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Date: 04-26-2021
Case Style:
City of Jamestown v. Santos Regalado Casarez, III
Case Number:
Judge: Daniel J. Crothers
Court: IN THE SUPREME COURT
STATE OF NORTH DAKOTAOF NORTH DAKOTA
Plaintiff's Attorney: Abbagail C. Geroux, Assistant City Attorney, Jamestown, ND
Defendant's Attorney:
Description:
Bismarck, ND - Criminal defense attorney represented Santos Regalado Casarez, III with appealing from a criminal judgment entered after his motion to suppress was denied and his conditional guilty plea to refusing to take a chemical breath test was accepted
At approximately 11 p.m. on November 6, 2019, Jamestown Police
Officer Andrew Noreen witnessed a physical altercation between Casarez and
a female outside a bar in Jamestown. That altercation led to the arrest of the
female within 30 minutes of Noreen’s initial encounter with the two. Noreen
learned the altercation occurred because the female did not want Casarez to
drive while intoxicated. Officer Renfro also was at the scene and spoke to the
female and Casarez. During Renfro’s conversation with Casarez, he smelled an
odor of alcohol on Casarez’s breath, and observed Casarez’s poor balance and
bloodshot eyes. At that point Renfro formed the opinion Casarez was not
capable of lawfully driving a motor vehicle. Casarez inquired how to post bail
for his girlfriend. Renfro provided him with the necessary information, and
advised him to take a cab to the law enforcement center (LEC) due to his
intoxication. During their conversation, Renfro learned Casarez drove a gold
GMC Yukon. Renfro then left the scene.
[¶3] At approximately 11:45 p.m. Renfro observed a gold GMC Yukon parked
outside the LEC, along with a man he believed to be Casarez standing inside
the lobby. Renfro observed the unoccupied Yukon was running with its lights
on. Renfro made contact with Casarez in the lobby, observing the same signs
of impairment as earlier. Renfro began talking to Casarez to confirm or dispel
his suspicion Casarez had driven to the LEC. During their conversation
Casarez changed his story about getting to the LEC, initially stating he took a
cab, but after being confronted about his vehicle outside, stating his friend
drove him. Renfro also noticed a lanyard with keys hanging out of Casarez’s
pocket. Renfro informed Casarez he was under investigation for driving under 2
the influence. He then requested Casarez complete a Horizontal Gaze
Nystagmus (HGN) test. Renfro observed six of six clues during the HGN test.
Following the HGN test, Renfro reviewed LEC security footage to confirm
Casarez drove himself. Renfro then requested Casarez submit to a preliminary
breath test and placed Casarez under arrest.
[¶4] Following the arrest, Renfro provided Casarez with an implied consent
advisory, and requested a chemical breath test. Casarez refused to submit to
the breath test. Renfro informed Casarez if he did not agree to take the test,
he would be charged with criminal DUI refusal. Casarez maintained his
refusal.
[¶5] The City of Jamestown charged Casarez with DUI-Refusal under
Jamestown Municipal Code § 21-04-06(1)(e)(ii). After the district court rejected
his motion to suppress and dismiss the charge, Casarez conditionally pled
guilty, preserving his right to appeal. Casarez then filed his appeal.
II
[¶6] Casarez argues Jamestown Municipal Code § 21-04-06 is in direct
conflict with N.D.C.C. § 39-08-01 after the Legislature’s 2019 amendment to
the statute. Casarez claims the Ordinance is void because it conflicts with a
state statute.
[¶7] “Cities are creatures of statute and possess only those powers and
authorities granted by statute or necessarily implied from an express statutory
grant.” City of Bismarck v. Fettig, 1999 ND 193, ¶ 4, 601 N.W.2d 247. Except
as provided in a statute not relevant here, “an offense defined in this title or
elsewhere by law may not be superseded by any city or county ordinance, or
city or county home rule charter, or by an ordinance adopted pursuant to such
a charter, and all such offense definitions shall have full force and effect within
the territorial limits and other jurisdiction of home rule cities or counties.”
N.D.C.C. § 12.1-01-05. Section 12.1-01-05, N.D.C.C., “is an expression of the
legislature’s intent that state criminal laws are to have uniform application
throughout the state.” State, ex rel. Harris v. Lee, 2010 ND 88, ¶ 12, 782 N.W.2d
626. “[I]f the legislature enacts a statute which clearly conflicts with3
ordinances that have been enacted the statute prevails and the conflicting
ordinances are superseded and rendered invalid.” State ex rel. City of Minot v.
Gronna, 59 N.W.2d 514, 531 (N.D. 1953).
[¶8] The July, 2013 Ordinance at issue here reads:
“(1) A person may not drive or be in actual physical control of any
vehicle upon a street or public or private areas to which the public
has right of access for vehicular use in this city of any of the
following apply:
. . . .
