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City of Jamestown v. Jerome2/20/2002
Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable James M. Bekken, Judge.
AFFIRMED.
[ ] Brenda Jerome appealed from a judgment of conviction and an order of the district court denying her motion to suppress evidence in a prosecution for driving while under the influence of intoxicating beverages. We hold the arresting police officer's request to talk with Jerome was not a stop and did not implicate Jerome's Fourth Amendment rights, and we affirm.
I.
[ ] On June 18, 2000, Jamestown Police Officer Russ Shahin received a dispatch about 9:00 p.m. relaying an anonymous tip that Brenda Jerome had been drinking since morning, was intoxicated, and was driving her vehicle. The informant identified Jerome's vehicle by its white color and license plate number. Shahin located Jerome's vehicle traveling on a Jamestown street, and he followed it in his patrol car for about six blocks. Shahin observed the vehicle drift slightly within its own lane, but he did not observe any other driving abnormalities or law violations. After driving through an alley, Jerome parked her vehicle on her driveway. Shahin parked his car to the side of the street, and Jerome and Shahin exited their vehicles at about the same time. As Shahin stepped out of his patrol car he asked, "hey Brenda, can I speak to you for a minute?" Jerome turned, recognized Shahin as a Jamestown police officer, and responded, "yes." During the conversation, Shahin arrested Jerome, and she was later formally charged with class B misdemeanor DUI in violation of Jamestown City Ordinance § 21-04-06.
[ ] Jerome filed a motion to suppress evidence against her "based upon a lack of articulable facts leading to a reasonable conclusion for a legal stop of the defendant's person." The trial court concluded Shahin's approach to talk to Jerome constituted a valid caretaking function which did not implicate Jerome's Fourth Amendment rights. The court denied the motion, and Jerome entered a conditional guilty plea to the charges, reserving the right to appeal the denial of her motion to suppress evidence.
II.
[ ] On appeal, Jerome asserts the trial court erred in failing to conclude Shahin committed an unreasonable seizure by stopping Jerome without having a reasonable and articulable suspicion she had committed a crime.
[ ] The Fourth Amendment of the United States Constitution guarantees "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." A temporary restraint of a person's freedom, or a "Terry stop," is a seizure within the meaning of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 16 (1968). To make a legal investigative stop of a vehicle, an officer must have a reasonable and articulable suspicion the motorist has violated or is violating the law. State v. Miller, 510 N.W.2d 638, 640 (N.D. 1994). An arrest is a seizure and must be supported by probable cause. State v. Boline, 1998 ND 67, 24, 575 N.W.2d 906; Lapp v. Dep't of Transp., 2001 ND 140, 8, 632 N.W.2d 419. In evaluating the factual basis for an investigative stop or an arrest, we consider the totality of the circumstances. City of Fargo v. Ovind, 1998 ND 69, 8, 575 N.W.2d 901. However, not all personal intercourse or communications between law enforcement officers and citizens involve seizures implicating Fourth Amendment rights. Terry, 392 U.S. at 19 n.16. For example, a community caretaking encounter does not constitute a seizure within the meaning of the Fourth Amendment. State v. DeCoteau, 1999 ND 77, 19-20, 592 N.W.2d 579. Also, a police officer's approach of a parked vehicle is not a
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