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Date: 01-23-2021

Case Style:

State of North Dakota v. Garett James Casatelli

Case Number: 2021 ND 11

Judge: Jerod E. Tufte


Plaintiff's Attorney: Dennis H. Ingold, Assistant State’s Attorney

Defendant's Attorney:

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Bismarck, ND - Criminal defense attorney represented Garett Casatelli with appealing from a corrected criminal judgment after he entered a conditional guilty plea to the charge of actual physical control of a motor vehicle with a blood alcohol concentration of 0.08 percent or greater.

On October 3, 2019, two Burleigh County deputies were dispatched to
investigate a report of a loud party. After identifying the residence of the loud
party, the deputies parked their patrol vehicles down the street and walked up
a long driveway to get to the residence. As they approached, they observed a
male, later identified as Casatelli, walk out of the residence’s front door; enter
a vehicle parked in the driveway; and start the vehicle’s engine. A deputy
approached the vehicle, knocked on the window, and shined his flashlight into
it. Without exchanging words, Casatelli shut off the engine and exited the
[¶3] When the deputy introduced himself and asked about the party,
Casatelli said he was a friend of the individuals having the party at the
residence. The deputy testified at the suppression hearing that, at this point,
he could smell an odor of alcohol and noted Casatelli had bloodshot, watery
eyes and his speech was slurred. The deputies then proceeded to investigate
the loud-party complaint. After Casatelli accompanied the deputies to the front
door, a person who identified herself as a house sitter agreed to allow the
deputies to enter to discuss the loud-party complaint. Casatelli went with
deputies into the backyard where several individuals had music playing.
[¶4] After addressing the noise complaint, the deputy who had initially
spoken with Casatelli at his vehicle asked Casatelli to accompany him out of
the backyard to the front of the house to do field sobriety tests. Casatelli
performed poorly on the tests. He consented to an on-site screening test, which
indicated a blood alcohol content of 0.206 percent. He was placed under arrest
and taken to the detention center, where he consented to a breath test.
[¶5] In October 2019, the State charged Casatelli with being in actual
physical control of a motor vehicle with a blood alcohol concentration of sixteen
one-hundredths of one percent by weight or greater, a class B misdemeanor.
Casatelli moved the district court to suppress evidence, contending the
Burleigh County deputies gained evidence after seizing him from a
constitutionally protected area. The State opposed the motion. In January
2020, the district court held an evidentiary hearing on the motion to suppress,
at which the two deputies and Casatelli testified.
[¶6] The district court denied his motion, concluding the deputies had acted
reasonably and Casatelli’s constitutional rights were not violated. The court
rejected his argument that he was in a “constitutionally protected area”
because it was not his residence and there was no indication he had any
expectation of privacy in the area where there was a party. The court further
concluded the officers had a reasonable and articulable suspicion that Casatelli
had been in actual physical control of a vehicle and was under the influence.
The court held the deputies had acted reasonably in investigating the
“overlapping situations” and evidence did not support a conclusion Casatelli
was forced to accompany officers to do field sobriety testing.
[¶7] Casatelli entered a conditional guilty plea to an amended charge of being
in actual physical control of a motor vehicle with a blood alcohol concentration
of eight one-hundredths of one percent by weight or greater, reserving his right
to appeal the court’s denial of his motion to suppress. A corrected criminal
judgment was entered in March 2020.
[¶8] Our standard for reviewing the district court decision on a motion to
suppress is well established:
[W]e defer to the district court’s findings of fact and resolve
conflicts in testimony in favor of affirmance. We will affirm a
district court’s decision on a motion to suppress if there is sufficient
competent evidence fairly capable of supporting the trial court’s
findings, and the decision is not contrary to the manifest weight of
the evidence. Our standard of review recognizes the importance of
the district court’s opportunity to observe the witnesses and assess
their credibility. Questions of law are fully reviewable on appeal,
and whether a finding of fact meets a legal standard is a question
of law.
City of Bismarck v. Vagts, 2019 ND 224, ¶ 4, 932 N.W.2d 523 (quoting State v.
Bohe, 2018 ND 216, ¶ 9, 917 N.W.2d 497).
[¶9] Casatelli argues that the district court erred in denying his motion to
suppress evidence because he was seized in violation of the Fourth Amendment
and N.D. Const. art. I, § 8, when he was seized from a “constitutionally
protected area.”
[¶10] Both the federal and state constitutions protect “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures[.]” U.S. Const. amend. IV; N.D. Const. art. I, § 8. This
Court has said:
An individual’s capacity to challenge a search or seizure depends
on “whether ‘the disputed search and seizure has infringed an
interest of the defendant which the Fourth Amendment was
designed to protect.’” In those interests, an individual is said to
have “a reasonable expectation of privacy.” A reasonable
expectation of privacy has two elements: 1) the individual must
exhibit an actual, subjective expectation of privacy, and 2) that
