### IN THE SUPREME COURT STATE OF NORTH DAKOT A

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 REMANDE D

. Opinion of the Court by McEvers , Justice , in which Chief Justice Jensen, Justices VandeWalle and Tufte joined. Justice Crothers filed an opinion concurring specially

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

Dustin J. Slaamod, Cavalier, ND , for defendant and appellee.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. T he district court held a hearing , where Sergeant Cory Mortensen provided the s ole testimony.
[¶3] Mortensen testified he was contacted by d ispatch 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 Cen tral Avenue in Walhalla, North Dakota, stop ping and reversing in the middle of the road

. Towes reported the d r iver’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 C entral Avenue is the road between the two bars in Walhalla, and that Towes reported the F

- 150 was parked “up town a t the local bar all afternoon.” Mortensen stated that he is personally familiar with Towes from prior community contacts. After receiving Tow es’ phone number from dispatch, Mortensen called him. Towes identified the driver as male and believed he was probably impaired. Towes did not know wh ere the F

- 150 was located at that time, but called back shortly after and said the vehicle was parked on 7 th Stre et, 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 th e vehicle. He saw the driver’s side door was open. As Mortensen was2

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
suppr ess because Mortensen had reasonable suspicion to stop Van Der Heever’s vehicle. Our stand ard for review ing the district court’s decision on a motion to suppress is well

- established:
[ T ] his Cou rt 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 o f supporting the district court’ s findings, and the decision is not

co ntrary 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. Wh ether the facts support a reasonab le and articulable suspicio n 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 Const itution, 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 a3

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. W olfer , 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 articu lable 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 ow n 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 rel iable 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 r isk 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 jai l. 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] T he district c ourt concluded that Mortensen lacked reasonable suspici on 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. I d. The officer stopped the suspect after following him for two miles without observing any illegal or erratic driving. Id. at ¶ 3. Although the of ficer 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, t he 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. W e 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 slo wing down, not allowing him to pass. 2006 ND 178, ¶ 2. The informant also r eported 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. A lthough the reliability of the tip was discussed, we ultimately did not determine the issue , and assumed the informant reliable, stating:
However, we need not det ermine 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 b ased 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] H owever, where a kno wn, 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 act ivity 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). I n Navarette v. California , 572 U.S. 393 , 395 (2014) , an anonymous 911 call er reported that a vehicle had run her off the road and provided the vehicle description and location

. The officer stopped the vehi cle without observing any suspicious conduct. Id. at 403. T he United States Supreme C ourt held the o fficer had reasonable suspicion of drunk driving based on the 911 call er’s tip

. Id. at 404. The Court concluded the tip was reliable because the caller clai med 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 feat ures 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 relia ble , identified the color and model of the vehicle, with the unique descriptor of it having br anches in the bed of the truck. He reported the F

- 150 was parked at the bar “ all af ternoon.” He specifically described the actio ns 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, whi ch occurred “many times.” Mortensen testified that Central Avenue was the road between the two bars in Walhalla. T owes iden tified 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

. Mortens en arrived at the loca tion 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 acti vity. 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 u nder N.D. Const. art. I, § 8

. Thus, the district court misap plied the law when it concluded Mor tensen 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 suppre ssion 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