Lead Opinion
[¶ 1] The State appeals from a district court order granting Rebekah Maxine Po-gue’s motion to suppress evidence. We affirm the district court’s order because the State did not satisfy its burden to show law enforcement’s warrantless search of Pogue’s vehicle qualified as a valid inventory search, an exception to the warrant requirement, or that the good faith exception to the exclusionary rule applies.
I
[¶ 2] Officer Andrew Langowski, a Watford City police officer, initiated a traffic stop of a vehicle for exceeding the speed limit. The driver of the vehicle could not produce any form of identification, proof of insurance, or registration, but identified herself as Sarah Hernandez. The officer detected an odor of alcohol coming from the vehicle and noticed the driver had bloodshot, watery eyes, slurred speech and displayed slow, sluggish movements. After the driver submitted to field sobriety testing and an onsite screening test, she was arrested for driving under the influence. The officer received the driver’s permission to move the vehicle out of a private driveway, across the street. The driver submitted to a chemical blood test and was taken to jail for booking.
[¶ 3] During the booking process, law enforcement realized the driver had provided false identification information. When confronted by law enforcement, the driver identified herself as Pogue and admitted she had initially provided a false name. According to Pogue’s arrest report, law enforcement then impounded the vehicle Pogue had been driving and performed an inventory search of it due to “the vehi
[¶ 4] Pogue was charged with four counts of possession of a controlled substance and two counts of possession of drug paraphernalia. Pogue moved to suppress the evidence found as a result of the inventory search. Neither party requested a hearing, and no hearing was held. The district court granted Pogue’s suppression motion, concluding the vehicle was not impounded for caretaking or safety concerns, therefore, the inventory search exception did not apply. The State moved the district court to reconsider. Pogue responded arguing a motion to reconsider is not an available remedy under North Dakota law and the appropriate remedy is to appeal.
[¶ 5] The State appealed the district court’s order granting Pogue’s suppression motion, before the district court ruled on its motion to reconsider. The State argues the district court erred when it granted Pogue’s motion to suppress because the initial warrantless search qualified as an inventory search, an exception to the warrant requirement. Alternatively, the State argues the district court’s order granting Pogue’s motion to suppress should be reversed because the good faith exception to the exclusionary rule applies. Pogue argues the State’s appeal is not ripe for review because the State appealed before the district court ruled on its motion to reconsider.
II
[¶ 6] As a preliminary matter, we address Pogue’s argument that the State’s appeal is not ripe for review because the State filed its notice of appeal before the district court ruled on its motion to reconsider. Under N.D.R.App.P. 4(b)(1)(B), the State must file the notice of appeal within 30 days after entry of the order being appealed. A motion for reconsideration does not toll the time for filing a notice of appeal. See State, ex rel. Harris v. Lee,
III
[¶ 7] The State argues the district court erred by granting Pogue’s motion to
[¶ 8] This Court reviews a trial court’s decision on a motion to suppress as follows:
[W]e give deference to the district court’s findings of fact and we resolve conflicts in testimony in favor of affir-mance. State v. Tognotti,2003 ND 99 , ¶ 5,663 N.W.2d 642 . We “will not reverse a district court decision on a motion to suppress ... if there is sufficient competent evidence capable of supporting the court’s findings, and if the decision is not contrary to the manifest weight of the evidence.” State v. Gefroh,2011 ND 153 , ¶ 7,801 N.W.2d 429 . Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law. Id. State v. Reis,2014 ND 30 , ¶ 8,842 N.W.2d 845 . Whether law enforcement violated constitutional prohibitions against unreasonable search and seizure is a question of law. State v. Uran,2008 ND 223 , ¶ 5,758 N.W.2d 727 .