expectation must be one that society recognizes as reasonable.
State v. Gatlin, 2014 ND 162, ¶ 5, 851 N.W.2d 178 (citations omitted). Under
the exclusionary rule, evidence obtained in violation of an individual’s rights
under the Fourth Amendment or under Article I, Section 8, of the North
Dakota Constitution, may not be used against that individual. State v.
Gardner, 2019 ND 122, ¶ 7, 927 N.W.2d 84. We have said that “[w]hether an
individual has a reasonable expectation of privacy in an area is reviewed under
the de novo standard of review.” State v. Adams, 2018 ND 18, ¶ 9, 905 N.W.2d
758 (citing State v. Williams, 2015 ND 103, ¶ 14, 862 N.W.2d 831) (emphasis
added). “Whether there is a reasonable expectation of privacy in a given area
must be decided on a case-by-case basis.” Adams, at ¶ 9 (quoting State v.
Kitchen, 1997 ND 241, ¶ 12, 572 N.W.2d 106). Regarding a residence, this
Court has also explained:
Several factors that contribute to determining whether a
legitimate expectation of privacy exists include: “[W]hether the
party has a possessory interest in the things seized or the place
searched; whether the party can exclude others from that place;
whether the party took precautions to maintain the privacy; and
whether the party had a key to the premises.”
Gatlin, at ¶ 5 (citing State v. Nguyen, 2013 ND 252, ¶ 9, 841 N.W.2d 676); see
also Adams, at ¶ 9.
[¶11] On appeal, Casatelli contends this Court has held that a guest in
another’s home, even though not an overnight guest, has an expectation of
privacy in the home that society is prepared to recognize as reasonable. See
State v. Ackerman, 499 N.W.2d 882, 884 (N.D. 1993). Casatelli argues he
enjoyed an expectation of privacy in a “constitutionally protected area” when
he was in the backyard of the residence where he was a guest. He argues
probable cause did not exist to arrest him as he stood in the backyard.
[¶12] Casatelli further argues that when police use “coercive tactics” to force a
person out of his home to effectuate a warrantless arrest, the arrest is
considered to have taken place within the home. He argues this prohibition
applies even when crimes are committed in the officer’s presence. See City of
Fargo v. Lee, 1998 ND 126, 580 N.W.2d 580. Casatelli asserts he was a guest
in the backyard, less than fifteen feet from the house, and was told he was not
free to leave even after he asked if he was free to leave. See City of Devils Lake
v. Grove, 2008 ND 155, ¶ 9, 755 N.W.2d 485 (holding a person has been “seized”
when, in view of all of the circumstances, a reasonable person would have
believed that he was not free to leave).
[¶13] Casatelli contends that he was seized when the deputy told him he would
like to talk to him away from the party, taking him from the backyard to the
front of the house by the garage, where the deputy administered the field
sobriety testing. He argues it is “very clear” he was seized from the backyard
when he should have enjoyed an “expectation of privacy” at that time since law
enforcement did not have probable cause to arrest him. He argues the evidence
obtained during this unlawful search should be excluded.
[¶14] The State responds, however, that the deputies’ subsequent entry into
the residence was consensual and did not violate the Fourth Amendment and
that Casatelli consensually accompanied deputies to the residence. The State
contends the deputies’ detention of Casatelli to perform field sobriety tests did
not violate the Fourth Amendment because the deputies acted reasonably in
delaying their investigation of him. The State asserts there is “no dispute”
Casatelli was not seized until he was in the backyard with the deputies and
the deputy told him he was not free to leave. The State contends probable cause
supported Casatelli’s arrest, the exclusionary rule does not require
suppression of the evidence gathered outside of the residence, and Casatelli
has provided no support for his argument that the North Dakota Constitution
offers greater protection than the federal Constitution in these circumstances.
[¶15] Here, Casatelli’s arguments on appeal focus on whether he was seized in
a “constitutionally protected area.” We conclude, however, the correct analysis
is whether the deputies developed a reasonable and articulable suspicion
during their initial encounter with him that Casatelli was in actual physical
control of a vehicle while under the influence of alcohol, justifying his detention
and further investigation.
[¶16] The constitutionality of an investigative detention is judged under the
framework established in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.
2d 889 (1968), which requires that an investigative detention be reasonably
related in scope to the circumstances which justified the interference in the
first place. Grove, 2008 ND 155, ¶ 13, 755 N.W.2d 485 (quoting State v. Fields,
2003 ND 81, ¶ 8, 662 N.W.2d 242) (cleaned up). As the Supreme Court
The predicate permitting seizures on suspicion short of probable
cause is that law enforcement interests warrant a limited
intrusion on the personal security of the suspect. The scope of the
intrusion permitted will vary to some extent with the particular
facts and circumstances of each case. This much, however, is clear:
an investigative detention must be temporary and last no longer
than is necessary to effectuate the purpose of the stop. Similarly,
the investigative methods employed should be the least intrusive
means reasonably available to verify or dispel the officer’s
suspicion in a short period of time. It is the State’s burden to
demonstrate that the seizure it seeks to justify on the basis of a
reasonable suspicion was sufficiently limited in scope and duration
