IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 118

State of North Dakota, Plaintiff and Appellant

v.

Nicholas Dean Lelm, Defendant and Appellee

No. 20200236

Appeal from the District Court of Morton County, South Central Judicial 

District, the Honorable Pamela A. Nesvig, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice, in which Justices Crothers, 

McEvers, and Tufte joined. Justice VandeWalle filed an opinion concurring in 

the result.

Austin Gunderson, Assistant State’ Attorney, Mandan, ND, for plaintiff and 

appellant.

Aaron D. Pulanco (argued) and Joshua L. Weatherspoon (on brief), Bismarck, 

ND, for defendant and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JULY 8, 2021 

STATE OF NORTH DAKOTA
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State v. Lelm

No. 20200236

Jensen, Chief Justice.

[¶1] The State appeals from an order suppressing evidence obtained from a 

warrantless search of Nicholas Lelm’s backpack. The State argues the 

warrantless search was reasonable under either the automobile exception or 

search incident to arrest exception to the warrant requirement. Alternatively, 

the State argues that even if the warrantless search was unreasonable, the 

evidence is admissible under the inevitable discovery doctrine. Because neither 

the automobile exception nor the search incident to arrest exception applied to 

the warrantless search, and the State did not meet its burden of establishing

the evidence would have been inevitably discovered, we affirm.

I

[¶2] On August 28, 2019, a City of Mandan Police Officer initiated a traffic 

stop of a vehicle with two occupants, a driver and a passenger. The driver was 

arrested on outstanding warrants and for driving under suspension. The driver 

provided his consent to search the vehicle. Lelm, the passenger, was seated in 

the front passenger seat with a backpack on his lap.

[¶3] The officer who initiated the stop called for the assistance of a drugdetection canine. After the canine arrived on the scene, Lelm was asked to exit 

the vehicle. Lelm exited the vehicle and took his backpack with him. Lelm 

placed his backpack on the ground some distance from the vehicle. The officers 

then detained Lelm, conducted a pat-down search, placed him in handcuffs, 

and secured him in the back of a patrol vehicle. While Lelm was detained and 

secured in the patrol vehicle, his backpack remained on the ground.

[¶4] The canine positively alerted on the front passenger door prompting a 

search of the vehicle. During the search the officers found drugs in the center 

console, a gun on the passenger floorboard, and glass pipes in a grocery bag 

near the gun.
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[¶5] While on the scene, the canine paid no attention to the backpack. Upon 

completing the search of the vehicle, the officers searched the backpack and 

discovered drug paraphernalia and marijuana.

[¶6] After he had been placed under arrest, Lelm complained of chest pains 

and requested medical assistance. An ambulance was called to the scene to 

transport Lelm to the hospital. At Lelm’s suppression hearing, an officer 

testified that ambulance personnel generally require a search of personal 

property before an individual is transported to the hospital. The officer 

testified the backpack would have been searched if the backpack was in the 

ambulance and if Lelm would have claimed the backpack as his property.

[¶7] Lelm moved to suppress the evidence found within the backpack arguing 

he had a reasonable expectation of privacy and the warrantless search was 

unreasonable. The State responded that the search was reasonable because it 

fell within either the automobile exception or search incident to arrest 

exception to the warrant requirement. Alternatively, the State argued that if 

the search was unreasonable, the evidence is admissible under the inevitable 

discovery doctrine. The district court granted Lelm’s motion to suppress, and 

the State initiated this appeal.

II

[¶8] The standard of review for a district court’s decision on a motion to 

suppress is well established: 

In reviewing a district court’s decision on a motion to suppress 

evidence, we defer to the district court’s findings of fact and resolve 

conflicts in testimony in favor of affirmance. We will affirm a 

district court’s decision on a motion to suppress if there is sufficient 

competent evidence fairly capable of supporting the trial court’s 

findings, and the decision is not contrary to the manifest weight of 

the evidence. Our standard of review recognizes the importance of 

the district court’s opportunity to observe the witnesses and assess 

their credibility. Questions of law are fully reviewable on appeal, 

and whether a finding of fact meets a legal standard is a question 

of law.
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State v. Stands, 2021 ND 46, ¶ 7, 956 N.W.2d 366 (quoting State v. Hawkins, 

2017 ND 172, ¶ 6, 898 N.W.2d 446).

[¶9] “The Fourth Amendment of the United States Constitution and Article 

I, Section 8 of the North Dakota Constitution protect individuals from 

unreasonable searches and seizures.” State v. Casson, 2019 ND 216, ¶ 7, 932 

N.W.2d 380 (quoting State v. Gagnon, 2012 ND 198, ¶ 8, 821 N.W.2d 373). 