(e) That individual refuses to submit to . . . :
. . . .
(ii) A chemical test, or tests, of the individual’s blood, breath, or
urine to determine the alcohol concentration or presence of other
drugs, or combination thereof, in the individual’s blood, breath, or
urine, at the discretion of a law enforcement officer under Section
39-20-01 of the North Dakota Century Code[.]”
Jamestown Mun. Code Ord. 1409.
[¶9] In 2019 the North Dakota Legislature amended N.D.C.C. § 39-08-01.
After the amendment, section 39-08-01 remains the same as the Ordinance
except subdivision f was added to state law. Subdivision f states “Subdivision
e does not apply to an individual unless the individual has been advised of the
consequences of refusing a chemical test consistent with the Constitution of
the United States and the Constitution of North Dakota.” N.D.C.C. § 39-08-01.
[¶10] Casarez maintains the Ordinance directly conflicts with N.D.C.C. § 39-
08-01 as amended in 2019. He argues the law presumes the Legislature does
not perform idle acts. See Bickel v. Johnson, 530 N.W.2d 318, 320 (N.D. 1995).
According to Casarez, by adding the limitation in subdivision f, the Legislature
intended to limit DUI-Refusal prosecutions. However, we do not examine the
intent of the Legislature unless a statute is ambiguous. N.D.C.C. § 1-02-05.
This Court determined subdivision f is not ambiguous. State v. Long, 2020 ND
216, ¶¶ 11, 14, 950 N.W.2d 178. Thus, any claim that the Ordinance and
statute are in conflict must be resolved by examining whether the Ordinance
allows that which the statute explicitly prohibits. See State v. Westrum, 380 4
N.W.2d 187, 189 (Minn. Ct. App. 1986) (explaining an ordinance may not
“authorize what a statute forbids”); McQuillin on Municipal Corporations, 3rd
ed., § 23:7 (“an ordinance ordinarily cannot permit that which a statute forbids
. . .”).
[¶11] Casarez agues because the Ordinance fails to include a provision
equivalent to N.D.C.C. § 39-08-01(f), the City could prosecute an individual for
refusing a chemical test request even if law enforcement failed to advise the
motorist of the consequences of refusal consistent with the United States and
North Dakota Constitutions. We reject Casarez’s claim because the decisions
of this Court and the United States Supreme Court regarding the
constitutionality of prosecutions for refusals and unduly coercive advisories are
inconsistent with his assertion. See Birchfield v. North Dakota, 136 S.Ct. 2160,
2186 (2016) (explaining the Fourth Amendment prohibits law enforcement
officers from conveying to a defendant the criminal consequences of refusal to
submit to a blood test without a warrant); State v. Helm, 2017 ND 207, ¶ 16,
901 N.W.2d 57 (likening requests for urine submissions to requests for blood
samples, explaining warrantless urine tests are not reasonable searches
incident to valid arrests of suspected impaired drivers, and concluding the
district court did not err in dismissing charges against defendant who refused
to submit to warrantless urine test). Even before the Legislature’s addition of
subdivision f in 2019, this Court recognized a prohibition on prosecutions
involving unconstitutionally coercive advisories. Further, the language in
N.D.C.C. § 39-08-01(f) merely “establishes an unambiguous acknowledgement
of the presumption that the statute, and the advisory therein, are in
compliance with the state and federal constitutions.” See Long, 2020 ND 216,
¶ 14.
[¶12] Casarez also would have us read the 2019 amendment to N.D.C.C. § 39-
08-01 in isolation. In fact, that change was one of several modifications to the
DUI laws. The Legislature also changed N.D.C.C. § 39-20-01 regarding implied
consent advisories. There, the Legislature removed the statutory exclusionary
rule in criminal DUI refusal cases. See 2019 N.D. Sess. Law Ch. 322, section 3.
That change shown in legislative format provided the following:5
a. The law enforcement officer shall inform the individual charged
that North Dakota law requires the individual to take a chemical
test to determine whether the individual is under the influence
of alcohol or drugs and that refusal of the individual to submit to
a test directed by the law enforcement officer may result in a
revocation of the individual's driving privileges for a minimum of
one hundred eighty days and up to three years. In addition, the
law enforcement officer shall inform the individual refusal to
take a breath or urine test is a crime punishable in the same
manner as driving under the influence. If the officer requests the
individual to submit to a blood test, the officer may not inform
the individual of any criminal penalties until the officer has first
secured a search warrant.
b. A test administered under this sectionIf an individual refuses to
submit to testing under this section, proof of the refusal is not
admissible in any criminal or administrative proceeding to
determine a violation of section 39-08-01 or under this chapter if
the law enforcement officer fails to inform the individual charged
as required under subdivision a.
