City of Grand Forks v. Mitchell

MARING, Justice.

[¶ 1] Clinton Mitchell appeals the district court’s criminal judgments entered on a conditional plea of guilty after the district court denied his motion to suppress evidence obtained during a traffic stop on the basis that the stop of his vehicle was not justified by a reasonable and articula-ble suspicion he was violating motor vehicle registration laws. Mitchell’s vehicle bore no license plates but did have a Montana temporary registration certificate printed on a white sheet of paper with an expiration date written in black marker posted in its rear window. We affirm because under the circumstances of this stop, the officer had reasonable and articu-lable suspicion of a violation of the motor vehicle registration law.

I

[IT 2] Two Grand Forks police officers stopped Mitchell’s vehicle on October 1, 2006. The district court found that the officers noticed the vehicle did not have license plates and observed a white sheet of paper in the vehicle’s rear window. After stopping the vehicle, the officers noticed some writing on the paper, but it did not look like a North Dakota temporary registration certificate. The paper was a temporary registration certificate issued by the state of Montana on an 8½ x 11 sheet of paper with the expiration date written in black marker.

[¶ 3] The record reveals that, as one of the officers approached the driver’s side of the vehicle, he noticed Mitchell smelled of alcohol and had bloodshot, watery eyes. The officer proceeded by reading Mitchell his Miranda warning and administering field sobriety tests, a breathalyzer test, and an Intoxilyzer test. Mitchell failed each of the tests. Mitchell’s alcohol concentration was measured at .15. Mitchell was cited for driving under the influence, driving under suspension, and driving without liability insurance. Mitchell moved to suppress the evidence obtained during the traffic stop.

[¶ 4] The district court denied Mitchell’s motion to suppress. The district court determined that the officers had reasonable and articulable suspicion to believe that a violation was occurring because they could not tell whether Mitchell displayed a *802temporary registration certificate, and, if he did, whether the certificate was forged. The district court stated that the officer reasonably believed the paper was not a valid temporary registration because the driver could have created the certificate himself.

[¶ 5] Mitchell entered conditional pleas of guilty to the charges of driving under the influence, driving without liability insurance, and an amended charge of no license in possession pending appeal of his suppression motion. Mitchell appeals, requesting reversal of the district court’s denial of his motion to suppress.

II

[¶ 6] After resolving conflicting evidence in favor of affirming a district court decision on a motion to suppress, we affirm the 'district court decision unless there is insufficient evidence to support the decision or the decision goes against the manifest weight of the evidence. City of Jamestown v. Jerome, 2002 ND 34, ¶ 6, 639 N.W.2d 478. We accord great deference to district court findings of fact in suppression matters. Id. Questions of law are, however, fully reviewable on appeal. State v. Johnson, 2006 ND 248, ¶ 5, 724 N.W.2d 129.

[¶ 7] The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” For purposes of the Fourth Amendment, seizures occur only when an officer, “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Jerome, 2002 ND 34, ¶ 5, 639 N.W.2d 478. Automobile stops constitute “seizures” under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Police officers may stop individuals for investigative purposes if a reasonable and articulable suspicion exists that criminal activity is afoot. Anderson v. Director, Dept. of Transp., 2005 ND 97, ¶ 8, 696 N.W.2d 918. This standard is objective and based on the totality of the circumstances. Johnson, 2006 ND 248, ¶9, 724 N.W.2d 129.

[¶ 8] “An investigative stop of a moving vehicle must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity, and mere curiosity, suspicion, vague hunches, or other non-objective facts will not suffice.” Salter v. N.D. Dept. of Transp., 505 N.W.2d 111, 114 (N.D.1993). The United States Supreme Court has held that an officer’s ulterior motive does not prohibit law enforcement officers from engaging in behavior that is objectively justifiable under the Fourth Amendment. Whren, 517 U.S. at 812, 116 S.Ct. 1769. As long as a traffic violation has occurred, a police officer’s subjective intentions in making the stop will not render the stop constitutionally unreasonable. Id. at 813, 116 S.Ct. 1769. “ ‘As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.’ ” State v. Oliver, 2006 ND 241, ¶ 6, 724 N.W.2d 114 (quoting Whren, at 810, 116 S.Ct. 1769).

Ill

[¶ 9] Mitchell argues that the officers’ stop of his vehicle was not supported by a reasonable and articulable suspicion criminal activity was afoot. The City argues that the district court’s denial of Mitchell’s motion to suppress was appropriate.

[¶ 10] Chapter 39-04, N.D.C.C., is North Dakota’s motor vehicle registration law. Section 39-04-17, N.D.C.C., provides *803that possession of a temporary registration certificate is prima facie evidence of compliance with ch. 39-04. In the last two years, we have examined three factually distinctive investigative stops of vehicles without license plates to determine whether law enforcement officers had reasonable and articulable suspicion the driver may have been violating N.D.C.C. ch. 39-04 to justify the stops. See Oliver, 2006 ND 241, 724 N.W.2d 114; Johnson, 2006 ND 248, 724 N.W.2d 129; State v. Skarsgard, 2007 ND 160, 739 N.W.2d 786.

