State v. Vetter
State v. Vetter
Opinion
[¶1] Dylan Vetter appeals from a criminal judgment entered after his conditional guilty plea to possession of controlled substances and drug paraphernalia. Vetter argues the deputy sheriff who stopped him for speeding lacked reasonable suspicion to believe Vetter's car contained contraband and unlawfully expanded the scope of the traffic stop by inquiring whether there were any illegal items in Vetter's vehicle and by conducting a canine sniff around the car. We affirm, concluding the district court did not err in denying Vetter's motion to suppress evidence because the stop was not expanded in violation of the Fourth Amendment.
I
[¶2] On March 1, 2018, around 11:35 p.m., Deputy Chad Thompson stopped Vetter for a speeding violation. Thompson is trained to handle a drug detection dog. His dog Zena was with him that night in his patrol vehicle. Before he approached Vetter's vehicle, but after it had come to a stop, Thompson noticed it rocking back and forth and saw two occupants moving around inside. He believed the occupants were trying to move or hide something. Thompson approached the vehicle, where he saw Vetter in the driver's seat. While talking with Vetter, Thompson saw an open alcoholic beverage can on the floor by Vetter's feet. In response to Thompson's questions, Vetter admitted he'd had a few drinks earlier. Thompson asked Vetter to come back to the patrol car, where he further questioned Vetter regarding consumption of alcohol. Vetter consented to field sobriety tests, including a preliminary breath test, none of which indicated impairment. After administering the tests, Thompson asked Vetter if there was anything illegal in his vehicle. Vetter denied having anything illegal in his vehicle.
[¶3] Corporal Hedin arrived during this questioning. Deputy Thompson got out of his patrol car and asked Hedin to write *438 Vetter a warning ticket. While Hedin wrote the warning ticket, Thompson and K-9 Zena conducted a canine sniff of Vetter's vehicle. Zena alerted on the passenger side door. The vehicle was then searched, and controlled substances and drug paraphernalia were discovered. Vetter filed a motion to suppress the evidence resulting from the search. The district court denied the motion to suppress, after which Vetter entered a conditional guilty plea to possession of controlled substances and drug paraphernalia.
[¶4] Because the issue before us turns on whether the stop was expanded in time or in scope, we include immediately below a detailed time line of relevant events during the stop as it appears in the video recording of the stop presented to the district court. All times are in the eleven o'clock p.m. hour.
35:23 Deputy Thompson activates his flashing lights to initiate a stop of Vetter's vehicle.
36:45 Thompson introduces himself to Vetter, explains speeding was the reason for the stop, and asks for registration and insurance.
37:33 Vetter hands Thompson papers.
37:33 Thompson looks at the papers and looks into the car.
37:44 Thompson inquires if Vetter has any open alcohol in the car and says he sees Vetter is trying to hide a Twisted Tea can with his foot. Vetter says he was fishing earlier and hands the can to Thompson. Thompson asks for the registration card again. Vetter hands it to him.
38:35 Thompson asks Vetter to come back to the squad car. While Vetter is walking back to the squad car, Thompson asks if he has any weapons on him. Vetter says he does not. Thompson tells Vetter to put out his cigarette and sit in the front seat.
39:03 Vetter and Thompson enter the squad car. Once in the car, Thompson shows Vetter the "locked speed." He asks how much Vetter drank that night, when was the last drink, and if Vetter feels fine to drive. Vetter responds he is fine and mentions he was in Napoleon visiting his dad.
40:41 Thompson inquires into the condition of Vetter's eyes, asks to see them, and conducts a Horizontal Gaze Nystagmus test.
42:17 Vetter initiates conversation about the weather. They lapse into silence at 42:38.
43:45 Vetter initiates conversation about fishing.
44:16 Thompson asks Vetter if he is familiar with the alphabet and counting backwards from 100 to 1. Vetter indicates that he is. Thompson has Vetter recite the alphabet from the letter C to the letter T. Vetter recites the alphabet as instructed. Thompson then asks Vetter to count backwards from 75 to 58. Vetter does so.
