                 Filed 6/2/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 123

State of North Dakota,                                Plaintiff and Appellant
     v.
Jordan Selzler a/k/a Jordan Selzer,                  Defendant and Appellee

                                No. 20190355

State of North Dakota,                                Plaintiff and Appellant
     v.
Kelsey A. Jankowski,                                 Defendant and Appellee

                                No. 20190357

Appeal from the District Court of McLean County, South Central Judicial
District, the Honorable Daniel J. Borgen, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Ladd R. Erickson, State’s Attorney, Washburn, ND, for plaintiff and appellant;
submitted on brief.

William R. Thomason, Bismarck, ND, for defendant and appellee Jordan
Selzler a/k/a Jordan Selzer; submitted on brief.

Robert N. Quick, Bismarck, ND, for defendant and appellee Kelsey A.
Jankowski; submitted on brief.
                   State v. Selzler; State v. Jankowski

                         Nos. 20190355 & 20190357

Jensen, Chief Justice.

[¶1] The State of North Dakota appeals from the suppression of evidence in
criminal proceedings initiated against Jordan Selzler and Kelsey Jankowski.
The criminal charges against Selzler and Jankowski arise from evidence
gathered during the same traffic stop, the hearing on the motions to suppress
evidence was held jointly, and the cases have been consolidated for purposes of
this appeal. The State argues the district court incorrectly found the traffic
stop was unlawful because law enforcement lacked reasonable suspicion for
the stop. We affirm the suppression of the evidence gathered after the traffic
stop.

                                      I

[¶2] At approximately 3:00 a.m. on May 1, 2019, a McLean County Deputy
Sheriff was completing paperwork while parked in the lot of a gas station and
convenience store where the gas pumps were still legally accessible, but the
facility itself was closed. Jankowski was the passenger in a vehicle that drove
into the lot and pulled up to the pumps. Jankowski exited the vehicle and
walked toward the closed convenience store. After watching Jankowski walk
toward the building, the deputy resumed working on his report.

[¶3] The deputy decided to inquire if Jankowski was alright after she had
remained by the building for about five to ten minutes. The deputy drove his
vehicle up to Selzler and Jankowski’s vehicle. Upon reaching Jankowski and
Selzler’s vehicle, the deputy observed Selzler sitting in the driver’s seat. At
about the same time, Jankowski quickly walked back to Selzler and
Jankowski’s vehicle. The deputy believed both Selzler and Jankowski were
exhibiting nervous behavior. In response to the deputy’s inquiry if everything
was alright, Jankowski replied that she was making a phone call. The deputy
considered her answer suspicious because she was not holding a phone. The
deputy drove a short distance away, but remained in a location where he could
observe Selzler and Jankowski’s vehicle.

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[¶4] After what the deputy considered “quite some time,” Selzler and
Jankowski left the gas station. As they left the gas station their vehicle
accelerated quickly, causing the front of the vehicle to visibly rise up. Their
vehicle then made what the deputy described as a “hard brake” at a stop sign.
After stopping, the vehicle paused briefly, signaled to turn, paused briefly
again, and then proceeded onto the adjacent highway. The deputy did not
believe the length of pauses were necessary because of the lack of traffic on the
highway.

[¶5] The deputy followed Selzler and Jankowski’s vehicle and initiated a
traffic stop. The deputy did not observe any traffic violations. During the
hearing on the motion to suppress the State argued the deputy had some
“indication of some offense potentially happening, we don’t know what.” The
State also argued the deputy had a belief “[t]here’s some violation of law
happening.” The deputy indicated the traffic stop was initiated after he
observed the suspicious reactions of Selzler and Jankowski when he
approached their vehicle, their presence at the gas station at 3:00 a.m.,
Jankowski’s statement she was making a phone call when no phone was
visible, the odd (but lawful) driving behavior when the vehicle left the gas
station, and the fact the gas cap on the vehicle remained open after they left
the gas station.

[¶6] The court granted the motions and suppressed evidence seized
subsequent to the traffic stop. The court found the stop to be invalid because
the deputy did not have a reasonable and articulable suspicion Selzler or
Jankowski had violated or were about to violate the law. The State asserts the
district court erred in suppressing the evidence seized after the traffic stop.