to satisfy the conditions of an investigative seizure.
Grove, at ¶ 13 (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). This Court
has applied the Terry 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 (citing State v. Mercier, 2016 ND 160, ¶ 8, 883
N.W.2d 478).
We have articulated the Terry test as requiring a determination of
whether the facts warranted the intrusion of the individual’s
Fourth Amendment rights, and if so, whether the scope of the
intrusion was reasonably related to the circumstances which
justified the interference in the first place. Mercier, at ¶ 9 (citing
State v. Sarhegyi, 492 N.W.2d 284, 286 (N.D. 1992)). “We use an
objective standard: would a reasonable person in the officer’s
position be justified by some objective evidence in believing the
defendant was, or was about to be, engaged in unlawful activity?”
State v. Boyd, 2002 ND 203, ¶ 14, 654 N.W.2d 392.
Casson, at ¶ 14.
[¶17] Relevant to this case, we have said that a law enforcement officer does
not need reasonable suspicion to approach an already stopped vehicle. See
Olson v. Levi, 2015 ND 250, ¶ 9, 870 N.W.2d 222 (citing Abernathey v. Dep’t of
Transp., 2009 ND 122, ¶¶ 8-9, 768 N.W.2d 485). We have also held that it is
reasonable for an officer to knock on a vehicle’s window because “[b]y knocking,
an officer is doing ‘no more than any private citizen might do.’” Bridgeford v.
Sorel, 2019 ND 153, ¶ 10, 930 N.W.2d 136 (quoting Florida v. Jardines, 569
U.S. 1, 8 (2013)); see also Rist v. N.D. Dep’t of Transp., 2003 ND 113, ¶ 10, 665
N.W.2d 45; City of Fargo v. Sivertson, 1997 ND 204, ¶ 10, 571 N.W.2d 137.
[¶18] The district court found that deputies saw Casatelli leave the residence
of the reported loud party, get into a vehicle, and start the engine. After
Casatelli exited the vehicle, a deputy introduced himself and asked about the
party, and Casatelli said he was a friend of the individuals having the party.
The deputy specifically testified that he could smell an odor of alcohol coming
from Casatelli’s breath; that Casatelli had bloodshot, watery eyes; and that his
speech was slurred. These facts, coupled with the fact that deputies had just
observed Casatelli leaving a suspected house party, getting into a vehicle, and
starting the engine, were sufficient to provide the deputies a reasonable and
articulable suspicion that he had committed the offense of actual physical
control, justifying further investigative detention.
[¶19] The record also shows that Casatelli accompanied the deputies back to
the house and that the house sitter consented to the deputies’ entrance to the
house and backyard. A deputy testified that Casatelli agreed to accompany the
deputies in walking up to the front door of the residence. Casatelli also testified
at the hearing and did not dispute this, testifying only that he did not feel free
to leave when a deputy later told him to come with him after they had been in
the backyard. While Casatelli may have voluntarily followed the deputies into
the backyard of the residence, this did not remove the reasonable suspicion
regarding his earlier actions of getting into a vehicle and starting the engine.
Moreover, it does not establish that the deputies did not enter the backyard
without consent or that Casatelli had a reasonable expectation of privacy in
that area.
[¶20] It is well established that “[w]arrantless and non-consensual searches
and seizures made inside a home are presumptively unreasonable.” Kinsella v.
State, 2013 ND 238, ¶ 10, 840 N.W.2d 625 (citing Payton v. New York, 445 U.S.
573, 586 (1980)); see also State v. Uran, 2008 ND 223, ¶ 6, 758 N.W.2d 727;
State v. Graf, 2006 ND 196, ¶ 9, 721 N.W.2d 381. Notwithstanding this
presumption, however, consent is “one of the specifically established exceptions
to the requirements of both a warrant and probable cause.” Kinsella, at ¶ 10
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)); see also Uran,
at ¶ 6; Graf, at ¶ 10. While Payton did not deal with whether an initial
consensual entry would justify a subsequent warrantless arrest, courts have
held that a valid and voluntary consent may be followed by a warrantless in-
home arrest and that a third party with common authority over the premises
may give consent to enter. See United States v. Briley, 726 F.2d 1301, 1303-04
(8th Cir. 1984); United States v. Purham, 725 F.2d 450, 455 (8th Cir. 1984);
United States v. Shigemura, 682 F.2d 699, 706 (8th Cir. 1982); see also United
States v. Stokes, 631 F.3d 802, 807-08 (6th Cir. 2011) (quoting Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990)) (“[A] warrant is not required when the
officers obtain consent to enter from the suspect or ‘from a third party who
possesses common authority over the premises.’”).
[¶21] Under the totality of the circumstances, we conclude the deputies
developed a reasonable and articulable suspicion that Casatelli committed the
offense of actual physical control while in the driveway of the residence, before
the deputy asked him to leave the backyard to conduct field sobriety tests.
During their initial interaction in the driveway, the deputy observed several
indicators of impairment and developed reasonable suspicion that Casatelli
committed the offense of actual physical control. We further conclude that
Casatelli did not have a reasonable expectation of privacy in the backyard of
the house. We conclude the district court did not err in denying Casatelli’s
motion to suppress.

Outcome: We have considered Casatelli’s remaining arguments and conclude they
are either unnecessary to our decision or without merit. The corrected criminal
judgment is affirmed.

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