Where an individual has a reasonable expectation of privacy in an area, the 

government must obtain a search warrant unless the search falls within a 

recognized exception to the warrant requirement. State v. Pogue, 2015 ND 211, 

¶ 9, 868 N.W.2d 522. If an exception does not apply to the search, evidence 

discovered in violation of the Fourth Amendment must be suppressed under 

the exclusionary rule. Id. The burden is on the State to prove a warrantless 

search falls within an exception to the warrant requirement. State v. Zacher, 

2015 ND 208, ¶ 7, 868 N.W.2d 847. 

III

[¶10] The State argues the search of the backpack was a proper warrantless 

search under the automobile exception. Under the automobile exception, 

officers may, when probable cause exists, search a vehicle for illegal 

contraband without a warrant. State v. Lark, 2017 ND 251, ¶ 16, 902 N.W.2d 

739; see State v. Reis, 2014 ND 30, ¶ 18, 842 N.W.2d 845 (stating a search is 

limited to the vehicle and any containers within the vehicle that may contain

the object of the search).

Probable cause exists to search a vehicle if it is established that 

certain identifiable objects are probably connected with criminal 

activity and are probably to be found at the present time at an 

identifiable place. If a warrantless search of an automobile is made 

with probable cause, based on a reasonable belief arising out of the 

circumstances known to the officer that the automobile contains 

articles which are subject to seizure, the search is valid.

Reis, at ¶ 15 (quoting State v. Dudley, 2010 ND 39, ¶ 7, 779 N.W.2d 369) 

(internal quotations omitted). A drug-sniffing dog indicating the presence of a 
4

controlled substance in a vehicle establishes probable cause for officers to 

search that vehicle. State v. Gefroh, 2011 ND 153, ¶ 9, 801 N.W.2d 429.

[¶11] The district court found the automobile exception did not apply in this 

case because the backpack was not inside the vehicle when probable cause to 

search was established. The backpack was removed from the vehicle before 

officers performed an open air test with their drug-detection canine. The canine

alerted to the passenger side of the vehicle but did not pay attention to the 

backpack that was outside the car. The court found there was insufficient 

information in the record to determine how long the backpack was outside the 

vehicle before the drug-detection canine was engaged and insufficient 

information to determine the amount of time the canine may indicate on a 

vehicle after a substance is removed.

[¶12] Once the drug-detection canine indicated the presence of a controlled 

substance in the vehicle, officers had probable cause to search the vehicle and 

any containers within the vehicle that may have concealed a controlled 

substance. The probable cause established by the canine’s indication to the 

vehicle limited the search for potential illegal contraband within the vehicle 

and present at the time the sniff was conducted. Because the backpack was not 

within the vehicle at the time of the canine deployment, officers did not have 

probable cause to search the backpack and the automobile exception did not 

apply.

IV

[¶13] The State also argues the search of the backpack was reasonable under 

the search incident to arrest exception. The United States Supreme Court has 

noted the following regarding searches incident to arrest:

Among the exceptions to the warrant requirement is a search 

incident to a lawful arrest. See Weeks v. United States, 232 U.S. 

383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The [search incident to 

arrest] exception derives from interests in officer safety and 

evidence preservation that are typically implicated in arrest 

situations. See United States v. Robinson, 414 U.S. 218, 230–234, 
5

94 S.Ct. 467, 38 L.Ed.2d 427 (1973); [Chimel v. California, 395 U.S. 

752, 763 (1969)].

In Chimel, we held that a search incident to arrest may only 

include “the arrestee’s person and the area ‘within his immediate 

control’—construing that phrase to mean the area from within 

which he might gain possession of a weapon or destructible 

evidence.” [Chimel, 395 U.S. 752, 763 (1969)]. That limitation, 

which continues to define the boundaries of the exception, ensures 

that the scope of a search incident to arrest is commensurate with 

its purposes of protecting arresting officers and safeguarding any 

evidence of the offense of arrest that an arrestee might conceal or 

destroy. See ibid. (noting that searches incident to arrest are 

reasonable “in order to remove any weapons [the arrestee] might 

seek to use” and “in order to prevent [the] concealment or 

destruction” of evidence (emphasis added)). If there is no 

possibility that an arrestee could reach into the area that law 

enforcement officers seek to search, both justifications for the 

search-incident-to-arrest exception are absent and the rule does 

not apply. E.g., Preston v. United States, 376 U.S. 364, 367–368, 84 

S.Ct. 881, 11 L.Ed.2d 777 (1964).

