State v. Morsette

924 N.W.2d 434

STATE of North Dakota, Plaintiff and Appellee

v.Travis James MORSETTE, Defendant and Appellant

No. 20180076

Supreme Court of North Dakota.

Filed March 15, 2019

Derek K. Steiner, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.

Christopher M. Redmann, Bismarck, ND, for defendant and appellant.

McEvers, Justice.

[¶1] Travis Morsette appeals from a judgment entered upon a guilty plea to possession of a controlled substance and unlawful possession of drug paraphernalia, reserving his right to appeal the district court’s order denying his motion to suppress evidence. Because we conclude there was not reasonable suspicion to initiate the traffic stop, we reverse the judgment and remand for further proceedings to allow Morsette to withdraw his guilty plea.

I

[¶2] On September 8, 2017, a law enforcement officer, while on patrol stopped at a red light, observed a driver in the adjacent lane manipulating his touchscreen cell phone for approximately two seconds. The officer testified to observing the driver, later identified as Morsette, tap approximately ten times on the illuminated cell phone screen. The officer initiated a traffic stop based on his observations of the cell phone screen manipulations. Morsette told the officer he was changing the music on his cell phone. The officer conducted an investigation and Morsette was arrested and charged with possession of a controlled substance and unlawful possession of drug paraphernalia.

[¶3] Prior to trial, Morsette moved to suppress all evidence, claiming the officer lacked reasonable suspicion to conduct the traffic stop. The district court denied Morsette’s motion, holding the traffic stop was an investigatory stop and the officer had reasonable and articulable suspicion to initiate it.

[¶4] On appeal, Morsette argues the district court erred in determining the officer had reasonable and articulable suspicion to conduct the traffic stop and that the officer’s actions cannot be excused as a mistake of fact or law.

II

[¶5] When reviewing a district court’s decision on a motion to suppress, we:

defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. We affirm the district court’s decision unless we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence.

State v. Wolfer , 2010 ND 63, ¶ 5, 780 N.W.2d 650 (internal quotations and citations omitted). "Questions of law and the ultimate conclusion about whether the facts support a reasonable and articulable suspicion are fully reviewable on appeal." State v. Smith , 2005 ND 21, ¶ 11, 691 N.W.2d 203 (citation omitted).

III

[¶6] "Investigatory traffic stops are valid when the officer conducting the stop had a reasonable and articulable suspicion the motorist has violated or is violating the law." Wolfer , 2010 ND 63, ¶ 6, 780 N.W.2d 650 (internal quotation and citation omitted). "The ultimate issue is whether a reasonable person in the officer’s position would have been justified in stopping the vehicle because of some objective manifestation to suspect potential criminal activity." State v. James , 2016 ND 68, ¶ 7, 876 N.W.2d 720 (internal quotations and citations omitted). "The reasonable and articulable suspicion standard requires more than a ‘mere hunch,’ but less than probable cause." Gabel v. N.D. Dep’t of Transp ., 2006 ND 178, ¶ 20, 720 N.W.2d 433 (quoting Lapp v. N.D. Dep’t of Transp ., 2001 ND 140, ¶ 11, 632 N.W.2d 419 ). "Whether an officer had a reasonable and articulable suspicion is a fact-specific inquiry that is evaluated under an objective standard considering the totality of the circumstances." State v. Rahier , 2014 ND 153, ¶ 13, 849 N.W.2d 212 (citation omitted); see also U.S. v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) ("When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.") (citation omitted). Additionally, "an officer’s objectively reasonable mistake, whether of fact or law, may provide the reasonable suspicion necessary to justify a traffic stop." State v. Hirschkorn , 2016 ND 117, ¶ 14, 881 N.W.2d 244. "The reasonable suspicion standard does not require an officer to see a motorist violating a traffic law or to rule out every potential innocent excuse for the behavior in question before stopping a vehicle for investigation." Gabel , at ¶ 20 (citation omitted). As such, the actual commission of criminal activity is not required to support a finding of reasonable suspicion.

[¶7] Here, the State concedes a seizure occurred but argues it was a reasonable investigatory traffic stop not in violation of the Fourth Amendment.

