### File d 7 /1 1 /1 9 b y Cle r k o f S u p r e m e Co u r t IN THE S UPREME COURT S TATE OF NORTH DAKOTA

2019 ND 183

State of North Dakota, Plaintif f and Appellee

v. Dustin Tory

Hendrickson, Def endant and Appellant

No. 20190075

Appeal f rom the District Court of W a r d C o u nty , North Central J u dicial District, the Honorable Todd L. Cresap, Judge.

AFFIRMED. Opinion of

the Court by

McEvers, Justice. Christopher W

. Nelson, Assistant State’s Attorney , Minot, N D, plaintif f and appellee. Dustin T. Hendrickson, Minot, ND, def endant and appellant.State v. Hendrickson No. 20190075

McEvers, Justice. [ ¶1] Dustin Hendrickson appeals f rom a crim in a l j u d gm ent entered af t er he conditionally pled guilty to driving or i n actual phy sical control of a v ehicle while under the inf

luence. H endrickson argues the district court erred by deny ing his

m otion to suppress b ecause of f icers did n ot have r easonable suspicion to conduct an investigative stop. W e af f irm

.

I [ ¶2] Hendrickson was charged with actual phy sical control of a vehicle while under the inf luence of alcohol while being accom p anied by a m inor under N.D.C.C. § 39- 08-01.4, a class A m i sdem eanor. Hendrickson m oved to suppress evidence a nd to dism iss the charges against him

. He argued of f icers did not have reasonable suspicion

to stop him based o n inf

orm ation f

rom a 911 call. Hendrickson claim ed t he 9 11 caller

was a Taco Johns e m

p loy ee a nd the em

ploy ee alleged he was in the restaurant’s drive thru and appeared to b e “bey ond drunk.” He alleged t he caller said he was slurring his speech; his ey es were “on and of f , ” “open a n d s hut,” and “rolling to the back of his head;” and she said, “To u s he looks drunk, but I wouldn’t know.” He claim ed the respondi n g o f

f i c e rs did not observe a n y suspicious behavior or note any signs of intoxication when they spoke to him

. Hendrickson a r g ued t he caller’s inf orm ation

was not suf

f icient by itself

to establish reasonable suspicion that he was intoxicated because the inf

orm ation was v ague and did not contain any objective indicia which would lead a reasonable person to suspect intoxication. [ ¶3] Neither Hendrickson nor the State requested an evidentia r y hearing. The district c ourt denied Hendrickson’s m otio n b ased on the p arties’ brief s and the evidence subm i tted in support of the brief s, including a recording of the 9 11 call and

1video of the stop. The court f ound there w a s suf

f icient reasonable and articulable suspicion based on the inf orm a tion f

rom the 911 call to justif

y the investigative stop. [ ¶4] The State e ntered into a plea agreem e n t w ith Hendrickson, a n d an am ended

com plaint w as entered, charging Hendrickson with actual phy sical c ontrol of a m otor vehicle, a class B m i sdem eanor. Hendrickson conditionally pled g u i l t y to the

am ended charge, r eserving the right to a ppeal t he court’s order deny ing h is m otion to suppress. A crim inal judgm ent was entered.

I I [ ¶5] Because H endrickson c o n d i t i o n a lly pled guilty reserving t he right to appeal the district court’s decision deny ing h is m otion t o suppress, his appeal is lim ited to those issues he raised in the m otion to s uppr e s s. See N.D.R.Crim

. P. 1 1(a)(2) ( stating a conditional guilty plea reserves the right to have an appellate court review an adverse determ ination of a s pecif

ied pretrial m otion); S

tate v. Trevino , 2 011 N D 232, ¶¶ 6-7, 807 N.W .2d 211 (stating issues not reserved by a conditional guilty plea are waived). Hendrickson argues the district court erred by deny i ng his m otion to suppress because the of f icers did not have reasonable suspicion to conduct an investigative stop. [ ¶6] The standard f

or reviewing a court’s d ecision on a m otion to suppress is well established: [ W ]e give def

erence t o the district court’s f indings of f

act and we resolve conf

licts in testim ony i n f

a v or of af

f irm ance. W e will not reverse a district court decision on a m otion to suppress . . . if there is suf f icient com

petent evidence capable of s upporting t he court’s f indings, and if the d ecision is n ot contrary to the m a nif est weight of the evidenc e. Q uestions of law are f ully reviewable o n appeal, and whether a f

inding of f act m eets a legal standard is a question of law. State v. Broom , 2018 ND 135, ¶ 6, 911 N.W .2d 895 (quoting State v. Kaul , 2017 ND 56, ¶ 5, 891 N

