City of Jamestown v. Santos Regalado Casarez, III

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.

The criminal judgment is affirmed.