Filed 6/2/20 by Clerk of Supreme Court


### IN THE SUPREME COURT STATE OF NORTH DAKOTA

2020 ND 123

State of North Dakota, Plaintiff and Appellant

v. Jordan Selzler a/k/a Jordan Selzer, Defendant and Appellee

No. 20190355

State of North Dakota, Plaintiff and Appellant

v. Kelsey A. Jankowski, Defendant and Appellee

No. 20190357

Appeal from the District Court of Mc Lean County, South Central Judicial District, the Honorable Da niel J. Borgen, Judge.

AFFIRMED. Opinion of the Court byJensen, Chief Justice.
Ladd R. Erickson, State’s Attorney, Washburn , ND, for plaintiff and appellant; submitted on brief.
William R. Thomason, Bismarck, ND, for defendant and appellee Jordan Selzler a/k/a Jordan Selzer; submitted on brief. Robert N. Quick, Bismarck, ND, fo r defendant and ap pellee Kelsey A. Jankowski; submitted on brief.1 State v. Selzler; State v. Jankowski

Nos. 20190355 & 20190357
Jensen, Chief Justice.
[¶1] The State of North Dakota appeals fr om the suppression of evidence in criminal proceedings initiated against Jo rdan Selzler and Kelsey Jankowski. The criminal charges against Selzler and Jankowski arise from evidence gathered during the same tr affic stop, the hearing on the motions to suppress evidence was held jo intly, and the cases have been consolidated for purposes of this appeal. The State argues the distr ict court incorrectly found the traffic stop was unlawful because law enforcemen t lacked reasonab le suspicion for the stop. We affirm the su ppression of the evidence gathered after the traffic stop.

I
[¶2] At approximately 3:00 a.m. on May 1, 2019, a McLean County Deputy Sheriff was completing paperwork while pa rked in the lot of a gas station and convenience store where th e gas pumps were still lega lly accessible, but the facility itself was closed. Jankowski wa s the passenger in a vehicle that drove into the lot and pulled up to the pumps. Jankowski exited the vehicle and walked toward the closed convenience store. After watching Jankowski walk toward the building, the deputy resumed working on his report.
[¶3] The deputy decided to inquire if Jankowski was alright after she had remained by the build ing for about five to ten mi nutes. The deputy drove his vehicle up to Selzler and Jankowski’s vehicle. Upon re aching Jankowski and Selzler’s vehicle, the deputyobserved Selzler sitting in the driver’s seat. At about the same time, Jankowski quic kly walked back to Selzler and Jankowski’s vehicle. The deputy beli eved both Selzler and Jankowski were exhibiting nervous behavior. In response to the deputy’s inquiry if everything was alright, Jankowski rep lied that she was making a phone call. The deputy considered her answer susp icious because she was no t holding a phone. The deputy drove a short distanc e away, but remained in a location where he could observe Selzler and Jankowski’s vehicle.2 [¶4] After what the deputy considered “quite some time,” Selzler and Jankowski left the gas station. As th ey left the gas station their vehicle accelerated quickly, causing the front of the vehicle to visibly rise up. Their vehicle then made wh at the deputy described as a “hard brake” at a stop sign. After stopping, the vehicle paused briefly, signaled to turn, paused briefly again, and then proceeded onto the ad jacent highway. The deputy did not believe the length of pauses were necessary because of the lack of traffic on the highway.
[¶5] The deputy followed Selzler and Ja nkowski’s vehicle and initiated a traffic stop. The deputy did not observe any traffic violations. During the hearing on the motion to suppress th e State argued the deputy had some “indication of some offense potentially happening, we don’t know what.” The State also argued the deputy had a belie f “[t]here’s some violation of law happening.” The deputy indicated th e traffic stop was initiated after he observed the suspicious reactions of Selzler and Jankowski when he approached their vehicle, their presen ce at the gas station at 3:00 a.m., Jankowski’s statement she was maki ng a phone call when no phone was visible, the odd (but lawful) driving be havior when the vehicle left the gas station, and the fact the ga s cap on the vehicle remain ed open after they left the gas station.
[¶6] The court granted the motions an d suppressed evid ence seized subsequent to the traffic stop. The co urt found the stop to be invalid because the deputy did not have a reasonable and articulable susp icion Selzler or Jankowski had violated or were about to violate the law. The State asserts the district court erred in suppressing the ev idence seized afte r the traffic stop.