. W .2d 3 52). W hether there was reasonable suspicion to justif y an investigative stop is a question of law, which is f ully r eviewable on appeal. State v. Knox , 2016 ND 15, ¶ 7, 873 N.W .2d 664.

2[ ¶7] The Fourth Am endm ent of the United States Constitution and Article I, section

8, of t he North Dakota Constitution, protect individuals f rom unreasonable searches and seizures. “An of

f icer m ust h a v e a reasonable and articulable suspicion that a

m otorist has violated or is violating the law in order to legally stop a vehicle.” Lies

v. N.D. Dep’t of Transp. , 2019 ND 83, ¶ 5, 924 N.W .2d 448. “Under t he articulable and re a s onable suspicion standard, the articulable aspect requires that t he stop be justif i ed wit h mo r e t h an just a vague hunch or other non-objective f acts; and the reasonable aspect m eans that the a rticulable f acts m ust produce, by r e a s o n a ble i nf erence, a reasonable s uspicion of unlawf ul conduct.” State v. Taylor , 2 0 1 8 N D 132, ¶ 11, 911 N.W .2d 905 ( q uoting State v. Smith , 452 N.W .2d 8 6, 87 (N.D. 1990)). The court m

ust u s e a n o bjective s tandard and consider the totality of the circum stances to determ ine if the of f icer had a reasonable and articulable suspicion. Lies , at ¶ 5

. The court m

u s t determ ine whether “a reasonable person in the of f icer’s position would be justif

ied by som e objective m anif estation to s uspect the def endant

was, or wa s a b o u t t o b e, engaged i n unlawf u l activity .” Taylor , at ¶ 11 (quoting Smith , at 87). [ ¶8] “Inf

orm ation f

rom an i nf

orm ant or tip m ay provide the f actual basis f

or a stop if i t provides the of

f icer with a reasonable suspicion.” Knox , 2016 ND 15, ¶ 8 , 873 N.W .2d 664. T h e reliability o f the inf orm ant is relevant in deciding w hether there

was r easonable susp i c i o n. Id. Our cases have r ecognized there i s an i nverse

r e l a t i o n ship between the quantity and quality of the inf orm ation, and t he lesser the quality or reliability of the tip, the greater the q uantity of inf

orm ation required to raise

a r easonable suspicion. Id. “[ I]nf orm ation f

rom an inf

orm ant whose identity is easily ascertainable has a higher indicia of reliability than inf orm ation obtained f

r om a purely anony

m ous inf orm ant.” Id. at ¶ 14 (quoting City of Dickinson v. H

ewson , 2011 ND 187, ¶ 10 , 8 0 3 N.W .2d 814). W e have said citizen inf orm ants are presum ed to be reliable. State v. Ashby , 2017 ND 74, ¶ 11, 892 N.W .2d 185. [ ¶9] I n t his case, the d istrict court denied Hendrickson’s m otion t o suppress, f i n d i n g there was s uf

f icient reasonable and articulable suspicion justif y ing the investigative 3stop of Hendrickson’s vehicle. The court f ound the 911 c aller, a n em ploy ee of Taco Johns, was able to p rovide detailed inf orm a tion describing t he vehic l e , t h e license plate num ber, the nam e of the driver, and t hat the driver was “bey ond, bey ond, bey ond drunk.” The court f