[¶ 9] The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. State v. Holly,
[¶ 10] “A person alleging his rights have been violated under the Fourth Amendment has an initial burden of establishing a prima facie case of illegal seizure. However, after the defendant has made a prima facie case, the burden of persuasion is shifted to the State to justify its actions.” City of Fargo v. Sivertson,
[¶ 11] Here, Pogue satisfied her burden to establish a prima facie case of an illegal seizure when she moved to suppress all evidence obtained as a result of the initial warrantless search of her vehicle and attached a portion of the arrest report discussing the reasons for the impound of the vehicle and describing the searches. The State conceded as much by generally agreeing to the facts set forth in Pogue’s exhibit in its response to the motion. The burden of persuasion then shifted to the State to justify its actions, by showing an exception to the warrant requirement applied. State v. Lanctot,
[¶ 12] In its response to Pogue’s motion to suppress, the State argued the initial warrantless search of Pogue’s vehicle qualified as an inventory search. The only evidence produced by the State was
[¶ 13] A valid inventory search qualifies as an exception to the warrant requirement. Colorado v. Bertine,
Under the inventory search exception, “police need neither probable cause nor a warrant to search a vehicle.” State v. Holmes,569 N.W.2d 181 , 186 (Minn.1997) (citing Illinois v. Lafayette,462 U.S. 640 , 643 [103 S.Ct. 2605 ,77 L.Ed.2d 65 ] (1983)). In other words, the basis for an inventory search does not arise because the police suspect the vehicle contains contraband or evidence of crime. Rather, the basis for an inventory search rests on the administrative and caretaking functions which we identified in [State v.] Kunkel, 455 N.W.2d [208,] 211 [ (N.D.1990) ] (citing Colorado v. Bertine,479 U.S. 367 , 372 [107 S.Ct. 738 ,93 L.Ed.2d 739 ] (1987)). The Fourth Amendment examination of an inventory search, therefore, turns not on the issue of probable cause, which is the traditional basis for the warrantless search of vehicles, but on the issues of whether the vehicle was properly impounded and the search was carried out in accordance with standard police procedures. Holmes,569 N.W.2d at 187 ; see also State v. Goff [166 W.Va. 47 ],272 S.E.2d 457 , 459 (W.Va.1980) (discussing the difference between inventory searches and the “automobile exception”).
State v. Syvertson,
This court finds the vehicle was not impounded to further a caretaking function. Sergeant Langowski’s report indicates the vehicle was impounded because it didn’t belong to Pogue, expired registration, and the false information charge. Sergeant Langowski moved the vehicle across the street before he took Pogue to the law enforcement center. The vehicle sat on the side of the road until it was towed to the impound lot, sometime before 3:00 a.m. that evening. The Court does not have any evidence the vehicle was impounded for caretak-ing or safety concerns. In State v. Gregg,2000 ND 154 , ¶ 19,615 N.W.2d 515 , the North Dakota Supreme Court found a vehicle was properly impounded when it was a safety hazard because it was parked on the on ramp of 1-94 and was not insured. The same safety and caretaking concerns do not exist in the present case. The caretaking function legitimizes an inventory search. State v. Kunkel,455 N.W.2d 208 , 211 (N.D.1990). Without that justification, “an inventory is unreasonable and is an impermissible warrantless search in contravention of the Fourth Amendment.” Id. The inventory exception to the warrant requirement does not apply and the warrantless search of the vehicle was impermissible. Probable cause for the search warrant subsequently issued for the vehicle was based exclusively upon the evidence illegally obtained in the warrantless search. The illegally obtained evidence cannot support a finding of probable cause. Id. The motion to suppress is GRANTED.
[¶ 15] The State argues the district court erred, as a matter of law, in finding there was no evidence the officer impounded the vehicle for caretaking or safety concerns justifying an inventory search. More specifically, the State argues insufficient competent evidence supports the court’s finding and the decision is contrary to the manifest weight of the evidence. Pogue argues the State has not met its burden of showing law enforcement impounded her vehicle under its caretaking or safety functions.
[¶ 16] The State should not be complaining of the insufficiency of the evidence, where the State had the burden of persuasion. In Officer Langowski’s arrest report, he noted his reason for impounding the vehicle as: “Due to the vehicle not belonging to her, expired registration, and False Information charge I impounded the black Mazda.” In his affidavit in support of the application for a search warrant, Officer Langowski stated he impounded Pogue’s vehicle “due to no current registration, false information to a police officer, and obstruction of a private driveway” (Emphasis added.) However, according to Officer Langow-ski’s arrest report, prior to arresting Po-gue, he asked and received permission from Pogue to move the vehicle out of the private driveway it was obstructing and parked the vehicle across the street. Therefore, Officer Langowski’s statement in the application for a search warrant that he impounded the vehicle because it was obstructing a driveway is contradicted by his own statements in the arrest report; therefore, it does not support a valid safety concern.
[¶ 17] The arrest report lists no current registration and the vehicle not belonging to her as reasons for impounding the vehicle. The arrest report indicates the officer knew shortly after the traffic stop the vehicle did not have current regis
[¶ 18] The State provided a copy of the written directive for Watford City police officers to follow after it is determined that a vehicle should be impounded. The State offered no evidence on when officers are authorized to impound a vehicle. Under the written directive offered into evidence, an officer is to complete several procedural steps, including:
4. The impounding officer will complete a Call For Service (CFS) for every vehicle that is impounded. The narrative of this Call For Service (CFS) is to include the following information, but not limited to: Vehicle description and license plate, vehicle location, reason for impoundment, place of storage, towing service, time/date of vehicle impound- • ment and actions taken- previously by other officers (warning tags, citations, verbal warning and/or traffic hazard) that lead up to the impoundment of the vehicle.