Arizona v. Gant, 556 U.S. 332, 338–39 (2009); see also State v. Tognotti, 2003 

ND 99, ¶ 8, 663 N.W.2d 642 (recognizing the scope of the search incident to 

arrest exception is limited).

[¶14] The search incident to arrest exception is limited to searches that 

implicate interests in protecting officer safety and evidence preservation. The 

State does not argue the search was necessary to prevent the destruction or 

concealment of evidence. The district court made specific findings regarding 

officer safety. Those findings included the following:

When Lelm was detained, he was placed in the back of a patrol 

vehicle after he voluntarily informed law enforcement officers 

there was a gun in the vehicle. Officers did locate the weapon Mr. 

Lelm identified. Once detained, Lelm’s backpack was no longer 

within his reach. Lelm did not have access to his backpack at the 

time it was searched, nor was it a part of his “person.” Officers did 

not search the backpack due to officers’ safety concerns, but rather, 

based upon the K-9 hit on Bloom’s vehicle. Officer Belgarde 
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specifically testified the search of the backpack was not based upon 

officer safety. The exception to search the backpack based upon 

officer safety is without justification and does not apply to these 

facts.

[¶15] “This Court merely reviews findings of fact and does not make its own

findings of fact.” State v. Knox, 2016 ND 15, ¶ 13, 873 N.W.2d 664. Here, the 

State does not argue the search was necessary to prevent the destruction or 

concealment of evidence. Additionally, the district court made specific findings, 

supported by the testimony of a law enforcement officer, that the search was 

not for safety concerns. In the absence of either a concern for officer safety, or 

a need to preserve evidence from destruction or concealment, the search 

incident to arrest exception to the requirement to obtain a warrant does not 

apply.

V

[¶16] The State argues that even if the warrantless search was unreasonable, 

the evidence is still admissible under the inevitable discovery doctrine. The 

inevitable discovery doctrine allows evidence obtained during an unlawful 

search to be admissible “where it is shown that the evidence would have been 

gained even without the unlawful action.” State v. Hollis, 2019 ND 163, ¶ 19, 

930 N.W.2d 171 (quoting State v. Friesz, 2017 ND 177, ¶ 26, 898 N.W.2d 688). 

Under the North Dakota Constitution, this Court has adopted a two-part test 

to determine whether the inevitable discovery doctrine applies to a search:

First, use of the doctrine is permitted only when the police have 

not acted in bad faith to accelerate the discovery of the evidence in 

question. Second, the State must prove that the evidence would 

have been found without the unlawful activity and must show how 

the discovery of the evidence would have occurred.

State v. Holly, 2013 ND 94, ¶ 54, 833 N.W.2d 15 (quoting State v. Phelps, 297 

N.W.2d 769, 775 (N.D. 1980)).

[¶17] Lelm does not assert law enforcement acted in bad faith when searching 

his backpack. The district court correctly found the first prong of the inevitable 

discovery doctrine had been satisfied. 
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[¶18] After Lelm was placed under arrest, an ambulance was called to the 

scene to transport Lelm to the hospital for medical treatment. At Lelm’s 

suppression hearing, the arresting officer testified that ambulance personnel 

generally require a search of personal property before an individual is 

transported to the hospital. The officer testified the backpack would have been 

searched if the backpack was in the ambulance and if Lelm would have claimed 

the backpack as his property. The following testimony was elicited at the 

hearing:

Q. This is — I guess, fast forward to when the ambulance is called.

If there wasn’t a search of the backpack at that time, what would

law enforcement normally do before transporting that backpack, I

guess, staying in the ambulance as a piece of property.

A. The ambulance require[s] we search prior to us sending him to

the hospital.

Q. So the backpack would have been searched through a piece of

property, you’re saying, if he would have claimed that as his

property?

A. Yes.

[¶19] During subsequent re-cross examination, the officer clarified his 

previous testimony by articulating that an individual who is being transported 

to a hospital by ambulance would need to consent to a search of the backpack 

before officers would search the backpack:

Q. You mentioned just briefly before I started asking questions

that before somebody’s taken to the hospital, a search of their

property has to be done; right?

A. A lot of time ambulances will ask if we can please search

somebody before they take them, yes.

Q. And is that just —

A. For their safety and the subject’s safety.
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Q. So specific for the reason of like, say, a firearm or kind of an

explosive material, anything like that; right?

A. Yes.

Q. Okay. And that includes even personal property such as a

luggage, backpack; right?