ound the caller described in detail why she believed Hendrickson

was dru n k , i n c l uding that Hendrickson slurred h is speech, that he did not properly respond to questions concerning his order, and that his ey es were “ both on and of f and rolling to the back of his head. ” T h e c o u rt f o und the caller equivocated regarding whether Hendrickson was under t h e i n f l u e n c e of alcohol as opposed to som e other substance, but she w as st e a d f a s t that Hendrickson was under the inf luence of

som ething. The c ourt also noted the caller was within a f e w f e e t o f H e ndrickson when she m ade the observations. The court f ound the i nf

orm ation provided was very specif ic and d etailed, and the i nf orm ation relay ed was of classic s igns of intoxication which are c om m only known. The court f urther f ound police were able to verif y som e of the inf orm ation the caller p rovided including the vehicle description, license plate, and identity of the driver, which provided f urther i n d i c a t ion of the reliability of the inf orm ation, and the of

f icers were justif

ied in r ely ing on the inf

orm ation. The court

c o n c l u d e d t

h e r e w as a reasonable and articulable suspicion justif y ing the investigative stop. [ ¶10] In State v. M

iller , 5 10 N.W .2d 638 ( N.D. 1994), this Court held inf orm ation provided by a 911 caller was not suf f i cient t o c r e a t e a reasonable suspicion of potential crim i nal activity u nder the f acts of that c ase. I n Miller , the police d ispatcher notif ied the of f icer that a caller reported a possible d runk driver in the W e ndy ’s drivethru lane, the caller identif ied him self to the dispatcher as “Jody with W endy ’s,” but the dispatcher did n ot t ell the of f icer the c aller identif

ied him s elf

. Id. at 639. The dispatcher gave the of

f icer a description of the v ehicle, including that the vehicle was

a r ed pickup truck, the license plate num b er, and the l ocation a s second in line in the d r i v e-thru lane; and the d ispatcher told the of f icer the caller said t he driver “ c o u l d b a r e l y h o l d his head up.” Id. The of f i cer arrived at the scene and saw a n o r a n g e pickup truck leaving the drive-thru lane, t he of f icer f ollowed the v ehicle and verif ied 4that the truck’s license p late num ber m atched t he num

ber r eported by the dispatcher, and the o f f icer stopped the vehicle without noticing any thing usual a

bout the truck’s driving. Id. This Court held the tip was not reliable enough to raise a r easonable suspicion without the of

f icer corroborating the reported suspicious behavi o r. Id. at 645. W e said because a nony m ous telephone tips are of a l esser quality of r eliability ,
a larger quantity of inf

orm ation is required to raise a reaso n a b l e suspicion and the of f icer m ust corroborate the ti p b y observing som e b ehavior, either illegal or indicative of im

pairm ent, that a lerts the of f icer to a possible violation. Id. at 642. W e held inf o rm a tion known t o the dispatcher but not com m unicated t o t he of

f icer, including the identity of the inf o rm ant, could not be im puted to t he of

f icer, and theref ore the c aller would b e treated as an anony m ou s i nf orm ant. Id. at 644. W e noted the c aller m isdescribed the vehicle and the caller’s description of the driver’s behavior as he “could barely hold his head up” gave only som e indication of possible crim inal acti v i t y

. I

d

. W e said the of

f icer corroborated the location and license

num ber of the vehicle, b ut the of f icer did not notice any traf f i c violatio n s or any unusual driving bef

or e s t o p p i n g the vehicle. Id. W e explained the of f icer’s

o b s e r v a t ions of innocent f acts did not m eet the requirem e n t that there b e corroboration of suspicious conduct when the tip is a less reliable anony m o us tip and the t ip is also short on specif ics. Id. W e h eld “the com b ination of the anony

m ous tip and [ t he of

f icer’s] observations of innocent f acts is insuf

f icient to raise a r easonable and articulable suspicion.” I d. [ ¶11] This c ase is dif

f erent f rom Miller

. The caller in this case w as not anony m ous. Evidence established the caller was identif ied and of f icers went into the restaurant to speak to her when they arrived at the scene. Because the caller’s identity was known, the inf orm ation she provided has a higher indicia of reliability than inf orm a tion f

