City of Grand Forks v. Mitchell

CROTHERS, Justice,

dissenting.

[¶ 34] I respectfully dissent.

[¶ 35] By upholding the stop in this case, the majority is saying the Fourth Amendment to the United States Constitution provides no protection to drivers of *807vehicles bearing non-North Dakota temporary registrations. I cannot agree with that conclusion for the reasons stated by this Court in State v. Oliver, 2006 ND 241, ¶ 10, 724 N.W.2d 114, and State v. Johnson, 2006 ND 248, ¶¶8-12, 724 N.W.2d 129.

[¶ 36] Here, the arresting officer testified he decided to stop Mitchell’s car as soon as he noticed the lack of front or rear license plates. The officer testified he stops all cars with temporary registrations.

[¶ 37] Setting aside that the officer was wrong in his belief he could lawfully stop all cars with North Dakota temporary registrations, Johnson, 2006 ND 248, ¶ 8, 724 N.W.2d 129, the majority opinion confirms the officer’s assertion he can stop all other vehicles simply because they display temporary registrations. The majority opinion must be read that way because the officer testified that, before the stop, Mitchell’s temporary registration was clearly visible in the car’s rear window and that he observed that the registration was different than North Dakota’s temporary registration.

[¶ 38] Given our holdings in Oliver and Johnson, it is significant that the registration was not a blank white sheet of paper, as is suggested by the majority. Majority Opinion at ¶ 18. Instead, the officer testified the registration had “10-10-2006” written in two-inch-high-bolded numbers across a standard-sized sheet of paper. The officer also testified that Mitchell’s temporary registration appeared valid on its face and that he did not take further steps to confirm the validity either before or after the stop.

[¶39] I believe the officer’s testimony reveals this stop was very much like that in Johnson, 2006 ND 248, 724 N.W.2d 129, and nothing like the stop in Oliver, 2006 ND 241, 724 N.W.2d 114.

[¶ 40] In Johnson, the officer “was parked on an approach facing the eastbound lanes of Interstate 94 in Fargo.” 2006 ND 248, ¶ 2, 724 N.W.2d 129. The officer observed Johnson’s vehicle as it passed and saw it lacked a front license plate. Id. The officer “drove onto the highway and caught up with Johnson’s vehicle, noting the vehicle had no rear license plate.” Id. The vehicle had a paper temporary registration sticker in the back window. Id. The officer testified it was difficult to see the temporary registration sticker at the normal distance between two vehicles, but nothing about the sticker appeared unusual. Id. The officer in Johnson “initiated a traffic stop solely to check the temporary sticker because of a belief [that] many people drive beyond the thirty days allowed by the temporary registration.” Id.

[¶ 41] Here, the officer stopped Mitchell upon seeing no license plates. We determine the existence of reasonable articu-lable suspicion when the officer decides to stop and detain, and not at some later time after which the officer may have had the opportunity to gather additional information. State v. Boyd, 2002 ND 203, ¶ 15, 654 N.W.2d 392 (“To determine whether an officer has a reasonable and articulable suspicion, we examine the information known to the officer at the time of the stop. The reasonable-and-articulable-sus-picion standard requires the officer justify the stop ‘with more than just a vague “hunch” or other non-objective facts; and ... the articulable facts must produce, by reasonable inference, a reasonable suspicion of unlawful conduct.’ ” (Citations omitted.)).

[¶ 42] The officer here had a hunch— which he admitted was not verified before or after the stop — that Mitchell’s car was not properly registered, irrespective of the state of registration. The Oliver and Johnson decisions tell us this stop would have been unlawful if Mitchell had possessed a North Dakota temporary registration. By chance, Mitchell’s temporary *808registration was from Montana rather than in North Dakota. From this fact alone, the majority concludes the stop somehow complies with the Fourth Amendment protections against an unreasonable seizure. As a result, the majority allows police to stop many out-of-state travelers for no reason other than their vehicle registrations appear different. I am concerned that this is a dangerous precedent to set and that it erodes our holdings in Oliver and Johnson.

[¶ 43] On the undisputed facts of this case, I would conclude the officer did not have reasonable and articulable suspicion of unlawful conduct. Without it, the district court misapplied the law when holding this case is more like Oliver than Johnson. All evidence obtained as a result of the stop should have been suppressed, and I would reverse and remand to the district court for further proceedings.

[¶ 44] DANIEL J. CROTHERS