5. If the vehicle is seized and impounded as evidence or as part of a crime, this will be documented on the Wat-ford City Police Department Vehicle Impound form and the Call For Service (CFS). It will be clearly stated why the vehicle has been seized and who the vehicle can be released to or by.
6.All paperwork (Call For Service and the Watford City Police Department Vehicle Impound form) will be completed prior to the end of the impounding officer’s shift.
The State did not provide the district court with any documents required by this directive. The State did not request a hearing during which it could have presented testimony explaining how impounding the vehicle qualified as a caretaking function, rather than an investigative purpose, nor did it provide an affidavit explaining why the officer impounded the vehicle. While the State is not required to introduce testimony, it must present evidence to demonstrate the warrantless search meets an exception to the warrant requirement. Lanctot,
[¶ 19] The district court did not err in finding law enforcement did- not impound the vehicle under its caretaking function because there is no evidence that the location of the vehicle presented a safety hazard. There was no evidence presented that specifically stated the vehicle was impounded to protect anyone’s property. “We affirm the decision of a trial court on a motion to suppress, after resolving conflicting evidence in favor of affirming the decision, unless we conclude there is insufficient evidence to support the decision or the decision goes against the manifest weight of the evidence.” City of Jamestown v. Jerome,
IV
[¶ 20] The State alternatively argues the evidence found after the search warrant was obtained should not be suppressed under the good faith exception to the exclusionary rule. The State argues the district court wrongly concluded the good faith exception did not apply and did not conduct the required analysis based on its reliance on State v. Kunkel,
[¶ 21] In United States v. Leon, the United States Supreme Court adopted the good faith exception to the exclusionary rule.
(1) when the issuing magistrate was misled by false information intentionally or negligently given by the affiant; (2) when the magistrate totally abandoned her judicial role and failed to act in a neutral and detached manner; (3) when the warrant was based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) when a reasonable law enforcement officer could not rely on a facially deficient warrant.
State v. Herrick,
[¶ 22] The purpose of the good faith exception to the exclusionary rule was, as noted in United States v. Conner:
The rule in Leon is based on the theory that where there was been no police illegality, there is no conduct the courts need to deter and therefore no basis to enforce the exclusionary rule. As the Supreme Court stated: “Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” The ultimate question under Leon is whether the officers “had an objectively reasonable basis to believe they were complying with applicable law and the Fourth Amendment.
[¶ 23] In this case, neither party disputes that all of the evidence presented to the magistrate to apply for the search warrant derived from the warrantless “inventory” search of Pogue’s vehicle. As a result, without the evidence from the initial warrantless search of Pogue’s vehicle, there would have been no probable cause to obtain a search warrant. However, the State argues the officer who both sought and executed the search warrant, acted in good faith upon objectively reasonable reliance on the magistrate’s probable cause decision. See Lunde,
[¶ 24] In Kunkel, this Court discussed an inventory search that was conducted to discover evidence of a crime, rather than to fulfill a caretaking function.
[¶ 25] In Kunkel, probable cause for a search warrant for a vehicle was based exclusively upon the evidence illegally obtained in the invalidated inventory search. Id. This Court stated: “Illegally obtained evidence cannot be the basis of a magistrate’s finding of probable cause.” Id. at 211-12 (relying on Vasey,
[¶ 26] In Vasey, law enforcement stopped the defendant for a routine traffic violation and arrested him on an. outstanding felony drug warrant.
[¶ 27] The State urges this Court apply the analysis in United States v. Fletcher,
[¶ 28] Even if we were to apply Fletcher, the State’s argument fails. The relevant facts to apply here are the facts surrounding the officers’ good faith reliance on a valid inventory search. Good faith is a finding of fact. See Fletcher,
[¶ 29] In addition, unlike Fletcher, where there was no police conduct to deter, here we have police conducting a search where no evidence has been presented that law enforcement has a policy on when to impound a vehicle or that the impound directive in place was followed. No evidence was presented that law enforcement acted for any reason other than for investigative reasons. A valid inventory search must be conducted for administrative and caretaking purposes according to reasonable police regulations administered in good faith. Under these circumstances, the officer’s pre-warrant conduct is clearly illegal and the good faith exception does not apply. Conner,
V
[¶ 30] We affirm the district court’s order suppressing evidence obtained as a result of the warrantless search of Pogue’s vehicle.
Concurrence Opinion
concurring specially.
[¶ 32] Although common sense should play some part in these decisions, it is sometimes necessary to state the obvious. Here, the caretaking function was different than if the vehicle had been owned by