IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 116

State of North Dakota, Plaintiff and Appellant

v.

Marco Van Der Heever, Defendant and Appellee

No. 20200309

Appeal from the District Court of Pembina County, Northeast Judicial District, 

the Honorable Laurie A. Fontaine, Judge.

REVERSED AND REMANDED.

Opinion of the Court by McEvers, Justice, in which Chief Justice Jensen, 

Justices VandeWalle and Tufte joined. Justice Crothers filed an opinion 

concurring specially.

Rebecca L. Flanders, State’s Attorney, Cavalier, ND, for plaintiff and apellant.

Dustin J. Slaamod, Cavalier, ND, for defendant and appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JUNE 24, 2021 

STATE OF NORTH DAKOTA
1

State v. Van Der Heever

No. 20200309

McEvers, Justice.

[¶1] The State appeals from a district court order granting Marco Van Der 

Heever’s motion to suppress evidence, arguing the officer had reasonable 

suspicion to stop Van Der Heever’s vehicle. We reverse and remand for further 

proceedings.

I

[¶2] Van Der Heever was charged with driving under the influence of

intoxicating liquors. He moved to suppress the evidence obtained as a result of 

his vehicle being stopped by law enforcement. The district court held a hearing, 

where Sergeant Cory Mortensen provided the sole testimony.

[¶3] Mortensen testified he was contacted by dispatch to respond to a possibly

impaired driver at approximately 12:30 a.m. on June 28, 2020. Dispatch 

informed him that the reporting party, John Towes, stated a silver F-150 

pickup with branches in the bed of the truck was traveling on Central Avenue 

in Walhalla, North Dakota, stopping and reversing in the middle of the road. 

Towes reported the driver’s actions caused him to stop and reverse his vehicle 

to avoid being hit by the F-150, which occurred “many times.” Mortensen 

testified that Central Avenue is the road between the two bars in Walhalla, 

and that Towes reported the F-150 was parked “up town at the local bar all 

afternoon.” Mortensen stated that he is personally familiar with Towes from 

prior community contacts. After receiving Towes’ phone number from dispatch, 

Mortensen called him. Towes identified the driver as male and believed he was 

probably impaired. Towes did not know where the F-150 was located at that 

time, but called back shortly after and said the vehicle was parked on 7th 

Street, just north of Delano Avenue. Towes was parked down the road, 

watching the F-150, and he told Mortensen the driver of the F-150 was outside 

of his parked vehicle.

[¶4] About fifteen minutes later, Mortensen arrived at the location and pulled 

behind the vehicle. He saw the driver’s side door was open. As Mortensen was 
2

about to exit his vehicle, the driver’s side door closed and the vehicle slowly 

drove away. Mortensen activated his lights and stopped the vehicle. He 

identified the driver as Van Der Heever. Following an investigation, Van Der 

Heever was charged with driving under the influence.

[¶5] After the suppression hearing, the district court granted Van Der 

Heever’s motion to suppress, concluding that Mortensen should have 

corroborated some of Towes’ report before stopping Van Der Heever’s vehicle.

The State appealed, complying with N.D.C.C. § 29-28-07(5) by filing the 

required statement from the prosecuting attorney.

II

[¶6] The State argues the district court erred in granting the motion to 

suppress because Mortensen had reasonable suspicion to stop Van Der 

Heever’s vehicle. Our standard for reviewing the district court’s decision on a 

motion to suppress is well-established:

[T]his Court defers to the district court’s findings of fact and 

resolves conflicts in testimony in favor of affirmance. This Court 

will affirm a district court decision regarding a motion to suppress 

if there is sufficient competent evidence fairly capable of 

supporting the district court’s findings, and the decision is not 

contrary to the manifest weight of the evidence. Questions of law 

are fully reviewable on appeal, and whether a finding of fact meets 

a legal standard is a question of law.

State v. Ashby, 2017 ND 74, ¶ 9, 892 N.W.2d 185. Whether the facts support a 

reasonable and articulable suspicion is a question of law, which is fully 

reviewable on appeal. Id.

[¶7] The Fourth Amendment to the United States Constitution, applicable to 

the states under the Fourteenth Amendment, and Article I, section 8, of the 

North Dakota Constitution, protect individuals from unreasonable searches 

and seizures. Ashby, 2017 ND 74, ¶ 8. “Temporary detention of individuals 

during the stop of an automobile by the police, even if only for a brief period 

and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the 

meaning of this provision.” Id. A law enforcement officer must have a 
3

reasonable and articulable suspicion that a motorist has violated or is violating 

the law to justify stopping a moving vehicle for investigation. Gabel v. N.D. 

