had stopped, been and asked for her driver’s license. Olson verified Guscette had a val- license, id driver’s and when he returned vehicle, engaged her further conversation about automobile insurance Corey the whereabouts of Mock. Olson ultimately step asked Guscette to out of her stepped vehicle. After Guscette out of vehicle, engaged her further conversation about Mock previous and a encounter she had had with law enforce- ultimately ment officers. He informed her giving he was her a and she got was free to Before leave. Guscette vehicle, however, back into her needles, asked her if she weapons, knives, else in the vehi- not, responded cle. Guscette she did permission Olson then her for asked vehicle, search the granted. which she McEvers, Lisa K. Fair Assistant State’s a passenger Guscette and were directed to ND, Attorney, Fargo, plaintiff and ap- the back of the vehicle with another officer pellee; submitted brief. while Olson searched vehicle. Olson Beauchene, Johnson, purse found a black the front seat. Mark A. Far- Wold ND, Upon opening purse, Olson found go, appellant; for defendant and sub- Olson, paraphernalia. According to after mitted on brief. drug paraphernalia, he found the he heard KAPSNER, Justice. tell the other officer she had consented to but Stephanie appealed from Guscette, purse. According not the Ol- possession drug para- a conviction for drug paraphernalia son after she found phernalia. We hold there is sufficient objected him searching purse. competent fairly supporting evidence pos- findings charged trial court’s that Guscette had not Guscette was with drug paraphernalia. moved been seized under the Fourth Amendment session of She suppress during offi- evidence seized she allowed law enforcement purse. cer to search her vehicle and that she search of her The trial court de- unless, resolving conflicting evidence con- suppress, motion to nied Guscette’s affirmance, insufficient in favor of there is authorized to ask Gus- cluding Olson fairly capable sup- though competent evidence the vehicle even to search cette findings, or the porting a traffic viola- the trial court’s merely for stop was initial contrary weight manifest was not decision is concluded Olson The court tion. Id. Our deferential stan- and articula- of the evidence. a reasonable required to have recognizes importance wrongdoing other dard of review suspicion ble opportunity of a trial court’s to assess the permission to search for ask Guscette v. credibility Gus- of the witnesses. State court also concluded The vehicle. ¶ Fields, 81, 6, ND 662 242. the vehicle was N.W.2d to search cette’s consent circum- voluntary under A

stances, did exceed and Olson consent. scope of her contin argues Guscette [¶ 6] necessary to detention after the time

