State v. Glaesman

*183MESCHKE, Justice,

concurring and dissenting.

I agree with reinstating the disorderly conduct charge against Glaesman for trial, and with reversing the suppression of the evidence to that extent. I respectfully dissent from reversing the order suppressing the evidence and dismissing the charge against Glaesman for actual physical control of a motor vehicle while under the influence of alcohol.

The majority recognizes that, because the State did not argue community caretaking to the trial court, we do not consider it in this appeal. State v. Steffes, 500 N.W.2d 608 (N.D.1993). The sole question, then, is whether the sheriff made a valid Terry “stop” to investigate Glaesman’s actions, not whether the sheriff was engaged in a helpful, community caretaking encounter.

The majority correctly says that “the sheriff testified he reached out to open the door, but Glaesman opened it before he did.” Still, in my opinion, there is ample circumstantial evidence to support the trial court’s finding that the sheriff approached Glaesman’s pickup and “opened the door of the vehicle” without an articulable and reasonable suspicion that Glaesman was violating, or had violated, the law.

The sheriff was sent to the scene by a telephone call from the McIntosh County state’s attorney, who was defending a then pending Small Claims Court action by Glaes-man against a deputy sheriff. The state’s attorney’s phone call apparently conveyed no specific reason to initiate the investigative stop. Although the sheriff may have known the identity of the caller, detail was lacking in the sheriffs description of the short conversation. When asked about the substance of the conversation, the sheriff testified:

I do not remember — everything I remember, that there was a pickup stuck in the Super Valu parking lot west of Super— that I want to get to the west side of Super Valu because a vehicle was stuck there that I might be interested in and there was some other conversation.

The sheriff later added the state’s attorney “probably” told him who owned the truck.

By the time the sheriff approached the truck, he had personally verified that Glaes-man was stuck on a snow pile in the Super Valu parking lot. From his observations, the sheriff knew that the snow pile was small and located away from the other cars in the parking lot. The sheriff took immediate charge of Glaesman by instructing the driver of the helping vehicle, “you can leave I’ll take care of this.”

While Glaesman did not testify, we have often explained, e.g., Johnson v. North Dakota Dep’t of Transp., 530 N.W.2d 359, 361 (N.D.1995), that in disputes over the underlying facts and circumstances for whether an officer had a reasonable and articulable suspicion for an investigative stop, the trier of fact determines the credibility of witnesses and the weight to be given to their testimony. In an affidavit for the disorderly conduct charge (the suppression motions were considered together in a single hearing), the sheriff swore that he had “tapped on the driver’s side window” before Glaesman opened the door. “Whatever the officer’s motive in tapping on [Glaesman’s] car window, a stop occurred.” Wibben v. North Dakota State Highway Comm’r., 413 N.W.2d 329, 331 (N.D.1987). At the suppression hearing, the sheriff testified he reached out to open the door, but Glaesman opened it before he did. The trial court was entitled to evaluate the sheriffs credibility for infei’-ences from the circumstances, rather than accepting blindly the sheriffs particular testimony on details.

Taken together, the facts of this case do not demonstrate “some objective manifestation that [Glaesman was], or [was] about to be, engaged in criminal activity,” or that he had or was violating any traffic law. State v. Halfmann, 518 N.W.2d 729, 730-31 (N.D.1994) (citing State v. Guthmiller, 499 N.W.2d 590, 592 (N.D.1993)). I am not convinced that a mistake was made, nor that the trial court’s finding the sheriff lacked a reasonable and articulable suspicion for the stop is unsupported by sufficient competent evidence. In my opinion, the evidence was appropriately suppressed, and without any evidence to support the charge, it was appropriately dismissed.

*184The State argues that, regardless of the outcome of the actual physical control charge, the disorderly conduct charge should not have been dismissed. Glaesman insists the trial court properly dismissed the charge of disorderly conduct when it excluded the “tainted evidence.” The trial court dismissed the charge of disorderly conduct, reasoning Glaesman would not have been in police custody but for the unlawful “stop” of his truck.

Whether the “evidence sought to be suppressed was gathered ‘by exploitation of that illegality, or instead by means sufficiently distinguishable to be purged of the primary taint,’ ” must be considered. State v. Saavedra, 396 N.W.2d 304, 305 (N.D.1986) (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 445 (1963)). Factors that affect the illegal exploitation include “the temporal proximity of the illegality and the fruit of that illegality, the presence of intervening circumstances, and the purpose and flagrancy of the police misconduct.” Saavedra at 305. Saavedra also explained that the purpose of excluding improperly gathered evidence is to deter police misconduct, but that purpose does not justify the use of the rule to exclude evidence of “independent crimes occurring in response to an unlawful search or arrest.” Id.

Evidence of an accused’s aggressive behavior toward an arresting officer will not be suppressed because the initial stop or arrest was unlawful, we have often ruled. In State v. Indvik, 382 N.W.2d 623, 627 (N.D.1986), we denied the accused’s request to suppress evidence, holding “Indvik’s independent and intervening actions of engaging the officer in a high-speed chase, running from the police officers into the woods, drawing a firearm on the police officers — and actually firing it— break the chain of causation and dissipate the taint of the prior illegality, i.e., the invalid stop.” In Saavedra, 396 N.W.2d 304, this Court ruled evidence of an accused’s disorderly conduct that caused his arrest need not be suppressed because the crime was independent of the concededly illegal search of his van and his illegal detention in the patrol ear. See also State v. Kunkel, 406 N.W.2d 681 (N.D.1987) (holding officers entering accused’s room to remove him from home he lived in, arguably unconstitutionally, did not call for suppression of evidence of his attack on officers); State v. Ritter, 472 N.W.2d 444, 452 (N.D.1991) (“Forceful resistance to an unlawful ... seizure is no longer automatically excused, as a matter of law, by exclusion of related evidence or by judicial dismissal.”).

Here, Glaesman’s verbal abuse, threats, and physical attack on the sheriff constituted an independent crime despite the unlawful stop. In my opinion, the trial court’s order suppressing the evidence and dismissing the disorderly conduct charge is correctly reversed for these reasons, even though Glaes-man’s seizure was constitutionally unreasonable.

Therefore, I respectfully dissent from reversing to reinstate the charge of actual physical control, but I agree with reversing to reinstate the charge of disorderly conduct.

BERYL J. LEVINE, Surrogate Judge, concurs.