by Anthony W. Accurso

The Supreme Court of North Dakota upheld the suppression of evidence obtained from a warrantless backpack search because neither the automobile nor the search incident to arrest exception applied, and the inevitable discovery doctrine didn’t apply.

On August 28, 2019, Nicholas Lelm was a passenger in a vehicle stopped by a City of Mandan police officer. Upon discovering the driver had outstanding warrants, the officer arrested the driver and called for backup and a drug-detection dog to search the vehicle. The driver also consented to a search of the vehicle, where officers eventually recovered drugs, drug paraphernalia, and a gun.

During the driver’s encounter with officers, Lelm remained seated in the front passenger’s seat with his backpack on his lap. Once the drug-detection dog arrived, Lelm was asked to exit the vehicle. He exited as directed, taking his backpack with him and laid it on the ground “some distance from the vehicle.” The officers then detained him in the rear of a squad car after pat-searching him. His backpack was not on his person or within his reach and was not searched at that time.

Afterwards, the drug-dog alerted to the presence of drugs in the vehicle, but it never paid any attention to the backpack while on scene. Following up on the dog’s alert, officers located glass pipes, drugs, and a gun in the vehicle. Officers then searched Lelm’s backpack, which was located outside the vehicle at the time, and discovered cannabis and drug paraphernalia. After being notified of his arrest, Lelm complained of chest pains and requested medical assistance. He was transported by ambulance to the hospital.

Lelm was indicted based on the contents of his backpack. He then sought to suppress the evidence on the ground that the search was executed without a warrant and not pursuant to a valid exception to the Fourth Amendment’s warrant requirement.

After a hearing, the district court found that the State failed to establish the search was justified under either the “automobile” or “search incident to arrest” exceptions, as argued by the State, nor that the contents should have been admitted under the “inevitable discovery doctrine.” The district court granted Lelm’s motion to suppress, and the State filed an interlocutory appeal.

The Court began its analysis by observing that searches by police are covered by the warrant requirement of the Fourth Amendment to the U.S. Constitution and Article I, Section 8 of the North Dakota Constitution. State v. Casson, 932 N.W.2d 380 (N.D. 2019). The government must obtain a search warrant to search an area in which a person has a reasonable expectation of privacy, unless a recognized exception to the warrant requirements applies. State v. Pogue, 868 N.W.2d 522 (N.D. 2015). Evidence obtained by a search absent a warrant, or pursuant to a valid exception to the warrant requirement, must be suppressed. Id. The State has the burden of establishing that a warrantless search falls within a recognized exception. State v. Zacher, 868 N.W.2d 847 (N.D. 2015).

The State first argued that the backpack was subject to a warrantless search because it was inside the vehicle when it was stopped, but the Court rejected that argument. “Under the automobile exception, officers may, when probable cause exists, search a vehicle for illegal contraband without a warrant.” Citing State v. Lark, 902 N.W.2d 739 (N.D. 2017). This includes any containers located inside the vehicle (such as a backpack) at the time probable cause arises. See State v. Reis, 842 N.W.2d 845 (N.D. 2014).

The Court noted that the backpack was not located inside the vehicle at the time probable cause was established as a result of the drug-detection dog’s alerting to the presence of drugs. At that point, there was probable cause to search the interior of the vehicle and any containers located therein. However, the backpack was not located inside the vehicle at the time of the probable cause arose via the dog’s alert. Thus, the Court ruled that the officers lacked probable cause to search the backpack and that the automobile exception didn’t apply.

Next, the State argued that, because Lelm was detained, his backpack was subject to search under the search incident to arrest exception. However, such a search only covers “the arrestee’s person and the area within his immediate control.” Arizona v. Gant, 556 U.S. 332 (2009) (quoting Chimel v. California, 395 U.S. 752 (1969)). This serves the dual purposes of “remov[ing] any weapons [the arrestee] might seek to use” and “prevent[s] [the] concealment or destruction of evidence.” Id. Accordingly, “[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.” Id.

The Court noted that the backpack wasn’t within Lelm’s reach when it was searched. And the trial court made specific findings based on testimony from officers at the scene that the backpack wasn’t searched for officer safety concerns, and since Lelm couldn’t reach the backpack, there weren’t any concerns regarding the destruction or concealment of evidence. Thus, the Court ruled that the search incident to arrest exception doesn’t apply.

The State’s final argument was that the search of the bag was inevitable because, to protect ambulance staff, the ambulance company’s policy requires police to search any property transported with a patient, i.e., the inevitable discovery doctrine.

The inevitable discovery doctrine permits the use of evidence obtained through an unlawful search “where it is shown that the evidence would have been gained even without the unlawful action.” State v. Hollis, 930 N.W.2d 171 (N.D. 2019). Under the state Constitution, the inevitable discovery is assessed under the two-part test articulated in State v. Holly, 833 N.W.2d 15 (N.D. 2013): “First, use of the doctrine is permitted only when police have not acted in bad faith to accelerate discovery of the evidence in question. Second, the State must prove that the evidence would have been found without the unlawful activity and must show how the discovery of the evidence would have occurred.”

Lelm didn’t argue that police acted in bad faith when they searched his backpack, so the first prong of the test was satisfied, the Court stated. So whether the doctrine applies hinged on the second prong. During the suppression hearing, testimony by the officers revealed that Lelm would have still have had the option of denying consent to the search of his backpack and could have declined to have it transported with him. However, there’s nothing in the record to establish what would have happened to the backpack if it hadn’t already been searched, i.e., placed into a patrol car, someone could pick it up from the police station for Lelm, placed in the ambulance even without Lelm consenting to a search of it, or something else. Based on these facts, the Court ruled that the State failed to establish that the evidence inside the backpack would have inevitably been discover absent the unlawful search, and thus, the inevitable discovery doctrine doesn’t apply.  

The Court explained that Lelm had a reasonable expectation of privacy in his backpack and that the automobile exception, search incident to arrest exception, and the inevitable discovery doctrine didn’t apply. Thus, the Court ruled that evidence discovered during the unlawful search of the backpack must be suppressed under the exclusionary rule.

Accordingly, the Court affirmed the district court’s order. See: State v. Lelm, 962 N.W.2d 419 (N.D. 2021). 

Editor’s note: Whether the driver’s consent was even required in this case notwithstanding since he wasn’t the subject of the Court’s opinion, it remains an enduring mystery why people consent to a search when they know that the item or area to be searched does, in fact, contain contraband or other incriminating evidence. People who consent in these situations often say that they didn’t want to appear suspicious, seem as though they have something to hide, or look guilty. Is granting consent to search and thereby removing all doubt regarding the foregoing concerns the best decision? If law enforcement is asking for consent to search, it’s because consent is required; otherwise, they wouldn’t be asking—they’d be searching. Always keep in mind that there’s absolutely nothing wrong with declining to waive one’s Fourth Amendment rights by clearly stating, “I do not give my consent to search.” 

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