[¶ 11] In the first of these cases, State v. Oliver, we upheld a district court denial of a defendant’s motion to suppress evidence seized during a traffic stop. 2006 ND 241, 724 N.W.2d 114. The officer in Oliver stopped the defendant because the defendant’s vehicle had no license plates in possible violation of state law. Id. at ¶ 3. A temporary registration certificate was on the rear window of the vehicle, but was faded. Id. We held that the “faded temporary registration certificate with no visible printing was indicative of a temporary certificate that was more than thirty days old and constituted an objective fact giving the officer a right to stop [the defendant] to check its validity.” Id. at ¶ 7. The faded tag was an indication that a violation had been, and was, occurring. See id. at ¶ 9 (quoting Kennedy v. State of Texas, 847 S.W.2d 635, 636 (Tex.App.1993)).

[¶ 12] The second related decision is State v. Johnson, 2006 ND 248, 724 N.W.2d 129. In Johnson, a highway patrolman initiated a traffic stop of a vehicle that did not have license plates but did have a temporary registration certificate in the back window. Id. at ¶ 2. Unlike the faded registration certificate observed by the officer in Oliver, there was nothing unusual about the registration certificate in Johnson. See id. The officer in Johnson stopped the vehicle only because he believed many people drive vehicles with temporary registration certificates beyond the allowable thirty-day period. Id. We held that the officer’s hunch that the defendant may have been in violation of a vehicle registration statute was not enough to authorize the stop. Id. at ¶ 8. We reversed the district court’s denial of the defendant’s motion to suppress. Id. at ¶ 13.

[¶ 13] Finally, we recently upheld a district court’s denial of a motion to suppress in State v. Skarsgard, 2007 ND 160, 739 N.W.2d 786. In Skarsgard, an officer stopped a vehicle because it had no license plates or visible temporary registration certificate, and the officer recognized the driver as a suspended driver from a past call. Id. at ¶ 2. We held, “[w]hen a law enforcement officer observes a vehicle with no license plates and no viewable registration certificate, the officer has reasonable grounds to stop the driver and check if the driver has a valid certificate in his possession.” Id. at ¶ 8.

[¶ 14] Mitchell maintains this case is more like Johnson than Oliver. He stresses that his registration certificate was not faded, and the expiration date on the certificate was written in large, readable print. The City maintains that, unlike the registration certificate in Johnson, the Montana-issued permit was unusual because it was an 8½ x 11 plain sheet of paper, while North Dakota permits are smaller, pre-printed forms.

[¶ 15] We hold that this 8½ x 11 sheet of paper in the rear window of Mitchell’s vehicle, which was without license plates, provided reasonable and articulable suspicion that Mitchell was not complying with motor vehicle registration laws. This suspicion did not arise just because Mitchell’s registration was from another state. This suspicion arose because a reasonable officer who sees a vehicle without license *804plates and with an 8⅜ x 11 white sheet of paper in the rear window that the officer does not recognize as an authentic temporary registration certificate would have reasonable grounds to stop the driver and check if the driver has a valid temporary registration certificate in his possession in accordance with state law. An 8½ x 11 sheet of paper with a date written in black marker is objectively more akin to the faded registration certificate in Oliver than the certificate in Johnson, which the officer identified as a North Dakota certificate with no unusual characteristics. Although Mitchell’s certificate was not faded, the form did not resemble any type of temporary registration with which the officer was familiar. The officer had reasonable grounds to further investigate whether the paper was a valid or fictitious registration certificate.

[¶ 16] Mitchell also argues the testimony of the officer that he stops each vehicle bearing a temporary permit to investigate the permit’s validity means the officer’s actions were a mere subterfuge. The officer’s subjective intent, however, is not germane for purposes of the objective inquiry used to determine whether a reasonable and articulable suspicion existed that Mitchell was violating registration laws. We do not hold that an officer is justified in stopping every vehicle bearing a temporary registration certificate. However, in accordance with our previous decisions in Johnson, Oliver, and Skarsgard, we do hold this particular temporary registration certificate under these particular circumstances did give rise to a reasonable and articulable suspicion that Mitchell may have been in violation of registration laws, justifying the officers’ investigatory stop of Mitchell’s vehicle.

IV

[¶ 17] Mitchell further argues that, even if the officers did have a reasonable and articulable suspicion to justify the initial stop, once the officers saw the date on the temporary registration certificate indicating it was a valid Montana temporary registration certificate, the reasonable and articulable suspicion that any criminal activity was afoot was dispelled, and the officers should not have made the further intrusion of approaching the driver’s door to speak to Mitchell. The City argues that Mitchell did not properly raise this issue at the trial court level. The record establishes that this issue was not briefed for the district court proceeding and was not addressed by the district court. We have previously stated that we will not consider issues raised for the first time on appeal. Bay v. State, 2003 ND 183, ¶ 14, 672 N.W.2d 270.

V

[¶ 18] We conclude that the unlicensed vehicle, with only the 8 ½ x 11 sheet of paper in the rear window, provided a reasonable and articulable suspicion to justify stopping the vehicle. We, therefore, affirm the district court’s criminal judgments.

[¶ 19] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, J., concur.