ued complete stop the initial traffic violated her II from right Fourth Amendment to be free from the order appealed an unreasonable seizure. Guscette con suppress. her motion denying for a stop cedes the initial her vehicle appeal from the order attempted cette’s proper, once a traffic violation was suppress is not her motion denying a traffic traffic violation has occurred and § 29-28-06. After by N.D.C.C. authorized made, may temporarily an de stop suppress, motion to how- the denial of her tain a traffic at the scene of the violator guilty a ever, entered conditional contends, however, violation. Guscette Ol charge possession plea to necessary to son’s conduct after the time she, State, in which paraphernalia an complete stop the traffic constituted had re- acknowledged she the trial court Fourth Amend illegal seizure under the appeal to review of the right served argues ment. the facts and circum She suppress, her motion to ruling on adverse give stances did not Olson a reasonable of conviction was entered. judgment and a in criminal ac suspicion engaged she was subsequent- contains a the record Because tivity, and her consent to search the vehi consistent with the ly judgment entered following cle seizure was taint sup- motion to denying order ed. and the trial court press and the State right of her approved the reservation The Fourth Amendment of appeal from appeal, we treat Guscette’s Constitution, applicable the United States from appeal order as suppression through the Fourteenth to the states Keilen, v. 2002 ND judgment. State Amendment, protects individuals from un ¶¶ 133, 7-9, 224. 649 N.W.2d Tognot searches and seizures. ti, 99, ¶7, 2003 ND 663 N.W.2d 642. III Fields, 81, 242, 2003 ND 662 N.W.2d an issue similar to the one reviewing When a trial Court discussed There, in the context ruling suppress, on a motion to we raised Guscette. court’s findings concededly stop of fact and of a valid traffic ex defer the court’s tabs, pired police in favor of license officer asked conflicts the evidence resolve ND for consent to search his vehicle Tognotti, affirmance. Fields State ¶ 5, him from the the officer had released will affirm trial 663 N.W.2d We reap- stop of the traffic disposition suppress of a motion to incidents court’s drugs pur- the motorist’s destination inquire him to about proached ¶ pose. Id. at 4. When weapons the vehicle. to a of his Fields refused to consent Jones, United States 269 F.3d him until a the officer detained (8th Cir.2001). investigative dog arrived at the scene drug detection may long detention continue “as as rea- drugs in the vehicle. Id. In and detected necessary to sonably conduct these ac- ¶¶ Fields, 8-13, ND N.W.2d and to a warning tivities issue or cita- 242, majority outlined stan- this Court Mertz, 925; tion.” Id. at see also at 412 for a traffic and concluded the dards (“[A] subject traffic violator is continued detention of Fields until a arresting authority officer’s and re- dog arrived constituted a seizure detection straint until the officer completes issu- Fourth Amendment because a under the traffic citation expressly ance and position in would person reasonable Fields’ violator.”). releases the not have felt free to leave the scene: case, In this the officer issued Fields a an conducting stop, When a traffic expired citation for the and ex- tabs temporarily can detain the traffic pressly by saying good- released Fields violator at the scene of the violation. around, bye, turning starting and to Mertz, 410, 412 See State N.W.2d walk vehicle. offi- back his After the (N.D.1985) (citing §§ 39-07-07 N.D.C.C. citation, legiti- cer issued the traffic 39-07-09). constitutionality of investigative purposes mate of the traf- un- investigative judged detention is Jones, stop completed. fic were See Terry in der the framework established (stating troop- F.3d at 925 that once the Ohio, 1, 20, 1868, 20 392 U.S. 88 S.Ct. er had determined that the driver was (1968), that an requiring L.Ed.2d 889 intoxicated, not tired or had verified that “reasonably investigative detention be registration the driver’s license and scope in to the circumstances related valid, were and had checked for justified in which the interference warrants, legiti- outstanding arrest explained This has place.” first Court investigative of the traf- purposes mate stops, traffic reasonable “[a] for completed). fic were detention includes the amount period of necessary for the officer to com- time traffic

