Johnson v. Sprynczynatyk

VANDE WALLE, Chief Justice.

[¶ 1] Robert Johnson was arrested for driving under the influence of alcohol. At an administrative hearing, the hearing officer suspended Johnson’s driving privileges for 91 days. Johnson appealed to the district court and the district court reversed the suspension and reinstated Johnson’s driving privileges. The Director of the North Dakota Department of Transportation (DOT) appealed the district court’s decision asking that the district court decision be reversed and the hearing officer’s decision reinstated. We affirm.

I

[¶ 2] At the administrative hearing, Officer Ian Wise testified that on August 30, 2005, at approximately 12:43 a.m., he was patrolling in his squad car, traveling at the posted speed limit of 25 miles per hour, when he began to rapidly approach a vehicle driving in front of him. Officer Wise testified he paced the vehicle and determined the vehicle was traveling 8-10 miles per hour in the 25 mile per hour zone. After determining the vehicle’s approximate speed and following the vehicle for two blocks, Officer Wise stopped the vehicle based on its slow speed. Officer Wise’s testimony indicated he observed no erratic driving or other indications of suspicious behavior from the driver of the vehicle.

[¶ 3] Officer Wise testified that when he approached the vehicle he smelled the odor of alcohol and noticed the driver’s eyes were bloodshot. Officer Wise testified the driver, Johnson, admitted to consuming two alcoholic beverages. Officer *588Wise testified he had Johnson perform five field sobriety tests and Johnson failed all five. Based on his observations and testing, Officer Wise arrested Johnson for driving under the influence of alcohol.

[¶ 4] The hearing officer found that traveling 8-10 miles per hour in a 25 mile per hour zone is inordinately slow, sufficiently erratic to warrant further investigation, and based on Officer Wise’s training and experience, it was reasonable for him to stop Johnson’s vehicle. The hearing officer suspended Johnson’s driving privileges for 91 days.

[¶ 5] The district court reversed the hearing officer’s decision finding the arresting officer did not have the requisite reasonable and articulable suspicion to stop Johnson’s vehicle for traveling 8-10 miles per hour in a 25 mile per hour zone. The district court reinstated Johnson’s driving privileges. On appeal, the DOT argues Officer Wise had sufficient reasonable and articulable suspicion to stop Johnson’s vehicle and therefore the stop was justified and the hearing officer’s decision suspending Johnson’s driving privileges should be reinstated.

II

[¶ 6] “Judicial review of a decision to suspend a driver’s license is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32.” Anderson v. Director, N.D. Dept. of Trans., 2005 ND 97, ¶ 6, 696 N.W.2d 918. “Under N.D.C.C. § 28-32-46, the district court must affirm an order of an administrative agency unless it finds any of the following are present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.”

Id. “On an appeal from a district court’s ruling on an administrative appeal, our Court reviews the agency’s order in the same manner.” Id. at ¶ 7.

[¶ 7] “Under the Fourth Amendment of the United States Constitution, police may, in appropriate circumstances and in an appropriate manner, detain an individual for investigative purposes when there is no probable cause to make an arrest if a reasonable and articulable suspicion exists that criminal activity is afoot.” See id. at ¶ 8 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

[¶ 8] This Court has “discussed three situations that provide an officer reasonable and articulable suspicion to stop a vehicle: (1) when the officer relied on a directive or request for action from another officer; (2) when the officer received tips from other police officers or informants, which were then corroborated by *589the officer’s own observations; and (3) when the officer directly observed illegal activity.” Anderson, 2005 ND 97, ¶ 9, 696 N.W.2d 918. The DOT argues the activity observed by Officer Wise, a vehicle traveling 8-10 miles per hour in a 25 mile per hour zone, was enough, by itself, to provide reasonable and articulable suspicion to stop the vehicle.