45:42 Thompson tells Vetter that he wants to administer a preliminary breath test. Thompson reads the implied consent advisory. Vetter consents to the test. Thompson administers the test. During this exchange, at 46:43, the video shows the picture becoming illuminated from behind the patrol car.
46:57 Thompson: "Sir when you guys came to a stop I could see the whole car like rocking. Were you *439 guys hiding anything or anything like that in there?"
Vetter: "No. I need new shocks on it."
Thompson: "You were already stopped for a bit at this point though. Nothing illegal in the car or anything like that?"
Vetter: "No."
47:13 Thompson: "Okay."
47:15 Audible throat clearing, but no further conversation.
47:25 Sound of car door shutting.
47:26 Dialog between Thompson and Hedin takes place outside car.
Thompson: "You just want to hop in my driver seat there and start writing him a warning for 75 in a 65?"
Hedin: "Okay."
Thompson: "When he stopped, his whole car was shaking, I think they were probably hiding something so ... "
Hedin: "How many people are in there?"
Thompson: "Just him and one passenger. The driver's in my front seat. He's not, he blew zeros but drank earlier."
Hedin: "Warning for what?"
Thompson: "75 in a 65 at about 40th street."
Hedin: "40th street?"
Thompson: "Yeah."
47:57 Hedin enters Thompson's car. Dialog between Hedin and Vetter is indistinguishable.
48:06 Thompson opens rear car door to get K-9 Zena out of the vehicle. Thompson and K-9 Zena circle Vetter's car twice.
49:05 Thompson begins a third pass around the car.
49:13 K-9 Zena alerts on passenger side door.
Vetter argues the scope of the stop was expanded at 11:46:57 when Officer Thompson inquired whether Vetter and his passenger were hiding anything or whether there were illegal items in the car, because it was not within the purpose of the traffic stop. He also argues the length of the stop extended past the time required to issue him a speeding ticket. He does not argue that the expansion of the initial stop for speeding to complete the DUI investigation lacked a constitutionally sufficient basis. Vetter claims there was no reasonable suspicion to expand a traffic stop for speeding into an investigation of controlled substances, including questions about illegal items and conducting a dog sniff during the stop.
II
[¶5] Under our standard of review,
[t]he trial court's disposition of a motion to suppress will not be reversed if, after conflicts in the testimony are resolved in favor of affirmance, there is sufficient competent evidence fairly capable of supporting the trial court's findings, and the decision is not contrary to the manifest weight of the evidence. [This standard] recognizes the importance of the trial court's opportunity to observe the witnesses and assess their credibility, and we "accord great deference to its decision in suppression matters."
State v. Montgomery
,
*440
State v. Adan
,
[¶6] "Traffic violations justify a stop by police officers."
State v. Deviley
,
[¶7] During a lawfully-initiated traffic stop and continuing through the completion of the officer's duties pertaining to the mission of the stop, the "traffic violator is subject to the ... officer's authority and restraint until the officer completes issuance of the traffic citation and expressly releases the violator."
State v. Mertz
,
[R]equesting the driver's license and registration, requesting that the driver step out of the vehicle, requesting that the driver wait in the patrol car, conducting computer inquiries to determine the validity of the license and registration, conducting computer searches to investigate the driver's criminal history and to determine if the driver has outstanding warrants, and making inquiries as to the motorist's destination and purpose.
Phelps , at ¶ 10. An officer may also ask the "passenger similar questions to confirm the information the driver provided."
State v. Asbach
,
[¶8] Our cases have held that
after
the completion of the traffic stop duties, if the officer continues the seizure, he violates
*441
the Fourth Amendment "unless the officer has a reasonable suspicion for believing that criminal activity is afoot."
Fields
,
[¶9] To determine whether an officer has a reasonable suspicion, an objective standard is applied:
[T]his Court looks at the totality of the circumstances, applies an objective standard, and takes into account the inferences and deductions that an investigating officer would make that may elude a layperson. The question is whether a reasonable person in the officer's position would be justified by some objective manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity.
State v. Adan
,
[¶10] A dog sniff is not a search implicating an individual's Fourth Amendment rights.