rom

an anony m ous caller. See Knox , 2016 ND 15, ¶ 1 4, 873 N.W .2d 664. The caller also provided m ore inf

o rm ation than the caller provided in Miller , i ncluding that t he driver appeared t o be “bey ond, bey o nd, bey ond drunk,” the driver’s speech was slurred, and his e y es were “on and of

f ” a n d rolling to the back of his head. The caller provided

5detailed inf orm ation about her observations of t he driver’s behavior, which together

were signs of

intoxication. The greater quantity of i nf orm ation provided also m ade the tip m ore reliable than the tip in Miller

. [ ¶12] Furtherm ore, a f

t er this Court decided Miller , the U nited States Suprem e Court decided Navarette v

. California , 572 U.S. 393 (2014), which provides f urther guidance in d eciding whether an of f icer has reasonable suspicion f or an investigative

s t o p based on a 911 caller’s tip. In Navarette , the Court held the o f f icer h a d reasonable suspicion under the totality of the circum s tances based on an anony m ous 9 11 call. Id. at 398, 4 04. T he Court h eld the tip was reliable because the caller claim ed an ey ewitness basis of knowledge by reporting s he had been run o f f t he road by a specif

ic vehicle, there was a short period of tim e between the incident and the call s uggesting the caller had little t i me t o f a bricate the report, a nd a r easonable of f icer could conclude a f

a l s e tipster would think twice bef ore calling 9 11 because 9 1 1 has f eatures that provide som e saf eguards against m a king f alse r eports wit h im m unity

. Id. at 399-401. The Court sai d t h e tip c reated reasonable suspicion of drunk driving because running another car of f the r o a d i s a signif

i cant indicator of drunk driving, and “an of f i cer who already has such a reasonable suspicion need not surveil a vehicle at length in order t o personally o bserve suspicious dri v i n g

. ” I d

. at 401-404. [ ¶13] In this case, the inf orm ation f

rom the caller had a higher indicia of reliability b ecause the c aller’s identity was known, she c alled 911 to report her suspicion that Hendrickson was intoxicated while he was still in the drive-thru l ane, a nd s he delay ed giving him the f

ood he o rdered to k eep him at that location until of f icers arrived. The caller also provided a large quantity o f inf o rm ation, including a detailed description of t he vehicle, the driver’s identity , and detailed inf orm ation about why s he believed Hendrickson was intoxicated. The of f icers corroborated the location of t he v ehicle and the vehicle’s description. [ ¶14] Under the f

acts and circum stances o f t his case, we conclude t he com bination of the detailed inf

orm a t i o n f

r om the caller a nd the of f icer’s corroboration of the 6location and d e s c r i p t ion o f the vehicle was suf f i cient to raise a reasonable and articulable suspicion o f potential crim inal activity to justif y an investigative stop. The of f icer was not r equired to perf orm any additional s u rveillance to f urther corroborate the caller’s inf

orm ation. The district court did not err b y d e ny ing Hendrickson’s

m otion to suppress.

III [ ¶15] W e af

f irm the judgm e nt. [ ¶16] Lisa Fair McEvers

Gerald W . VandeW alle, C.J.

Crothers, Justice, specially concurring. [ ¶17] I agree with the result reached by the m a jority based on h ow the United States Suprem e Court currently interprets t he Fourth Am endm ent law o f reason a ble articulable suspicion i n driving under the inf luence c ases. I respectf

u lly do not agree with the m ajority if they are engraf ting that Fourth Am endm ent analy sis o nto our state
const i tutional analy sis. S ee Majority opinion ¶ 7 (ref erencing both the Fourth Am endm ent of the United States Constitution and Article I, section 8, o f the North Dakota Constitution). I also question whether o ur decision in State v. Miller , 510 N.W .2d 638 (N.D. 1994), has lingering viability in this area of law, a nd whether, as long as this Court cohesively applies Four th Am endm ent analy ses t o search and seizure claim s m ade u nder our State Constitution, M iller should be overruled and not

m erely distinguished.