[¶ 9] “The reasonable suspicion standard must be objective and is based on the totality of the circumstances.” Kappel v. Director, N.D. Dept. of Trans., 1999 ND 213, ¶ 7, 602 N.W.2d 718. Reasonable suspicion to justify a stop is present when a reasonable person in the officer’s position would be justified by some objective manifestation to suspect potential criminal activity. Id. “The reasonable suspicion standard is not as exacting as the probable cause standard.” Id. “Nevertheless, a mere hunch illegal activity is taking place is not enough to justify the detention of a motorist.” Id. “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 Trans., 505 N.W.2d 111, 114 (N.D.1993). “The mere fact that a driver is traveling at a slower than usual speed on a roadway does not by itself create a reasonable suspicion of driving under the influence of alcohol or of other illegal activity.” State v. Brown,, 509 N.W.2d 69, 71 (N.D.1993).

Ill

[¶ 10] In this case there is no evidence of erratic driving, sharp veering, or any of the other factors present in prior cases. The DOT concedes there was no minimum speed limit on the road where Johnson was stopped. However, the DOT argues the speed of Johnson’s vehicle was so slow that it was impeding traffic in violation of N.D.C.C. § 39-09-09(1), and Officer Wise had a reasonable and articula-ble suspicion to stop Johnson’s vehicle because Johnson was violating that statute.

[¶ 11] N.D.C.C. § 39-09-09(1) provides:

No person may drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.

[¶ 12] The only evidence presented to support the DOT’s argument is Officer Wise’s testimony stating Johnson was traveling 8-10 miles per hour in a 25 mile per hour zone. Officer Wise’s testimony indicates he was unaware of any other vehicles that were impeded by Johnson’s slow speed. In Salter, we held evidence that the driver was traveling 30-35 miles per hour in a 50 mile per hour zone without further evidence of illegal activity, such as erratic driving or clear facts showing traffic was impeded in violation of N.D.C.C. § 39-09-09(1), did not support a conclusion that the arresting officer had a reasonable and articulable suspicion of a violation justifying a stop. Salter v. N.D. Dept. of Trans., 505 N.W.2d 111, 114 (N.D.1993). In Brown, we held evidence that the driver was traveling at a slower than usual speed, with no further evidence of illegal activity, did not alone create a reasonable and articulable suspicion justifying a stop. State v. Brown, 509 N.W.2d 69, 71 (N.D.1993).

[¶ 13] The DOT argues the totality of the circumstances, namely Johnson’s slow speed coupled with the fact that this stop was made in the early morning hours around 12:43 a.m., provides the requisite reasonable and articulable suspicion of illegal activity. In State v. Sarhegyi, 492 N.W.2d 284, 286 (N.D.1992), we held “the *590time of night, the burglary possibilities, the safety of the occupant, if the car was stolen, if someone needed assistance, and the fact that Sarhegyi began to pull away from [the officer] as [the officer] entered the lot” were not legally sufficient bases for reasonable suspicion “when examined in light of existing case law.” We have also held that an officer’s unfamiliarity with the vehicle, his awareness of several burglaries in the area, and the vehicle’s location in the vicinity of a liquor store at 1:50 a.m., after business hours, amounted to no more than a vague hunch of illegal activity and did not justify a stop because there was no objective evidence that the driver had violated or was about to violate a law. State v. Robertsdahl, 512 N.W.2d 427, 428 (N.D.1994). People travel on our roads at all hours of the day and it is not unusual for people to be traveling at 12:43 a.m. Furthermore, it is logical that drivers may reduce their speeds when traveling in the dark. These two non-suspicious factors, even when taken together, did not provide the requisite reasonable and artic-ulable suspicion to justify stopping Johnson’s vehicle.

[¶ 14] The facts of this case are not enough to provide a reasonable and artic-ulable suspicion of illegal activity. Arguably there may be a case in which the traveling speed is so slow so as to, by itself, create a reasonable and articulable suspicion to stop a vehicle. The circumstances surrounding this stop do not provide that case. Johnson was driving 8-10 miles per hour in town in a 25 mile per hour zone. It is not that unusual to encounter a vehicle driving through a residential or densely populated area at similar speeds which are slower than the posted speed limit.

[¶ 15] In accord with our holdings in Brown and Salter, we conclude the arresting officer did not have the requisite reasonable and articulable suspicion to stop Johnson’s vehicle. We affirm the district court’s judgment reinstating Johnson’s driving privileges.

[¶ 16] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concur.