[¶8] North Dakota’s law proscribing certain cell phone activity while driving reads:

1. The operator of a motor vehicle that is part of traffic may not use a wireless communications device to compose, read, or send an electronic message .

2. Under this section:

a. "Electronic message" means a self-contained piece of digital communication that is designed or intended to be transmitted between physical devices. The term includes electronic mail, a text message, an instant message, a command or request to access a worldwide web page, or other data that uses a commonly recognized electronic communications protocol. The term does not include:

(1) Reading, selecting, or entering a telephone number, an extension number, or voice mail retrieval codes and commands into an electronic device for the purpose of initiating or receiving a telephone or cellular phone call or using voice commands to initiate or receive a telephone or cellular phone call;

(2) Inputting, selecting, or reading information on a global positioning system device or other navigation system device;

(3) Using a device capable of performing multiple functions, such as fleet management systems, dispatching devices, phones, citizen band radios, music players, or similar devices, for a purpose that is not otherwise prohibited;

(4) Voice or other data transmitted as a result of making a telephone or cellular phone call;

(5) Data transmitted automatically by a wireless communication device without direct initiation by an individual; or

(6) A wireless communications device used in a voice-activated, voice-operated, or any other hands-free manner.

b. "Traffic" means operation of a motor vehicle while in motion or for the purposes of travel on any street or highway and includes a temporary stop or halt of motion, such as at an official traffic-control signal or sign. The term does not include a motor vehicle that is lawfully parked.

3. This section does not apply if a wireless communications device is used for obtaining emergency assistance to report a traffic accident, medical emergency, or serious traffic hazard or to prevent a crime about to be committed, in the reasonable belief that an individual’s life or safety is in immediate danger, or in an authorized emergency vehicle while in the performance of official duties.

N.D.C.C. § 39-08-23 (emphasis added). The statute provides several proscribed phone-related activities as well as several permitted phone-related activities. Both proscribed and permitted activities appear to encompass actions that may require finger-to-phone tapping; for example, the proscribed activity of composing an electronic message could involve finger-to-phone tapping and the permitted activity of entering a telephone number could involve finger-to-phone tapping.

[¶9] Morsette argues the Seventh Circuit in U.S. v. Paniagua-Garcia , 813 F.3d 1013 (7th Cir. 2016), supports a finding that the officer in this case did not have reasonable and articulable suspicion to conduct the traffic stop. In Paniagua-Garcia , the Seventh Circuit analyzed the applicability of an Indiana statute reading:

(a) A person may not use a telecommunications device to:

(1) type a text message or an electronic mail message;

(2) transmit a text message or an electronic mail message; or

(3) read a text message or an electronic mail message;

while operating a moving motor vehicle unless the device is used in conjunction with hands free or voice operated technology, or unless the device is used to call 911 to report a bona fide emergency.

Ind. Code § 9-21-8-59 (emphasis added). In Paniagua-Garcia , while passing a car, an officer observed the driver (1) holding a cell phone in his right hand, (2) with his head bent toward the phone, and (3) appearing to be texting. 813 F.3d at 1014. The officer never "explained what created the appearance of texting as distinct from any one of the multiple other—lawful—uses of a cellphone by a driver." Id . In holding reasonable suspicion did not exist, the court in Paniagua-Garcia stated:

Almost all the lawful uses we’ve listed would create the same appearance—cellphone held in hand, head of driver bending toward it because the text on a cellphone’s screen is very small and therefore difficult to read from a distance, a finger or fingers touching an app on the cellphone’s screen. No fact perceptible to a police officer glancing into a moving car and observing the driver using a cellphone would enable the officer to determine whether it was a permitted or a forbidden use.

Id . (citation omitted). Morsette argues that the North Dakota statute, like the Indiana statute in Paniagua-Garcia , does not proscribe merely "manipulating" a cell phone. Morsette also argues the absence of any evidence in the record supporting an inference he was using his phone for a prohibited purpose rather than any number of the permitted purposes allowed for by the statute is similar to Paniagua-Garcia .

[¶10] The State argues Paniagua-Garcia is distinguishable from Morsette’s case because the Indiana statute only proscribes...