Id.
[¶13] After the 2019 changes to N.D.C.C. §§ 39-08-01 and 39-20-01(3)(b), the
statutory exclusionary remedy was removed in criminal cases if law
enforcement failed to give a textually correct implied consent advisory. Id. In
its place, N.D.C.C. § 39-08-01(f) was added to explain that proof of refusal, and
the evidentiary use of refusal to take a chemical test, would be controlled by
constitutional standards rather than by statutory exclusion. The 2019
Legislative change was consistent with a result advocated by several members
of this Court. See Schoon v. North Dakota Dept. of Transp., 2018 ND 210, ¶ 35,
917 N.W.2d 199 (“Even if the advisory itself is not repealed, I urge the
Legislature to consider removing the exclusionary rule so that cases can be
decided on the traditional grounds of whether the implied consent advisory
adversely affected an operator’s consent to chemical testing. See State v.
Fleckenstein, 2018 ND 52, ¶ 9, 907 N.W.2d 365 (totality of the circumstances
approach must be taken in determining voluntariness of consent to a blood
test).”) (Crothers, specially concurring); LeClair v. Sorel, 2018 ND 255, ¶ 30, 6
920 N.W.2d 306 (“Under the law applicable to this case, the legislature
requires the advisory, and requires suppression of chemical test results if law
enforcement fails to give the required advisory. See N.D.C.C. § 39-20-01(3)(a)
and (b). Both the advisory and the statutory exclusionary rule have proven
problematic, and I have advocated for modification of the law. See Schoon, at
¶ 35 (Crothers, J., specially concurring).”).
[¶14] With this full statutory history in mind, we conclude the plain language
of the Ordinance does not authorize anything that N.D.C.C. § 39-08-01
prohibits. Rather, the Ordinance reads similar to the statute except for
subdivision f. This Court recognized subdivision f did not serve as a prohibition
or authorization of any particular thing. Instead, the modification explains
that claims of coercive implied consent advisories must be measured by
constitutional standards rather than under the former statutory exclusionary
rule. Therefore, the Ordinance does not conflict with the post-2019 version of
N.D.C.C. § 39-08-01.
III
[¶15] Casarez argues Renfro unreasonably seized him in violation of N.D.C.C.
§ 29-29-21, Article I, § 8 of the North Dakota Constitution, and the Fourth
Amendment of the United States Constitution. Casarez argues he was seized
when Renfro entered the LEC by placing himself between Casarez and the only
exit. Casarez claims Renfro did not have reasonable suspicion when he seized
Casarez.
[¶16] “The Fourth Amendment of the United States Constitution and Article
I, Section 8 of the North Dakota Constitution protect individuals from
unreasonable searches and seizures.” State v. Gagnon, 2012 ND 198, ¶ 8, 821
N.W.2d 373. “A person alleging a Fourth Amendment violation has an initial
burden of establishing a prima facie case of an illegal search or seizure.” State
v. Schmidt, 2016 ND 187, ¶ 8, 885 N.W.2d 65. After a defendant makes a prima
facie showing, the burden shifts to the City to show an exception applies. City
of Fargo v. Sivertson, 1997 ND 204, ¶ 6, 571 N.W.2d 137. 7
A
[¶17] A seizure occurs “whenever an officer stops an individual and restrains
his freedom. . .” State v. Gay, 2008 ND 84, ¶ 14, 748 N.W.2d 408. A “person has
been ‘seized’ within the meaning of the Fourth Amendment only if, in view of
all of the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.” State v. Fields, 2003 ND 81, ¶ 11,
662 N.W.2d 424. “When analyzing if a seizure has occurred, the Court looks at
whether there was the ‘threatening presence of several officers, the display of
a weapon by an officer, some physical touching of the person of the citizen, or
the use of language or tone of voice indicating that compliance with the officer’s
requests might be compelled.’” State v. Steffes, 2010 ND 232, ¶ 8, 791 N.W.2d
633. No seizure occurs when a defendant fails to show “his cooperation was
produced by coercive means, that he felt the deputy’s actions were threatening
or offensive, that he felt as if he could not terminate the conversation or that a
reasonable person would have felt threatened, coerced or unable to leave.”
State v. Schneider, 2014 ND 198, ¶ 12, 855 N.W.2d 399.
[¶18] Casarez argues he was seized when Renfro entered the LEC. According
to Casarez, Renfro purposefully placed himself between Casarez and the only
exit, and upon Casarez completing the transaction for his girlfriend’s bail,
Renfro physically prevented him from leaving and began questioning him.
