                Filed 3/15/19 by Clerk of Supreme Court
                       IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 83


Morgan Lies,                                                             Appellant

      v.

North Dakota Department of Transportation,                                Appellee


                                  No. 20180393


      Appeal from the District Court of Ramsey County, Northeast Judicial District,
the Honorable Donovan J. Foughty, Judge.

      REVERSED.

      Opinion of the Court by VandeWalle, Chief Justice.

      Joseph R. Vetsch, Devils Lake, ND, for appellant.

      Michael T. Pitcher, Office of Attorney General, Bismarck, ND, for appellee.
                       Lies v. N.D. Dep’t of Transportation
                                    No. 20180393


       VandeWalle, Chief Justice.
[¶1]   Morgan Lies appealed from a district court judgment affirming a Department
of Transportation decision suspending his driving privileges for ninety-one days. Lies
argues the hearing officer’s decision violated his constitutional rights because neither
the arresting officer nor the officer who received the tip had a reasonable and
articulable suspicion Lies was violating the law prior to being stopped. We conclude
the record does not support the administrative officer’s conclusion that the vehicle
was properly identified prior to being stopped. We reverse.


                                           I
[¶2]   An off-duty officer, Laite, saw a vehicle driving erratically from Ed’s Bait
Shop on Highway 20 in Devils Lake and reported it to the Highway Patrol. On-duty
officer Mlynar handled the tip, which identified the vehicle only as a “white HHR.”
Laite did not report a license plate number, description of the driver, or provide
ongoing location information. Within half an hour, Mlynar began watching a white
HHR and told another officer, Rodriquez, about the tip while surveilling the vehicle
in a McDonald’s drive-thru. Shortly after, Mlynar lost track of the vehicle on
Highway 2. Approximately fifty-five minutes after Laite’s tip, Rodriquez encountered
a white HHR on Highway 2. Mlynar instructed Rodriquez to stop the vehicle. Lies
was the driver of the white HHR Rodriquez stopped. After failing field sobriety tests
and an initial screening test, Lies was arrested for driving under the influence. Lies’
Intoxilyzer breath test result was 0.12 percent.
[¶3]   At the administrative hearing, the hearing officer determined the central issue
was whether Mlynar had a reasonable and articulable basis to direct Rodriquez to stop
Lies’ vehicle. Rodriquez testified she did not observe any traffic violations or erratic
driving and her sole reason for stopping Lies’ vehicle was the off-duty officer’s

                                           1
earlier report. The hearing officer determined there was no evidence Mlynar could
corroborate erratic driving through his own observation or that he directly observed
any illegal activity. However, because Laite was a reliable source of information,
Mlynar located a white HHR in the general vicinity of the tip within half an hour, and
there was “no evidence the sighting of white HHRs is a common occurrence,” the
hearing officer determined Mlynar had reasonable suspicion to stop Lies’ vehicle.
Lies’ driving privileges were suspended for ninety-one days. Lies appealed the
hearing officer’s decision to the district court, which affirmed the suspension.


                                           II
[¶4]   Lies argues the tip that a white HHR was driving erratically, without additional
identifying information, did not provide reasonable suspicion to stop his vehicle. “The
Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs our review of an
administrative decision suspending or revoking a driver’s license.” Crawford v.
Director, N.D. Dep’t of Transp., 2017 ND 103, ¶ 3, 893 N.W.2d 770. Under N.D.C.C.
§ 28-32-49, we review an appeal from a district court judgment in an administrative
appeal in the same manner as provided under N.D.C.C. § 28-32-46, which requires
a district court to affirm an agency order unless it finds any of the following:
       1. The order is not in accordance with the law.
       2. The order is in violation of the constitutional rights of the appellant.
       3. The provisions of this chapter have not been complied with in the
       proceedings before the agency.
       4. The rules or procedure of the agency have not afforded the appellant
       a fair hearing.
       5. The findings of fact made by the agency are not supported by a
       preponderance of the evidence.
       6. The conclusions of law and order of the agency are not supported by
       its findings of fact.
       7. The findings of fact made by the agency do not sufficiently address
       the evidence presented to the agency by the appellant.
       8. The conclusions of law and order of the agency do not sufficiently
       explain the agency’s rationale for not adopting any contrary
       recommendations by a hearing officer or an administrative law judge.
Koehly v. Levi, 2016 ND 202, ¶ 15, 886 N.W.2d 689; N.D.C.C. § 28-32-46.