plete resulting his duties from the purposes Once the of the initial Mertz, duties, stop.” Those completed, a continued stop are seizure Appeals for according to the Court of a traffic the Fourth violator violates Circuit, Eighth may include: Amendment unless the officer has rea- believing that suspicion license and sonable requesting] the driver’s Jones, 269 requesting] activity criminal is afoot. See registration, vehicle, Therefore, step out of the re- F.3d at 925. the constitu- driver inquiry in the tional this case is reduced questing] that the driver wait car, in- whether Fields was patrol conducting] computer two determinations: meaning of the validity to determine the “seized” within the quiries Fourth Amendment when he was held registration, conducting] license and drug detec- investigate awaiting the arrival of the computer searches so, dog, if there was a history and to deter- tion whether driver’s sei- outstanding suspicion support mine the driver has warrants, zure. id. making] inquiries as See by referred to inquiry suppress first focuses and was Olson Our when he Olson seized Guscette during testimony suppression whether his at the every her vehicle. Not asked to search gave hearing, Olson verbal with a citizen is a contact law enforcement taillight, for the returned her seizure, do law enforcement officers identification, told her she was free to merely Amendment the Fourth not violate leave, and she indicated she understood. on the street or individuals by approaching vehicle, Before Guscette returned places. United States v. public other any weapons, asked her if she had 194, 200, 122 S.Ct. Drayton, knives, needles, else (2002). In Drayton, 153 L.Ed.2d vehicle, replied not. and she she did 2105, United States Su 122 S.Ct. Olson then asked Guscette for consent to long that as as law explained preme Court granted. search her which she cooper do not officers induce enforcement not a case where detained This is means, they may pose ation coercive a drug dog Guscette while detection for consent to search questions and ask Rather, called to the scene. after Olson they suspect have no basis for even when leave, told Guscette she was free activity. A ing seizure does not asked her about in the vehicle and items a law enforcement simply occur because permission asked her for to search her person, long a and as as questions Nothing vehicle. in the record indicates would feel free to dis persons reasonable exchange required anything this more than go officer and about their busi regard the time, period a minimal of and Guscette ness, a the encounter is consensual and anything” testified she was not “nervous or activity of criminal suspicion is during her encounter with Olson. The Bostick, v. 501 required. Florida U.S. trial court found Olson told Guscette she 434-35, 2382, 429, 111 115 S.Ct. L.Ed.2d (1991). to leave was free before Olson asked for persons If reasonable would 389 encounter, they vehicle, to terminate the feel free consent to search the and there seized under the Fourth have not been by was no threat or show of force 201, 122 Drayton, Amendment. S.Ct. when he asked for consent to search the seizure, an officer 2105. To constitute vehicle. The court found Guscette con- way restrain an individual’s must some “right receiving sented to the search liberty by physical force or show of author being her driver’s license back and told Ovind, 69, v. ity. City Fargo 1998 ND go.” she was free to The trial court effec- ¶ Fields, 7, In 575 2003 ND N.W.2d tively found Guscette had not been seized ¶ 11, 242, 81, 662 N.W.2d we have said when she consented to the search of her meaning within the person has been seized vehicle. Amendment, if, in view of all of the Fourth circumstances, a conclude there is sufficient surrounding [¶ 10] reason We person able would have believed he or she competent supporting evidence the trial was not to leave the scene. free finding free to court’s Guscette was leave not been seized when she con- gave The trial court found Olson

[¶ 9] sented to the search of her warning, handed Guscette a verbal contrary to the court’s decision is not license, cette her and told her she driver’s We, weight manifest of the evidence. According was free to leave. to Olson’s therefore, was not conclude Guscette report, written uniform incident which seized under the Fourth Amendment when into by incorporation before the trial court she consented to the search of her vehicle. State’s return to Guscette’s motion