                                       II

[¶7] A valid investigatory traffic stop requires the officer conducting the stop
to have “a reasonable and articulable suspicion the motorist has violated or is
violating the law.” State v. Bornsen, 2018 ND 256, ¶ 5, 920 N.W.2d 314
(quoting Gabel v. N.D. Dep’t of Transp., 2006 ND 178, ¶ 9, 720 N.W.2d 433).
“Whether an officer had a reasonable and articulable suspicion is a fact-specific
inquiry that ‘is evaluated under an objective standard considering the totality

                                       2
of the circumstances.’” Id. “The question is whether a reasonable person in
the officer’s position would be justified by some objective manifestation to
suspect the defendant was, or was about to be, engaged in unlawful activity.”
State v. Asbach, 2015 ND 280, ¶ 12, 871 N.W.2d 820. “The determination of
whether the facts in a case support a reasonable suspicion is a question of law
which is fully reviewable on appeal.” Bornsen, at ¶ 5 (citing City of Dickinson
v. Hewson, 2011 ND 187, ¶ 6, 803 N.W.2d 814). We affirm the district court’s
decision unless we conclude there is insufficient competent evidence to support
the decision, or unless the decision goes against the manifest weight of the
evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D. 1994).

[¶8] “Although we have recognized that the concept of reasonable suspicion
is not readily reduced to a neat set of legal rules, it does require more than a
‘mere hunch.’” Salter v. N.D. Dep’t of Transp., 505 N.W.2d 111, 114 (N.D. 1993)
(internal quotations omitted). “An investigative stop of a moving vehicle must
be justified by some objective manifestation that the person stopped is, or is
about to be, engaged in criminal activity, and mere curiosity, suspicion, vague
hunches, or other non-objective facts will not suffice.” Id.

[¶9] This Court has recognized traffic violations, regardless of how minor,
provide a lawful basis for a traffic stop. Bornsen, 2018 ND 256, ¶ 6, 920 N.W.2d
314 (affirming a judgment entered after the denial of a motion to suppress
where the traffic stop was initiated after the observation of a minor traffic
violation). We have also recognized the validity of a traffic stop in the absence
of a traffic violation and where the law enforcement officer’s observations have
been limited to lawful activity, when the officer has articulated suspicion of a
particular unlawful activity. Kappel v. Director, N.D. Dep’t of Transp., 1999
ND 213, ¶ 19, 602 N.W.2d 718 (a prolonged stop at a traffic sign and weaving
within the driver’s lane of traffic were not unlawful, but officer articulated he
suspected the driver of driving while under the influence based on the driving
behavior and his prior experience). In Kappel, the law enforcement officer
articulated that his observations of the driving behavior, although lawful,
coupled with his experience which included approximately 160 prior driving
while under the influence arrests, led him to suspect the driver was engaged
in the unlawful act of driving while under the influence. Id. at ¶ 11. We have

                                       3
however recognized a traffic stop may be invalid in the absence of a traffic
violation when the officer does not have reasonable suspicion of unlawful
activity. Salter v. N.D. Dep’t of Transp., 505 N.W.2d 111, 114 (N.D. 1993). In
Salter, the law enforcement officer’s observation of the driver driving slower
than the speed limit and making slight weaves within the lane, did not support
a reasonable suspicion that the driver was impeding traffic, and the officer’s
characterization of the driving as erratic did not provide additional
justification. Id.

[¶10] The court found the deputy did not have reasonable, articulable
suspicion sufficient to justify the stop of Selzler and Jankowski’s vehicle. The
court found the facts and testimony presented at the hearing suggested the
deputy had a “mere hunch” of illegal activity. The court noted neither Selzler
nor Jankowski had done anything unlawful and, even when considering the
totality of the circumstances, there was nothing more than a mere hunch
criminal activity was afoot. In reaching its finding, the court noted the State
had not articulated or demonstrated any clear reasonable suspicion.

[¶11] The court specifically inquired about what potential criminal activity the
deputy suspected Selzler and Jankowski were engaging in. The State argued
the deputy had some “indication of some offense potentially happening, we
don’t know what” and also argued the deputy had a belief “[t]here’s some
violation of law happening.” The deputy had already approached the vehicle
at the gas station and did not initiate a stop. The vehicle subsequently left the
gas station, and although suspicious driving was observed, no traffic violations
were observed. What potential criminal activity was suspected is not self-
evident from the record. Under the circumstances of this case, the failure to
articulate even a general category of potential criminal activity Selzler and
Jankowski may have been engaged in leads us to the conclusion there is
sufficient competent evidence in the record to support the court’s decision, and
the court’s decision does not go against the manifest weight of the evidence.

                                      III

[¶12] The district court’s finding the traffic stop was unlawful because law
enforcement lacked reasonable suspicion for the stop is supported by sufficient

                                       4
competent evidence and does not go against the weight of the evidence. We
affirm the district court’s order granting Selzler and Jankowski’s motions to
suppress evidence subsequent to the traffic stop of their vehicle.

[¶13] Jon J. Jensen, C.J.
      Lisa Fair McEvers
      Gerald W. VandeWalle
      Jerod E. Tufte
      Daniel J. Crothers




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