I [ ¶18] This Court recently discussed reasonable articulable suspicion jurisprudence in the realm

of driving under the inf

luence stops. See S

tate v. Knox , 2016 ND 15, ¶ 7, 873 N.W .2d 664. As discussed i n Knox , in 2016 the United States Suprem e Court

7changed the legal landscape by perm itting a u t o m o b i l e s tops based on anony m ous calls

to 911 operators about on g o i n g o f f enses such as driving under the i nf luence. See Navarette v. California , 134 S.Ct. 1683, 1690-91 (2014). [ ¶19] I n Navarette , the Suprem e Court held i nf orm ation f

rom an anony

m o us 91 1 caller, without m ore, was suf f iciently reliable to provide the police with r easonable suspicion to justif

y a n in v e s t i g atory stop of a vehicle m atching the caller’s description. Even though the of f icer did not observe any

suspicious conduct bef

ore stopping the vehicle, the Court held the inf orm ation f

rom t h e 9 1 1 call was reliable because the c aller claim ed to be an ey ewitness to a traf f ic of f ense that they c oncluded

was indicative of im

paired driving. Id. at 1 689. In doing so, the Court narrowed its f ocus to “whether t h e 9 11 c aller’s r eport of being r un of f the roadway c reated reasonable s u s p i c ion of an ongoing crim e such a s drunk driving as opposed to an isolated episode of

past recklessness.” Id. at 1690. [ ¶20] The expansion in N a v a r ette of what constitutes reasonable articulable suspicion to s t op a suspected im paired d river seem ingly cannot be reconciled with this Court’s holdi n g i n Miller

. The caller in Miller was known to dispatch, and that inf orm ation could have been im puted to of

f icers on the scene. 1

1 I use the term “im

p uted” in t he g eneral sense. Our c ases v ariously use term s and phrases t o d e s c r i b e inf orm ation passing between or credited to other law enf orcem ent of

f icials. In State v

. Mische , 448 N.W .2d 412, 413 (N.D. 1 989), the Court discussed the “f

ellow of f icer” or “collective knowledge” rule). This Court subsequently seem s to have developed two branches of that concept. One perm its an of f icer to direct another of

f icer to take action. See, e.g. , State v

. K enner , 1997 N D 1, ¶ 11, 559 N .W .2d 538 (“W here one of f i cer relay s a directive or request f or a ction to another of

f icer without relay ing the underly ing f acts and circum s tances, the directing of f icer’s knowledge i s im

p uted to the acting of

f i ce r.” (citations om itted)); State v. Boline , 1998 N D 67, ¶ 37, 575 N.W .2d 906 (sam e); City of Devils Lake v. Lawrence , 2002 ND 31, ¶ 9, 639 N

. W. 2 d 4 6 6 ( sam e); State v. Smith , 2005 ND 21, ¶ 13, 691 N.W .2d 203 (sam e); S

tate v. Torkelsen , 2006 ND 152, ¶ 1 2, 718 N.W .2d 22 (sam e). In these cases, the question beco me s w h e t her the directing of f icer had suf

f icient evidence t o take the directed a ction. U nited States v. Hensley , 469 U.S. 221 (1985).

The other branch a llows im put a t i on of knowledge between of f icers but 8[ ¶21] Of f icers on the scene in Miller could have and no doubt did interview “Jody with W endy ’ s,” just like of f i cers here interviewed the caller f rom Taco John’s. Thus, I question whether we should struggle to distinguish Miller based on the f

acts here, instead of overruling M

iller based on legal developm ents since 1994. If we f ollowed that course, o ur attention would i n s t e a d f ocus o n whether whoever constitutes law enf orcem ent in a particular case had suf f iciently reliable inf

orm ation (directly or by im p utation) to m ake an investigative stop.