131 Schmitz, 474 In State v. N.W.2d B (N.D.1991), 249, Court discussed Ellison, City Fargo to search: scope of a consent ¶ 151, 175, 13, we 635 N.W.2d 2001 ND exception to the To be valid as an determining the our standard outlined probable require- cause warrant of a consent to search: validity Amendment, Fourth a con- ments of the a consent validity of “[W]hen accord- sent search must be “conducted question, the trial is called into search placed upon to the limitations ing the consent satisfy itself that court must by the consent.” right officer’s voluntarily per- it can given before Huether, 778, 782 State v. 453 N.W.2d from obtained (N.D.1990). mit the use evidence scope “The of a search accused at trial.” against the the search by expressed its ob- generally defined Discoe, 466, 467 Jimeno, 248, 334 N.W.2d ject.” State v. Florida U.S. (1991). (N.D.1983). way in which the 111 S.Ct. 114 L.Ed.2d “[T]he whether a search exceeds question to make its determination trial court is one, a factual scope of consent is of voluntariness is exam- on the issue subject “clearly erroneous” stan- the circumstances ining Huether, 453 N.W.2d at dard of review. a confes- giving which surround 782; Padgett, State v. 393 N.W.2d wheth- or consent to a search see sion (N.D.1986). essentially of an free product er it is the Id. product or the of coercion.” choice Jimeno, In Florida v. ‘totality of the circumstances’ “Under 248, 251, L.Ed.2d 297 S.Ct. standard, or although (1991), the existence ab- Supreme Court the United States (1) concerning general factors consent sence certain said a defendant’s a car includes a consent to search and condition of search the characteristics may within the vehicle which containers at the time or confess- [he she] accused trial court (2) sought. the items The contain and the details of the ed or consented asked Guscette for consent found Olson in or confes- setting which the consent asking her if there search the vehicle after in significant are de- sion was obtained any weapons, knives or else were voluntariness, in no one factor ciding purse illegal the vehicle. Guscette’s of itself is determinative.” Id. and vehicle, are weapons in the and or knives 467-68. purse. be found in a The items that could trial court found Guscette The [¶ 12] no limitations on put court found Guscette of her voluntarily consented to the search her initial consent to search totality of the circum- vehicle under the by may the time Guscette have with- not testified she was stances. Guscette consent, the contraband drawn her during her encounter with Olson. nervous finding That already discovered. been threat or The court found there was no testimony he had supported by Olson’s when Guscette show of force already drug paraphernalia found the search, nothing to the consented telling the other when he heard Guscette supports record a conclusion Gus- consented to officer she had not product coer- just cette’s consent was search of the purse, but findings and conclusions she Although cion. The court’s Guscette testified vehicle. drug para- and are not had found supported by are the record did not believe Olson objected she weight purse of the in her contrary phernalia to the manifest officer, sup- there is evidence to the other evidence. finding. then [¶ 20] trial court’s We con- Officer Olson asked Gus- porting the competent step cette to out of her is sufficient evi- vehicle visit with clude there got him. fairly supporting agreed the trial court’s She out of her vehi- dence findings again are if findings of consent and those cle. Officer Olson asked Guscette weight manifest contrary Corey not to the she knew the whereabouts of Mock. again evidence. She stated she did not know. The officer then asked her about contact she concerning drug had with Officer Erbes IV charge. go Guscette said she still had to affirm conviction. We [¶ 15] to court on that matter. The record is whether, just point unclear at this or be- DALE SANDSTROM and 16] V. [¶ questioning fore her about her NEUMANN, JJ., A. concur. WILLIAM charge, the officer told Guscette that he Justice, MARING, dissenting. going give her a verbal majority I dissent from the be- handed back her identification. illegally I cause believe found, The trial court [¶21] and the and that trial court detained did majority agrees, that the officer then told appropriately consider the issue of consent Guscette she was free to leave. Neither detention. I obtained after Officer Olson nor Guscette testified to this would reverse and remand for the trial suppression hearing. only fact at the properly apply court to the law. place this fact can be found is Officer report Olson’s of the arrest which was to in response referred the State’s The record of this case estab- motion to suppress. stopped lishes that Officer get Before Guscette was able to taillight. approached for a broken He car, back into her Officer Olson asked her driver’s door and asked Guscette for her needles, knives, any weapons, she had pro- North Dakota driver’s license. He else her vehicle. She squad ceeded car ran back his where he answered no. He then if asked her he a driver’s license check to confirm that yes. could search her vehicle. said She Guscette did have valid driver’s license. Upon checking computer, the in-house II prior saw that Guscette had involvements continuing [¶23] believe that to de- with drugs paraphernalia. tain li- questioning Guscette after her [¶ 19] Officer Olson walked back registration cense and had been checked proof Guscette’s vehicle and asked her for was a of violation the Fourth Amendment. difficulty of insurance. Guscette had locat- Ramos, See United States 42 F.3d insurance, ing the current of proof and the (8th Cir.1994) (holding that continu- require officer did not her to it. produce ing to detain defendants after their licens- Next, Officer asked if she registration es and had been checked was knew Corey the whereabouts of Mock. Co- Amendment). a violation of the Fourth Guscette, rey Mock was a roommate of whom she justify greater knew law enforcement had been “To intrusion trying stop, to locate. Guscette told the officer unrelated to the traffic she did not know the whereabouts of Co- circumstances known to the officer must rey Mock. meet requisite level of reasonable sus- he asked stop investigation, v. Ra- Terry.” United States under picion (8th Cir.1994), mos, Corey rev’d Mock and cette the whereabouts 20 F.3d exit, (8th 42 F.3d 1160 Cir. grounds, other asked her to her vehicle. Once then 1994). officer is stop, an After a lawful pursued out of her Officer pas- the driver and to order entitled concerning the where- interrogation his to -check the the vehicle senger out of Mock, Corey pending abouts of the license of the identity validity drug of the drug charge, and the status passen- driver, identity of the to check the exactly Although it is not clear charge. patrol in the the driver sit ger, request identification, gave when he returned her car, his destination the driver about to ask and, warning, supposedly, a verbal told her whether there to ascertain purpose, leave, definitely it was her she was free warrants on the outstanding arrest are her vehicle and after he asked her to exit and to passenger, or establish driver ydiere- questions Corey about Mock’s after or otherwise the vehicle is stolen whether record does not reveal abouts. The Ramos, in violations of law. involved any ques- Olson asked Officer (cita- (Beam, J., dissenting) at 353 20 F.3d during traffic.stop tions relevant Jones, omitted); States v. tions United outside of her-.vehicle. their conversation Cir.2001). (8th The United F.3d unrelated to questions Olson’s were Officer Appeals Eighth for the Court of States stop and were unreasonable. the .traffic has further stated: Circuit justification expand scope He had no questions raise reasonably If related beyond investigating stop- <the traffic answers, licenses inconsistent . taillight. a broken Guscette for out, registration do check may raised so as suspicions however, be trooper’s contends, The State scope of the expand him to enable following issuance of the verbal additional, intrusive, and ask more identification and return Guscette’s however, If, are no answers questions. merely gotten in her car she could have objective circum- and no inconsistent In Officer Olson and left. this case. trooper with addition- supply stances con- interrogating Guscette just finished trooper should not ex- suspicion, al of her roommate cerning the whereabouts scope stop. pand trying to lo- whom law enforcement Ramos, at own about her possibly cate and was free to he told she charge when Olson’s my opinion, Officer

