State v. Guthmiller
499 N.W.2d 590
N.D.
1993
Check Treatment

*1 controlling and one factor is here that no

affirm the trial court. Dakota, of North STATE dissenting. respectfully

I dissent. GUTHMILLER, Dallas everything I this Court said with Leidholm, 487 in Blotske v. Winn, and Delzer v. Cr. No. 920314. (N.D.1992), regarding the im- maintaining relation-

portance of a stable ship par- a child and the custodial between ent, I there should be maintaining in such a

presumption favor

relationship. (special at 747-49 concur- Id. Levine). by

rence J.

But, parent in the custodial has to a

elected to move new town with a new acquire system,

school and to a new imag-

spouse, all at once. It is difficult to done

ine what more could be to destabilize children. I

the lives of her While do not

suggest parents that custodial cannot move certainly I remarry, pre- think that the

sumption favoring stability largely can be destabilizing

offset such life choices

are made. only presented

Were these the facts court, I probably

the trial would not dis- most, destabilizing

sent. At effect of remarriage only

the move and the can can- presumption

cel stability, favor of

and, as Justice Levine wrote in her concur- Delzer, ought

rence in “we to resolve close continuing custody

cases favor of parent

with pro- the custodial order to continuity_”

tect the desired Id. at 747.

But here we have additional factor of

expert testimony recommending the custo- change.

dial I might While still not have

reached the same conclusion as the trial

court, that, I by my am told new col-

leagues, is not the standard of review in Applying appropriate Court. stan-

dard, presumption favoring once stabili-

ty is cancelled destabilizing Catherine’s

choices, expert testimony is consid-

ered, say I cannot am left with a

definite and firm conviction that a mistake

has been made. would affirm.