Dep’t of Transp., 2006 ND 178, ¶ 9, 720 N.W.2d 433. “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. Wolfer, 2010 ND 63, ¶ 6, 780 N.W.2d 650 (quoting 

Gabel, at ¶ 9). Under this standard, “the articulable aspect requires that the 

stop be justified with more than just a vague hunch or other non-objective facts; 

and the reasonable aspect means that the articulable facts must produce, by 

reasonable inference, a reasonable suspicion of unlawful conduct.” State v. 

Taylor, 2018 ND 132, ¶ 11, 911 N.W.2d 905 (emphasis omitted).

[¶8] We have previously discussed three situations that provide an officer 

with reasonable and articulable suspicion to stop a vehicle: (1) when the officer 

relied upon 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 the officer’s own observations; and (3) when the officer directly 

observed illegal activity. Anderson v. Director, N.D. Dep’t of Transp., 2005 ND 

97, ¶ 9, 696 N.W.2d 918. Further, we have discussed the analytical framework 

necessary to determine whether an informant’s tip is sufficiently reliable to 

raise a reasonable suspicion without the officer’s corroboration:

Information from a tip may provide the factual basis for a stop. In 

evaluating the factual basis for a stop, we consider the totality of 

the circumstances. This includes the quantity, or content, and 

quality, or degree of reliability, of the information available to the 

officer. Although the totality-of-the-circumstances approach 

makes categorization difficult, our cases involving reasonable 

suspicion arising from an informant’s tip demonstrate the inverse 

relationship between quantity and quality, and may be analyzed 

generally according to the type of tip and, hence, its reliability. As 

a general rule, the lesser the quality or reliability of the tip, the 

greater the quantity of information required to raise a reasonable 

suspicion.

Anderson, 2005 ND 97, ¶ 10 (cleaned up).
4

[¶9] “Information from an informant whose identity is easily ascertainable 

has a higher indicia of reliability than information obtained from a purely

anonymous informant.” Anderson, 2005 ND 97, ¶ 15. Citizen informants are 

presumed to be a reliable source of information. State v. Ebel, 2006 ND 212, ¶ 

15, 723 N.W.2d 375. “A citizen informant is someone who volunteers 

information, does not want anything in return for the information, and is not 

at risk or in fear of going to jail.” City of Dickinson v. Hewson, 2011 ND 187, ¶ 

10, 803 N.W.2d 814 (cleaned up).

[¶10] Towes was a citizen informant. He volunteered information to dispatch 

and Mortensen without wanting anything in return for the information he 

provided. Further, he was not at risk or in fear of going to jail. Not only is 

Towes’ identity easily ascertainable, but Mortensen testified that he personally 

knew Towes from prior community contacts. Accordingly, the information 

being provided by Towes has a high indicia of reliability and is presumed 

reliable. See Hewson, 2011 ND 187, ¶ 10.

[¶11] The district court concluded that Mortensen lacked reasonable suspicion 

to stop Van Der Heever’s vehicle because he failed to corroborate Towes’ 

information, relying on Anderson and Gabel. In Anderson, law enforcement 

received a call from a motorist reporting a “possible reckless driver or drunk 

driver” that had hit cones in a construction zone. 2005 ND 97, ¶ 2. The

informant reported a description of the vehicle and continued following him 

and providing location updates. Id. The officer stopped the suspect after 

following him for two miles without observing any illegal or erratic driving. Id.

at ¶ 3. Although the officer was unaware of the informant’s name, he knew the 

informant had pulled off to the side of the road and was being interviewed by 

an assisting officer. Id. Thus, we concluded the informant’s identity was easily 

ascertainable, and he had a higher indicia of reliability than a purely 

anonymous informant. Id. at ¶¶ 14, 21. However, the Department of 

Transportation failed to establish that the officer was aware of the suspect

hitting the cones in the construction zone before the stop. Id. at ¶ 19. We held 

that the “bare assertion of a ‘possible reckless driver or drunk driver,’” was not 

of sufficient quantity to provide the officer with reasonable suspicion of

criminal activity. Id. at ¶ 21.
5

[¶12] In Gabel, the informant reported a vehicle was speeding up and slowing 

down, not allowing him to pass. 2006 ND 178, ¶ 2. The informant also reported 

the license plate, and continued to follow the driver and relay his location. Id.