Renfro testified he did not remember blocking the exit, and entered the lobby
with the intent of confirming or dispelling his suspicion Casarez drove to the
LEC. Renfro testified that, after entering the lobby, he began asking questions
of Casarez. Renfro stated after Casarez changed his story about how he got to
the LEC, Renfro informed Casarez he was under investigation for driving
under the influence and requested a HGN test. The district court made no
conclusion about when Casarez was seized, instead only determining whether
his seizure was unlawful.
[¶19] Under the facts taken as a whole, Renfro’s behavior did not constitute a
seizure until he informed Casarez he was under investigation for driving under
the influence and requested that he complete the HGN test. The testimony
provided showed there was a relaxed, conversational tone between Casarez 8
and Renfro until Renfro informed Casarez he was under investigation.
Further, Renfro testified he was not blocking the exit while Casarez completed
his transaction. When Renfro requested the HGN test, however, his tone
became more compelling, giving rise to a seizure of Casarez. We conclude
Casarez was not seized until Renfro told him he was under investigation and
requested the HGN test.
B
[¶20] “Under the Fourth Amendment of the United States Constitution, police
may, in appropriate circumstances and in an appropriate manner, detain an
individual for investigative purposes when there is no probable cause to make
an arrest if a reasonable and articulable suspicion exists that criminal activity
is afoot.” Anderson v. Dir., N.D. Dept. of Transp., 2005 ND 97, ¶ 8, 696 N.W.2d
918 (citing Terry v. Ohio, 392 U.S. 1 (1968)). In evaluating a factual basis for
an investigative stop, the court must consider the totality of the circumstances
and information known to the officer at the time of the stop. See City of Fargo
v. Ovind, 1998 ND 69, ¶ 8, 575 N.W.2d 901. The Court applies this test to
decide “whether a seizure is justified, noting if there is reasonable and
articulable suspicion that a person has committed or is about to commit a
crime, the seizure is justified.” State v. Casson, 2019 ND 216, ¶ 14, 932 N.W.2d
380. “When assessing reasonableness, we consider inferences and deductions
an investigating officer would make which may elude a layperson.” Ovind, at
¶ 9. This review is limited to the information known to the officer at the time
of the stop and this information must be more than a mere hunch. Casson, at
¶ 9.
[¶21] Casarez claims Renfro lacked reasonable suspicion to seize him.
According to Casarez, Lies v. North Dakota Department of Transportation,
2019 ND 83, 924 N.W.2d 448, controls and requires the conclusion Renfro did
not possess reasonable suspicion necessary to seize Casarez. In Lies, an offduty officer witnessed a “white HHR” vehicle driving erratically, reporting the
tip to the North Dakota Highway Patrol. Id. at ¶ 2. Within an hour of the tip
to the North Dakota Highway Patrol, an on-duty officer encountered a white
HHR, seizing it, without observing any traffic violation or erratic conduct. Id. 9
Law enforcement arrested the driver for DUI. Id. This Court concluded the
officer impermissibly seized the HHR and driver, stating “the basic description
provided . . . did not allow for officers to properly identify the vehicle as the one
reported in the tip. Because officers could not reasonably identify the vehicle,
reasonable articulable suspicion did not exist to support stopping [the
motorist’s] vehicle.” Id. at ¶ 11.
[¶22] Casarez maintains Renfro could not have reasonably identified his
vehicle. According to Casarez, Renfro lacked an articulable basis to conclude
the vehicle outside the LEC belonged to Casarez, or that Casarez drove the
vehicle. In considering the totality of the circumstances, this case is
significantly different than Lies. Here, Renfro knew a number of facts that
could have helped him arrive at the reasonable suspicion the gold GMC Yukon
belonged to Casarez and Casarez drove to the LEC. Renfro recently
encountered Casarez, whom he believed to be intoxicated. During the first
encounter, Renfro learned the altercation arose because the female involved
did not want Casarez driving while intoxicated. Renfro also learned Casarez
drove a gold GMC Yukon and wished to make bail for his girlfriend. Less than
30 minutes later, Renfro observed a gold GMC Yukon running outside the LEC.
He also observed a person inside the lobby whom he recognized to be Casarez.
Nobody else was inside the Yukon. Once inside the LEC, Renfro’s questioning
revealed Casarez to be evasive about how he arrived at the LEC. Renfro also
noted Casarez had a lanyard in his pocket that appeared to hold keys to a
vehicle.
[¶23] Renfro had first-hand knowledge that Casarez was intoxicated, that
Casarez had a gold GMC Yukon, that he planned on going to the LEC, that 30
minutes later a gold GMC Yukon was outside the LEC, that Casarez was inside
the LEC, and that Casarez was evasive when questioned about how he got
there. These facts reasonably support Renfro’s suspicion a crime was or would
be committed. The district court therefore did not err in finding Casarez was
not unreasonably seized.
Outcome: The criminal judgment is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: