State v. Boger

963 N.W.2d 742

STATE of North Dakota, Plaintiff and Appellee

v.Michael Anthony BOGER, Defendant and Appellant

No. 20200297

Supreme Court of North Dakota.

FILED AUGUST 19, 2021

Christopher W. Nelson, Assistant State's Attorney, Minot, ND, for plaintiff and appellee.

Katie Miller, Minot, ND, for defendant and appellant.

Jensen, Chief Justice.

[¶1] Michael Anthony Boger appeals from a criminal judgment after entering a conditional guilty plea to driving under the influence, a third offense in seven years. Boger argues the district court erred in denying his motion to suppress evidence because video evidence conclusively shows the violation alleged to be the reason for the traffic stop did not occur. The State argues the arresting officer had reasonable and articulable suspicion of a traffic violation or, in the alternative, the officer initiated the stop as the result of an objectively reasonable mistake of fact. We reverse and remand this case to allow Boger to withdraw his conditional guilty plea.

I

[¶2] At approximately 11:30 p.m. on November 24, 2019, an officer with the Minot Police Department initiated a traffic stop on Boger's vehicle for failure to have the rear registration plate illuminated in violation of N.D.C.C. § 39-21-04(3). Following the traffic stop, Boger was arrested and charged with driving under the influence, a third offense in seven years. Boger moved to suppress the evidence obtained during the traffic stop arguing the officer lacked reasonable and articulable suspicion for the stop.

[¶3] Prior to the traffic stop, the arresting officer was traveling eastbound on Burdick Expressway in his patrol vehicle when he was passed by Boger's vehicle traveling westbound on the same road. As Boger's vehicle passed, the officer testified he looked in his driver's side rear-view mirror and noticed Boger's rear license plate area was not illuminated. The officer turned around to follow Boger's vehicle. Once behind Boger's vehicle, the officer testified he observed the rear license plate was still not illuminated. After approximately five to seven seconds of following Boger's vehicle, the officer initiated a traffic stop.

[¶4] The officer testified the rear license plate was not illuminated when he first observed Boger's vehicle, was not illuminated when he was following Boger's vehicle, and the license plate illumination light was not functioning during the traffic stop.

During cross-examination, the officer's body-worn camera video was entered into evidence. Boger argues the video clearly shows the license plate illumination light was functioning. The officer gave his opinion that the plate appeared illuminated on the body-worn camera video, not because the license plate illumination light was on, but because of multiple lights shining onto the plate, such as the lights from the adjacent gas station, the headlights on the patrol vehicle, the red and blue lights on the patrol vehicle, and the spotlight on the patrol vehicle. Boger testified that before he was placed into the officer's patrol vehicle, he stood behind his own vehicle and observed that his license plate light was functioning and illuminating his license plate.

[¶5] The district court denied Boger's motion to suppress determining the officer had reasonable and articulable suspicion Boger's rear license plate was not properly illuminated under N.D.C.C. § 39-21-04(3). The court found as follows:

Defendant argues that the rear license plate was illuminated, and therefore [the arresting officer] did not observe a traffic violation. However, N.D.C.C. § 39-21-04(3) requires not only that the rear view license plate be illuminated, but also that the light "render it clearly legible from a distance of fifty feet [15.24 meters] to the rear." Based upon the testimony of [the arresting officer], the alleged illumination did not render the rear license plate clearly legible to [the arresting officer] as the vehicles passed each other. [the arresting officer] credibly maintained that he believed the rear license plate was not illuminated, and any apparent illumination of the rear lights he later observed when his vehicle was behind the Defendant's stopped vehicle was a result of reflection from [the arresting officer's] own headlights after he initiated the traffic stop.

[The arresting officer] had a reasonable and articulable suspicion that Defendant's rear license plate was not properly illuminated to comply with N.D.C.C. § 39-21-04(3) based upon his observations while passing Defendant's vehicle.

[¶6] Boger appeals the denial of his motion to suppress. Boger argues the body-worn camera video shows the rear license plate light on his vehicle was functioning at the time of the stop, in clear contradiction to the officer's testimony the light was not working. On appeal, Boger also argued that any mistake of fact made by the officer regarding the function of the rear license plate light was objectively unreasonable.

II

[¶7] This Court's standard of review for a motion to suppress has been stated as follows:

When reviewing a district court's decision on a motion to suppress, we defer to the court's findings of fact and resolve conflicts in testimony in favor of affirmance. This Court will affirm the district court's decision on a motion to suppress unless we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence. Whether a finding of fact meets a legal standard is a question of law, which is fully reviewable on appeal. Whether law enforcement violated constitutional prohibitions against unreasonable search and seizure is a question of law.

State v. Bolme , 2020 ND 255, ¶ 5, 952 N.W.2d 75 (citations omitted).

[¶8] A law enforcement officer may initiate a traffic stop for an investigation if the officer has reasonable and articulable suspicion the driver has violated or is violating a law.

State v. Selzler , 2020 ND 123, ¶ 7, 943 N.W.2d 762. The reasonable suspicion standard is less stringent than probable cause but requires more than a "mere hunch." State v. Corum , 2003 ND 89, ¶ 10, 663 N.W.2d 151. The existence of reasonable suspicion is a fact-specific inquiry, and this Court employs an objective standard based on the totality of the circumstances. State v. Morsette , 2019 ND 84, ¶ 6, 924 N.W.2d 434. "Reasonable suspicion for a stop exists when a reasonable person in the officer's position would be justified by some objective manifestation to believe the defendant was, or was about to be, engaged in unlawful activity." Corum , at ¶ 10.

[¶9] "Reasonable suspicion of a minor traffic violation will provide a sufficient basis to justify a stop." Bolme , 2020 ND 255, ¶ 8, 952 N.W.2d 75. Moreover, under the reasonable suspicion standard, an officer is not required to see a motorist violating a traffic law or to rule out every potential innocent excuse before initiating a traffic stop. Id. "The actual commission of a crime is not required to support a finding of reasonable suspicion." Id.

[¶10] Section 39-21-04(3), N.D.C.C., provides:

Either a taillamp or a separate lamp must be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of fifty feet [15.24 meters] to the rear. Any taillamp or taillamps, together with any separate lamp for illuminating the rear registration plate, must be so wired as to be lighted whenever the headlamps or auxiliary driving lamps are lighted.

[¶11] The district court determined the officer had reasonable suspicion to stop Boger's vehicle for failure to have the rear registration plate properly illuminated in violation of N.D.C.C. § 39-21-04(3). Boger contends the video evidence clearly contradicts the officer's testimony that the light illuminating his license plate was not functioning.

[¶12] The officer testified variously that the license plate light was not illuminated, it was not functioning, and that he saw nothing as he walked toward the rear of Boger's vehicle. During direct examination, the officer testified as follows:

Q. And what was the reason for the traffic stop?

A. For the rear license plate not being illuminated.

* * *

Q. The light in question, was it illuminated?

A. No. He insisted that it was, but I didn't see anything.

Q. And this was the back light?

A. Yes.

During cross-examination of the officer, and after the video was played, questioning included the following:

Q. (By Ms. Miller) Okay, Officer. So, when you made contact with Mr. Boger — after seeing the video — you, again, had stated the reason that he was stopped; correct?

A. Yes.

Q. And that was for not having his license plate illuminated; correct?

A. Yep.

Q. But his license plate light was functioning; correct?

A. No. I did have multiple lights shining on the car, and we were in a well-illuminated area; so ...

The officer further testified:

Q. (By Ms. Miller) So, Officer, when you had walked from your vehicle to Mr. Boger's vehicle to make contact with him, did you look to see if his license plate lights were functioning?

A. Yes.

Q. And what did you see?

A. Nothing. Like I said, I had multiple lights shining on the license plate area, so at that time it wasn't dark anymore.

[¶13] The video recorded by the officer's body-worn camera stands in direct conflict with this testimony. As the officer approaches the rear of Boger's vehicle, the video clearly depicts the rear bumper and license plate for five seconds beginning at the indicated time of T05:38:35Z.¹ There is a single white light immediately to the right of the license plate that is fully illuminated. The rear of the vehicle, including the license plate and the light, appear clean. The light can again be seen on the video for about fifteen seconds starting at T05:40:15Z.² The light is again briefly visible as the stop concludes at T05:42:10Z. Every time the light comes into the frame of the video it is bright, clear, and continuously illuminated.

[¶14] When asked...