The officer located the vehicle traveling at a speed of 47 miles per hour in a 65 

mile per hour zone, and stopped the vehicle. Id. at ¶ 3. There was no minimum 

speed limit required on the road, and the officer did not observe a traffic 

violation. Id. The officer knew the informant, but believed he had a criminal 

record. Id. at ¶ 12. Although the reliability of the tip was discussed, we 

ultimately did not determine the issue, and assumed the informant reliable, 

stating:

However, we need not determine the reliability of [the informant], 

because, even assuming he was a reliable informant, his tip of a 

vehicle speeding up and slowing down, not allowing a car to pass 

is insufficient to support a traffic stop absent corroboration of 

otherwise illegal activity or suspicious conduct. Driving on a 

highway slightly below the speed limit is not sufficiently 

suspicious to support a traffic stop.

Id. The majority concluded that based upon the information conveyed, there 

was only a possibility the driver violated the law, and thus was functionally 

equivalent to the tip in Anderson of the “possible reckless driver or drunk 

driver.” Id. at ¶ 15. The Court held the officer lacked reasonable suspicion to 

stop the vehicle. Id. at ¶ 16.

[¶13] However, where a known, or easily ascertainable, informant provides a 

greater quantity of information than a bare assertion of possible impaired or 

erratic driving, the officer need not personally observe, or corroborate, evidence 

of criminal activity in order to have reasonable suspicion to stop a vehicle. See, 

e.g., Ashby, 2017 ND 74, ¶¶ 13-17; Hewson, 2011 ND 187, ¶¶ 11-14; State v. 

Lykken, 406 N.W.2d 664, 666 (N.D. 1987). In Navarette v. California, 572 U.S. 

393, 395 (2014), an anonymous 911 caller reported that a vehicle had run her 

off the road and provided the vehicle description and location. The officer 

stopped the vehicle without observing any suspicious conduct. Id. at 403. The 

United States Supreme Court held the officer had reasonable suspicion of 

drunk driving based on the 911 caller’s tip. Id. at 404. The Court concluded the 

tip was reliable because the caller claimed an eyewitness basis of knowledge, 
6

the short time between the incident and the call suggested the caller had little 

time to fabricate the report, and a reasonable officer could conclude that a false 

tipster would hesitate to call 911 because of the features the system has to 

safeguard against making false reports with immunity. Id. at 399-401. The 

Court determined further corroboration of the tip was unwarranted, noting

that “an officer who already has such a reasonable suspicion need not surveil 

a vehicle at length in order to personally observe suspicious driving.” Id. at 

404.

[¶14] The information provided by Towes was more than a bare assertion of a 

“possible reckless driver or drunk driver.” Towes, a known citizen informant

whose tip is presumed reliable, identified the color and model of the vehicle, 

with the unique descriptor of it having branches in the bed of the truck. He 

reported the F-150 was parked at the bar “all afternoon.” He specifically 

described the actions of the driver of the vehicle as stopping and reversing the 

vehicle in the middle of Central Avenue in Walhalla, causing him to do the 

same to avoid a collision, which occurred “many times.” Mortensen testified 

that Central Avenue was the road between the two bars in Walhalla. Towes 

identified the driver as male and believed he was probably impaired. Further, 

Towes supplied the location of the vehicle, while simultaneously watching it

from down the road, and noted the driver was outside of his parked vehicle. 

Mortensen arrived at the location provided approximately fifteen minutes later

and found the described vehicle with the driver’s side door open. Mortensen 

corroborated the location of the vehicle and the vehicle’s description, but he did 

not corroborate the criminal activity. Such corroboration is not required under 

the Fourth Amendment, Navarette, 572 U.S. at 404, and Van Der Heever has 

not provided any argument for a different approach under N.D. Const. art. I, § 

8. Thus, the district court misapplied the law when it concluded Mortensen 

needed to further corroborate Towes’ information. Under the totality of the 

circumstances, Mortensen had reasonable suspicion of criminal activity, and 

the court erred by granting Van Der Heever’s motion to suppress evidence.
7

III

[¶15] We reverse the suppression order and remand for further proceedings.

[¶16] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Lisa Fair McEvers

Jerod E. Tufte

Crothers, Justice, specially concurring.

[¶17] I concur in the result here based on my writing in State v. Hendrickson, 

2019 ND 183, ¶¶ 17-24, 931 N.W.2d 236 (Crothers, J., specially concurring).

[¶18] Daniel J. Crothers