[¶25] breath, Then, he asked in the next completing leave. extended detention in her vehicle any illegal drugs an unreasonable seizure was if she had Amendment. Of- and violated the Fourth it. If Officer and if he could search a driver’s license ficer Olson conducted then free to leave and told her she was check, of a check Gus- registration her about interrogated contemporaneously history, an insurance criminal cette’s was the charges, her consent her own every- point, At that he had done check. detention. See State illegal fruit of an the traffic necessary complete thing 234, Robinette, N.E.2d St.3d 80 Ohio and did not have reason- stop investigation (1997). that at the opinion I am of the suspicion of further or articulable able still either her consent she was time of activity. time or a second seized seized her own interrogated her about had all Although Officer Olson [¶ 26] drug charge. complete the information he needed to Illinois, III ty”) (citing 590, Brown v. 422 U.S. (1975)). 602, 2254, 95 S.Ct. 45 L.Ed.2d 416 If was seized or Guseette still time, the consent she sub- seized second Ap- [¶ 30] The United States Court of to search her vehicle was sequently gave peals Eighth for the Circuit has held that illegal detention. The State driver, tainted although a trial court finds who voluntarily detained, contends Guseette consented illegally subsequently con- being search, a search of her vehicle after told she voluntarily sents to a that is not Becker, leave. Our Court has stated the of inquiry. could end 333 F.3d Rather, determining the Appeals standard for voluntariness the Court of con- examining analyze of a to search includes cludes a trial court must consent a second question, the circumstances: whether the of consent to search “sufficiently an act of free will to ‘totality of the circum- “Under purge the taint preceding illegal of the standard, although the existence stances’ Ramos, 1164; detention.” 42 F.3d at see of concerning or absence certain factors Becker, at 862. (1) the characteristics and condition of the time [he the accused In determining she] whether a “con- (2) or consented and confessed the de- given [to sent search] circumstances setting in which independent, tails the consent that render it an lawful cause signifi- discovery or confession was obtained are [the] [the relevant evi- voluntariness, deciding cant no one and whether the taint of an illegal dence]” purged detention is factor in and itself is from the evidence determinative.” seized, following factors must be con- Ellison, 175, City Fargo v. 2001 ND sidered: ¶ omitted). 13, 151 (quotation 635 N.W.2d (1) temporal proximity between the case, concluded, In the trial court illegal consent; search or seizure and the standard, applying the above (2) presence intervening circum voluntary. However, cette’s consent was stances; (3) purpose and fla inquiry. this is not the end of the See grancy of the official misconduct. See Becker, United States 333 F.3d Illinois, 590, 603-04, Brown v. (8th Cir.2003). (1975); 95 S.Ct. 45 L.Ed.2d 416 see Moreno, also [United States v.] A F.3d [898,] [(8th Cir.2002)] (applying States, Wong In [¶ Sun v. United 29] factors). Brown the Supreme Court of the United States Becker, (footnote 333 F.3d at 861-62 omit- held that following statements made ted). Appeals The Court of further stated are not detention admissible. 371 that a trial court apply must the Brown 471, 486, U.S. 83 S.Ct. 9 L.Ed.2d 441 factors to voluntary determine whether a (1963). Ap- The United States Court of consent to search retains the taint of the peals Eighth for the Circuit has held that Becker, illegal detention. at 861. in Wong applies rule announced Sun case, Ramos, such as in the present circumstances the United States where in Circuit, evidence obtained a search Appeals Court of for the Eighth Ramos, following illegal an detention. 42 petition on a for rehearing, held that de- (stating giving Ramos, F.3d at 1164 of spite illegal “[t]he Mi- detention of his warnings, by randa followed the making “sufficiently of consent was an act of free will statement, not, a voluntary does purge and of to taint preceding illegal itself, a case, mandate statement’s admissibili- detention.” F.3d at 1164. that told that the criminal law cannot the officer felt belief be Appeals of noted Court ” driver, orally writing, that and as an instrument of unfairness.’ Id. both used form. sign to the consent he did not have (quoting at 169 Schneckloth v. Busta a such Appeals The of further noted monte, Court S.Ct. law; therefore, required by warning (1973)). is not L.Ed.2d 854 Professor Lafave gave the the fact the officer “If an concludes: courts sense element of attempting he suggested was not strongly in particular strategies unfairness consent acting in exploit stop, was but by police, might that itself employed a signed good faith. Id. defendant a more critical of prompt po assessment form, Appeals of Court consent setting.” claims of consent in that lice Id. here, concluded, happened really, “[w]hat Because trial court failed 34] [¶ voluntary It an went consent. was beyond detention, recognize illegal it waiver of Salvador Ramos’s affirmative not address the of whether did issue a right prevent Fourth Amendment consent to car was cette’s search her “suf- Id. search of his vehicle.” purge an act of ficiently free will case, there was present In the taint.” The trial court did discuss primary warning, no consent form or but written intervening that Officer factor intervening be- there was an circumstance to leave. told Guscette she was free How- illegal tween detention and the consent ever, I conclude the trial court erred Officer Ol- search Guscette’s vehicle. analyze failing to the other two Brown that report son’s states he told Guscette it factors which should have considered inter- some either before or after he point, determining if the taint of Guscette’s charges, rogated drug about her her own purged. detention was free to he asked she was leave before if he her could search car. Officer suppress Guscette’s motion to leave, in the next said could stated, Motion is made and based “[t]his breath, if drugs he asked her there were Stephanie the attached Affidavit of upon if Both and he could search it. vehicle together with and all Jonell were asked before Gus- questions those at the testimony evidence adduced hear- get cette could even back into her car suppression At the ing of this matter.” of illegal questioning on the heels followed following: hearing, Guscette testified concerning vehicle the where- outside her you why him he Q: Okay. Did ask en- her roommate whom law abouts of detaining you that? like trying to locate and her forcement question it Nope, A: I didn’t. I didn’t charge. La- own Professor pending was, maybe I he thought because recognizes fave there exists now know, know, just, you you wanted to practice using traffic pervasive police doing anything bad. see we were those stops purported consent of plus face Maybe standing face to conducting vehicle stopped as means confrontation, know, you better La- drugs. Wayne to find R. searches if, know, I (3d you was like. see what fave, § and Seizures 8.2 Search And I nervous or wasn’t Supp.2004). ed. He notes “that tradi- & because, know, you I hadn’t been con- tionally [of the notion of voluntariness wrong. And the doing anything sent] ‘has reflected accommodation’ (i) was, thing first to me he said competing two interests: the ‘need me, so, haven’t seen you ... asked Co- for the enforcement a tool effective (ii) like, said, I laws’; ‘society’s deeply rey Mock? And was no, car, I him haven’t seen for several Andy which did. And we of fact. days matter And then he my stood at the back of I car. And you I run-in goes, see had a with was on the driver’s side of the car Erbes, it was Officer—I believe he rear, standing right at right by said, you had a run-in with Officer light, Andy standing right I was—I didn’t Erbes. know that next to me. And then Officer Nel- know, my charges, you being from like, standing, son was right behind my charge first bond would us. And he went to—Officer Olson know, my, you of been on that he my my went to car. purse And ready. could of seen that all And front, like, on the front —was on the so, was, him you I asked if that in the middle between the seats know, I going what was still was fairly large purse and—it’s a I—and Court for. and he— him go seen for it right away. And Q: previous paraphernalia grabbed You had a as soon as he it—