II
[¶7] A valid investigatory tr affic stop requires the o fficer conducting the stop to have “a reasonable and articulable su spicion the motorist ha s violated or is violating the law.” State v. Bornsen , 2018 ND 256, ¶ 5, 920 N.W.2d 314 (quoting Gabel v. N.D. Dep’t of Transp. , 2006 ND 178, ¶ 9, 720 N.W.2d 433). “Whether an officer had a re asonable and articulable su spicion is a fact-specific inquiry that ‘is evaluated under an ob jective standard cons idering the totality3 of the circumstances.’” Id . “The question is whethe r a reasonable person in the officer’s position would be justifiedby some objectiv e manifestation to suspect the defendant was, or was about to be, engaged in unlawful activity.” State v. Asbach , 2015 ND 280, ¶ 12, 871 N.W.2d 820. “The determination of whether the facts in a case support a reasonable suspicion is a question of law which is fully review able on appeal.” Bornsen, at ¶ 5 (citing City of Dickinson v. Hewson , 2011 ND 187, ¶ 6, 803 N.W.2d 814) . We affirm the district court’s decision unless we co nclude there is insufficient competent evidence to support the decision, or unless the decision goes against th e manifest weight of the evidence. City of Fargo v. Thompson , 520 N.W.2d 578, 581 (N.D. 1994).
[¶8] “Although we have recognized that th e concept of reas onable suspicion is not readily reduced to a neat set of legal rules, it does require more than a ‘mere hunch.’” Salter v. N.D. Dep’t of Transp. , 505 N.W.2d 111, 114 (N.D. 1993) (internal quotations omitted). “An inve stigative stop of a moving vehicle must be justified by some obje ctive manifestation that the person stopped is, or is about to be, engaged in criminal activity , and mere curiosity, suspicion, vague hunches, or other non-object ive facts will not suffice.” Id

. [¶9] This Court has recognized traffic violations, regardless of how minor, provide a lawful basis for a traffic stop. Bornsen , 2018 ND 256, ¶ 6, 920 N.W.2d 314 (affirming a judgment entered after the denial of a motion to suppress where the traffic stop was initiated af ter the observation of a minor traffic violation). We have also recognized the validity of a traffic stop in the absence of a traffic violation and where the law enforcement o fficer’s observations have been limited to lawful activity, when th e officer has articula ted suspicion of a particular unlawful activity. Kappel v. Director, N.D. Dep’t of Transp. , 1999 ND 213, ¶ 19, 602 N.W.2d 718 (a prolo nged stop at a traffic sign and weaving within the driver’s lane of traffic were not unlawful, but o fficer articulated he suspected the driver of driving while un der the influence based on the driving behavior and his prior experience). In Kappel , the law enforcement officer articulated that his observations of the driving behavior, although lawful, coupled with his experien ce which included approx imately 160 prior driving while under the influence arrests, led him to suspec t the driver was engaged in the unlawful act of drivin g while under the influence. Id . at ¶ 11. We have4 however recognized a traffic stop may be invalid in the absence of a traffic violation when the officer does not ha ve reasonable susp icion of unlawful activity. Salter v. N.D. Dep’t of Transp. , 505 N.W.2d 111, 114 (N.D. 1993). In Salter , the law enforcement offi cer’s observation of the driver driving slower than the speed limit and ma king slight weaves within the lane, did not support a reasonable suspicion that the driver was impeding traffic, and the officer’s characterization of the driving as erratic did not provide additional justification. Id.
[¶10] The court found the deputy did no t have reasonable, articulable suspicion sufficient to justify the stop of Selzler an d Jankowski’s vehicle. The court found the facts and testimony pres ented at the hearing suggested the deputy had a “mere hunch” of illegal activity. The co urt noted neither Selzler nor Jankowski had done anything unlawf ul and, even when considering the totality of the circumstances, there wa s nothing more than a mere hunch criminal activity was afoot. In reachi ng its finding, the co urt noted the State had not articulated or demonstrated any clear reasonable suspicion.
[¶11] The court specifically inquired about what potential criminal activity the deputy suspected Selzler and Jankowski were engaging in. The State argued the deputy had some “indic ation of some offense po tentially happening, we don’t know what” and also argued the deputy had a belief “[t]here’s some violation of law happening. ” The deputy had already approached the vehicle at the gas station and did not initiate a stop. The vehicle su bsequently left the gas station, and although susp icious driving was observed , no traffic violations were observed. What pote ntial criminal activity was suspected is not selfevident from the record. Under the circu mstances of this ca se, the failure to articulate even a general category of potential crimi nal activity Selzler and Jankowski may have been engaged in le ads us to the conc lusion there is sufficient competent evidence in the record to suppor t the court’s decision, and the court’s decision does not go agains t the manifest weight of the evidence.

III
[¶12] The district court’s finding the tr affic stop was unlawful because law enforcement lacked reasonab le suspicion for the stop is supported by sufficient5 competent evidence and does not go against the weight of the evidence. We affirm the district court’s order granti ng Selzler and Jankow ski’s motions to suppress evidence subsequent to the traffi c stop of their vehicle.
[¶13] Jon J. Jensen, C.J. Lisa Fair McEvers Gerald W. VandeWalle Jerod E. Tufte Daniel J. Crothers