I I [ ¶22] As discussed above, the United S tates Suprem e Court’s decision in Navarette changed search a nd seizure a naly sis, at least a s applied to driving u nder the inf luence

or continuing violation c ases. Navarette , 134 S.Ct. at 1690 n.2 (“Because we conclude that the 9 11 call c reated reasonable s uspicion of an ongoing crim e, we need

not a ddress u nder what c ircum stances a stop is j u s t i f i ed by the n eed t o investigate

com pleted crim inal activity .”). Traditionally , t his Court has applied an i d e n t i cal search and seizure interpretation to the F o u r t h A m endm ent of the U nited States

r e q u i r e s actual com m

unication of the inf

orm ation b ef

ore the acting of

f icer takes action. State v. Miller , 510 N.W .2d 638, 6 43 (N.D. 1 994) (“W e have f ound no law to support the proposition t h a t inf orm ation known to the dispatcher b ut not com m unicated to the investigating o f f icer neverth e l e s s s h ould be im puted to the of f icer.”); Gabel v. North D akota Dep’t of Transp. , 2 006 N D 178, ¶ 11, 720 N.W .2d 433 (“W e have upheld investigatory stops of v ehicles when the stopping of f icer received inf

orm ation of i llegal a ctivity f rom other o f

f icers and the of

f icer corroborated the tip with personal observations.”) (citing State v. Kenner , 1997 ND 1, ¶ 1 2, 559 N.W .2d 5 38); City of Minot v. Keller , 2008 ND 38, ¶ 12, 745 N

. W .2d 638 ( “ T h e c o m

m u n ication requirem ent prevents unjustif ied p olice act i o n fr o m b e i n g t a k e n in the hopes it is later validated by tally ing the knowledge o f every of f icer and agency i n v o l v e d i n the case.” (citations om itted)); Ell v. Director , 2016 ND 1 64, ¶ 10, 8 8 3 N

. W .2d 464 (“[ A]n of

f i cer m ay testif

y a bout im puted knowledge, in c l u d i n g statem ents another of

f icer m ade when the testim ony a b out the statem ents is of

f ered to establish probable c ause or reasonable suspicion because the testim ony is of f ered to establish the of

f icer’s knowledge and observations a t t he tim e o f the stop or arrest. W e have also said ‘of

f icer to of f icer com m

unications are presum

p tively reliable.’”) (citations om itted). 9C o n stitution and Article I, section 8 of the North Dakota Constitution. How e v e r ,

separate treatm ent under each is perm issible: “It is axiom atic our state constitution m ay provide greater protections than its f ederal counterpart.”

Both p arties sub m i t

t e d w e l l

- d e v e l o p e d b r i e fs d i s cussing whether Article I, Section 8 of the North Dakota C onstitution a f f o rds [ def endant] greater p rotection than provided by the F ourth Am endm ent to the U n i t e d States Constitution. However, we need not decide whether t o apply the state and f ederal constitutions dif

f erently because this is not a case where we would reach a dif f erent result. In this case, where the distinction i s m erely between the arrest of a person in the car and an arrest o f a person r ecently vacating the car, we ref use to a pply the North Dakota C o n s t i t

u t i o n d i fferently than the Federal C onstitution. State v. W

a nzek , 1999 ND 163, ¶¶ 19-20, 598 N.W .2d 811 (citations om itted). [ ¶23] As long as we interpret the North Dakota constitutional provision the sam e as the Fourth Am endm ent, w e are bound by the United States Suprem e Court’s decision i n Navarette

. However, w hile not a question presented in this case, t he Nava r e t t e dissent raises legitim ate concerns about its m a j ority opinion. Those concerns should

m ake us at least question, in an appropriate case where w e were asked, whether we should decouple our f

ederal and state constitutional a n a l y s is in the area of d riving under the inf

luence investigative stops. If we c hose that direction, we would not be alone in doing so. See, e.g. , Commonwealth v. Depiero , 42 N.E.3d 1123, 1128 (Mass. 2 0 1 6 ) (Under state constitutional analy s is, Navarette not f ollowed because “we ar e not inclined at this tim e to attribute veracity to all 911 callers.”). [ ¶24] Daniel J. Crothers Jerod E. Tuf

te Jon J. Jensen Gerald W . VandeW alle, C.J.

10