charge, right? is that testimony request indicates the A: Yeah. to search for contraband contempora- neous with Officer Olson’s questioning re- Q: Okay. got And somehow he had garding a run-in with Officer Erbes and a some information— drug charge. Under the Right. A: circumstances, an inference of coercion or Q: you something —that to do intimidation could be drawn. Erbes, with an Officer is that cor- United Supreme States rect? rejected Court per-se has rules and has Right. A: emphasized that voluntariness ais fact Q: you got Do know how he that infor- question to be determined from all the mation? Robinette, circumstances. Ohio I’mA: sure he looked in computer his 33, 39-40, U.S. 117 S.Ct. 136 L.Ed.2d something. (1996). On remand from the United Q: But, nonetheless, Okay. that didn’t Court, Supreme States Supreme Court you? bother Robinette, of Ohio in 685 N.E.2d at 770-71 Well, was, A: I him if you asked that stated: know, what I going was still “The transition between detention and me, for? Court And he told well exchange consensual can be so seam yes, like, it must be. And I was less that eye may untrained not then, know, yeah you

well I did — notice that it has occurred. The unde a run-in have with Officer Erbes. tectability of that may transition be used Q: Uh-huh. by police officers to coerce citizens into answering questions they A: goes goes— And then he he need not —well answer, know, or to considering, you allow a search of a you vehicle the— know, on, know, they are you legally obliged the—what’s to al me, goes, Robinette], front of I low.” Id. [State can search 73 Ohio your car? And I—he goes can— St.3d ^[650] 653 N.E.2d ^[695] [(1995)].5 you will give me consent to When these factors are your said, sure, car? you police And combined with a superior officer’s know. position Then he directed authority, any Officer Andy Nelson to ask to get person out of compelled would have felt to sub