                                           2
[¶5]   “Unreasonable search and seizures are prohibited by the Fourth Amendment
of the United States Constitution, applicable to the states through the Fourteenth
Amendment, and by Article 1, § 8 of the North Dakota Constitution.” State v.
Fasteen, 2007 ND 162, ¶ 6, 740 N.W.2d 60. An officer must have a reasonable and
articulable suspicion that a motorist has violated or is violating the law in order to
legally stop a vehicle. State v. Kenner, 1997 ND 1, ¶ 8, 559 N.W.2d 538. “Mere
curiosity, suspicion, vague hunches, or other non-objective facts will not suffice.”
City of Minot v. Keller, 2008 ND 38, ¶ 6, 745 N.W.2d 638. We use an objective
standard and look to the totality of the circumstances when reviewing whether an
investigative stop is valid. State v. Olson, 2007 ND 40, ¶ 11, 729 N.W.2d 132.
[¶6]   This Court does not make independent findings of fact or substitute its
judgment for that of the agency; rather, we determine only whether a reasoning mind
reasonably could have concluded the agency’s findings were supported by the weight
of the evidence from the entire record. Crawford, 2017 ND 103, ¶ 4, 893 N.W.2d 770.
Once the facts are established, their significance presents a question of law, which this
Court reviews de novo. Id. We review claimed violations of constitutional rights de
novo. Id.
[¶7]   We examine all information known to the officer at the time of the stop and
consider inferences and deductions an investigating officer would make which may
elude a layperson. State v. Mohl, 2010 ND 120, ¶ 7, 784 N.W.2d 128. In its decision,
a hearing officer can draw reasonable inferences from the evidence presented using
common sense and experience. Schock v. North Dakota Dep’t of Transp., 2012 ND
77, ¶ 19, 815 N.W.2d 255. However, the moving party bears the burden of proving
their case. Morrell v. North Dakota Dep’t of Transp., 1999 ND 140, ¶ 14, 598 N.W.2d
111.
[¶8]   Here, the administrative hearing officer stated “[t]here is no evidence the
sighting of white HHRs is a common occurrence, such as seeing a white pickup would
be.” However, neither party presented evidence at the administrative hearing
regarding whether white HHRs are a common vehicle. The burden was on the

                                           3
Department, not Lies, to prove the officers in this case had probable cause to stop
Lies’ vehicle. Until the Department enters evidence showing HHRs are not a common
vehicle, the burden does not shift to Lies. See Thorsrud v. Director, N.D. Dep’t of
Transp., 2012 ND 136, ¶ 10, 819 N.W.2d 483 (explaining defendant’s burden after
prima facie evidence is entered). Because the hearing officer received no evidence on
the issue, the hearing officer’s conclusion that white HHRs are not a common vehicle
is not supported by a preponderance of the evidence. It was improper for the hearing
officer to rely on an unsupported conclusion to decide the officers had reasonable
suspicion to stop Lies’ vehicle.


                                          III
[¶9]   Additionally, Mlynar began watching a white HHR within half an hour of
Laite’s tip. Only a vague description of the color and model of a vehicle is not enough
for a positive identification. See State v. Neis, 469 N.W.2d 568, 570 (N.D. 1991)
(reasonable suspicion present where caller described pickup by color, high antenna,
license number, identified its location, described the erratic driving, and gave her
name); State v. Miller, 510 N.W.2d 638, 644 (N.D. 1994) (reasonable suspicion not
present where caller gave general type, direction, and license number of the vehicle
but misidentified its color and only gave some indication about possible criminal
activity); Anderson v. Director, N.D. Dep’t of Transp., 2005 ND 97, ¶ 19, 696
N.W.2d 918 (reasonable suspicion not present where easily identifiable informant
reported license plate number, color, and make of vehicle but dispatcher did not tell
officers suspect hit cones in construction zone). A “mere hunch” that Lies’ vehicle
was the one Laite saw “is not enough to justify the detention of a motorist.” Kappel
v. Director, N.D. Dep’t of Transp., 1999 ND 213, ¶ 7, 602 N.W.2d 718.
[¶10] This case is distinguishable from other cases where we have found a limited
amount of information sufficient to properly identify a vehicle. In State v. Bryl, a gas
station attendant called in a suspected drunk driver at 2:35 a.m. but did not identify
the vehicle by color or license plate number. 477 N.W.2d 814, 816 (N.D. 1991).

                                           4
Instead, the attendant told police the vehicle was parked in the gas station parking lot,
stated the vehicle was a pickup, and described the driver as being intoxicated. Id. at
815. An officer arrived at the scene two minutes later and observed a pickup just
leaving the lot. Id. at 816. In finding the officer had articulable suspicion to pull the
vehicle over, this Court relied on the officer’s arrival on the scene within two minutes
of the tip. Based on the quick response time, the only other vehicle in the parking lot
being known to belong to a gas station employee, and the late hour, this Court held
“it was reasonable to determine that the pickup leaving the lot was the pickup in
question.” Id. at 817.
[¶11] Here, it is unclear from the record when Mlynar began watching a white HHR.
The record only establishes that within half an hour of the tip, Mlynar was surveilling
a white HHR in the McDonald’s drive-thru. Approximately half an hour later, after
Mlynar lost the surveilled vehicle on Highway 2, Rodriquez pulled up behind a white
HHR on Highway 2. Mlynar instructed Rodriquez to stop the vehicle. Rodriquez
testified there was no way of knowing the vehicle she stopped was the same white
HHR from Laite’s tip. Unlike Bryl, where the officer responded within two minutes
and stopped a vehicle at the location provided in the vague tip, officers in this case did
not stop the vehicle for almost an hour after the tip. Even though Mlynar was
observing a white HHR within half an hour of the tip, the record does not provide
evidence of when or where that surveillance began. Based on the record, the basic
description provided by Laite 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 Lies’
vehicle.




                                           IV

                                            5
[¶12] We reverse the district court’s judgment.
[¶13] Gerald W. VandeWalle, C.J.
      Jon J. Jensen
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte




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