Kapp testified. Kapp spoke When to Guth- license, miller about his driver’s Kapp de- strong tected a odor of alcohol and slurred speech. Guthmiller insisted that he was driving, not asserted “he was stopped,” and perform declined to field- sobriety tests. (argued), Robert A. Freed Asst. State’s Kapp arrested Guthmiller driving for un- Jamestown, Atty., plaintiff appel- for der the influence. Guthmiller also refused lee. test. blood-alcohol (argued), James A. Sanchez-Wentz jury, At a trial without a Guthmiller’s Jamestown, appellant. for defendant and main defense was that the officer had no articulable and reasonable jus- MESCHKE, Justice. tify The trial court rec- We consider whether had ognized challenge to an unlawful articulable and reasonable to in- ordinarily seizure would have been waived vestigate Dallas Guthmiller. We hold that unless heard and timely decided on a mo- did, the officer and we affirm Guthmiller’s suppress evidence under driving conviction for under the influence 12(b). Still, N.D.R.Crim.P. the court ruled of alcohol. prosecution not prejudiced by delayed motion and decided 25, 1992, p.m. At 7:15 on Deputy question. Reasoning from State v. Sergeant Bradley Kapp Sheriff received a 469 N.W.2d 568 the court dispatch operator, say- from the state radio Kapp ruled that had an articulable and ing anonymous that an reported caller had “because [Guthmiller] “a DUI driver.” The light described a at a and didn’t move. He pickup, number, blue the license and its remained there.” The trial court decided eastbound direction on Interstate prolonged was the Kapp 10 from Cleveland to “something independent more” of the anon- Interstate and headed east on the inter- ymous tip that made it reasonable for the highway. state As he entered Interstate officer to whether the driver light he saw a pickup blue in his rear- gas,” having was “out of a “[m]echanical view mirror. The pickup leaving In- failure,” ill, if driving or not under the terstate 94 on the ramp. eastbound exit influence. Kapp through median, turned head- Despite test, the lack of a blood-alcohol ing back in the westbound lane. As he the trial court concluded that there was bridge went under the over Interstate “ample evidence” that Guthmiller was driv- he saw the pickup stopped blue alcohol, under the influence of and con- sign at the exit intersection. At no time appeals, arguing victed him. Guthmiller Kapp did see driving. Kapp erratic that since saw no erratic again through turned crossed law, of violation there was no articulable lane, the eastbound up and drove the east- suspicion Kapp for to inves- ramp. bound exit heAs came toward the tigate him. pickup, he confirmed that it report- had the appeal Because the notice of was filed ed license number.' late, day jurisdiction. one we had no On Kapp paused pickup behind the for a few argument, Guthmiller’s motion at oral we seconds to see whether it would move. remanded to the trial court to determine not, When it did Kapp turned on his amber neglect whether there was excusable got flashers patrol out of his car. 4(b)(3) N.D.R.App.P. and N.D.R.Crim.P. stepped Guthmiller out of his 37(b)(3) to appeal. extend the time for nearly the same time. noticed that Guthmiller, staggered. “He ... to use The trial court has ruled that excus support his ... point,” for neglect appeal, able extended the time for —at jurisdiction to decide the for a few seconds was no indication now have activity, typical unlawful but a reaction to merits. having a law enforcement officer come guarantee people constitutions Our behind him.” Guthmiller claims that he secure from unreasonable to be paused only prose- seconds.” “few *3 Const, amend. searches and seizures. U.S. says longer, explaining: cution it was Const, I, IV; art. 8. For that rea N.D. § ramps exit for the Interstate are not “[T]he son, an an officer must have articulable However, exceedingly long. suspicion that a law has and reasonable stopped was still at the while being stop moving to a been or is violated down, slowed crossed the vehicle for State v. drove on the lane westbound underneath 568, (N.D.1991). Thus, an 469 N.W.2d 569 bridge, again through the medi- stop moving vehicle to officer cannot an, drove across the eastbound lane of In- why driver he investigate who the is or ramp.... terstate 94 and the exit In reported parked neigh in a residential been fact, Kapp couple waited a of seconds while before, shortly any suspi borhood stopped he was behind vehi- [Guthmiller’s] City cion conduct. Minot of unlawful v. waiting cle for him to move.” Nelson, (N.D.1990). 460 462 N.W.2d As Cortez, explained in 449 the duration of Guthmil- Whatever 690, 411, 417, 101 694, S.Ct. 66 L.Ed.2d U.S. pause ler’s the trial court (1981), investigative stop of a 621 an mov that, ruled since he “didn’t move” and “re justified by vehicle “must be some ob there,” investigation mained “some should jective person manifestation that 39-10-47(1) place.” take See NDCC is, stopped or is about to (“Upon any highway outside of a business activity.” criminal person may or residence stop, district no tip vehicle, pickup by park, standing any described the its or leave wheth color, direction, unattended, upon and license number. The er attended or paved acting fact that the officer part highway informa or main-traveled of the identity not know the tip practicable stop, park, does of the it is to or so leave ster does not make the information high value such vehicle off such of said Neis, 469 N.W.2d at way,_”). less. 570. The factu In Langseth, State v. 492 298, al basis for a need not arise from the N.W.2d 300 alone, personal may something officer’s observations but during learn can arise from information caretaking furnished or casual encounter with a others. v. Hornaday, parked reasonably State 477 N.W.2d car that will fur- 245, (N.D.1991); seizure, 246 Wibben v. North Da or even an kota (checking State 413 N.W.2d occupied arrest. See Wibben 329, (N.D.1987) (“Upon corroborating lot). 332 apartment parking car in an anonymous tip, other details of the we be We believe combined with the in- formation, lieve that this officer had sufficient infor Guthmiller's “hesitation” at the suspicion, particu mation for a reasonable long enough reasonably to larly when we take into justify investigation. account inferences and investigating deductions that an officer A suppression trial court’s decision of a make.”); normally would Lykken, State v. if, motion will be affirmed after conflicts 664, (N.D.1987); 406 N.W.2d 666 v. the evidence are resolved favor of af- Boushee, 423, (N.D.1979); 430 firming, competent there is sufficient evi- 255 Lange, State v. dence for the decision. Bryl, State v. color, direction, confirmed the (N.D.1991). Bryl reminds and license number of the before us, too, that this standard of review defers investigating why it long. so to the trial superior opportunity court’s argues that his weigh did not judge evidence and to the credi- furnish reason him. bility He of the witnesses. We conclude that says that his “hesitation sign there was sufficient evidence for the trial had an articu- find that the officer court to HOUMANN, to investí-

lable Chester gate Guthmiller. conviction.

We affirm Guthmiller’s HOUMANN, Colleen WALLE, C.J., and YANDE JJ., SANDSTROM concur. Civ. No. 920328.

LEVINE, concurring in the re-

sult. *4 prolonged stop sufficiently corrobora- anonymous tip that he was

tive of the the influence to officer. made the law enforcement words, stop provid-

In other articulable and rea-

ed the officer with an person stopped

sonable

was, engaged in or was crimi- about I, therefore, in the activity.

nal concur

affirmance. majority’s

I do not with the refer “caretaking

ence to a or casual encounter justify fur

with a car” that would It seizure or arrest. is unnecessary piece legal analysis be

cause our decision is not based on it. Hav emphasize want exercising caretaking made for func subject

tion or casual encounter is to the standard when of

ficer in crime is also detection.

Wibben v. North Dakota State n. 1

1987). Nor Ido believe that Guthmiller’s anony tip,

mous would be sufficient to constitute trigger any

either reasonable

caretaking duty of a law en momentary delay

forcement officer. A give does not law enforce

ment officer the to confront the driv all, the Fourth

er. After Amendment governmental

seeks to minimize confronta individual.

tions with the

Dunbar, (D.Conn.1979). F.Supp. 704

I concur in result.