137 circumstances, totality of the consent the questioning. While mit to the officer’s “sufficiently voluntary not questioning express was must be found Newsome’s coercive, surround purge illegal [an] circumstances the taint of detention.” ly the Becker, ques made the request the to search at 861. ing 333 F.3d the impliedly coercive. Even tioning rv conceded, argument oral before state at that, opinion the 37] I am of [¶ Court, Supreme that States the United queries scope an officer’s exceed the ticket has to issue a an officer discretion articu- reasonable and stop without warning than a to motorist rather activity, giving lable of criminal suspicion uncooperative. the motorist becomes merely uttering “you (Official a verbal and 587659, at 5 Tran 1996 WL See necessarily guar- do not are free to leave” From the script Argument). of Oral circumstances, is subsequent it antee a consent to search appears the totality of voluntary to taint merely “sufficiently” purge “a the submitted to that Robinette authority” especially rather than of an This is illegal claim of lawful detention. voluntary act of free consenting illegal as a detention and con- true where the Royer, this is sufficient will. Under are and contem- integrally sent connected compliance. prove voluntary [Florida poraneous and where there have been v.] Royer, ^[491] at 103 subtly coercive police questions, which S.Ct. ^[1319] at 1324, L.Ed.2d ^[229] at possibly create vulnerable subjective [(1983)]. person state in who consents. the Robinette, have at 770-71. “Other courts illegally 38] I conclude Guscette was [¶ or similar facts also concluded on like detained; therefore, a Fourth Amendment occurred after illegal an second seizure However, the violation occurred. because one, of a a result not termination lawful illegal trial court failed consider the United States Su- all inconsistent with volun- detention whether Guscette’s and decision.” See preme Court’s Robinette sufficiently act of free tary was an consent Lafave, R. Seizure Wayne Search deten- illegal will to the taint of her purge (3d 9.3(a) 2004); Supp. Id. at § at 49 ed. & illegal an tion or it was fruit of whether Reittinger n. 107.12-107.13. v. Com- detention, for reverse and remand would monwealth, Virginia Court of Supreme legal apply trial correct court that, Reittinger told although held following an consent regarding standard leave free to deputy illegal detention. gave warning, him a verbal deputy Therefore, I respectfully dissent. immediately transpired there- events MUEHLEN MARING 40] MARY [¶ after, namely, drugs about questioning permission request his vehicle WALLE, Justice, dis- Chief VANDE search, to a suggest “would reasonable senting. just opposite person that court trial concluded [¶ 41] The 260 Va. 532 S.E.2d case.” Everson, 474 to State v. analogous case is (2000). that an officer The law is clear (N.D.1991), that under N.W.2d 695 scope of the traffic viola- cannot exceed the required “was not Everson the officer and articu- unless there is reasonable tion suspicion have a articulable activity suspicion to lable believe wrongdoing by Defendant any further detention taints afoot and consent to search Jones, order to ask for her F.3d subsequent consent. that, in Everson the defendant vehicle.” But clear on the The law is also delay obtaining to the was held due of the

license check on trailer because of the It plate.

mutilated condition license delay requested during

permission search the automobile to

which the trailer was attached. case, agree In this I with the

dissent that the officer’s extended deten- stop

tion completing the traffic seizure Fourth unreasonable under the

Amendment to the United Constitu- States authority

tion. The for a vehicle justifi- authority

traffic violation is not interrogate

cation to the driver on unrelat-

ed I agree matters. also with the dissent illegal, the extent that detention closely

we need look at the circumstances if there determine was a clear interval

between the detention re-

quest to search before we conclude the

permission voluntary to search was indeed

notwithstanding illegal detention. Un-

der the circumstances

instance, the clear interval volun- and the

tariness of the consent to are not

readily join apparent. the dissent

concluding should we remand the matter trial court that determination. VANDEWALLE,

[¶ 43] GERALD W.

C.J.

2004 ND 76

Jody GULLICKSON, Petitioner Appellee KLINE, Respondent

John Appellant.

No. 20030223.

Supreme Court North Dakota.

April

Case Details

Case Name: State v. Guscette

Court Name: North Dakota Supreme Court

Date Published: Apr 13, 2004

Citation: 678 N.W.2d 126

Docket Number: 20030177

Court Abbreviation: N.D.