A. If they allow it to be searched, yes. If not, we’re probably going

to take it into evidence for them to come pick up or —

Q. If who allows it? The subject?

A. Yeah.

Q. Okay. And so Nick would have had to consent to the search of

the property otherwise you would have just taken it into evidence?

A. If I didn’t find the paraphernalia and stuff in the vehicle is what

you’re saying?

Q. Say he requested medical assistance and — so we’re just talking

about the medical, the search regarding any kind of property going

with him. If, say, you only found the paraphernalia and he was

being transported to the hospital, would you have searched the

backpack at that time without his consent?

A. So you’re saying if he wasn’t placed under arrest, he was going

to the hospital —

Q. Based on chest pains —

A. And he had the backpack on him?

Q. Yes.

A. What’s that?

Q. Yep, just that.
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A. Yeah. Then it’d be we’d either take it into evidence or find

somebody to pick it up or something if we can’t do a pat search of

the backpack. I can pat search him for weapons but the backpack

is going to come into evidence or find a place for it to go.

[¶20] The district court, after hearing the above testimony, made the following 

findings:

The State attempted to present evidence that the backpack would 

have been searched based upon ambulance policy/request when 

Mr. Lelm was taken by ambulance to the hospital. However, 

Officer Belgarde testified he would still need consent of Mr. Lelm 

to search the backpack and absent that consent, the backpack 

would be taken back to the law enforcement center. No other 

examples or information [were] presented to the court to warrant 

an exception under the inevitable discovery exception, therefore, 

the court finds it does not apply to the backpack search in this case.

[¶21] The State has the burden to prove “by a preponderance of the evidence 

that the challenged evidence would have otherwise been discovered by lawful 

means in the course of the investigation.” Friesz, 2017 ND 177, ¶ 26 (quoting 

State v. Asbach, 2015 ND 280, ¶ 16, 871 N.W.2d 820). Our standard of review 

on a motion to suppress requires us to affirm a district court’s decision if “there 

is sufficient competent evidence fairly capable of supporting the trial court’s 

findings, and the decision is not contrary to the manifest weight of the 

evidence.” Stands, 2021 ND 46, ¶ 7 (quoting Hawkins, 2017 ND 172, ¶ 6).

[¶22] The State argues the officer’s testimony regarding the need for consent 

only applied to situations where the individual had not been placed under 

arrest and, because Lelm was under arrest, the district court erred in finding 

Lelm’s consent would have been required. Regardless of what would have 

happened had the backpack been with Lelm while he was under arrest in the 

ambulance and whether the ambulance policy is sufficient to abrogate the need 

to obtain a warrant, the State ignores the remainder of the court’s finding. “No 

other examples or information [were] presented to the court to warrant an 

exception under the inevitable discovery exception[.]” Here, Lelm was placed 

under arrest and placed in the ambulance without the backpack. What is 

absent from the record is an explanation of what would have happened to the 
10

backpack under these circumstances had it not already been searched. We do 

not know if it would have been placed in the back of a patrol car, if someone 

would have been contacted to retrieve the backpack on Lelm’s behalf, if it 

would have been placed with Lelm in the ambulance, or if something else would 

have been done with the backpack. All we know is that the ambulance service 

policy is not to allow a personal item, like a backpack, to be transported in an

ambulance without it first being searched. 

[¶23] After a review of the record, we conclude the district court’s finding that 

the State failed to establish the evidence from the backpack would have been 

inevitably discovered is not contrary to the manifest weight of the evidence. 

Because the State failed to establish the evidence would have been inevitably

discovered absent the unlawful search, the inevitable discovery doctrine does 

not apply.

VI

[¶24] Lelm had a reasonable expectation of privacy in his backpack. Neither 

the automobile exception nor the search incident to arrest exception applied to 

the warrantless search of Lelm’s backpack, and the State failed to establish 

the evidence would have been inevitably discovered absent the unlawful 

search. Because an exception does not apply to the search, evidence discovered 

during the search of Lelm’s backpack must be suppressed under the 

exclusionary rule. We affirm the order of the district court.

[¶25] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

VandeWalle, Justice, concurring in the result.

[¶26] Although I suspect we have not heard the last from the United States 

Supreme Court on the automobile exception, the search incident to arrest 

exception, and the inevitable discovery doctrine, I agree with parts I through 

IV and part VI of the opinion. With regard to part V, inevitable discovery, I 
11

concur in the result. While I may have drawn different inferences and 

conclusions from the testimony, it is, as the opinion notes, the function of the 

trial judge to find those facts.

[¶27] Gerald W. VandeWalle