Illinois v. Caballes
,
III
[¶11] Vetter argues Officer Thompson's inquiry regarding illegal contents in the car was beyond the scope of the traffic stop, detouring into investigation of unrelated crimes, and thus necessarily delayed the stop, allowing for the canine search to be completed before the warning ticket was finished. Vetter's argument requires us to determine whether an officer may use any time during a traffic stop to inquire about matters beyond those approved in Phelps . Vetter does not contest either the initial basis for the stop here or the extension of that initial stop to investigate possible driving under the influence. Here, Deputy Thompson noticed Vetter's vehicle shaking, and testified he thought Vetter was nervous because he was chatty. When he ran a check on Vetter's license, Deputy Thompson learned that Vetter's criminal history included charges relating to controlled substances. The district court did not find there was reasonable articulable suspicion to believe Vetter had contraband in his vehicle, thereby justifying extending the stop for a dog sniff. The court concluded, and the State argues on appeal, there was no expansion of the stop that implicates Vetter's Fourth Amendment rights.
[¶12] After a stop has been completed, any further detention to conduct
*442
further investigation, such as a canine sniff, is a seizure requiring its own constitutional basis.
See
Rodriguez
,
[¶13] If there are two officers present and one is performing the mission of the traffic stop while the other contemporaneously conducts a dog sniff, there is no violation because there is no delay or extension of the stop.
Phelps
,
[¶14] In
Rodriguez
, the arresting officer waiting for a drug detection dog to arrive after the stop was complete was the action that prolonged the traffic stop.
[¶15] Deputy Thompson testified Corporal Hedin arrived on the scene as Thompson was administering the breath test. In the squad car video, headlights can be seen arriving at the scene at 11:46:43. This is just before Thompson questioned Vetter about illegal contents. Thompson finished administering the breath test and asked about illegal contents at 11:46:57. The exchange between Thompson and Vetter regarding whether Vetter's car contained illegal contents took 16 seconds. The exchange between Deputy Thompson and Corporal Hedin regarding the instructions for writing the ticket took 31 seconds. In total, the time spent by Deputy Thompson asking the questions allegedly outside the scope of the stop and handing off the ticket writing was one minute. This did not unreasonably prolong the stop, especially because the ticket was still being written when the dog alerted to the presence of contraband.
[¶16] We acknowledge that
Rodriguez
rejected a
de minimus
time exception for extending a traffic stop beyond its completion. Under the reasoning in
Rodriguez
, detaining a driver even 16 seconds after giving the driver a ticket and completing the traffic stop requires a constitutionally sufficient basis to seize the driver. It is one thing to conclude the Fourth Amendment prohibits such a detention after a stop is complete. It is quite another to scrutinize a traffic stop looking for 16 seconds that were not strictly necessary for the officer to complete the traffic stop. Absent evidence of an officer deliberately delaying a stop so that, for example, a drug-detecting dog may arrive,
Fields
,
[¶17] The questions regarding illegal contents at issue here may constitute investigating other crimes, about which we have said "[o]n-scene investigation into other crimes detours from the purpose of the stop,"
Asbach
,
[¶18] We conclude there is no Fourth Amendment violation established by the questioning of Vetter in the manner that occurred here. The Fourth Amendment does not call us to scrutinize traffic stops for unnecessary casual conversation or impose a constitutional mandate for time efficiency over incidental questions or conversation. The hallmark of a Fourth Amendment claim is whether the search or seizure was "reasonable."
State v. Helm
,
IV
[¶19] We affirm the district court's order and judgment denying Vetter's motion to suppress the evidence resulting from the dog sniff, because the traffic stop was not extended under the prevailing case law.
[¶20] Jerod E. Tufte
Daniel J. Crothers
Lisa Fair McEvers
Jon J. Jensen
Gerald W. VandeWalle, C.J.
Reference
- Full Case Name
- STATE of North Dakota, Plaintiff and Appellee v. Dylan Benjamin VETTER, Defendant and Appellant
- Cited By
- 7 cases
- Status
- Published
- Syllabus
- A traffic stop is not expanded by incidental questions the officer asks without reasonable suspicion so long as they occur prior to the completion of the stop and the officer does not deliberately delay completion of the stop.